Uti Possidetis Iuris (International Law)

Introduction

The literature on the concept of uti possidetis shows deep links to colonization, self-determination, territorial integrity, sovereignty, statehood, creation of states, and territorial boundaries. The controversial notion of uti possidetis has shaped many modern states and created new identities for postcolonial states. In creating new identities, it dismantled precolonial identities of nations. Hence, in many instances it became a source of relentless battles and on many occasions bloody wars. A prodigious amount of literature exists on the principle of uti possidetis, including its origin, usage, and relation to issues of decolonization and self-determination. This Roman law doctrine was used to stabilize the border not only in the Spanish Empire in South America after the Spanish withdrawal but also during the decolonization process in Africa and Asia. The purpose of this principle was to maintain the territorial stability of newly created states at the time of decolonization and also to resolve issues related to title, boundary demarcation, and delimitation of maritime areas in situations in which a treaty did not exist or did not deal with such issues. The legal character of this principle is unclear; however, depending on various situations, it has been referred to as a rule, principle, customary international law, technique, policy decision, and political tenet. The principle of uti possidetis iuris favors actual possession regardless of how it was reached and does not distinguish between de facto and de jure possession. These colonial administrative borders almost never were drawn to conform to the boundaries of the inhabiting populations and almost always cut through them, resulting in nations becoming trapped within new states. This indiscriminate application of uti possidetis iuris in the name of acquiring “stability and finality” resulted in many claims of the right to self-determination and border disputes. This principle is prized by states that emerged through the decolonization process, because it guarantees their territorial integrity. Over the years the principle of uti possidetis has been stretched and applied to postcolonial borders to maintain the finality of borders in situations such as territorial breakups, an example being Yugoslavia.

Introductory Works

The term uti possidetis was first applied by Roman magistrates in private municipal law. Moore 1913 clarifies use of uti possidetis during the Roman era as a principle that preserved possession of an immovable property of individuals who had possession, even if they could not show an original title. The formula adopted by the praetor was as follows: “As you possess the house in question, the one not having obtained it by force, clandestinely, or by permission from the other, I forbid force to be used to the end that you may not continue so to possess it” (Moore 1913, p. 6). The decree of ita possideatis (as you possess, so you may possess), which was an interim measure, was briefly referred to as uti possidetis, and its aim was to protect the possession of the possessor by maintaining the status quo against an adversary. Dugard 2006 discusses how over the years the concept of uti possidetis was applied to international law through the works of western European scholars. To understand the reasons for existing state boundaries in South America, Parodi 2002 discusses two different forms of uti possidetis, namely, uti possidetis iuris (de jure, legal possession) and uti possidetis de facto (effective possession). It is the latter principle that has Roman ancestry. Bluntschli 1895 criticizes the direct usage of uti possidetis within international law. The author argues that, unlike in Roman law, uti possidetis in international law is linked to territorial sovereignty, which was not limited to recognizing possession but rather to fixed status. The application of uti possidetis was heavily relied upon in international law in situations involving the termination of a war. This is clear in the works of western European scholars such as in Phillipson 1916. The principle of uti possidetis also became the basis for negotiation of peace treaties in postwar situations; hence, it was used to mean status quo postbellum. This aspect is discussed in the classic works de Vattel 1758 and Wheaton and Phillipson 1916. To a large extent in the past, uti possidetis validated the use of force, because peace treaties fixed the status of conquered territories. However, with the adoption of the UN Charter in 1945, uti possidetis no longer served as a justified principle to seal title to territory acquired by conquest. Publicists such as William Edward Hall (Hall 1895) applied uti possidetis to international boundaries in cases in which territory was not acquired through war but through occupation. Oppenheim 1905–1906 is a classic work that discusses the first actual usage of uti possidetis in determining boundaries, namely, at the time that the Latin American states proclaimed their independence from Spain (1810–1821). The principle of uti possidetis was also used to resolve border issues in Latin America relating to territorial disputes between Portuguese Brazil and neighboring states.

Bluntschli, Johann Caspar. Le droit international codifié. 5th ed. Paris: Guillaumin, 1895.
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This classic text discusses general public international law. In the context of the possession of territory at the conclusion of peace, the author discusses international law on the basis of uti possidetis, namely, that the possessor of territory acquires sovereignty of the territory it occupies and that this sovereignty creates the foundation of the new public order. However, the author criticizes this position (article 715).
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de Vattel, Emmerich. The Law of Nations or the Principles of Natural Law. Leiden, 1758.
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This classic text on international law discusses the subject of peace treaties at length and states that, after the end of a war, each belligerent state shall maintain “the condition in which affairs stand at the time of the treaty.” The author also discusses whether the peace treaty is concluded with the belligerent power based in an actual possession. Available online.
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Dugard, John. International Law: A South African Perspective. 3d ed. Johannesburg, South Africa: Jute, 2006.
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Provides a fresh perspective in understanding international law in the South African context, keeping in view its history. It also provides an understanding of international law as applied to South African municipal law. This text also discusses how, during the initial years after the birth of international law, it was very much influenced by Roman law, to the extent that jurists equated sovereignty with the ownership of private property as a mode to acquire territory in international law.
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Hall, William Edward. A Treatise on International Law. 4th ed. Oxford: Oxford University Press, 1895.
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A classic text on international law that discusses uti possidetis and is based on the concept of “actual possession”; played a significant role in legalizing the acquisition of territories by the colonizing powers of Europe and also was used to delimit boundaries between the adjacent proprietors. The principle was extended to delimitation of the coast that bears some reasonable proportion to territory that was claimable by virtue of possession.
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Moore, J. B. Costa Rica Panama Arbitration: Memorandum on Uti Possidetis. Rosslyn, VA: Commonwealth, 1913.
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Represents an authoritative view on the principle of uti possidetis in a dispute between Costa Rica and Panama, which was vested in the Treaty of Union, League, and Confederation of 1825, signed between the United Provinces of Central America and the Republic of Colombia. This work also discusses the origins and meaning of uti possidetis generally, as well as its application to international boundaries in cases concerning Latin America and Spanish America.
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Oppenheim, Lassa. International Law: A Treatise. Vol. 1, Peace. London: Longmans Green, 1905–1906.
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This classic work is a major contribution to international law and discusses its various aspects and significant periods.
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Parodi, Carlos A. Politics of South American Boundaries. Westport, CT: Greenwood, 2002.
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Provides a critical political perspective of South American territorial boundaries as forms of instruments to impose order. Also includes an extended discussion of the Ecuador-Peru boundary dispute of 1810 and the role of the uti possidetis principle. An interesting discussion on uti possidetis de facto is provided in showing how in the context of South America “it gave priority to conquest or settlement over treaties or legal documents to determine the boundaries” (p. 6).
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Phillipson, Coleman. Termination of War and Treaties of Peace. London: Sweet and Maxwell, 1916.
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This classic text discusses various means to terminate wars and also discusses the nature of peace treaties and their drafting.
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Wheaton, Henry, and Coleman Phillipson. Wheaton’s Elements of International Law. 5th ed. London: Stevens, 1916.
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This fifth edition of Wheaton’s work is revised heavily by Phillipson, who added about two hundred pages. A classic work on general international law that discusses sources, subjects, absolute rights of states, and rights of states in peace and war. This work relates uti possidetis with the treaty of peace and argues that uti possidetis served as the basis of every “treaty of peace” unless a contrary intent was expressed (p. 807). Digital copy available online.
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Textbooks

The topic of uti possidetis iuris is very specialized, and most general textbooks of public international law include only a limited discussion of this doctrine. The discussion is confined to topics centering on the decolonization process and to territory and its acquisition and delimitation. On occasion, authors survey its historical roots and include some limited postcolonial debates. Brownlie 2008; Shaw 2008; Dixon 2007; Evans 2006; Reisman, et al. 2004; Cassese 2005; and Crawford 2006 provide a starting point to research the topic of uti possidetis, and they are targeted at nonspecialists.

Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Oxford University Press, 2008.
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Provides a limited discussion of the principle of uti possidetis. Discusses the origins of uti possidetis from a Latin American perspective, as a means of disposition of territory involving preservation of the demarcations under the colonial regimes that correspond to colonial boundaries (pp. 129–130).
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Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 2005.
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Comprehensive on the subject of the right to self-determination. Provides an outline discussing uti possidetis in the context of Africa, customary rule of international law, self-determination, and the creation of states.
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Crawford, James. The Creation of States in International Law. 2d ed. Oxford: Clarendon, 2006.
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This book remains an authoritative text on the creation of states within international law and on the role of uti possidetis in the creation of new states.
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Dixon, Martin. Textbook on International Law. 6th ed. Oxford: Oxford University Press, 2007.
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Precise version of an international law textbook for beginners, and a helpful starting point. The author relates uti possidetis to the means of territorial acquisition in cases when borders are fixed after independence and when links to self-determination exist (pp. 162–163, 166).
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Evans, Malcolm D., ed. International Law. 2d ed. Oxford: Oxford University Press, 2006.
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On the issue of uti possidetis, this collection makes connections with self-determination, independence, and statehood within the territorial colonial administrative units. It also applies this principle to the emergence of independent states following the breakup of the Soviet Union, specifically the setting of boundaries in creating new nations, such as Georgia. Author sees uti possidetis as a fraught principle in determining future boundaries (pp. 225–228, 244).
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Reisman, W. M., M. H. Arsanjani, S. Wiessner, and G. S. Westerman. International Law in Contemporary Perspective. New York: Foundation Press, 2004.
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Applies the New Haven school of jurisprudence and draws upon a range of authoritative authors. Critiques uti possidetis iuris as an international prescription that may facilitate the establishment of states by internal elites.
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Shaw, Malcolm N. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.
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Provides a neat and brief account of uti possidetis, touching upon significant milestones in terms of its origins, colonial application, and beyond (pp. 525–530).
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Specialized Works

The specialized books provide a comprehensive, systematic, and panoptic view on the subject of uti possidetis from its historical development and its merits and disadvantages, both in the colonial context and outside colonialism. These books also provide significant discussions by nonspecialists, including interesting case studies and situations related to uti possidetis that provide an easier and more complete understanding of the principle. Akweenda 1997 discusses the definitional problem that adheres to the principle of uti possidetis, which is interchangeably used as a principle, a doctrine, and a rule. Castellino and Allen 2003 argues that uti possidetis is primarily a political tenet that is used as a “convenient mechanism” that “clothed the political consequences of withdrawal with the sanctity of law and this norm appears to have been accepted into international law without any noticeable dispute.” The “Dispute between Argentina and Chile concerning the Beagle Channel” (cited under Judicial Decisions) delineates this relationship between law and political actions. Roby 1975 argues that uti possidetis was a provisional interdict in Roman law and was inferior to title of actual owner. Lalonde 2002 tests uti possidetis as a principle of border stability in the postcolonial era. Radan 2002 pursues a similar theme but argues that self-determination based on the romantic theory must be rejected because it serves to destabilize the borders and opens the way to secession, as in the case of the former Yugoslavia. Corten 1999 discusses uti possidetis and the delimitation of territories after dismemberment of states. In the context of Africa, Shaw 1986 makes an interesting point that colonial frontiers in the majority of states in Africa, Asia, and South America were meant to be frozen on the eve of decolonization, which also meant a consequent disregard for ethnic and historical ties across the old colonial borders. The author maintains that “the principle of self-determination has operated in practice to safeguard the colonial delimitations and overrule purely ethnic definitions of the ‘self,’ so that the ‘self’ must be determined within the colonial territorial context.” Castellino 2000 discusses uti possidetis as pertaining to the consolidation of a de facto situation following hostilities and the expropriation of the land of the indigenous people. The author argues that uti possidetis cannot be seen as a customary international law, because it has no universal support but perhaps can be seen as a general principle when cases of self-determination are resolved. All these specialized works constitute significant in-depth monographs in English on the subject of uti possidetis.

Akweenda, Sakeus. International Law and the Protection of Namibia’s Territorial Integrity: Boundaries and Territorial Claims. The Hague: Kluwer Law International, 1997.
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Discusses the international status of Namibia and its boundaries. Demonstrates the intricacy of colonial borders, in particular in southwest Africa, that were not completely demarcated by Germany, the original colonial power. A key contribution of the book is a discussion on the concept of “sphere of influence,” which added to the complexity of the issue of Namibia’s borders with its neighbors, such as Botswana (see International Court of Justice 1999, cited under Uti Possidetis and Maritime Delimitation).
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Castellino, Joshua. International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial “National” Identity. The Hague: Martinus Nijhoff, 2000.
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A chapter dedicated to uti possidetis includes a discussion of its meaning, its origins, its application in colonial and postcolonial contexts, the restrictions it places on self-determination, and state practice through case law. A chapter is included in which the author critiques the heightened importance of uti possidetis in creating an order within international law and whether this view merits a second reading today (see pp. 109–144).
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Castellino, Joshua, and Steve Allen. Title to Territory in International Law: A Temporal Analysis. Aldershot, UK: Ashgate, 2003.
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Systematically analyzes the issue of territorial sovereignty in international law and its history, doctrines, and colonial and postcolonial facets. Argues that territory is a foundation for the existence of statehood and is primarily in place to prevent violence. However, to prevent violence at the cost of justice suggests the interplay of political elements. The authors argue that, ideally, uti possidetis was seen as an approach to guarantee short-term order. However, in the postcolonial era it alters the norm of self-determination.
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Corten, Olivier. Démembrements d’états et délimitations territoriales: L’uti possidetis en question(s). Brussels: Editions de l’Université de Bruxelles, 1999.
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Discusses demarcation of borders in the cases of the dismemberment of territories of the former Yugoslavia and the Soviet Union. Draws a distinction between two types of accession to independence in international law. In cases of right to external self-determination, accession is based on legitimacy, and in cases of secession/dissolution, it is based on effectiveness. This distinction affects the delimitation of new boundaries, which is based on the uti possidetis principle.
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Lalonde, Suzanne. Determining Boundaries in a Conflicted World: The Role of Uti Possidetis. Montreal: McGill-Queen’s University Press, 2002.
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A critical analysis of the origins, development, and application of uti possidetis iuris in Latin America, post-1918 Europe, and Africa. Examines the modern application of this colonial principle in postcolonial situations involving disintegration and secession. The author also argues that the principle of uti possidetis in settling the borders of new states is unable to play a “significant or a successful role.”
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Radan, Peter. The Break-Up of Yugoslavia and International Law. London: Routledge, 2002.
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From an international law perspective, this work revisits the creation of states in the former Yugoslavia. Provides a comprehensive discussion on self-determination and uti possidetis and questions the later application to the postcolonial creation of new states. In particular, the author challenges the decision of the Badinter Commission that internal borders should become international borders between the states in question, based on an application of the principle of uti possidetis.
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Roby, Henry John. Roman Private Law in the Times of Cicero and of the Antonines. 2 vols. Aalen, Germany: Scientia, 1975.
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Provides an account of the origins and usage of the uti possidetis principle in Roman private law. The author explains that the notion of “as you possess you will continue to possess” was used in Roman law in cases in which the title to land was not established and the possessor by virtue of his possession was granted the possession. Originally published in 1902 (Cambridge, UK: Cambridge University Press).
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Shaw, Malcolm. Title to Territory in Africa: International Legal Issues. Oxford: Clarendon, 1986.
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A comprehensive legal account of territorial issues in Africa from the perspective of colonization, decolonization, self-determination, ethnic conflicts (Biafran war and Katanga secession), statehood, territorial integrity, and boundaries. Argues that territorial zones or colonial borders failed to correspond to the cultural and political identity of peoples in Africa; hence, delimitation of African territories proved complex, and uti possidetis provided an easy solution.
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Stability of Borders

