Determining Boundaries in a Conflicted World: The Role of Uti Possidetis 9780773570498

Citation preview

Debut.fm Page i Thursday, October 10, 2002 8:53 AM

Determining Boundaries in a Conflicted World The Role of Uti Possidetis

In 1992, when Yugoslavia was on the point of disintegration, the Badinter Commission recommended that the issue of its boundaries be resolved according to the principle of uti possidetis: the internal boundaries dividing the former Yugoslav Republics should automatically become the international boundaries of the new states. Elated by what seemed a clear and workable solution to an impossible problem, the international community proceeded to impose the “binding” principle of uti possidetis on all the parties involved. Relying on the Badinter interpretation of uti possidetis, five experts in international law have assured the Quebec government that in the event of separation from Canada, Quebec could assume legal entitlement under international law to its existing boundaries. In Determining Boundaries in a Conflicted World Suzanne Lalonde examines the origins of the uti possidetis principle, its evolution and colonial roots as well as more recent applications, to determine whether it merits the overriding importance now attributed to it. She argues that nothing justifies conferring such a binding status on the principle and that the uti possidetis applied in Yugoslavia was an entirely new version that can derive no legitimacy from colonial precedents. While the doctrine may have considerable utility in some cases, it is only one principle among many that must be considered if future disputes are to be resolved so as to promote long term peace and stability. Lalonde sounds a cautionary note, showing that the idea that uti possidetis provides a one-size-fits-all, legally incontestable solution to all territorial disputes is an illusion. suzanne lalonde is professor of international law, Faculté de droit, Université de Montréal.

Debut.fm Page ii Thursday, October 10, 2002 8:53 AM

Debut.fm Page iii Thursday, October 10, 2002 8:53 AM

Determining Boundaries in a Conflicted World The Role of Uti Possidetis suzanne lalonde

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

Debut.fm Page iv Thursday, October 10, 2002 8:53 AM

© McGill-Queen’s University Press 2002 isbn 0-7735-2424-x Legal deposit fourth quarter 2002 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. This book has been published with the help of grants from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada, and the George Stellari Fund of the University of Montreal. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

National Library of Canada Cataloguing in Publication Lalonde, Suzanne Determining boundaries in a conflicted world: the role of uti possidetis / Suzanne Lalonde. Includes bibliographical references and index. isbn 0-7735-2424-x 1. Uti possidetis (International law) 2. Boundary disputes. 3. Quebec (Province) – Boundaries. I. Title kz3684.l34 2002 c2002-902160-x 341.4′2

This book was typeset by Dynagram Inc. in 10/12 Baskerville.

Debut.fm Page v Thursday, October 10, 2002 8:53 AM

This book is dedicated to my parents, Ena and Paul Lalonde, with much love and gratitude.

Debut.fm Page vi Thursday, October 10, 2002 8:53 AM

Debut.fm Page vii Thursday, October 10, 2002 8:53 AM

Contents Abbreviations Preface

ix

xi

Acknowledgments Introduction

xiii

3

1 The Origins of Uti Possidetis 2 Uti Possidetis in Latin America

10 24

3 Post-1918 Europe and the Near East 4 Africa

61

103

5 The Doctrine on the Stability of Boundaries 6 Yugoslavia and Quebec Conclusion

138

172

230

Appendices 1 Latin America: Constitutions and Treaties Consulted 2 The Aland Islands

251

3 Ottoman Administrative Divisions 4 The Semakh Triangle Notes

255

253

252

241

Debut.fm Page viii Thursday, October 10, 2002 8:53 AM

viii

Contents

Bibliography Index 341

319

Debut.fm Page ix Thursday, October 10, 2002 8:53 AM

Abbreviations Afrique Équatoriale Française (French Equatorial Africa) Afrique Occidentale Française (French West Africa) Commonwealth of Independent States Conference on Security and Cooperation in Europe European Community European Political Cooperation European Union International Court of Justice International Law Association International Law Commission Yugoslav National Army Organization of African Unity Occupied Enemy Territory Administration Permanent Court of International Justice Rassemblement Démocratique Africain (African Democratic Assembly) sfry Socialist Federal Republic of Yugoslavia udi unilateral declaration of independence unef United Nations Emergency Force

