BALANCING SELF-DETERMINATION
AND TERRITORIAL INTEGRITY: THE
USEFULNESS OF UTI POSSIDETIS
JURIS FOR DRAWING UP BORDERS
IN 2018
Abstract
This thesis assesses the role of the Uti Possidetis Juris principle for the drawing up of new state borders and its suitability for contemporary international law. It is posited that it is possible to conceive of Uti Possidetis as a balancing mechanism for the International Law concepts of Self-Determination and Territorial Integrity; however, due to the 19th Century Origins of Uti Possidetis, it leans too far in favour of the latter. A critical analysis of the principle leads to the conclusion that whilst it entails significant advantages, its approach to borders is too rigid and inflexible, which often leads both to the prevention of the fulfillment of the self-determination right and significant human suffering. With this in mind, a modification of the Uti Possidetis principle is suggested in order to ensure its continued appropriateness for 2018 and beyond. The suggested modification looks to include more equitable factors in drawing Uti Possidetis borders, allowing a context-sensitive, case-by-case approach.
Max Dowbenko
Public international Law LLM Word Count: 13000 Date of Submission: 27/07/2018Contents
1 - Introduction...2
2 – Understanding Self-determination, Territorial Integrity and Uti Possidetis Juris...4
2.1 – Self-determination...4
2.2 – Territorial Integrity...8
2.3 – Uti Possidetis...9
3 – A Critical Analysis of Uti Possidetis Juris...13
3.1 – Internal Consistency...13
3.2 – Consistency with self-determination and other principles of International Law...14
3.3 – Stability...16
3.4 – A ‘One-size-fits-all’ Approach...18
4.0 – The Future of Borders and Uti Possidetis Juris...21
4.1 – Future Development of the Principle...21
4.1.1 – Two Possible Adaptations...23
4.2 – Factors for the Future of Border Delimitation – an ‘Equitable toolbox’...25
4.2.1 – A Renewed Role for Self-determination...25
1 -
Introduction
Controversy over the role of Uti Possidetis in the international legal system is not new. The principle, which originated in the 19th Century, has a complicated and overtly discordant
relationship with territorial integrity and, especially, self-determination. Self-determination in international law has an arguably even more innate clash with the institution of statehood itself, as acknowledged by Koskenniemi in 1994:
National self-determination, then, has an ambiguous relationship with statehood as the basis of the international legal order. On the one hand, it supports statehood by providing a connecting explanation for why we should honour existing de facto boundaries and the acts of the State's power-holders as something other than gunman's orders. On the other hand, it explains that statehood per se embodies no particular virtue and that even as it is useful as a presumption about the authority of a particular territorial rule, that presumption may be overruled or its consequences modified in favour of a group or unit finding itself excluded from those positions of authority in which the substance of the rule is determined.1
Self-determination as defined in United Nations General Assembly Resolution 1514 is the right of all ‘peoples’ to freely determine their political status and freely pursue their
economic, social and cultural development.2 If this cannot be achieved internally, then a right
to independence from the alien subjugating state and the formation of a new state entity for such peoples may be possible. The Uti Possidetis principle maintains that, in such a scenario, the borders of the new state will be drawn up on the position of the internal administrative lines of the larger state prior to independence. This in theory allows for a ‘peoples’ located in one area of a state to break away and self-govern if necessary to achieve self-determination, but also protects territorial integrity, consecrating borders and preventing the outright deconstruction of territorial entities and the state in order to accommodate the interests of peoples. However, this in many cases has been deeply problematic, both in its functional consistency as a principle of international law and in its actual suitability to large parts of the modern world. Moreover, Uti Possidetis’s 19th Century origins expose it as a relic of an era in
1 Martti Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and practice’, 43 The International and Comparative Law Quarterly 241, 248
which the state possessed a far more esteemed position in international law in comparison to the more individual-focused law of the 21st Century.
This piece looks to a novel approach to the Uti Possidetis question, seeking to find a suitable balance for the contemporary international picture. Rather than a strict, rigid process, it is suggested that a more context-sensitive approach focusing particularly on a fair and equitable end result is desirable for the future of border demarcation. At present, numerous secessionist movements exist around the world, from those with minority local support, such as the Basque movement,3 to those on the cusp of Statehood – see Kosovo. This thesis does not seek
to exhaustively examine each movement; rather, it points to a more desirable solution of border demarcation in the event that any one of these movements succeeds and statehood is achieved. Implicit within this is the acknowledgement that such movements are often unique and that border delimitation must be flexible in order to accommodate the very different cultures and conditions across regions and continents.
At present, Uti Possidetis’s procedure is held quite inflexibly upon independence. For example, the Republic of Latvia’s international borders on its obtaining of independence in 1991 are the same as the borders of the Latvian Soviet Socialist Republic within the Soviet Union. The principle undoubtedly has merit: as described in Section 4, it can be hugely stabilising for new states inter alia. However, it is posited here that the principle of Uti
Possidetis can be adapted in order to bring different factors for determining borders on a
case-by-case basis. There are two separate ways, with equal merit, in which this is possible: firstly, by making Uti Possidetis only a temporary solution enabling immediate stability until more permanent borders are established; secondly, by introducing within the Uti Possidetis process a prior step in which it is examined whether the reasons for drawing
pre-independence lines were truly administrative – if not, then other factors can be included within the process of drawing the borders of the new state. Following the temporary
application of Uti Possidetis or its disapplication, a ‘toolbox’ of equitable factors which can be considered on a case-by-case basis is suggested, including inter alia the use of referenda, ethnic considerations and regional interests.
In many ways, the questioning of border demarcation and the resulting examination of Uti
Possidetis feeds into arguably the most omnipresent debate in international law, of the
3 Patrick Kingsley, ‘As Catalonia Crisis Deepens, Many Basques Wary of New Independence Bid’ (The New York Times, 28 October 2017) <https://www.nytimes.com/2017/10/28/world/europe/spain-catalonia-basque-independence.html> accessed 1 July 2018
interests of the state against the interests of the individual. However, the picture is in fact much more nuanced than this, as the interests of both the state entity and of the individual are multi-faceted and vary dramatically from case to case. Sequentially, a formulation of Uti
Possidetis with sufficient nuance and flexibility is necessary for the modern world. It is
therefore necessary to develop such an important principle of international law in order to suit contemporary international society, protecting individuals, groups and states. This thesis will attempt to do so as follows. In Section 2, the nature of Uti Possidetis, territorial integrity and self-determination and the relationship between the three will be examined. Subsequently, Section 3 will look to a critical analysis of Uti Possidetis through the lenses of its internal consistency, its compatibility with self-determination, its stabilising effects and its one-size-fits-all approach. Finally, Section 4 will suggest a two possible methodologies for the alteration of Uti Possidetis and a number of equitable considerations that may be used in the alternative.