The principle of uti possidetis has been viewed as a “principle of customary international law” connected with obtaining independence and involving decolonization (Raič 2002). In “Sovereignty over Certain Frontier Land (Belgium v. Netherlands)” (International Court of Justice 1959, cited under Judicial Decisions), two Latin American judges— Enrique Armand-Ugon and Lucio Moreno Quintana—on the International Court of Justice (ICJ) held that the practice of uti possidetis had crystallized into a general principle of law. Perhaps this conclusion supports the fact that the whole of international law is based on sovereignty over territory, which is the significant element of what constitutes a state. The principle of uti possidetis is intertwined with the notion of the protection of sovereignty and territorial integrity. “The Aaland Island Question (on Jurisdiction)” (International Committee of Jurists 1920)—regarding a dispute between Sweden and Finland over the Aaland Islands—showed that territorial integrity remains the dominant principle within international law, and solutions that could achieve results consistent with it are welcomed. International law has always favored principles that support the fundamental notion of protecting the “stability and finality” of the territory and the borders of sovereign states. Hence, the significance of the principle of uti possidetis lies in its use to maintain the stability of vaguely drawn administrative boundaries of colonial territories following decolonization. In accordance with uti possidetis, these boundaries, which were set at the time colonial powers acquired possession of territories, become the frontiers of the newly independent states. Burgis 2009 perceives uti possidetis to be a concept to preserve stability and argues that such usage of this principle is clear in the African context as well as in its historical practice in Latin America, where after the withdrawal of Spain the newly independent successor states preserved the municipal lines drawn by the Spanish administration in the interests of maintaining stability. Munya 1998 provides an idea as to how uti possidetis iuris delineated postcolonial borders in Latin America, Asia, and Africa, based on the general consensus that the current administrative borders of the province will become the administrative borders of new the state. Regarding decolonization, Shaw 1996 sees uti possidetis as operating in the creation of new states in following colonial demarcations. Ratner 1996 discusses the use of uti possidetis in settling internal, administrative boundaries, challenging the notion that internal boundaries are functionally equivalent to international boundaries. The author contends that such boundaries are not functionally equivalent. The decision in International Court of Justice 1986 (cited under Judicial Decisions) shows that territorial adjudications in the postcolonial era are decided by relying on the colonial legacy of uti possidetis, suggesting that such conflicts can be resolved without resort to any other legal considerations. This viewpoint is considered by some authors, such as Brian Taylor Sumner (Sumner 2004), as demonstrating the institutional bias of the ICJ, which has developed “a hierarchical preference for treaty law, uti possidetis, and effective control, respectively.” For this reason, Mutua 1995 rightly calls a new entity that is created based on uti possidetis a “contrived state.”

Burgis, Michelle Leanne. Boundaries of Discourse in the International Court of Justice: Mapping Arguments in Arab Territorial Disputes. Leiden, The Netherlands: Martinus Nijhoff, 2009.
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Provides an interesting account of the ICJ cases involving boundary drawing in Arab territorial disputes, focusing on the structures of legal arguments that emerge in territorial disputes involving Arab states adjudicated by the ICJ. Also discusses whether these arguments of boundary delimitation in the postcolonial period have redefined the international legal discourse through new legal arguments posited by modern Arab states. In discussing these issues, the role of uti possidetis is highlighted as and when useful.
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International Committee of Jurists “The Aaland Island Question (on Jurisdiction).” Report of the International Committee of Jurists. League of Nations Official Journal, Special Supplement 3 (1920).
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The rapporteurs in this question concluded that Finland’s sovereignty extended to the Aaland Islands and asserted that allowing the separation of the Aaland Islands from Finland would amount to a violation of Finland’s sovereignty. The final outcome of this dispute was consistent with the principle of uti possidetis. However, the first report drafted by the committee of jurists explicitly rejected the application of the uti possidetis principle and did not refer to it.
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Munya, P. Mweti. “The International Court of Justice and Peaceful Settlement of African Disputes: Problems, Challenges, and Prospects.” Journal of International Law and Practice 7.2 (1998): 159–224.
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Provides an overview of the peaceful settlement of disputes through the ICJ in the African context and discusses the relevance of uti possidetis in that context.
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Mutua, Makau wa. “Why Redraw the Map of Africa: A Moral and Legal Inquiry.” Michigan Journal of International Law 16.4 (1995): 1113–1176.
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Critiques how state boundaries are drawn and why they fail, providing some alternatives for avoiding any failures. In the context of the creation of new states, the author perceives uti possidetis to be an unnatural force.
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Raič, David. Statehood and the Law of Self-Determination. Leiden, The Netherlands: Martinus Nijhoff, 2002.
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The author investigates whether international law is well equipped to deal with ethnic conflicts and the creation of new states in the postcolonial era. A critique on the finality of distribution of territories after the end of decolonization is also presented.
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Ratner, Steven R. “Drawing a Better Line: Uti Possidetis and the Borders of New States.” American Journal of International Law 90.4 (1996): 590–624.
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Argues that the “application of uti possidetis to the breakup of states today . . . ignores critical distinctions between internal lines and international boundaries.”
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Shaw, Malcolm N. “The Heritage of States: The Principle of Uti Possidetis Juris Today.” British Yearbook of International Law 67.1 (1996): 75–154.
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Author visualizes the new states and contested boundaries from the preview of uti possidetis as follows: The essence of the norm is that “new states will come to independence with the same boundaries they had when they were administrative units within the territory or territories of a colonial power” (p. 97).
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Sumner, Brian Taylor. “Territorial Disputes at the International Court of Justice.” Duke Law Journal 53.6 (2004): 1779–1812.
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The author notes that boundaries in the ICJ cases have always been subject to various justifications of territorial claims, namely, treaties, geography, economy, culture, effective control, history, uti possidetis, elitism, and ideology. Author highlights that the ICJ has consistently relied on three of these justifications in cases of territorial disputes, uti possidetis being one of them and the others being treaty law and effective control.
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Boundary, Line, or an Abstraction

Apart from traditional discussions on the principle of uti possidetis, there are some specialized views and perspectives on its legal nature. Shaw 1997 visualizes uti possidetis as “not essentially a factual question” but a “presumption.” Ratner 1996 (cited under Stability of Borders) argues that the default line requiring inheritance of prior boundaries suffers from functional as well as normative flaws, which produce injustices and instability in the modern world. The author infers that uti possidetis may have been “no more than a policy decision adopted to avoid conflicts during decolonization.” Steven R. Ratner values uti possidetis iuris as an idiot rule that serves as a last barrier “between terra nullius and order.” Norchi 2010 emphasizes that the issues of human rights, human dignity, and self-determination are to be considered and that uti possidetis should not be applied as a default rule. Contextualizing a similar view, Heintze 2002 argues that the far-reaching consequences of uti possidetis were visible in cases in which the newly independent states were obliged to respect their own borders despite the fact that frontiers were drawn arbitrarily by the former colonial powers, dividing the traditional territories of ethnic groups. Anderson 1996 perceives frontiers between states as “institutions and processes” (p. 1). In the context of the peaceful settlement of boundary disputes, Cukwurah 1967 argues that, given the vagueness of some colonial borders, using uti possidetis as a yardstick resulted in conflicts. Hill 1945 adopts a similar line of argument.

Anderson, Malcolm. Frontiers: Territory and State Formation in the Modern World. Cambridge, UK: Polity, 1996.
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Anderson, in his very interesting book, discusses the creation of states and perceives frontiers between states as “institutions and processes” (p. 1). He also discusses the historical and modern importance of frontiers and rightly mentions that a clear boundary is paramount for the normal functioning of a state. See especially PP. 1–36.
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Cukwurah, A. Oye. The Settlement of Boundary Disputes in International Law. Manchester, UK: Manchester University Press, 1967.
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Provides an overview of the settlement of boundary disputes in international law and affirms that international boundary disputes must be settled peacefully in conformity with the UN Charter. Author argues that in some areas “at the time of independence the colonial administrative authorities of a given political unit had been in fact exercising civil jurisdiction beyond the line designated, approximately at least, as the limit of their territorial jurisdiction” (pp. 114–115).
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Heintze, Hans-Joachim. “Self-Determination, Right of.” In A Concise Encyclopedia of the United Nations. Edited by Helmut Volger, 505–510. The Hague: Kluwer Law International, 2002.
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The entry on self-determination also focuses on the vagueness of borders and its effect on the exercise of this right.
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Hill, Norman. Claims to Territory in International Law and Relations. New York: Oxford University Press, 1945.
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A thorough discussion on territorial claims; argues that borders were not carefully defined lines but instead were more closely approximated, vaguely delineated border zones or marshes, and that blind application of this principle of uti possidetis has resulted in numerous territorial disputes and unclear boundaries.
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Norchi, Charles. “Culture and Law on the Durand Line: Continuity and Change.” In Cultural Change and Persistence: New Perspectives on Development. Edited by William Asher and Jay Heffron, 203–232. Basingstoke, UK: Palgrave Macmillan, 2010.
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Discusses the cultural and legal clash in relation to the Durand Line and emphasizes that the issues of human rights, human dignity, and self-determination are to be considered in this situation. Norchi argues that a blanket application of uti possidetis could lead to injustices for the indigenous populations living in frontiers or regions that front boundaries, especially with respect to soft, contested borders, such as the Durand Line.
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Shaw, Malcolm N. “Peoples, Territorialism, and Boundaries.” European Journal of International Law 8.3 (1997): 478–507.
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As a presumption in law, the question is “Does evidence exist to dislodge the presumptive application of the principle concerned?”
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Judicial Decisions