aef aof cis csce ec epc eu icj ila ilc jna oau oeta pcij rda

Debut.fm Page x Thursday, October 10, 2002 8:53 AM

Debut.fm Page xi Thursday, October 10, 2002 8:53 AM

Preface Over the past few decades, Quebec has been the prism through which has passed virtually every political event in Canada. The fundamental problem has been a continuing disagreement over the ground rules of political life in Canada. Since the 1980 referendum on sovereigntyassociation, Canadians have debated, often in hair-splitting detail, the potential economic and political repercussions of Quebec separation. But it is only fairly recently that the potential problems surrounding the determination of frontiers have even been considered. I first explored this issue of boundaries in a third-year paper at Queen’s Law Faculty that looked at the question’s treatment in both French and English sources. In 1991, I felt the topic of boundaries had a “noli me tangere” quality: The economic repercussions of Quebec independence have been explored in study after study, government and private, almost ad nauseum. The popular press has followed suit with reports on subjects such as milk marketing quotas, transfer payments, and relative responsibility for the national debt. Yet politicians on both sides have shied away from a similar airing of the arguments – historical, constitutional, and those based on international law – that might determine the actual frontiers of ‘New Quebec.’ The problem is undoubtedly the potential for violence intrinsic to partition – witness the current state of Yugoslavia. Indépendantiste politicians obviously wish to avoid sowing doubt, preferring to maintain a Pollyanna-like faith in the peaceful and democratic unfolding of Quebec independence. Federalist politicians probably fear inflaming passions at a time when a peaceful resolution of Canada’s constitutional problems is still possible …

Debut.fm Page xii Thursday, October 10, 2002 8:53 AM

xii

Preface

These matters, tortured and complex as they are, cannot and must not be left for clarification till crisis is upon us.

Convinced that the ramifications of this single issue, with its potential for confrontation and foreign intervention, could have the greatest bearing on the political and economic future of Quebec and Canada, I decided to pursue my research but to focus primarily on international legal arguments. In the fall of 1993, I arrived at Cambridge University where I had the good fortune to work with Professor James Crawford at the Centre for International Law. It was Professor Crawford who alerted me to the impact that the principle of uti possidetis was increasingly having on the determination of boundaries and who convinced me of the need for further research on the topic. Although the debate on frontiers had finally been joined in Canada, the need for clarification remained. Expert opinion was divided on the criteria that would govern the determination of frontiers should Quebec secede. At the heart of the academic debate was the question of the role that the principle of uti possidetis should play in resolving boundary disputes following dissolution (Yugoslavia) or secession (Quebec). I therefore set out to clarify the true meaning of the uti possidetis principle and to evaluate its potential as a guarantor of international peace and stability. Much of the basic foundation of this work was therefore laid during the three years I spent at King’s College Cambridge. In the intervening period, the text has been substantially revised and updated to take into account developments in certain areas of the law (for instance, with respect to the doctrine of self-determination) and recent events (for example, the conflict in Kosovo and the Supreme Court Reference on the Secession of Quebec). As far as possible, the text reflects materials available at the close of June 2001.

Debut.fm Page xiii Thursday, October 10, 2002 8:53 AM

Acknowledgments I would like to acknowledge my deep debt of gratitude to Professor James Crawford of Cambridge University, who alerted me to the need for further research on the principle of uti possidetis. It was a real coup de chance to work with such a distinguished scholar. I am also grateful for the support provided by the Commonwealth Association, the Social Sciences and Humanities Research Council of Canada, the British Federation of Women Graduates, and King’s College, which helped finance my studies at Cambridge. Finally, I would like to thank my mother, Ena Lalonde, for her invaluable help in editing the manuscript and for her unwavering support and encouragement.

Debut.fm Page xiv Thursday, October 10, 2002 8:53 AM

intro.fm Page 1 Thursday, October 10, 2002 8:53 AM

Determining Boundaries in a Conflicted World

intro.fm Page 2 Thursday, October 10, 2002 8:53 AM

intro.fm Page 3 Thursday, October 10, 2002 8:53 AM

Frontiers are indeed the razor’s edge on which hang suspended the modern issues of war and peace. Lord Curzon of Kedleston