2 – Understanding Self-determination, Territorial Integrity and Uti Possidetis Juris
2.1 – Self-determination
Self-determination, defined as the right of peoples to freely determine their status and freely pursue their economic, social and cultural development, has played an important yet shifting role in international law since its inception in the 19th Century.4 Several international law
documents highlight the fundamental position self-determination holds for the international legal community. After coming into mainstream discourse in the interbellum period in which it was advocated by both Lenin and Woodrow Wilson, the UN Charter suitably escorted self-determination into contemporary international law. Article 1(2) lists as one of the purposes of the United Nations: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”.5 Following WWII, the process of decolonisation
was instigated by the concept of self-determination. Elsewhere within the Charter, Articles 55, 73 and 76(b) espouse the self-determination right.6 UNGA Resolutions 1514 and 1541
were followed by Common Article 1 of the ICCPR and ICESCR, which enunciated
self-4 International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171 (ICCPR) art 1; International Covenant on Economic, Social and Cultural Rights ((adopted 16 December 1966, entered into force 23 March 1976) 993 UNTS 3 (ICESCR) art 1
5 Charter of the United Nations (24 October 1945) 1 UNTS XVI 6 Ibid
determination as a definitive human right.7 The Friendly Relations Declaration of 1970 has
been argued by Higgins to extend the right of self-determination beyond the entitlement from not merely subjugation to colonial rule but to any alien subjugation.8
Self-determination is indisputably part of modern international law. Burri and Thurer state that “the point at issue seems to be to what extent the principle operates as a legal right in contemporary international law and what other – more indirect – legal consequences may be attributed to it”.9 Higgins asserts that “the very concept of a legal right to self-determination
in a post-colonial situation has proved controversial but its existence cannot really be doubted”.10 The Friendly Relations Declaration’s conception of self-determination was not
limited to colonialism, and in Rosalyn Higgins’ separate opinion in Israeli Wall, an expansion beyond colonialism was indicated.11
The uncertainty around self-determination leads to a risk of its cynical manipulation. Hannum considers: “self-determination claims did not start at the end of the cold war, as numerous conflicts in Africa and Asia remind us. But we do need to guard against the usurpation of the slogan and the symbol of self-determination and its use as a purely partisan political tool by both governments and disaffected peoples”.12 This warning is merited – there is a risk of
self-determination becoming little more than a ‘catchphrase’ to be used impulsively by such groups when it serves their own interests. A recent example is Vladimir Putin’s employment of ‘self-determination’ focused language in justifying the illegal Russian annexation of Crimea.13Non-genuine self-determination claims undermine self-determination and its
relationship with territorial integrity, Uti Possidetis and borders, weakening the normative structures in this area of international law. There is a need therefore to prevent such claims as far as possible.
7 ICCPR/ICESCR (n 4); UNGA Res 1514 (n 2); UNGA Resolution 1541 (XV) (15 December 1960) UN Doc A/RES/1541 (XV)
8 Rosalyn Higgins, ‘Self-determination and Secession’ in Rosalyn Higgins (ed) Themes and Theories: Selected
Essays, Speeches and Writings in International Law (OUP 2009) 962; UNGA Res 2625 (XXV) (24 October
1970) UN Doc A/RES/25/2625
9 D Thürer & T Burri ‘Self-determination’ (2008) Max Planck Encyclopaedia of Public International Law 10Higgins (n 8)
11 Legal Consequences of the Construction of a Wall (Advisory Opinion) (Separate Opinion of Judge Higgins) [2004] <http://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-02-EN.pdf > accessed 21 July 2018 [30]
12 Hurst Hannum, ‘The Right of Self-determination in the 21st Century’ (1998) 55 Wash & Lee Law Review
772, 780
13 Address by President of the Russian Federation, President of Russia (Mar. 18, 2014), <http://eng.kremlin.ru/news/6889> accessed 20 April 2018
Hannum asserts confidently that self-determination is a human right, highlighting that the only legally binding documents where self-determination has been proclaimed are the ICCPR and ICESCR.14 If this is the case, then self-determination appears differentiated from every
other human right by the fact that it does not belong to individuals, but rather to collectivities known as ‘peoples’. The Helsinki Final Act of 1975, although non-binding, lends some support for the classification of self-determination as a human right.15 Moreover, the idea that
self-determination is of continuing applicability has been argued by the Committee on Human Rights itself, acting under the ICCPR.16 Categorising self-determination as a right
means it is necessary to identify the holder of such a right, the content of the right, and conversely who is the duty holder in relation to the right.17
Pellet notes that the UN Charter, whilst extending the right of self-determination to ‘all peoples’, does not provide a definition of ‘peoples’.18 During the process of decolonisation,
Uti Possidetis doctrine had made certain distinctions possible – ‘peoples’ would be the entire
population of the colonial entity.19 Some jurists posit a two-stage test for defining a
contemporary ‘peoples’: an objective test, determining to what extent the group members ‘share a common racial background, ethnicity, language, religion, history and cultural
heritage’ in addition to the ‘territorial integrity of the area the group is claiming’; followed by a subjective test examining ‘the extent to which individuals within the group self-consciously perceive themselves collectively as a distinct people’.20 Whilst the definition of peoples may
not be absolutely clear, it seems that the ICJ may sometimes be willing to accept a group as a peoples ‘without further ado’, as in Western Sahara, East Timor and The Wall, where the existence of a Western Saharan, Eastern Timorese and Palestinian people was pronounced without extensive discussion.21
In East Timor, the ICJ stated that the right of peoples to self-determination had an erga
omnes character.22 In The Wall case, the ICJ somewhat clarified third state obligations: “all
states are under an obligation not to recognise the illegal situation resulting from the
14 Hannum (n 12) 773
15 Organization for Security and Co-operation in Europe (OSCE), Conference on Security and Co-operation in
Europe (CSCE) : Final Act of Helsinki, 1 August 1975
16 Higgins (n 8) 963 17 Burri & Thürer (n 9)
18 Alain Pellet, ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the self-determination of Peoples’ (1992) 3 EJIL 178, 179
19 Burri & Thurer (n 9)
20 Michael Scharf, Earned Sovereignty: Juridical Underpinnings, (2003) 31 Denver Journal of International Law and Policy 373, 379
21 Burri & Thurer (n 9)
construction of the wall in the occupied Palestinian territory…They are also under an obligation not to render aid or assistance in maintaining the situation established by such construction”.23 Whilst the exact requirements for any ‘duty holder’ remain unclear, it
appears therefore that states not only have an obligation to not actively prevent the self-determination of peoples, but also to not recognise the acts of other states which do so. What exactly the self-determination right entails is also somewhat uncertain.24 Principle 5 of
the Friendly Relations Declaration gives alternatives: “the establishment of a sovereign and independent state, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”.25 Sterio highlights the
development of a binary self-determination right, depending upon the circumstances.26
External self-determination refers to secession and independence for a peoples from the ‘parent state’.27 In contrast, internal self-determination allows such peoples to freely
determine their status and pursue their economic, social and cultural development whilst remaining within their parent state. In a post-colonial world, internal self-determination is the default position. Hannum asserts that there is no general right of secession under international law, with two exceptions: firstly, when massive and discriminatory human rights violations bordering on genocide have occurred; secondly, when a minimum level of minority rights or reasonable self-government demands have been denied.28 Such an idea of ‘remedial
secession’ has gathered significant traction in international law discourse, and is supported by some state practice, but cannot yet be considered part of customary law.29 The minimum
standard of internal self-determination entails the right of a people to participate in the decision making processes of the state; moreover, individuals must have equal participatory rights and systematic discrimination against groups is prohibited. However, some jurists interpret internal self-determination as necessitating the implementation of Western-style electoral democratic structures by reading Article 1 ICCPR in accordance with Articles 19 (free expression), Article 21 (peaceful assembly), Article 22 (free association) and Article 25
23 The Wall (n 11) [159] 24 Pellet (n 18)
25 Friendly Relations Declaration (n 10)
26 Milena Sterio, ‘Self-determination under International Law: The Cases of Kurdistan and Catalonia’ (2018) 22 ASIL 1
27 Here, the parent state is used to loosely describe the larger state which controls regional areas with a different identity. For example, Turkey would be the parent state in relation to Turkish Kurdistan; similarly, France may be seen as the parent state of Algeria before the latter’s independence in 1962.