In dealing with territorial and maritime disputes related to decolonization, courts have relied on the principle of uti possidetis either explicitly or tacitly. On reflection, this reliance is not surprising, because courts try to uphold sovereignty, which is the main pillar of international law. This approach locks colonial/postcolonial nations and peoples within the artificial construct of statehood (International Court of Justice 2002). The court generally gave lesser importance to effective control through effectivités due to its subsidiary nature, which, in the court’s view, did not supersede the sovereignty argument. However, in the “Land, Island, and Maritime Frontier Dispute” (International Court of Justice 1992), the court held that in certain instances it is possible to have regard to “documentary evidence of post-independence effectivités when they afford indications in respect of the uti possidetis juris” (paragraph 62). In “Case concerning the Frontier Dispute (Benin v. Niger)” (International Court of Justice 2005), the court highlighted a relationship between legal title and effectivités and continued the precedent of uti possidetis iuris regardless of who has de facto control of a disputed territory in the postcolonial era. Employing pragmatism, the court maintained in “Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali)” (International Court of Justice 1986) that the “territorial status quo” is essential to “preserve what has been achieved by peoples who have struggled for their independence.” In resolving territorial disputes, the International Court of Justice (ICJ) has maintained that the existence of a boundary treaty or official documents related to delimitation of borders constitutes a relevant circumstance (International Court of Justice 1962). The application of uti possidetis was dependent mostly on the existence of a treaty that firmly stipulated application of the uti possidetis principle (International Court of Justice 1992, International Court of Justice 1959). However, in cases in which a treaty was not recognized as attaining a preemptory status, it was not applied (“Dispute between Argentina and Chile concerning the Beagle Channel”).This arbitral award was, however, rejected by Argentina, thus raising doubts whether uti possidetis exists as a rule or as a political precept (see Specialized Works). In situations in which a boundary dispute was related to a colonial administrative treaty, the principle of uti possidetis was given legal effect by the court (International Court of Justice 1992). The ICJ treated uti possidetis as a legal principle in decolonization situations (International Court of Justice 1986). The court stipulated that it is not necessary for a treaty to expressly mention application of uti possidetis in decolonization cases. However, uti possidetis was not treated as a peremptory rule, and parties were in a position to modify the boundary stemming from its application. Furthermore, courts also took note of the concept of the critical date, based on which presumption of boundary drawing as well as uti possidetis operates. The critical date prevents alteration of a legal position after a certain moment when the rights of parties crystallized (Dubai-Sharjah Border Arbitration). In cases in which the terms of a treaty regarding delimitation were unclear, tribunals would not apply uti possidetis (“Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau”).

“Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau.” Reports of International Arbitral Awards 19 (1985): 149–196.
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The tribunal noted that the 1886 convention determined a maritime boundary between France and Portugal until the end of the colonial period, and that boundary then became binding as between Guinea and Guinea-Bissau by virtue of the principle of uti possidetis. Since the meaning of “limit” was unclear in the 1886 convention, the tribunal was of the view that it did not establish the maritime boundary between these French and Portuguese possessions in West Africa.
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“Dispute between Argentina and Chile concerning the Beagle Channel.” Reports of International Arbitral Awards 21 (1977): 57–223.
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This dispute concerned the territorial and maritime boundaries and title to certain islands, islets, and rocks near the region of the eastern Beagle Channel. The tribunal held that uti possidetis was not applicable to this case, because it had not attained the status of a sort of jus cogens (compelling law) of the whole treaty (paragraph 23). However, Argentina insisted that the uti possidetis iuris of 1810 should be applied, because Argentina was the successor state to the Spanish crown.
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“Dubai-Sharjah Border Arbitration.” International Law Reports 91 (1981): 543–701.
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The Court of Arbitration in this dispute was confronted with a number of issues relating to historical events and critical dates. On the question of “critical date,” the court held that the year 1905 represents a critical date, and noted that “generally, the Court has preferred to pay attention to written documents from the period in question which afford a more reliable source of evidence.”
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International Court of Justice. “Sovereignty over Certain Frontier Land (Belgium v. Netherlands): Judgment of 20 June 1959.” ICJ Reports (1959): 209–232.
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Rejecting the Dutch claim that the 1843 boundary convention did not reflect the common intention of the parties, the court held that this convention established the border and that the disputed plots were Belgian. The court found that Belgium had not ceased to assert its rights and that encroachments by The Netherlands were insufficient to supplant Belgian sovereignty.
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International Court of Justice. “Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits: Judgment of 15 June 1962.” ICJ Reports (1962): 6–38.
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The court recognized the sovereignty of Cambodia over the disputed temple and decided the case based on the explicit acceptance by France and Siam (present-day Thailand) of maps showing the temple to be located in the territory of present-day Cambodia. The court decided to apply the 1904 boundary treaty on behalf of Cambodia, which reflected the fact that the temple devolved to Cambodia under the principle of uti possidetis.
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International Court of Justice. “Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali): Judgment of 22 December 1986.” ICJ Reports (1986): 554–651.
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The ICJ discussed the legal importance of the uti possidetis principle, calling it a general principle that is logically attached to independence wherever it occurs, because it protects the stability of newly independent states. The court emphasized the exceptional importance of uti possidetis for the African continent to preserve “stability in order to service, to develop and gradually to consolidate their independence in all fields” (paragraph 25).
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International Court of Justice. “Land, Island, and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening): Judgment of 11 September 1992” ICJ Reports (1992): 351–618.
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With regard to the dispute, the ICJ called the principle of uti possidetis “a retrospective principle, investing as international boundaries administrative limits, intended ordinarily for quite other purposes” (paragraph 43). The court applied uti possidetis to the delimitation of the land frontier.
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International Court of Justice. “Land and Maritime Boundary (Cameroon v. Nigeria: Equatorial Guinea Intervening): Judgment of 10 October 2002.” ICJ Reports (2002): 303–422.
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In this dispute, both parties made arguments based on treaties, history, effective control, and uti possidetis. In deciding on sovereignty over the Bakassi Peninsula and its boundary delimitation, the court used the Anglo-German Agreement of 11 March 1913 and concluded that Cameroon possessed sovereignty of the peninsula, based on uti possidetis.
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International Court of Justice. “Case concerning the Frontier Dispute (Benin v. Niger): Judgment of 12 July 2005.” ICJ Reports (2005): 90–151.
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Discussing the relationship between the legal title, in the light of the uti possidetis iuris principle, of postcolonial effectivités, the court noted that both parties have on occasion sought to confirm the legal title that they claim by relying on acts whereby their authorities allegedly exercised sovereignty over the disputed territories after 1960 (paragraph 27).
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Uti Possidetis and Maritime Delimitation

In maritime delimitation cases, as in the cases of land demarcations, the ICJ takes serious note of the existence of an express colonial maritime agreement, or tacit understanding, of colonial powers to create maritime jurisdictions, which is subject to presenting evidence to that effect. Succession to factual situations existing during the colonial period as a result of exploitation or other concessions was also taken into consideration. In the absence of this factual information, the maritime boundary is delimited de novo (International Court of Justice 2007). As far as the application of uti possidetis to delimitation of maritime divisions is concerned, courts accept such limitations if encapsulated in a maritime boundary treaty or exchange of letters between the colonial powers. However, such application applies exclusively to the zones expressly mentioned. In “Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal” Mohammed Bedjaoui, in his dissenting opinion, expressly declared that the agreement of 1960 did not have the force of law with respect to the waters of the exclusive economic zone and the fishery zone. Courts have also accepted that colonial maritime treaties and de facto maritime limits in the context of succession of states provide a relevant circumstance to delimit the maritime areas (International Court of Justice 1982). In the “Case concerning Kasikili/Sedudu Island (Botswana v. Namibia)” (International Court of Justice 1999), the ICJ underscored the importance of uti possidetis in determining title to the islands. Using the principles of international law, including uti possidetis, the court determined “the boundary between Namibia and Botswana around Kasikili/Sedudu Island and also the legal status of the island.” Where the delimitation was based on the consent of the colonial power and the rulers of the colonial entities, it was thought unnecessary to discuss the principle of uti possidetis. In the “Case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain)” (International Court of Justice 2001), in deliberating on the maritime delimitation related to the Hawar Islands, the court observed that the rulers of both parties gave their consent for the British government to settle the dispute concerning the Hawar Islands and hence held that “the 1939 decision must be regarded as a decision that was binding from the outset on both States and continued to be binding on those same States after 1971, when they ceased to be British protected States.” Kohen 2008 argues that the difficulty in applying uti possidetis iuris to cases involving maritime delimitation is in finding out whether newly independent states can be bound by the delimitation agreements that were signed by the former colonial powers or by the colonial powers’ unilateral acts creating maritime jurisdiction.