Introduction The determination of frontiers has been one of the major problems to bedevil the peace of the modern world. And while Ancel remarked that there are no problems of boundaries, only problems of nations,1 the fact remains that this one vexed question has triggered many, if not most, of the recent armed conflicts. It is not surprising that the international community, reeling from the break-up of the Soviet Union and other eastern European states, has been in search of one overriding principle or rule that will ensure the greatest degree of territorial stability and constitute the best guarantee of peace. In this context, the principle of uti possidetis has been hailed as a panacea, particularly in situations involving internal boundaries. Indeed, there has been a tendency to treat uti possidetis as an all-embracing expression of the various rules and presumptions that contribute to the resolution of boundary issues.2 Uti possidetis is a principle bequeathed to international law by the Roman Empire. As originally defined under Roman law, uti possidetis constituted a provisional remedy between two individuals based on possession and pending a final judicial determination as to ownership.3 Following Justinian’s great work of codification, the uti possidetis principle appears to have lain dormant until the early eighteenth century, when a new manifestation of the principle appeared in the works published on the law of war and peace. Though still connected with the fact of possession, the uti possidetis principle now appeared in conjunction with the concept of the status quo post bellum (the state of possession existing at the conclusion of war). Thus, the new eighteenth-century

intro.fm Page 4 Thursday, October 10, 2002 8:53 AM

4 Determining Boundaries

interpretation of the principle represented a rupture with the Roman institution, which had merely provided a provisional remedy between private individuals. The modern formulation of the uti possidetis principle is, however, traditionally associated with the decolonization of Central and South America in the nineteenth century. In the decades following independence, the young republics agreed in some cases to adopt as their new international boundaries former Spanish administrative lines. This practice was referred to as the implementation of the uti possidetis principle. For this reason, when in 1964 the member states of the Organization of African Unity (oau) pledged themselves to respect the colonial boundaries existing at the time of independence, the International Court of Justice (icj) and many commentators viewed the resolution as further evidence of the role of uti possidetis in the process of decolonization. Renewed interest in the principle of uti possidetis, as evidenced by an increasing number of doctrinal commentaries, can be attributed to the Yugoslavia Arbitration Commission’s characterization of the uti possidetis principle in 1992. In its third advisory opinion delivered to the International Conference for Peace in Yugoslavia, the Arbitration Commission relied upon the principle of uti possidetis to conclude that in the context of dissolution, the former internal borders of the constituent republics automatically became frontiers protected by international law, even in advance of formal independence.4 In an analogous context, the separatist Parti Québécois government is also insisting that irrespective of competing claims, the uti possidetis principle would guarantee the provincial territorial status quo in the event of Quebec’s secession. Thus, in the post-colonial context, uti possidetis has been interpreted as a pre-independence guarantee of certain intrastate administrative boundaries in the event of dissolution or secession. The application of uti possidetis to situations such as that in Yugoslavia or that of Quebec is justified on the basis of its status as a “rule of general scope” or a “binding norm of international law.” Relying on what is described as a uniform colonial practice and bolstered by recent events in Europe, a number of commentators have thus concluded that the application of uti possidetis, as a general practice, has crystallized into law. This assessment of the uti possidetis principle echoes the language of Article 38(1) of the Statute of the International Court of Justice, widely recognized as the most authoritative statement as to the sources of international legal obligations. It provides that the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: “international custom, as evidence of a general practice accepted as law.”5

intro.fm Page 5 Thursday, October 10, 2002 8:53 AM

5 Introduction

From this brief definition of custom, two essential elements may be distilled: (1) a material factor – that is, the actual behaviour of states – and (2) a psychological or subjective belief that such behaviour is required by law. With respect to the material element, the International Court of Justice declared in the Asylum case that a customary rule must be “in accordance with a constant and uniform usage practised by the States in question.”6 More recently, the Court commented in the Nicaragua case that, “[i]n order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of states should, in general, be consistent with such rules, and that instances of state conduct inconsistent with a given rule should generally have been treated as breaches of that rule.”7 Once the existence of a specified usage among states has been established, it is then necessary to consider how such states view their own actions. As Shaw queries, “[i]s it to be regarded as a moral or political or legal act or statement?”8 – for, as the icj noted in the Nicaragua case, referring to its earlier decision in the North Sea Continental Shelf cases: for a new customary rule to be formed, not only must the acts concerned “amount to settled practice,” but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis.”9