28 Hannum (n 12) 776-777
29 Simone van den Driest, Remedial Secession: A Right to External Self-Determination as a Remedy to Serious
(the right to vote). Jurists including Cassese, as well as the Human Rights Committee, advocate such a view, but it is arguable that this goes too far, since less than 5% of the world’s population actually lives under ‘full democracy’.30 Such an interpretation of internal
self-determination is lex ferenda, not lex lata. Internal self-determination has also been conceived in more specific terms: Bell and Cavanaugh believe that: “in divided societies… the rhetoric and underlying rationales of the notion of self-determination can support the development of policies of group accommodation such as autonomy regimes, or other minority protection less than secession”.31
There is enough legal evidence to consider self-determination a definitive right; however, it is unique in nature as a collective right which underpins other individual rights. It may be easier to conceive of it not as a tangible right, but rather as a flexible principle to be used in both the interpretation of existing international law, and in legitimising its future development.32
Notwithstanding this, all peoples do have a right to self-determination. This will normally be in the internal form outside the colonial context, barring there being a ‘remedial right’ to external self-determination.
2.2 – Territorial Integrity
The principle of territorial integrity of states is highlighted within Article 2(4) of the UN Charter as prohibiting states from using force against other states; the Charter is mute on the function of territorial integrity in independence claims not involving an inter-state use of force. However, there is reason to believe that territorial integrity has a dual-faceted implication. Vidmar, looking to the Declaration on the Principles of International Law, considers that: “[b]ecause the right of self-determination applies to peoples and not States, the principle of territorial integrity is not applicable exclusively in relations between states. The principle…limits peoples’ right to self-determination, so the elaboration reflects the doctrine that, outside of colonialism, the right of peoples to self-determination will be normally consummated internally within the international borders of the parent State and thus will not result in a new State”.33
30Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP 1995) 53; Economist Intelligence Unit, Democracy Index 2017 (2017)
31 Christine Bell and Kathleen Cavanaugh, ‘Constructive Ambiguity’ or Internal Determination? Self-Determination, Group Accommodation, and the Belfast Agreement’ 22 Fordham International Law Journal 1345, 1352
32 Thurer & Burri (n 11)
33 Jure Vidmar, ‘Territorial Integrity and the Law of Statehood’ (2012) 44 George Washington International Law Review 697, 708
It can be seen then that self-determination and territorial integrity may struggle to coexist, at least when self-determination is in its refined, external form. This explains the development of the right to internal self-determination, which allows for the practise of self-determination without the dismantling of the state institution. Notwithstanding this, however, the world has seen the occurrence of secession relatively frequently since 1945, and not merely in the decolonisation process. With this in mind, the seemingly irreconcilable external
self-determination and territorial integrity must be somewhat integrated, and this is the role of Uti
Possidetis. Uti Possidetis allows for the satisfaction of external self-determination when this
is imperative, but maintains the sanctity of borders and territorial integrity by transubstantiating internal administrative borders to definitive international lines.
2.3 – Uti Possidetis Juris
The Uti Possidetis principle can be traced back to Roman civil law, where a Praetor could temporarily assign ownership of an immovable object to the individual in actual possession until the true owner was identified.34 The modern definition of Uti Possidetis Juris really
originates in early 19th Century Latin America, during the Spanish decolonisation process.
The early scholars of international law adapted the Uti Possidetis principle in two ways: firstly, the scope was changed from private land ownership into the territorial sovereignty of states; secondly, the provisional status was transformed into a permanent one.35 Bell and
Kontorovich note that the Roman principle allowed only a presumptive right; in contrast, the international law variety vests absolute title.36
Evison considers that “Uti Possidetis best represents a slow paradigm shift of thought from the ethno-centric preference of territorial division to a post-colonial ‘photograph of territory’ scheme”.37 The exact nature of Uti Possidetis, like self-determination, is subject to debate.
Nesi considers that the historical evolution of the doctrine demonstrates its status as a norm of international law regulating territorial delimitations – however, it is not a peremptory norm, as it may be derogated from by mutual consent.38 Whether Uti Possidetis is a rule of
customary international law, however, has been challenged. Ratner considers that opinio
34 Daniel Luker, ‘On the Borders of Justice: an Examination and Possible Solution to the Doctrine of Uti
Possidetis’ in Russell Miller and Rebecca Bratspies (eds) Progress in International Law (Brill 2008)
35 John Bassett Moore, Costa Rica-Panama Arbitration: Memorandum on Uti Possidetis (1913) 8-11
36 Abraham Bell and Eugene Kontorovich, ‘Palestine, Uti Possidetis Juris, and the Borders of Israel’ (2016) 58 Arizona Law Review 633, 640
37 Justin Evison, Migs and Monks in Crimea: Russia Flexes Cultural and military Muscles, revealing Dire Need for Balance of Uti Possidetis and Internationally Recognised self-determination 220 Military Law Review 90, 93
Juris seems to be somewhat lacking, and there is a possibility that Uti Possidetis is merely a
policy decision for avoiding conflicts during decolonisation.39 Rosen highlights the uncertain
foundations of Uti Possidetis Juris in international law, considering that there is little
justification to consider it a principle of a rule.40 However, this may be going too far: there is
some scope to consider Uti Possidetis a general principle of international law, as discussed below.