“Delimitation of the Maritime Boundary between Guinea-Bissau and Senegal.” Reports of International Arbitral Awards 20 (1989): 119–213.
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The tribunal decided that an agreement concluded by an exchange of letters on 26 April 1960 between France and Portugal, relating to the maritime boundary between Senegal (French dependent territory) and Guinea-Bissau (Portuguese colony), had the force of law in the relations between the parties. However, the court held that the agreement had the force of law in relations between the two states “with regard solely to the areas mentioned in that agreement, namely the territorial sea, contiguous zone and continental shelf” (paragraph 7).
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International Court of Justice. “Case concerning the Continental Shelf (Tunisia v. Libyan Arab Jamahiriya): Judgment of 24 February 1982.” ICJ Reports (1982): 18–94.
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The court regarded the 1910 convention and the existence of a de facto line as important determinants for the delimitation of the continental shelf. Judge Eduardo in his separate opinion stated “uti possidetis apply to the colonial delimitation . . . there was a de facto delimitation for the exploitation of seabed areas which was acquiesced to and thus it is one which the court cannot now revise or ignore” (paragraph 102).
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International Court of Justice. “Case concerning Kasikili/Sedudu Island (Botswana v. Namibia): Judgment of 13 December 1999.” ICJ Reports (1999): 1045–1109.
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The court ruled by eleven votes to four that the boundary follows the Chobe River around the island and that the island itself forms part of the territory of Botswana. Botswana, using the provisions of the Anglo-German Agreement of 1890, established that Kasikili/Sedudu Island falls exclusively within the sovereignty of Botswana.
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International Court of Justice. “Case concerning Maritime Delimitation and Territorial Question between Qatar and Bahrain (Qatar v. Bahrain), Merits: Judgment of 16 March 2001.” ICJ Reports (2001): 40–118.
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The court awarded the Hawar Islands to Bahrain, based on the 1939 British decision, and held that it was unnecessary to discuss the arguments of the parties based on the existence of an original title, effectivités, and the applicability of the principle of uti possidetis iuris.
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International Court of Justice. “Case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras): Judgment of 8 October 2007. ICJ Reports (2007): 659–764.
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Court held that the “uti possidetis juris principle might in certain circumstances, such as in connection with historic bays and territorial seas, play a role in a maritime delimitation” (paragraph 232). The court rejected claims based on uti possidetis iuris that it provided a basis for a “traditional” maritime boundary, and it also concluded that no tacit agreement was in effect concerning the existence of a boundary along the N 14°59.8ʹ parallel.
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Kohen, Marcelo. Uti Possidetis and Maritime Delimitations. UN Audiovisual Library of International Law, 2008.
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Argues that the importance of uti possidetis in maritime delimitations is to determine maritime areas (historical waters), the succession to treaties establishing maritime boundaries, and the succession to delimitation or tacit agreements between the predecessor state(s), insofar as they exist.
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Spanish American Cases

To understand the treatment of territory within international law it is essential to discuss the Latin American contributions. It was the uprising against Spanish rule by the Creoles, who were motivated to seek independence from Spain, that led to the wars of independence (1810–1826) in Spanish America. These wars led to the dismemberment of the Spanish Empire in America, resulting in the creation of a number of independent republics. It was at the time that Spain withdrew that the principle of uti possidetis was used to avoid anticipated territorial disputes. However, application of the principle failed to completely prevent the rise of boundary disputes. The newly independent countries consented to apply this principle to their territorial disputes. Many arbitral awards that are related to the boundaries between the Latin American countries have been decided, which have clarified various aspects of uti possidetis. Arbitration treaties were concluded that explicitly affirmed strict adherence to the American principle of uti possidetis of 1810. In situations in which the administrative authority was exercised beyond the delimited jurisdiction, the successor states used uti possidetis to argue that the principle meant the actual administrative possession (de facto), whereas the party whose territory was lost argued the case on the legal authority (de jure) of the juridical line. The principle of uti possidetis was treated as a material fact that was to be tested against other circumstances, such as acquiescence. In this case, the power to modify the principle of uti possidetis was interpreted by the arbitrators as authorizing them to determine a boundary “as justice may require” (“Honduras Borders [Guatemala v. Honduras]”). In some cases, uti possidetis played a significant role in conflicts of attribution (“Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island, Raised between Venezuela and the Kingdom of The Netherlands”). In other cases concerning determination of boundaries, tribunals did not recognize the juridical value of de facto possession that was litigated by the parties to a dispute (“The Border Dispute between Honduras and Nicaragua”).

“Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island, Raised between Venezuela and the Kingdom of The Netherlands.” Reports of International Arbitral Awards 28 (1865): 115–124.
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Both Venezuela and The Netherlands claimed Aves Island, based on exercising sovereignty over the island. The island was eventually awarded to Venezuela. Ruling held that to determine sovereignty based on the authority of geographers it must be unanimous; a temporary, precarious occupation of territory is insufficient to support the right to sovereignty.
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“The Border Dispute between Honduras and Nicaragua.” Reports of International Arbitral Awards 11 (1906): 101–117.
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The two parties concluded a convention with a view to terminate their differences regarding the demarcation of their common boundary from the Pacific coast to the Portillo de Teotecacinte. The king of Spain handed down his award in 1906. The award was later challenged by the government of Nicaragua. However, in 1960 it was found to be binding by the ICJ.
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“Honduras Borders (Guatemala v. Honduras).” Reports of International Arbitral Awards 2 (1933): 1307–1366.
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The territorial claim of Honduras failed due to continuous assertions of authority by Guatemala in the regions that were not contested by Honduras. Numerous maps were presented by the parties to determine the line of the uti possidetis of 1821. However, Chief Justice Hughes held that such maps are of “little or no value in marking the just limits of territorial jurisdiction.”
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Identities, Boundaries, and Decolonization Process

International law provides a strong legal modality to colonial peoples struggling to acquire independence within the limits of colonial boundaries. All other claims of self-determination are subject to negative disenfranchisement. Koskenniemi 1994 argues that the definition of “people” is tied to national self-determination. In this context, Radan 2002 (cited under Specialized Works) insists that the implications of the two distinct theories of self-determination, that is, the classical and the romantic, are highly significant for the creation of states. Humphrey 1986 argues that no consideration was given to disparate cultures, religions, or languages in defining “people.” Brilmayer 1991 adopts a stricter view and argues that it is the historical title to the territory alone that entitles people to the right to self-determination. The author further argues that if such a claim exists, it will not matter whether the group in question is homogeneous along linguistic, cultural, religious, or ethnic lines. The principle of uti possidetis assisted in creating new identities within the colonial administrative boundaries, and in postcolonial-era preservation of these contrived identities, it was not always politically and technically possible (see State Dissolution and Secession). As a result, using uti possidetis as a means by which to delimit boundaries during decolonization failed to identify the differences within states. In the Western Sahara case (International Court of Justice 1975), Morocco used a number of colonial treaties to prove its title to the territory of Western Sahara. At an objective level, this shows that Morocco disputed the process of demarcation of boundaries and disregarded the people’s right to self-determination. The process of decolonization had two significant interests to achieve: protection of territorial integrity and the people’s right to self-determination. Blay 1986 argues that these two interests, which international law recognized, were often in conflict with each other. During the process of decolonization, uti possidetis was used as a panacea to maintain peace and stability and to transform administrative colonial borders into international borders (see International Court of Justice 1986, cited under Judicial Decisions). However, it is significant that the acceptance of uti possidetis in Asia and Africa varied (see Asia and Africa). Reisman 1995 argues that when the United Nations began to legislate for rights of the people, it adopted a restrictive definition to determine “who was a people” and “generally ensuring that indigenous peoples would not qualify.” The decolonization process stressed that territorial sovereignty was based on colonial administrative borders created by colonizers (UN General Assembly 1960). Ghai 1996 discusses the response of the United Nations and its reluctance to permit any partition of non-self-governing territories, such as the British Indian Ocean Territories and Mayotte (Camaros Islands), irrespective of their varying diversities. Even the UN policy for determining the future of colonial peoples by means of plebiscites was limited and offered only a narrow choice, as in the case of British Togoland.