Thus the conviction that a state action is legally obligatory is the critical factor transforming mere usage into custom and rendering it a part of the binding rules of international law. The current debate surrounding the legal status of uti possidetis has largely centred upon the subjective element of custom. Indeed, for the most part, the material facts are taken as beyond dispute. Certainly it is a widely held view that in the colonial context, adherence to the uti possidetis principle represented a “constant and uniform usage practised by the States in question.” For instance, Nesi declares: “No one disputes the critical role of uti possidetis iuris in the relations among States born as a result of decolonization.”10 Antonopoulos reaches a similar conclusion when he states: “It is safe to conclude … that the principle uti possidetis iuris is espoused by the entirety of African states.”11 Therefore, for the majority of commentators, recent state practice following the dissolution of the ussr, Czechoslovakia, and Yugoslavia is merely further evidence of the generality of the uti possidetis principle. However, to date, few studies have scrutinized the

intro.fm Page 6 Thursday, October 10, 2002 8:53 AM

6 Determining Boundaries

colonial past of the principle to test the accuracy of these assertions. It is therefore our aim to question, through a close examination of official documents, state practice, and juridical precedents, whether this assessment of the role of uti possidetis in the colonial context is in fact valid – for, if the colonial foundations of uti possidetis are found to be shaky, this will inevitably cast doubt on the wisdom of extending the principle to new, non-colonial situations. Such an investigation into the uti possidetis principle will also necessarily take into account the second, crucial and subjective element. Can adherence to former internal administrative boundaries, both in colonial times and more recently in Europe, be seen as resulting from a firm belief that such an outcome was dictated by law? This aspect of our enquiry is of critical importance, for it is only once this psychological element is also established that uti possidetis can be considered a customary norm of international law binding on all states. In short, we will attempt to discover whether uti possidetis is a binding rule of international law or merely a presumption or a consequence of the political history of a given frontier once independence is achieved.

pl an of t h e s t u dy Our study will be divided into six chapters. Chapter 1, “The Origins of Uti Possidetis,” discusses the main elements of the Roman possessory interdict uti possidetis from Gaius to Grotius. The chapter then traces the evolution of the principle until its eventual link with the doctrine of the status quo post bellum. Chapter 2, “The Latin American Principle of Uti Possidetis,” is central to our study. The newly independent republics of Latin America are often credited with having defined in the nineteenth century the modern version of uti possidetis. This chapter examines many of the constitutions and treaties in the period following independence and challenges the mainstream position that the Latin American republics consistently accepted the uti possidetis principle in determining their new boundaries. Reference is made to the various conflicting versions of the principle as well as to evidence of inconsistent state practice. Practical difficulties encountered in its application and international awards based on alternative principles also serve to highlight the nonbinding character of the ‘Latin American uti possidetis’ principle. Having questioned the status of uti possidetis in nineteenth-century Latin America, we will then consider what role it may subsequently have played in the determination of international boundaries in other parts of the globe. Chapter 3, “Post-1918 Europe and the Near East,” does not attempt to discuss the whole question of boundary redrawing in the aftermath of World War I. Rather, after a brief review of the

intro.fm Page 7 Thursday, October 10, 2002 8:53 AM

7 Introduction

various territorial reports drafted for the Paris Peace Conference, the chapter focuses on three case studies of particular relevance to our analysis of uti possidetis: the Aaland Islands dispute between Finland and Sweden, the definition of the Sinai boundary between Egypt and mandated Palestine, and the determination of the boundary line between mandated Palestine and British Transjordan. Each of these cases involved the creation of an international boundary where an internal administrative boundary line had previously existed. The chapter examines the extent to which the parties involved in the negotiations and decision-making were influenced by the uti possidetis principle in the determination of the new frontiers. Chapter 4, “Africa,” considers what role, if any, uti possidetis may have played in the crystallization of African attitudes towards their inherited colonial boundaries. After a brief history of the partition of Africa, the chapter focuses on a few case studies in which internal colonial boundaries were modified or in which attempts were made to change existing administrative boundaries. The reorganizations and the ultimate determination of the boundaries of French West Africa and French Equatorial Africa, as well as the boundary regime between the British colonies of Kenya and Uganda, constitute our main case studies. The chapter also examines the attitudes and resolutions that emerged from the various Pan-African conferences, culminating in the adoption of the oau Charter and the 1964 boundary resolution embracing the territorial status quo. The chapter makes the point that the African territorial status quo policy – described by the International Court as a new manifestation of the uti possidetis principle – merely reflected rights and obligations as defined according to general principles of international law. The non-binding character of the African status quo policy is also emphasized. Chapter 5, “The Modern Doctrine on the Stability of Boundaries,” evaluates uti possidetis within the wider context of other existing boundary principles. It examines the various principles that inform and contribute to the stability doctrine, including the rules on state succession, the nemo dat principle, and the principle of territorial integrity. The chapter also tackles the long-standing and troublesome problem of the interplay between the right of self-determination and the principle of territorial integrity. This review of the various manifestations of the stability doctrine leads inexorably to the question of whether there is any real need for a ‘strong’ uti possidetis as a guarantor of pre-independence boundaries, given the interaction and the relevance of other existing principles of international law. In the last chapter, chapter 6, “Yugoslavia and Quebec,” the conclusions drawn from this analysis of uti possidetis in the colonial context will be tested against these two most important modern applications of