The first step in the application of Uti Possidetis Juris is to find a critical date where the ‘photograph of the territory’ is made. Orthodox opinion would suggest that this is at the date of independence; however, the Badinter Commission opined controversially that the
boundaries of states emerging from the SFRY were set at the time of Yugoslavia dissolving, even though the component states had not fully established their independence by this point.41
Shaw as a compromise suggests the date of the last exercise of administrative jurisdiction by the former sovereign.42 Acts for applying Uti Possidetis may be either formal or informal: it
is necessary to first look to legal title, but ‘effectivites’ become relevant if the former is ambiguous or difficult to interpret. Luker identifies a two-step application process from
Burkina Faso/Mali: firstly, one must determine the dates of independence; following this, it
is necessary to determine the boundaries of the states or administrative units at these dates.43
Notably, borders may be changed either during or post-independence if by agreement. Rosen considers that Uti Possidetis is a ‘free floating idea of limited application’, which has relevance in international law solely through its link to self-determination.44 This is an
important detail; Uti Possidetis’ relevance in the border demarcation of new states necessitates a prior finding of a right to external self-determination. Uti Possidetis is effectively a balancing mechanism between self-determination and territorial integrity - barring an unqualified right to self-determination it permits a former territorial entity to graduate to full statehood but preserves territorial boundaries in the process. As the International Court emphasized in the Corfu Channel case, “between independent States, respect for territorial sovereignty is an essential foundation of international relations”, and
39 Steven Ratner, ‘Drawing a Better Line: Uti Possidetis and the Borders of New States’ (1996) 90 AJIL 590 40 Andrew Rosen, ‘Economic and Cooperative Post-Colonial Borders: How Two Interpretations of Borders by the ICJ May Undermine the Relationship between Uti Possidetis Juris and Democracy’ (2006) 25 Penn State International Law Review 207, 212
41 Pellet (n 18) 185
42 Malcolm Shaw, ‘Introduction: The International Law of Territory: An Overview’ in Malcolm Shaw (ed)
Title to Territory (Routledge 2005)
43 Luker (n 34) 161 44 Rosen (n 40)
international instruments abound reinforcing the territorial integrity of States.45 The tripartite
relationship between self-determination, territorial integrity and Uti Possidetis is recognised by Shaw who considers that upon the realisation of external self-determination:
[Territorial integrity] protects the territorial definition of independent States, while [Uti Possidetis] constitutes a principle explaining how the territorial definition of States has arisen in particular situations. It is a principle of transition linked to the transmission of sovereignty from one entity to another and provides a bridging mechanism. Thus, once a new state has come into existence, territorially defined in the light of Uti Possidetis, its territory as an independent State is protected by virtue of the principle of territorial integrity. 46
Shaw’s view of Uti Possidetis as a ‘bridging mechanism’ has some merit: Uti Possidetis has a transitory nature that allows for the coexistence of territorial integrity and
self-determination even at the moment of state secession when they may appear completely at odds. Having said this, it is arguable that, whilst Uti Possidetis is a balancing mechanism for the two policies, it leans further in favour of territorial integrity: Shaw determines that the Court in Burkina Faso/Mali implied that, where the situation was such that a conflict
appeared between the two principles, then that of Uti Possidetis would have precedence, and that for reasons relating to stability.47
The ICJ in Burkina Faso/Mali labelled Uti Possidetis as ‘not a special rule’ but rather ‘a general principle’, and this is the strongest authority with relation to its nature.48 Uti
Possidetis is a general principle which is catalysed by the right of self-determination being
invoked. General Principles are defined as a source of international law under Article 38(1) (c) of the ICJ statute. Bassiouni considers that "‘General Principles’ are, first, expressions of national legal systems, and, second, expressions of other unperfected sources of international law enumerated in the statutes of the PCIJ and ICJ; namely, conventions, customs, writings of scholars, and decisions of the PCIJ and ICJ”.49 Peterson stresses that general principles do
not rely on consistent state practice: “state practice is not the formal confirmation of a norm anymore, but only an indication of the existence of a more abstract principle. Consequently,
45 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 35
46 Malcolm Shaw, ‘The Heritage of States: the Principle of Uti Possidetis Juris Today’ (1997) 67 British Yearbook of International Law 75, 124-125
47 Shaw (n 46) 94; Frontier Dispute Case (Burkina Faso/Mali) [1986] ICJ Rep 554 48 Ibid 565
49 Cherif Bassiouni, ‘A Functional approach to General Principles of International Law’ (1990) 11 Michigan Journal of International Law 768
there is no normative reason to treat state practice differently than other indicators”.50
Orthodox opinion may hold general principles as deriving solely from the practice of national legal systems, and this may lead one to question the position of Uti Possidetis as a general principle given its absence from domestic legal systems. However, as Peterson continues:
General Principles were originally meant to serve a gap-filling function. The drafters of the ICJ statute feared that certain situations would be covered neither by treaty provisions nor by customary law…When the PCIJ Statute was drafted there were no other means to determine such an implicit consensus than by resorting to the internal legal orders of the members of the international community. Such analogies to national private law corresponded to the coordinative character of the international legal system of the beginning of the last century. Today, however, the structure of the legal order has changed and other means to determine an implicit state consensus has developed…on the one hand, they can be derived by analogy to national legal orders; on the other hand, they can be established by reference to resolutions of the UNGA or of other international institutions representing a considerable majority of the
international community”. 51
In mind of the above, the Court’s analysis of Uti Possidetis as a general principle in Burkina
Faso/Mali holds weight. It is a principle taken from the practice of various international
institutions and the international community. Moreover, a classification as a ‘general principle’ implies a gap-filling function, which fits in with the present examination of Uti
Possidetis. The principle serves to fill a potential lacuna on the realisation of external
self-determination, by creating an assumption for border demarcation, averting any possible terra
nullius and thus preserving the territorial integrity of states.
The status of Uti Possidetis as a general principle in international law suggests some flexibility to its nature: it is not a fixed rule of customary law or treaty law, and has less authority than either. Notwithstanding this, its repeated usage has had highly consequential effects on most of the non-European world, and therefore it is imperative to examine the principle and assess its utility for the contemporary international law sphere. The section below will attempt such an assessment.