Blay, S. K. N. “Self-Determination versus Territorial Integrity in Decolonization.” New York Journal of International Law and Politics 18.2 (1986): 441–472.
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Provides a discussion on the decolonization process and how the United Nations seeks to protect territorial integrity and advocate on behalf of self-determination. Based on the General Assembly’s handling of some decolonization cases, the author shows that self-determination has a preemptive status as against territorial integrity, except in certain classes of colonies. The author argues that there is no coherent mechanism in place to balance the two against each other.
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Brilmayer, Lea. “Secession and Self-Determination: A Territorial Interpretation.” Yale Journal of International Law 16 (1991): 177–202.
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Provides a territorial interpretation of separatist claims to self-determination and secession and argues that conflicts are over land as opposed to principles. The author argues that it is important to understand why a particular secessionist group is entitled to a particular piece of land, as opposed to another tract that it possessed in the past and upon which it claimed territorial integrity.
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Ghai, Yash. “Reflections on Self-Determination in the South Pacific.” In Self-Determination: International Perspectives. Edited by Donald Clark and Robert Williamson, 174–199. London: Macmillan, 1996.
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Through useful examples, discusses the experience of decolonization in the South Pacific and provides insights into the exercise of self-determination. Mayotte argues that the “French encouraged secession [hence Mayottization], and that intervention was a reason for the UN resolution against splitting a colony” (pp. 182–183).
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Humphrey, John P. “Preventing Discrimination and Positive Protection for Minorities: Aspects of International Law.” Les cahiers de droit 27 (1986): 23–29.
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Discusses minority protection and critiques its political and historical antecedents. Argues that it was believed that “peoples,” through the process of nation building, would overcome these differences.
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International Court of Justice. “Western Sahara: ICJ Advisory Opinion of 16 October 1975.” ICJ Reports 1975: 12–82.
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The court upheld the validity of the right to self-determination and emphasized that territories peopled by tribes are not treated as terra nullius in the process of decolonization and that the independent movement of such people demonstrates a de facto authority. The court held that the legal ties between Western Sahara and Morocco/Mauritania were not of such a character as to justify the reintegration or retrocession of the territory without consulting the people.
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Koskenniemi, Martti. “National Self-Determination Today: Problems of Legal Theory and Practice.” International and Comparative Law Quarterly 43.2 (1994): 241–269.
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Discusses the discourse of national self-determination and its unclear status, from philosophical, theoretical, and practical perspectives. Argues that self-determination was used in managing the colonial relationships between European empires and their overseas colonies. However, in the postcolonial era, self-determination contains little that is self-evident, and disagreements present political priorities. Available online for purchase or by subscription.
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Reisman, W. Michael. “Protecting Indigenous Rights in International Adjudication.” American Journal of International Law 89.2 (1995): 350–362.
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Discusses the rights of indigenous people within international law and argues that decolonization benefited mostly so-called local elites of European extraction and that legal doctrines such as uti possidetis, which the elites of the new states appropriated in the 19th century, effectively precluded any recognition of rights to the lands that indigenous peoples had historically inhabited.
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UN General Assembly. The United Nation’s Declaration on the Granting of Independence to Colonial Countries and Peoples. Resolution 1514 (XV), 14 December 1960.
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This UN resolution on the decolonization process upholds the international principle of territorial integrity, the inviolability of state borders, and sovereignty.
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Asia

The doctrine of uti possidetis contributed to the creation of present-day Asian states. Prescott and Triggs 2008 argues that borders were established by European powers through negotiations both with Asian empires, such as China, and with those states that were not annexed, such as Afghanistan, Nepal, and Thailand. The principle of uti possidetis in the Asian context was accepted, and not imposed, through common agreement. However, the opposite was true in the case of Africa, because self-determination there was grounded in territory and not in ethnicity (see Organization of African Unity 1964, cited under Africa). Solomon 1970 argues that the use of uti possidetis in Asia (especially Southeast Asia) was different, because decolonization largely involved tracing precolonial traditional frontiers. In this context, the “Rann of Kutch Arbitration (The Indo-Pakistan Western Boundary Case Tribunal” between India and Pakistan over a British vassal state is useful. The main question before the tribunal was whether a historically recognized and well-established boundary in the area in dispute ever existed. In Asia the uti possidetis principle is associated mostly with sovereignty disputes rather than seen as an issue related to self-determination. This is more clearly discussed in relation to International Court of Justice 1962 (cited under Judicial Decisions). Pan 2011 relates the concept of uti possidetis to the concept of unequal treaties, as in the case of the dispute concerning the McMahon Line.

Pan, Junwu. “Chinese Philosophy and International Law.” Asian Journal of International Law 1.2 (2011): 233–248.
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Presents an interesting viewpoint of Chinese philosophy and international law. In the context of the McMahon Line dispute, the author argues that China is unwilling to apply the treaty—the Simla Convention of 1914—alleged to have been negotiated on an unequal basis, and also the uti possidetis principle, because both are based on the creation of “sphere of influences” by Britain in Asia. Available online for purchase or by subscription.
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Prescott, Victor, and Gillian D. Triggs. International Frontiers and Boundaries: Law, Politics, and Geography. Leiden, The Netherlands: Martinus Nijhoff, 2008.
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This is an interdisciplinary work on international frontiers and boundaries—both land and water. The discussions are based on legal, historical, geographical, and diplomatic perspectives in Asia, Africa, Europe, the islands off Southeast Asia, and Antarctica.
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“Rann of Kutch Arbitration (The Indo-Pakistan Western Boundary Case Tribunal).” ILR 50 (1968): 407–521.
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The case involved the boundary dispute between India and Pakistan over a region of Sind that became part of Pakistan after its independence. The tribunal concluded that there was no recognized boundary that warranted application of the uti possidetis principle in the dispute in question. However, award of the territory to Pakistan was based on the fact that traditional boundaries existed prior to 1947.
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Solomon, Robert L. “Boundary Concepts and Practices in Southeast Asia.” World Politics 23.1 (October 1970): 1–23.
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Provides a panoptical view of the boundary concept in Southeast Asia, which was based on history and state traditions that were left untouched by the colonial powers. For them this meant these countries inherited state borders of already existing entities that had long state traditions.
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Africa

Most of the political boundaries in Africa were drawn by Europeans during the late 19th century, a period known as the “scramble for Africa.” Castellino and Allen 2003 (cited under Specialized Works) notes that during this period certain African treaties that were signed with European colonizers carried uncertain validity and were entered into primarily to gain a foothold in Africa. These were the treaties that later became significant in the process of decolonization. Prescott and Triggs 2008 (cited under Asia) argues that during the period characterized as the “scramble for Africa” only three African nations, namely, Ethiopia, Liberia, and Morocco, were actually engaged in delimiting all or some of their boundaries. In most of the rest of Africa, borders were the result of colonial treaties, which remained frozen at the time of decolonization. The Organization of African Unity, for the sake of convenience, peace, and stability, made a pledge—The Cairo Resolution 1964 (Organization of African Unity 1964)—to respect the colonial administrative boundaries. A similar principle already appeared in paragraph 3 of Article III of the Charter of the Organization of African Unity, enacted in1963. Thus, the fear of destabilization of the external and internal postcolonial borders of Africa was set to rest with the adoption of this declaration. However, attitudes remain strong within African nations that African boundary problems are traceable to colonialism and to the mismanagement of the European powers. Castellino and Allen 2003 (cited under Specialized Works argues that the territorial gains between African entities continued even in the postcolonial period, because the treaties of acquisition were recognized by the colonial powers when territories were partitioned as title deeds inter se. Allott 1974 argues that the British protectorate was a product of the amalgamation of territories of numerous small African entities with which British agents had concluded treaties of protection. Hence, protectorates were artificial entities that were manufactured by the imperial governments and were not created by any preexisting political communities. Further, the third-party treaties (International Court of Justice 1994) and conventions gave rise to the existence of “buffers.” Flint 1960 argues that sometimes “spheres of influence” would preempt protectorates falling within their limits. Weissberg 1963 asserts that the role of uti possidetis in Asia was sharply different from that in Africa, because in the latter it set territorial limits for its application and hence restricted the realization of self-determination. In Africa, decolonization presented a problem that was related to the arbitrary nature of boundaries. The right to self-determination of indigenous peoples was not recognized; hence, a form of legality was given to the expropriation of the lands of these peoples. Africa was faced with the dilemma of either accepting the colonial boundaries as new international frontiers or devising a new system. Perhaps for this reason the Pan-African movement advocated in favor of stability and maintenance of the status quo at independence. The members of the movement pledged “to respect the borders existing on their achievement of independence.”