intro.fm Page 8 Thursday, October 10, 2002 8:53 AM

8 Determining Boundaries

the uti possidetis principle. The disintegration of the former Yugoslavia and the boundary conflicts it has triggered testify to the critical importance of clarifying the role of uti possidetis in the peaceful resolution of boundary issues in cases of dissolution or secession. Since important elements distinguish the break-up of the ussr, on the one hand, and the dissolution of the sfry 12 and the possible secession of Quebec, on the other, the Soviet precedent will not be included in our investigation. In the case of Yugoslavia, a territorial solution explicitly based on the uti possidetis principle was imposed by the international community on the parties involved through the Dayton Peace Accords. In the current Canadian debate, Quebec separatists argue that the uti possidetis principle now constitutes a binding principle of international law that could be imposed upon Canadian federal authorities. Despite the many differences between the situation in Yugoslavia and that of Quebec, each raises the question of whether internal constitutional boundaries are in some sense predetermined as the international boundaries of the entities in question. In marked contrast, the boundaries of the former Soviet republics were established with the consent of the newly independent states and as a result of an early agreement between them.

key concepts Lawyers and geographers have attempted to distinguish the terms ‘boundary’ and ‘frontier.’ A ‘boundary’ is usually defined as a line, an alignment either described in words in a treaty, shown on a map, or marked on the ground by physical indicators. The term ‘frontier’ is often held to refer to a zone, narrower or wider, where one state ends and another begins and where the exact limit of the frontier may not precisely have been fixed. However, Brownlie has pointed out that there is no fixed usage for the terms,13 and Allot has argued that the distinction does not correspond to legal usage: “To my mind, all boundaries are imaginary lines which define an area or a territory; they may or may not have been demarcated on the ground or, in other words, reduced to a visible boundary. A frontier is a boundary at which inter-state functions are applied.”14 Consequently, throughout this work, the terms ‘boundary’ and ‘frontier’ will be used interchangeably to describe the line that determines the limit of territorial jurisdiction of a state. Boundaries or frontiers have also been classified as ‘natural’ or ‘artificial,’ ‘scientific’ or ‘organic,’ and ‘antecedent’ or ‘subsequent.’15 However, the only necessary classification for the purposes of our investigation is between ‘international’ and ‘internal’ boundaries. Inter-

intro.fm Page 9 Thursday, October 10, 2002 8:53 AM

9 Introduction

national boundaries constitute boundaries established between two independent sovereign states and include boundaries between colonies or territories belonging to two different metropolitan states. Administrative or internal boundaries refer to those boundaries that divide units forming part of the same state. They also refer to the manner in which a boundary may have been established so as to include boundaries established by a unilateral act of a metropolitan power to divide colonial territories.16 The issue of uti possidetis and maritime boundaries is not included in our enquiry, as the latter have their own distinctive character. Maritime territory is not subject to human occupation as such, nor do historical considerations generally have a strong impact in this area. Furthermore, the relationship between maritime boundaries and the principle of self-determination is of a different nature.17 Finally, the ‘determination’ of a boundary or frontier will refer to the process of creating, deciding upon, or defining a boundary whereas ‘delimitation’ will refer to the description of a boundary in a written document. The term ‘demarcation’ will be used to denote the process of marking the boundary on the ground.

chap_01.fm Page 10 Thursday, October 10, 2002 8:53 AM

Boundaries are not only dividing lines but also, depending on the political circumstances, the reason for the need for international cooperation. Michael Bothe

1 The Origins of Uti Possidetis

1.1

introduction

Most commentators writing on the uti possidetis principle in international law refer to its historical origins under Roman law. However, in many instances, this consideration of the Roman law aspects of uti possidetis is little more than a passing reference, as its role in the decolonization era is deemed to be the real starting point to any investigation. Yet it is important to consider uti possidetis as originally defined under Roman law in order to understand its evolution and to gain greater insight into the more problematic aspects of its subsequent interpretation and application as a rule of international law. This chapter will examine the main elements of the Roman interdict uti possidetis and will trace its eventual link with the international law concept of the status quo post bellum.