50 Niels Peterson, ‘Customary Law without Custom? Rules, Principles, and the Role of State Practice in International Norm Creation’ 23 American University International Law Review 275, 302
3 – A Critical Analysis of Uti Possidetis Juris
3.1 – Internal Consistency
Uti Possidetis Juris allows for states to be split along existing administrative lines. It follows
from this that the principle can tempt ethnic separatists to divide states even further along such lines, a key point mentioned by Ratner.52 McHugh looks to Eritrea and Quebec as
foremost examples of this.53 Ratner’s criticism of Uti Possidetis extends beyond this point
however – he judges Uti Possidetis as being inherently flawed due to the huge fundamental distinction between internal and international boundaries.54 Interstate international boundaries
are established to separate states and peoples, whereas internal borders allow governments to unify a state so it can be governed effectively; international boundaries ‘are in general negative rather than positive’.55 Both for the ordinary citizen and the governors of the nation
state, internal and international boundaries have a very different significance.56 For those in a
position of power, international boundaries signify the state’s authority and territorial jurisdiction over an area, monitoring immigration, goods and intangibles from abroad. Internal boundaries often serve needs of unifying the greater polity by allowing some autonomy for those units on borders and other issues. For the citizen, internal borders may signify a difference in the procurement of services, for example with schools, taxes, and public or private law. However, international borders signify an even more pronounced distinction and, usually, are much harder to cross.57 When Uti Possidetis converts internal
boundaries to international borders, the functional differences between the two manufactures problems. Groups divided by administrative lines within one state may be able to protect their interests at the central level, but separation into different states can entail the loss of such protection. Moreover, internal borders may have allowed for economic efficiencies and co-dependencies to be formed between the territorial units: when these lines are transformed to international ones, these are lost at the detriment of the local population.58
In addition to functional concerns, critics of the Uti Possidetis doctrine can point to its practical difficulties. The concept assumes that borders were drawn up clearly within the
pre-52 Ratner (n 39) 602-607
53 Aman McHugh, ‘Resolving International Boundary Disputes in Africa: A case for the ICJ (2005) 49 Howard LJ 209, 220
54 Ratner (n 39) 602
55 S Whittmore Boogs, International Boundaries: A Study of Boundary Functions and Problems (1940) 10 56 Ratner (n 39)
57 ibid 58 ibid
independence period: this was rarely the case. Particularly in colonial situations, borders themselves were often loosely defined, as colonies were often ‘protectorates’ or merely ‘spheres of influence’, where the supposed colonial sovereign had less than complete
control.59 This creates problems within the application of Uti Possidetis, which is premised on
the assumption that colonial boundaries were clearly demarcated and publicised. Transposing such well-known boundaries into international borders prevents debate and is a strong justification for the existence of Uti Possidetis Juris in the first place. However, when it is recognised that these boundaries were previously unclear or ambiguous, then this uncertainty justifies debate and may ensue violent conflict. The erosion of the ‘stability’ perception underlying Uti Possidetis strongly undermines the concept itself (see further section 3.3).
3.2 – Consistency with self-determination and other principles of International Law
Notwithstanding the ambiguity of many pre-independence borders, perhaps the most compelling criticism of Uti Possidetis is the arbitrary manner in which pre-independence borders were drawn out. Translating these borders to post-secession international boundaries is an affront to self-determination as a whole, and has caused widespread disorder and ethnic conflict. Mukua wa Mutua’s infamous dissection of Uti Possidetis and the decolonisation of Africa helps to understand this point. Mutua recounts the manner in which the colonial state was drawn out in the ‘scramble for Africa’. 60 Map-makers acted as if Africa were a blank
slate, immune to any considerations of geography or demography, driven instead by competition between the European powers, their trading companies, and also different Christian denominations. This led to two damaging phenomena: the grouping together of entities with a history of conflict and war between them; and also the division of united ethnic and linguistic groups into entirely different states. This issue was not solved by the
decolonisation process and its focus on Uti Possidetis - which left internally illegitimate states with a dangerous ethnic duality or plurality, and a deeply-rooted reliance on the old structures of the colonial state.61 Decolonisation cannot be equated to liberation. Jennings
elaborates on this point, stating that: “on the surface [the idea of self-determination] seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until somebody decides who are the people”.62 Mutua poignantly concludes “Africa would do
59 Rosen (n 40)
60 Makua wa Mutua, ‘Why Redraw the Map of Africa: a Moral and Legal Inquiry’, 16 Michigan Journal of International Law 1113, 1147
61 Ibid
well to abandon the principle of Uti Possidetis Juris, the device that falsely linked the decolonisation of the colonial state to the liberation of African peoples. It is a straightjacket which continues to deny freedom to millions of Africans”.63 The failure of Uti Possidetis to
actualise true self-determination is not just evident within Africa however: Palestine is another example of the principle’s problems. The modern state of Israel emerged from the British Palestinian mandate; applying the doctrine of Uti Possidetis accurately implies that only one state, Israel, has the right to exist.64 This shows the failings of Uti Possidetis to
validate self-determination: (what was then) a local minority and immigrant groups were granted self-determination priority over the local majority Arab population. Prolonged human rights abuses by the Israeli government against Arab populations in Gaza and the West Bank exacerbate this issue.65
Many critics of Uti Possidetis lambast it for its ostensible subversion of self-determination – the principle denies peoples their right to true control over their future by confining them within outdated territorial units.66 However, an argument can in fact be made that Uti
Possidetis allows people to realise their struggles by providing them with a functional, stable
state. In Burkina Faso/Mali, the court stated: “At first sight [Uti Possidetis] conflicts outright with another one, the right of peoples to self-determination…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”.67 Bell and
Kontorovich highlight that “while Uti Possidetis Juris seemingly legitimises arbitrary colonial decisions and undermines self-determination, empirical research suggests that ‘borders drawn along previous existing international or external administrative frontiers experience fewer future territorial disputes and have a much lower risk of militarised confrontation if a dispute emerges’”.68 Furthermore, an argument could be made that Uti
Possidetis does not ‘limit’ self-determination at all: Nesi writes that “Uti Possidetis refers to
territorial delimitations of newly independent states, while the right of peoples to self-determination concerns the freedom of a people to choose its political, economic and social
63 Mutua (n 62) 1175 64 Bell & Kotorovich (n 36)
65 Human Rights Watch, ‘Israel: 50 Years of Occupation Abuse’ (Human Rights Watch, 4 June 2017) < https://www.hrw.org/news/2017/06/04/israel-50-years-occupation-abuses> accessed 24 May 2018 66 See Mutua (n 62)
67 Burkina Faso/Mali (n 47) 567 68 Bell & Kontorovich (n 36)
status”.69 For the population of a newly independent state then, it may be that Uti Possidetis
provides stability, supplementing internal self-determination rights.
Relatedly, it may be noted that the Uti Possidetis notion has a somewhat self-fulfilling character. Although its application has fragmented societies and ethnicities, individuals undoubtedly have begun to harbour an attachment to their state, however flawed or unrepresentative it may be. It is therefore impossible to turn back the clock. This creates a hazardous clash of identity: societies may be split between those defining themselves primarily as a member of their ethnic group, those seeing themselves as a national of their post-colonial state, and those somewhat in between. The changing and shifting identities in post-colonial regions and the difficulties that this naturally entails are currently being exhibited in Cameroon, where the Anglophone minority are currently engaged in an
escalating separatist conflict against the most French-speaking central government.70 German
Kamerun was divided between Britain and France following WWI; after the independence of French Cameroon in 1960, the British Northern Cameroons opted to join Nigeria, whilst the Southern Cameroons elected to merge with Cameroon in a UN-organised referendum. The Cameroon crisis evidences the constant changing sentiment and sense of ‘self’ amongst peoples which suggests that the neutrality of Uti Possidetis may be the best way to proceed.