Allott, Antony N. “The Changing Legal Status of Boundaries in Africa: A Diachronic View.” In Foreign Relations of African States. Edited by Kenneth Ingham, 111–128. London: Butterworths, 1974.
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Discusses the legal functions of international boundaries in Africa at various historical periods and argues that these boundaries became the source of disputes because they were not just political lines separating various African states but also lines dividing peoples of complex ethnic and historical backgrounds.
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Flint, John E. Sir George Goldie and the Making of Nigeria. London: Oxford University Press, 1960.
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A biography of George Goldie, a British colonial administrator, that narrates his role in securing the Niger River trade in the 1870s, which later assisted in securing British control over the Niger and Benue rivers. Provides the historical context behind the establishment of Nigeria and the role Britain played in its colonization.
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International Court of Justice. “Case concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad): Judgment of 3 February 1994.” ICJ Reports (1994): 6–42.
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In this case, the issue was to delimit boundaries between the parties, and the chief question centered on the interpretation of the Treaty of Friendship and Good Neighbourliness signed between Libya and France in 1955. The relevance of this treaty was that it dealt with consideration of the boundary between Libya and Chad. The case also took up the issue of the treatment of territory in different ways.
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Organization of African Unity. The Cairo Resolution 1964. AHG/Res. 16(I): Border Disputes among African States. 1964.
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At the first session of the Organization of African Unity in Cairo, United Arab Republic, held from 17 to 21 July 1964, delegates, in considering that border problems constituted a grave and permanent factor of dissention, solemnly declared “that all Member States pledge themselves to respect the borders existing on their achievement of national independence.”
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Weissberg, Gunter. “Maps as Evidence in International Boundary Disputes: A Reappraisal.” American Journal of International Law 57.4 (1963): 781–803.
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Reviews the evidentiary value of maps in international border disputes and asserts that, regardless of their number or designation, courts are reluctant to accept them in determining the location of a boundary or in deciding territorial claims.
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Territory and Identity in the Postcolonial Period

Theorists such as Ian Brownlie (Brownlie 2002) support the priority of uti possidetis to self-determination. However, identities in the postcolonial era are largely based on the romantic theory of self-determination, which professes that self-determination transcends externally imposed boundaries and disregards territorial limits. Ozmanczyk and Mango 2003 clearly states the UN position on self-determination in relation to ethnic groups living within the borders of member states, such as Kurds in Turkey, Basques in Spain, and Chechens in Russia, in holding that they do not possess the right to secession. However, East Pakistan was able to create a separate state—Bangladesh—in the postcolonial era (1971), based on the romantic theory. Over the years, scholars have criticized the orthodox position that the United Nations has adopted. Groarke 2004 maintains that there is a political right to secede that may arise independently of any legal right. Likewise, Buchanan 1991 is of the view that international law has bestowed a degree of legitimacy on the right of some groups of peoples to secede, although in a haphazard manner. Eastwood 1993 argues that the reason the Supreme Court of Canada in Re Secession of Quebec ([Supreme Court of Canada 1998]) refused to acknowledge the legality of the unilateral secession of Quebec was that the Canadian government did not oppress Quebecers. With respect to self-determination, Shaw 1986 (cited under Specialized Works) makes an interesting point that “the principle of self-determination safeguarded the colonial delimitations and disregarded ethnic diversity.” It therefore seems that uti possidetis is not generally incompatible with self-determination. It would conflict with self-determination based on the romantic theory only in cases in which its application would lead to dissolution and secession of territories. In contemporary international law, secession is accepted only in the strictest terms and seems to be circuitously allowed for among those elements of the population who are not represented in the government. Hence, in the postcolonial era the romantic theory (under this theory people tie their identities to their cultures, languages, etc., in viewing themselves as a nation) admits the alteration of existing state borders and envisions secession, including irredentism and dissolution, as a possible means to exercise self-determination. However, this is difficult to justify in practice. Another kind of acquisition of independence in the postcolonial period is based on secession/dissolution, which does not have colonial roots. Examples include Yugoslavia and the Soviet Union. However, it is arguable whether acceptance of a colonial status quo by the new independent republics created out of these former nations is tantamount to adhering to uti possidetis. In these cases, the application of uti possidetis has been both supported and opposed. Furthermore, in the case of the Baltic States, an interesting question arises as to whether uti possidetis can be applied in the period after independence with respect to the former administrative frontier, which was established on the basis of belligerent annexation (see State Dissolution and Secession).

Brownlie, Ian. “Boundary Problems and the Formation of New States.” In Contemporary Issues in International Law. Edited by David Freestone, Surya Subedi, and Scott Davidson, 185–196. The Hague: Kluwer, 2002.
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Book chapter that narrates the difficulties encountered in the creation of new states. In reference to uti possidetis, Brownlie expresses his view as follows: “There is a complementarity between uti possidetis and the principle of self-determination. It is uti possidetis which creates the ambit of the pertinent unit of self-determination, and which in that sense has a logical priority over self-determination.”
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Buchanan, Allen E. Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec. Boulder, CO: Westview, 1991.
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Focuses on the moral issues of secession at the practical and the political levels and develops an argument as to when secession can be justifiable. The author also discusses Bangladesh, Biafra, the Baltic States, South Africa, and Quebec to illustrate his point.
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Eastwood, Lawrence S. “Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia.” Duke Journal of Comparative and International Law 3.2 (1993): 299–349.
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Discusses secession from the perspective of state practice and uses Yugoslavia and the Soviet Union as illustrations. Points out the tension between the right to secession of minorities and the goal of upholding the status quo, presenting a normative argument on secession along with the limits put on it.
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Groarke, Paul. Dividing the State: Legitimacy, Secession, and the Doctrine of Oppression. Burlington, VT: Ashgate, 2004.
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Provides a view on the secession of states and reviews it from the perspective of the legal concept of legitimacy, the problem of sovereignty, theories of secession, the philosophical framework, and practical issues.
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Ozmanczyk, E. J., and Anthony Mango. Encyclopedia of the United Nations and International Agreements. 3d ed. Vol. 3. New York: Routledge, 2003.
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Overview of the UN position on various international law issues, including colonization and self-determination. In reference to self-determination, states that this right is well recognized for non-self-governing territories and within colonial administrative boundaries. The many former colonies and protectorates were admitted to membership to the United Nations as independent states and also maintained territorial boundaries of the former colony. See PP. 2101–2103.
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Supreme Court of Canada. Reference re Secession of Quebec, (1998) 2 S.C.R. 217. 1998.
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The Supreme Court of Canada held that a unilateral declaration of independence can result in the creation of a new state in certain political environments that should involve the absence of unrepresentative government and violations of the human rights of a minority group. Since these features were not present in the case of Quebec, unilateral secession was rejected.
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State Dissolution and Secession

The flaws in the principle of uti possidetis become apparent in the postcolonial era in cases in which nations tend to break up from the contrived identities that were created for them within rigid boundaries. Beginning in the 1970s, a limited view has emerged that the right to self-determination may be exercised beyond colonial borders. Recognizing this progression, the International Court of Justice (ICJ), in its advisory opinion “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo” (International Court of Justice 2010), supporting independence for the Kosovars, held that under general international law the declaration of independence does not constitute a breach of international law. However, this opinion failed to consider the circumstances surrounding secession and failed to properly balance it with state sovereignty. The application of uti possidetis with regard to internal borders after state dissolution and secession remains questionable. The Badinter Commission, in its Opinion No. 2, supported claims of self-determination of separating states. However, in its Opinion No. 1, the commission suggested that the breakup of Yugoslavia constituted dissolution rather than secession. In this context, Pellet 1992 argues on behalf of a method to recognize secession without acknowledging it—the Badinter Commission characterized the Balkan crisis as “dissolution” rather than “secession.” Carty 2001–2002 holds a similar view. A key analysis of postcolonial international borders was also presented by the Badinter Commission in 1992 in “Opinion No. 3 of the Arbitration Commission of the Peace Conference on Yugoslavia 1992,” stating that the internal borders of the newly created states became international borders after dissolution of the former Yugoslavia. Apart from basing their ruling on the principle of uti possidetis, the arbitrators also relied on respect for the territorial status quo and the 1974 constitution of the Socialist Federal Republic of Yugoslavia. This opinion attracted interesting reflections, especially on the relationship among the finality of borders, uti possidetis, and the scope of self-determination beyond decolonization. It was believed that the arbitral decision extended the scope of the principle of uti possidetis to cover postcolonial federal breakups. Radan 2000 rejects the arbitration commission’s justifications and legal arguments concerning the treatment of the territory in the former Yugoslavia, which again held that the internal federal borders of federal units of a state gaining independence are transformed into the international borders of the new state or states. Peter Radan argues that the Badinter Commission’s reasoning on territory can be applied both to secession and dissolution. To arrive at this conclusion, he draws attention to The Quebec Report (Franck, et al. 1992), which states that, in the case of secession or dissolution of states, preexisting administrative boundaries must be maintained to serve as the borders of the new states. In addition, Radan 1997 argues that uti possidetis should not be applied to unilateral secession of federal units, such as Yugoslavia, nor should it be extended to Quebec, because neither constitutes a case of a colonization. Hence, applying uti possidetis to federal internal borders and then calling it uti possidetis is to confuse this principle with a situation with which it has no connection. Pomerance 1998 argues that the Badinter Commission has misused the ICJ jurisprudence in inappropriate contexts, which can harm rather than facilitate self-determination. The author argues that the extension by the commission of the ICJ dictum in relation to uti possidetis was “neither legally warranted nor necessarily politically desirable.” On the other hand, Grant 1997 argues that the Badinter Commission in its Opinion No. 3, in linking uti possidetis iuris to the interrepublican boundaries of the Socialist Federal Republic of Yugoslavia, relegated self-determination to a secondary position, after that of territorial stability.