3.3 – Stability
Luker pertinently defines the primary goal of Uti Possidetis as providing new states with stability. Assessing the state actor only, it could be concluded that the doctrine has been successful in preventing continent-level warfare.71 This is undoubtedly important; Uti
Possidetis has provided relative inter-state peace following WWII, which in the scale of
human history is absolutely unprecedented. However, Uti Possidetis also has internal value. Nesi recognises two needs which the doctrine meets: it prevents boundary disputes; and deters secessionist exploitation of weakness and disorder within new states.72
On the other hand, it is crucial to be aware that the internal inconsistencies and irregularities of Uti Possidetis are not merely an academic problem, but have had a profound experiential effect. Luker highlights that, in reality, the regions of the world in which Uti Possidetis has
69 Nesi (n 38)
70 Peter Zongo, ‘’This is a Genocide’: Villages Burn as War Rages in Blood-Soaked Cameroon’ (The Guardian, 30 May 2018 <https://www.theguardian.com/global-development/2018/may/30/cameroon-killings-escalate-anglophone-crisis> accessed 1 June 2018
71 Luker (n 34) 159 72 Nesi (n 38)
been applied regularly are not stable.73 Since 1970, over 30 serious wars have wrecked
Africa, and another prominent example can be found in the former Yugoslavia. Of course, to attribute all of this instability and conflict to Uti Possidetis would be completely erroneous.
Inter alia, longstanding socio-economic deprivation within the global south – i.e. the area
where Uti Possidetis has mostly been applied – is the root of considerable instability. The point to take away is more that, despite the biggest justification of Uti Possidetis being the stability it supposedly brings, this is somewhat inaccurate, especially with regard to intra-state conflict. Whilst Uti Possidetis can be criticised then for impeding self-determination, it could also be argued to undermine territorial integrity: whilst it ensures the permanency of colonial borders, it delegitimises the territorial state itself.
Whilst it is easy to criticise the shortfallings of Uti Possidetis Juris, it provides a clear solution and any alternative will likely be more complex and entail its own difficulties. Brownlie within the African context considers that alternative alignments would be impossible to implement successfully because of the ‘ethnic and tribal complexities of African societies’.74 Ratner, looking to post-cold-war secession cases, considers that the
reliance on Uti Possidetis is based on three assumptions: it is a default rule of international law; the prospect of armed conflict is reduced as the doctrine provides the only clear
outcome; thirdly, because a democratic cosmopolitan state can function within any borders, the conversion of administrative borders is a logical, simple way in which to proceed.75
Evison argues that the questioning and inconsistent application of Uti Possidetis has created a more volatile international environment, using the Crimean situation as evidence. He writes: “had the world consistently applied Uti Possidetis over the past 20 years, Russia may have been deterred from sponsoring Crimea’s secession and subsequently annexing it”.76 This
carries some weight. The NATO contingent’s recognition of Kosovo following its 2008 declaration of independence did not conform to Uti Possidetis doctrine, as Kosovo had always been a non-autonomous part of the Serbian province, even under the SFRY.77 Western
intervention within and recognition of Kosovo undermined the sanctity of post-independence borders, leading to Russian intervention within Crimea and the Donbass region, and the annexation of the former. Nesi concurs with Evison’s line of argument, pointing out that “when Uti Possidetis is contested by one party and no alternative to Uti Possidetis is
73 Luker (n 34) 159
74 Ian Brownlie, African Boundaries (Royal Institute of International Affairs 1979) 11 75 Ratner (n 39) 591
76 Evison (n 37) 92 77 Ibid
provided (such as the conclusion of a delimitation agreement or the deferral of the delimitation to a judicial or arbitral award) the risk of instability and clashes increases enormously”.78 Evison concludes his argument by contending that “the ICJ’s analysis of Uti
Possidetis provides the best rationale for dealing with persistent and otherwise unsolvable
ethnic conflicts”.79
3.4 – A ‘One-size-fits-all’ Approach
A major criticism that can be made of Uti Possidetis doctrine is its ‘one size fits all’ aspect which entails a uniform application of the principle, notwithstanding place, time or context. This has led to an unwanted discrepancy between different areas of the world where the principle has been applied. Three broad situations can be discerned: those where the
application of Uti Possidetis Juris has been relatively successful – namely in Latin America; areas where application of Uti Possidetis Juris has previously caused significant conflict, but where the preservation of the status quo now seems beneficial - Yugoslavia being a good example; and finally, areas where the application of Uti Possidetis Juris in the past is still causing significant present problems – focusing on the African continent.
In Latin America, where the concept of Uti Possidetis as part of international law was effectively born, it has been relatively successful. A United States Institute for Peace project found that Uti Possidetis Juris has been helpful and practical in the South and Central American context given the geography, and has held successfully over time.80 There have
been six exceptions to this, but the last of these was in 1941.81 It can be determined that the
shared Latin identity and relative ethnic homogeneity within the Americas meant a greater prospect of success. There was a sentiment that Uti Possidetis Juris was only a temporary stabiliser by any means – Van Dunem considers that “the States which adopted it…were aware of the impossibility of resolving their boundary problems in the immediate aftermath of their accession to independence and the adoption of the status quo merely reflects a tacit acceptance that these issues would have to be revisited at some point in the future”.82
Boundaries in the colonial period were imprecisely determined and many areas were completely unexplored. Uti Possidetis acted as a stabilising mechanism preventing the
78 Nesi (n 38) 79 Evison (n 37) 94
80 J Domínguez, D Mares, M Orozco, D Palmer, F Arvena, and A Serbin, ‘Boundary Disputes in Latin America’ (2003) 50 United States Institute of Peace 21
81 Ibid
breakout of war over such boundaries. However, it did not straightjacket different groups into inappropriate territories or divide when unnecessary – post independence, there was practice of consensual boundary alteration. For example, the Viceroyalty of Buenos Aires declared independence in 1816 under the name ‘United Provinces of Rio de la Plata’ but later split in to four independent republics of Argentina, Paraguay, Uruguay and Bolivia.83 For the most
part, then, Uti Possidetis had a stabilising effect upon Latin America and was not prohibitive to the effective realisation of self-determination.
In other areas, the doctrine of Uti Possidetis, whilst causing serious problems at the time of its application and shortly following, now seems to be a force for stability. The former Yugoslavia is a good example of this. Upon the breakup of the SFRY in the early 1990s, mass conflict broke out, leading to widespread military and civilian casualties, ethnic cleansing, and the first case of genocide in Europe since the Second World War in Srebrenica. Yugoslavia was divided by constitution into 6 federal republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia. Whilst nationalism and ethnicism were for long periods discouraged by the State, most of the republics contained a wide mix of ethnic groups, Bosnia in particular. When the SFRY began to disintegrate between 1990 and 1992, secessionist attempts by Bosnia and Croatia saw not only forceful resistance by Serbian-dominated Yugoslav forces, but also paramilitary organisations formed by the large Serb minorities within those republics. This led to widespread violence and ethnic cleansing. Despite the exigency of flexibility to deescalate the situation, the Badinter Commission called for a strict application of Uti Possidetis which seemed to imply that the right of self-determination could not involve changes to the Croatian and Bosnian federal boundaries even prior to independence.84 DeDominicis recalls: “[t]he resolution of the
Bosnian War then became tragically predictable: separation of Serbs, Croats, and Bosniaks as a result of mass refugee fear of genocide amidst military operations. The 1995 Dayton Accords maintained the legal fiction of the sovereign Republic of Bosnia and Herzegovina, while violent population shifts functionally reinforced Uti Possidetis”.85 Yugoslavia can be a
learning experience; however, if the borders of the Balkan area are re-examined today in light of a renewed questioning of Uti Possidetis, this would in all likelihood lead to more harm than good. Kartsonaki states with respect to the Republika Srpska: “There mere fact that
83 Suzanne Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (McGill-Queen’s University Press 2002) 36
84 Ibid 185
85 Benedict DeDominicis “Conceptualizing Causes and Consequences of Application of Uti Possidetis Juris in Europe.” (2016) 11 The International Journal of Interdisciplinary Social Sciences: Annual Review 27, 34
many observers, both in and outside BiH, believe that secession is a serious possibility is enough to fuel the very tensions that could lead the country down the path of fighting and fragmentation”.86
Notwithstanding any relative success elsewhere, in the African continent the Uti Possidetis principle has been the cause of much human suffering. Since independence, civil wars and genocides have frequented the continent. Among the most horrific are the Nigerian Civil War, where 2 million died in famine, the Second Sudanese Civil War (ending with the secession of South Sudan and the death of around 2 million), and the Second Congo War, where over 5 million deaths were estimated. Undoubtedly, such conflicts were largely attributable to the post-colonial state forcing disparate groups together. There is little sign of such hostilities abating: at present, serious internal conflicts are affecting South Sudan, the Central African Republic and Mozambique and appear on the brink of bloody escalation. An argument could be made that a right to external secession in cases such as these should be formulated, as the state boundaries drawn up by Uti Possidetis appear incompatible with stability and peace. Ethiopia’s 1993 constitution allows for secession of a state if it fulfils certain requirements, and it has been suggested that this could be extended.87 However, this
would be effectively extending an absolute right to external self-determination to the entire world (containing a principle specifically within Africa would be difficult to legitimise), which seems rather too radical for reasons previously discussed. Instead, perhaps in the formulation where secession is allowed in ‘remedial’ cases or where internal self-determination is denied, there is an implicit acknowledgement of Uti Possidetis and the difficulties it can bring – because of this, a right to secession is permitted in such
circumstances – albeit as the ‘last resort’. However, international law should be proactive rather than reactive, and the African situation demonstrates the human cost of a failure to do so with relation to Uti Possidetis. The principle’s ‘one size fits all’ approach has a ‘trial and error’ approach, but in circumstances such as the African continent where it is clearly unsuitable, the cost of failure is not merely theoretical but has resulted in the suffering and deaths of millions.
The one-size-fits-all approach currently pursued by Uti Possidetis doctrine is both unsuitable and unsustainable, blindly ignoring the vast differences between different individuals, groups and states across the world. Franck considers that “no one-size-fits-all legal principle could
86 Argyro Kartsonaki (2016) Twenty Years After Dayton: Bosnia-Herzegovina (Still) Stable and Explosive (2016) 18 Civil Wars 488, 504
be sensitive to all these disparate factors. Thus we need to replace both Uti Possidetis and self-determination with rules that evince more context-sensitive principles”.88 In a similar
vein, Margaret Hughes Ferrari, the Chairmen of the UNGA Special Committee on decolonisation, speaking in an October 2007 meeting on the Western Sahara dispute, acknowledged that UN efforts regarding non-self-governing territories must recognise "that there is no magic formula of “one-size-fits-all”’. Rather, she suggested a good faith effort to focus on tangible results which would lead to the conclusion that different territories have “different needs and expectations and should be considered on a case-by-case basis”.89
4.0 – The Future of Borders and Uti Possidetis Juris
4.1 – Future Development of the Principle
As previously discussed, Uti Possidetis has been the subject of much criticism in
international law for some time. In the post-colonial context, the relevance of Uti Possidetis is not as central as it once was. However, the concept – or lack of it – remains crucial for international law. Noteworthy independence movements in Catalonia, the Western Sahara, Kurdistan, Palestine, Somaliland, Artsakh, and Transnistria amongst numerous others are testament to this. Also relevant are present and future border disputes between existing states which as it stands will have to be settled by Uti Possidetis.
In assessing the adequacy of Uti Possidetis for the future, it is essential to ask first whether the traditional, rigid use of the concept has failed. In many senses, this is the case. Ratner scorns Uti Possidetis as an ‘idiot rule’, drawn up and followed because of the inability or unwillingness to think of an alternative, despite its many fundamental flaws.90 Shaw
considers that the rationale of stability underlying Uti Possidetis should "never be the sole or even the dominant principle in international affairs, since the push for change is a constant in contemporary conditions...In addition, the principle of the territorial stability of States is subject to the need to preserve or restore international peace and security as this has
developed under the United Nations System".91 Moreover, Uti Possidetis could be seen as a
88 Thomas Franck, ‘Friedmann Award Address’ (1999) 38 Colombia Journal of Transnational law 1 89 UNGA ‘Special Committee on Decolonisation, Concluding Caribbean Regional Seminar, Recommends Focal Points for Non-Self-Governing Territories’ Press release UN Doc GA/COL/3157
90 Ratner (n 39) 617 91 Shaw (n 46) 84
“conceptual barrier increasingly unrelated to issues of democracy and increasingly challenged by economic development”.92 This is not acceptable; international law should be progressive
and aspire to both procedural rationality and substantive suitability to the international community. Whilst a perfect solution is of course impossible to achieve, the pronounced issues with existing Uti Possidetis doctrine necessitate change.
Conversely, to dispose of Uti Possidetis doctrine entirely would also be unwise - there must be some methodology to demarcate new states within the international community. To best move forwards, it is appropriate to look at a ‘development’ or ‘evolution’ of the principle to retain its positives, namely stability and the preservation of territorial integrity, whilst perhaps allowing greater prominence for self-determination. Buchanen, in relation to secession, looks to several necessary criteria for any development of international law, of which minimal realism is of particular importance.93 Minimal realism implies that any proposal must have a
significant prospect of eventually being adopted in the foreseeable future; this may be where theories such as Mutua’s are bound to fail. Mutua’s criticism of the nation state as a whole and its unsuitability for the African continent is in many ways valid. However, his proposal of dismantling the ‘post-colonial state’ and forming a pan-African society is so hostile to the principles of state sovereignty and territorial integrity that it has no realistic chance of being realized. Minimal realism must be considered in any development of the Uti Possidetis rule; only a gradual development of Uti Possidetis which is not contra to realpolitik and the direct interests of the larger international powers has a chance of success.
4.1.1 – Two Possible Adaptations
The first manner in which Uti Possidetis could be adapted is to establish only temporary boundaries through the concept, until a more permanent solution can be reached. This is already the case in some senses – states can agree to alter their Uti Possidetis established borders post-independence by common consent. However, in most cases, consent is difficult to obtain, as states are inclined to perceive such agreements as a zero-sum situation where they will only lose out by ceding territory to another state. A compromise, where Uti
Possidetis borders are implemented immediately following independence to provide the
stability necessary for new states, but only on a transitional basis until a permanent solution is established is one option which the international community should consider pursuing.