Carty, Anthony. “The System of International Law: The Right to Self-Determination, Minority Rights and Patterns of Human Rights Violations—Connections with the Breakup or Implosion of States.” European Yearbook of Minority Issues 1 (2001–2002): 65–83.
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Carty suggests: “The death of Yugoslavia is not treated as secession even though the federal units split off from the Yugoslav central government in Belgrade one by one. They did not all break away simultaneously from a centre, which thereby suddenly cease to exist” (p. 69).
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Franck, Thomas M., Rosalyn Higgins, Alain Pellet, Malcolm N. Shaw, and Christian Tomuschat. The Quebec Report: The Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty. 1992.
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A comprehensive report on the borders of Quebec if it should attain sovereignty. It discusses various aspects, including the territorial integrity of Quebec after independence and the rights of minority groups. It argues that such a secession would be achieved by applying uti possidetis. This is an English translation of the original report.
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Grant, Thomas D. “Between Diversity and Disorder: A Review of Jorri C. Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood.” American University International Law Review 12.4 (1997): 629–686.
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Reviews the work of Duursma, who focused on the study of megastates and how issues of diversity and the right to self-determination of microstates could be protected when they run counter to the interests of larger neighbors. He also details the legal nature of statehood in this context.
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International Court of Justice. “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo: Advisory Opinion of 22 July 2010.” ICJ Reports (2010): 1–44.
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The ICJ held that the unilateral declaration of independence does not violate international law, because there is no prohibition on it. The court held that issues of self-determination and “remedial secession” are beyond the scope of its opinion and relied on Security Council Resolution 1244.
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“Opinion No. 3 of the Arbitration Commission of the Peace Conference on Yugoslavia.” International Legal Materials 31 (1992): 1499–1500.
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The commission was asked, “Can the internal boundaries between Croatia and Serbia and between Bosnia and Herzegovina and Serbia be regarded as frontiers in terms of public international law?” The commission stated: “Uti possidetis, though initially applied in settling decolonization . . . is not a special rule which pertains 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” (p. 1500).
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Pellet, Alain. “The Opinions of the Badinter Arbitration Committee.” European Journal of International Law 3.1 (1992): 178–181.
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Discusses the role of arbitration in Europe and reviews the question of frontiers and self-determination through the opinions of the Badinter Commission, focusing on decolonization and its relationship with the stability of frontiers.
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Pomerance, Michla. “The Badinter Commission: The Use and Misuse of the International Court of Justice’s Jurisprudence.” Michigan Journal of International Law 20.1 (1998): 31–58.
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The author argues that the use by the commission of the ICJ dictum in the “Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali)” (International Court of Justice 1986, cited under Judicial Decisions) in relation to Yugoslavia was fundamentally incorrect, because the former was applicable in the context of decolonization. She further argues that such a rigid application can pave the way for increased conflicts rather than serving as a call for stability.
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Radan, Peter. “The Borders of a Future Independent Quebec: Does the Principle of Uti Possidetis Juris Apply?” Australian International Law Journal 15 (1997): 200–214.
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In discussing the possible secession of Quebec, the author argues that the principle of uti possidetis does not apply to it, because the principle is limited to decolonization.
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Radan, Peter. “Post-Secession International Borders: Critical Analysis of the Opinions of the Badinter Arbitration Commission.” Melbourne University Law Review 24.1 (2000): 50–76.
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Reviews the opinions of the Badinter Commission on Yugoslavia following its dissolution and rejects the reasoning of the commission, which based its opinion on uti possidetis, the territorial status quo, and the 1974 constitution of Yugoslavia. The author argues that a fresh approach is required to accommodate postcolonial secession situations.
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Illegal Annexation and Uti Possidetis

The new states that emerged after the breakup of the Soviet Union (USSR) accepted the former administrative boundaries as international boundaries based on the Minsk Agreement of 8 December 1991, under the terms of which the former USSR was legally dissolved. It is interesting to note that out of fifteen new states that were formed, only twelve former Soviet republics participated in the Commonwealth of Independent States. The Baltic states of Estonia, Latvia, and Lithuania chose not to join the group. The Baltic republics refused to acknowledge a status as successor states of the former USSR and refused to recognize, as Polat 2002 argues, its former administrative divisions as their international frontiers. Polat notes that a strong argument was presented by Estonia and Latvia, both of which lost territories after they were merged forcefully into the Soviet Union in 1940. However, in 2001 Estonia relinquished its border claims as set by the 1920 Tartu Peace Treaty and accepted the principle of uti possidetis. At a practical level the Baltic case demonstrates that even these states accepted demarcation of their borders, similar to uti possidetis. Focusing on the maritime boundaries in the Baltic Sea, Ziemele 2005 explains that they did not change after the dissolution of the USSR. The author states that “there is no particular reason why the principle of uti possidetis would not apply in the cases of the Baltic States, at least as concern the borders which are not disputed.” Ineta Ziemele rightly argues that “the boundary” can be “an objective reality having its own de jure and de facto existence regardless of whether the treaty itself is in force.” The illegal annexation does not give a title to territory, which is clear after the international community’s acceptance that the Baltic states were not successor states of the ex-USSR. However, with regard to boundaries and from a political relations perspective, Zacher 2001 argues that uti possidetis theorized that title to colonial territory prevails over any competing claim based on occupation. This principle proved initially useful in settling territorial rights following war. Indeed, Silverburg 1977–1978 argues that uti possidetis provides, through the conclusion of peace treaties, a unique solution to resolving occupations.

Polat, Necati. Boundary Issues in Central Asia. New York: Transnational, 2002.
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Provides a clear overview of the disintegration of the Soviet Union and the boundary issues resulting from it, including that of transboundary waters. With regard to uti possidetis, Polat argues that the founding agreement of the Commonwealth of Independent States was based on the principle and affirms that, even though it is a concept applied to colonial scenarios, it is deemed to be applicable in the setting of the former Soviet Union.
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Silverburg, Sanford R. “Uti Possidetis and a Pax Palestiniana: A Proposal.” Duquesne Law Review 16.4 (1977–1978): 757–778.
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Focusing on the applicability of uti possidetis to the territories of Syria (the Golan Heights), Jordan (the West Bank and Jerusalem), and Egypt (Gaza Strip and the Sinai Peninsula) that Israel occupied in 1967, the author argues that uti possidetis can make for tranquil negotiating conditions that will lead to the conclusion of peace treaties with neighbors and so bring a peaceful settlement to the Palestinian dispute.
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Zacher, Mark W. “The Territorial Integrity Norm: International Boundaries and the Use of Force.” International Organization 55.2 (2001): 215–250.
DOI: 10.1162/00208180151140568Save Citation »Export Citation »E-mail Citation »
Explores the extent to which the notion of the declining importance of interstate territorial boundaries in a globalized world is correct. The author argues that the growing sentiment to ban force to alter interstate boundaries (territorial integrity norm) raises doubts concerning affirmations of the decreasing importance of boundaries. He further argues that the territorial integrity norm reflects the growing acceptance that “force should not be used to alter interstate boundaries.”
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Ziemele, Ineta. State Continuity and Nationality: The Baltic States and Russia. Leiden, The Netherlands: Martinus Nijhoff, 2005.
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The author discusses specific questions of state continuity and nationality in relation to the Baltic states in showing the complexity of the issues. A thorough treatment is provided of the perspective both of the Baltic states and Russia, along with a detailed discussion on the citizenship laws.
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