92 Rosen (n 40) 208
A second suggestion for the development of the Uti Possidetis doctrine is to include in the process an assessment of the reasoning for internal boundaries. Uti Possidetis is premised on the basis that internal boundaries in the pre-independence period were drawn up for
administrative reasons. However, much evidence suggests that this is a fallacy, as lines were often drawn up on entirely arbitrary grounds or solely for the economic exploitation of the entity by the parent state.94 The doctrine could therefore be developed to include a
preliminary step tracing the historical outlining of the ‘administrative’ boundaries. If these are shown to be truly administrative, then Uti Possidetis could apply as normal. However, if this is not the case, then alternative methods could be employed to draw up the new state boundaries. Examination of recent self-determination cases bring these issues to light. With regard to the recent Russian annexation of Crimea, Russian perception was that this act was reclaiming a region which historically was always a part of the main Russian body and had been handed as a spontaneous gift to Ukraine by Khrushchev, acting alone.95 However, in fact
the Presidium gave unanimous consent – in the words of Evison: “In reality, the Soviet leadership collectively transferred Crimea to Ukraine as Ukraine and Crimea had developed cultural, economic and political ties from the turn of the 20th Century through the Second
World War. These ties continued to strengthen until it became apparent that a Ukrainian Crimea made practical sense”.96
In contrast to some perception, then, the drawing of borders to include Crimea within
Ukrainian borders was genuinely administrative, suggesting that Uti Possidetis should in fact apply on this basis. In contrast, two recent cases before the ICJ, Qatar v Bahrain and
Botswana v Namibia implicitly acknowledged the drawing up of colonial borders based on
commercial interests and dissenting opinions suggest reformulating borders based on considerations other that Uti Possidetis for this reason. 97 In Qatar v Bahrain, confusion
abounded as a result of the uncertain status of both states following WWI. After the collapse of the Ottoman Empire, they both became subject to heavy British influence, but it is
uncertain whether they were British protectorates or not. The Hawar Islands off the coast of Qatar were transferred unofficially by the British Political Agent to Bahrain in 1936, affirmed by the British government in 1939. If it was to be determined that the states were
94 Roland Oliver, The African Experience (1991) 179-80
95 Doris Wydra, ‘The Crimea Conundrum: The Tug of War Between Russian Ukraine on the Questions of Autonomy and Self-Determination’ (2003) 10 International Journal on Minority and Group Rights 111, 113 96 Evison (n 37) 108
97 Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) [1999] ICJ 1045; Case Concerning
protectorates, then the decision was an ‘administrative’ one and Uti Possidetis Juris would have to apply. However, the Court found instead that the giving of the Islands would be better characterised as a border dispute between 2 independent states resolved by a third party. The islands were awarded to Bahrain. Whilst the dissent was actively willing to acknowledge that the economic interests of Britain in the transfer suggested an administrative decision, this was only hinted at in the opinion of the majority, who appeared “unwilling to undermine the fundamental assumption of Uti Possidetis Juris that colonial borders were necessarily administrative”.98 Similarly to Qatar v Bahrain, the Botswana v Namibia case of 1939 also
roused the unsettling notion that ‘administrative’ colonial boundaries were premised predominantly for the commercial interests of the parent state. The dispute focused on the Kasikili/Sedudu Island on the border of the two states, which it eventually awarded to Botswana. The Court displayed discomfort with recognising economic interests as determinative of a post-colonial border but again the dissent was willing to do so.
Both the Botswana v Namibia case and Qatar v Bahrain undermine the assumption that pre-independence borders were drawn up in a manner to best administer the non-self-governing entity, suggesting that it was in many cases purely in the economic interest of the governing power.99 On this basis, it could be argued that Uti Possidetis should not apply – since its very
foundational assumptions have been proven wrong - and we should instead look to a different solution. Ratner also considers the possibility of examining the age of a border in its validity for Uti Possidetis.100 This may also be a factor, but whether it is fully distinguishable from the
reasons for the parent state drawing the border is unclear – looking at the age of the border could be part of the process.
Either of the two methods of adapting Uti Possidetis suggested above could be followed; in fact, they would most often have the same end result. The crucial element is that one of these should be followed, to enable other factors to be included for deciding borders when Uti
Possidetis is clearly unsuitable for the situation, and either method will achieve this. A
number of equitable factors are suggested below.
4.2 – Factors for the Future of Border Delimitation – an ‘Equitable toolbox’
4.2.1 – A Renewed Role for Self-determination
98 Rosen (n 40) 227 99
An obvious alternative factor for border demarcation is to draw up borders upon ethnic lines. Margalit and Raz argue for something along these lines, ascribing the right to secede for ‘encompassing cultures’, defined as large-scale, anonymous groups with a common culture and character.101 However, to divide along ethnic lines as a presumption is problematic.
Firstly, there is no consensus on ethnicity, which combines both objective and subjective factors. Hutchinson and Smith’s definition of ethnicity contains six main features: a common proper name; a myth of common ancestry; shared historical memories; one or more elements of common culture; a link with a homeland; and a sense of solidarity among the population.102
Ethnicity is inherently complex, and many individuals may be displeased with being ascribed a state based on a supposed ethnic identity which may not truly reflect them. Beyond this, it may even be argued that attempting to draw up a state based upon ethnic lines is inherently immoral: such divisive borders are inappropriate for an internationalised world, and may even have eugenic connotations. Hampton, whilst noting cultural community is important, simultaneously emphasizes the risks of designating political units to coincide exactly with cultural communities.103 David Owen considers that “of course the world has to be aware of
the dangers of drawing state borders along ethnic lines, but the world also has to recognise the dangers of ignoring ethnic and national voices”.104 Owen’s point has merit, but this does
not support the automatic outlining of borders based on ethnic interests. Ethnic considerations could be observed, but their complexities mean an attempt to draw up lines automatically on this basis will be highly problematic. A further basis against drawing new states upon ethnic lines is the so-called ‘balkanisation’ concept where entities split in to so many units as to become politically unviable.105 To illustrate, both Nigeria and the DRC are home to over 250
ethnic groups respectively. It would be extremely inefficient, if not impossible, to give each of these ethnicities its own political unit. It is not possible nor desirable to base the drawing of borders in the case of disapplication of Uti Possidetis on ethnic lines alone therefore, and other factors should be considered.
A preferable proposition to direct ethnic lines in the drawing up of new state boundaries would be the implementation of state-determinative referenda in areas where identity is
101 Avishai Margalit and Joseph Raz, ‘National Self-Determination’ (1990) 87 The Journal of Philosophy 439, 445
102 John Hutchinson and Anthony Smith, Ethnicity (OUP 1996) 1-14 103 Jean Hampton, Political Philosophy (Westview Press 1996) 242 104 David Owen, the Balkan Odyssey (Harcourt 1997) 343
105 Predrag Simić, ‘Balkans and Balkanisation: Western Perceptions of the Balkans in the Carnegie
Commission's Reports on the Balkan Wars from 1914 to 1996’ (2013) 18 Perceptions Journal of International Affairs 113, 118