1.2

u t i p o s s i d e t i s i n r o m a n l aw

The history of civil judicature and procedure amongst the Romans is divided into three well-marked epochs: (1) the period of the legis actiones, (2) that of the formulae, and (3) that of the cognitio extra ordinem. The characteristic feature of the legis actio, the earliest form of Roman civil procedure, was the use of prescribed oral formulae in the stage of the trial before the magistrate. Changes in the prescribed words by one of the parties could result in that party’s losing the case. This form of civil procedure was later superseded by the formulary process with written formulae, which was the classical Roman procedure.1

chap_01.fm Page 11 Thursday, October 10, 2002 8:53 AM

11

The Origins of Uti Possidetis

In the formulary procedure, a written document was issued by the magistrate which authorized the judge (judex) either to condemn the defendant if certain factual or legal circumstances appeared to have been proved or to absolve him if this was not the case. The formula was proposed by the plaintiff and became decisive for the continuation of the process through the cooperation and the consent of the defendant, who for his part, was entitled to ask for modifications to the formula. All this took place in jure, before and under the supervision of the magistrate.2 According to Berger, the elasticity of the formula, which made it adaptable to any case, was its greatest advantage and explains its existence through centuries until it was gradually superseded by a new form of procedure, the cognitio extra ordinem. The latest form of civil proceedings, the cognitio extra ordinem, was originally concurrent with the formulary procedure as “extraordinary” but later became exclusive. It was based on the idea that the administration of justice was a function of the state, while in the previous forms of proceedings, the trial had been dominated by the parties under the moderation and supervision of the magistrate. The characteristic feature of the cognitio extra ordinem, which appeared at the beginning of the empire, was that the private juror disappeared and that his place was taken by a public official acting as a delegate of the emperor. Once the new procedure became generalised, there was no longer issuance of a formula and bipartition of the trial, the whole proceeding being under the control of the same functionary.3 Besides the procedure per formulam and the extraordinaria cognitio, there was, for one group of claims, a third procedure in classical Roman law, the procedure per interdictum. The interdictum was a form of process created by the praetor.4 As a magistracy, the praetorship was created by the Lex Licinia Sextia in 367 bc. It was assigned the civil jurisdiction, which it took over from the consuls. The praetor was the highest magistrate after the consuls and was vested with full imperium and far-reaching authority in administrative, jurisdictional, and judicial matters. The praetor stood midway between the juriconsults and the Legislature. His right to supplement and to amend the law was statutory but was not unlimited. Being an official vested with the imperium, the praetor issued at the time of his taking office a proclamation or edict stating the rules by which he would guide himself in granting or refusing legal remedies.5 All legal proceedings commenced with the praetor. His approval was necessary for the validity of the formula, in which the questions at issue between the parties were shaped for investigation and decision by the judge. He conferred upon the judex chosen by the parties that portion of the state’s power that would enable him to render a binding decision.

chap_01.fm Page 12 Thursday, October 10, 2002 8:53 AM

12

Determining Boundaries

As the remedies or defences existing in civil law proved to be insufficient, the praetor occasionally granted new ones, just as in the formative period of the English common law, the Court of Chancery gave new writs to intending suitors.6 As Hunter comments: “In a progressive community, where the wants of the people continually tended to go beyond the provisions of the law, it was inevitable that the Praetor should exercise on the growth of Roman law an immediate influence far more powerful, as it was more direct and authoritative, than the influence of the juriconsults.”7 Thus the praetor was, in a very real sense, the keeper of the conscience of the Roman people, the official empowered to determine in what cases the strict law was to give way to natural justice (naturalis aequitas). An extremely wide authority was ascribed to him for he was even allowed to entertain general considerations of utility (public utilitas).8 Interdicts were decrees or orders of the praetor issued as a speedy and safe remedy in order to prevent impending injury; they were generally granted at the request of a claimant and addressed to another person upon whom a certain attitude was imposed.9 Prohibitory interdicts were those forbidding some act – for example, the erection of a building on a sacred place. Restitutory interdicts commanded that something should be restored – for instance, land to an owner who had been violently and unlawfully dispossessed. Exhibitory interdicts commanded a person to produce, as in the case of a freedman whose services had been claimed by another.10 The interdictal procedure was more administrative than judicial in nature and differed from a normal trial in that there was no division of the proceedings into two stages, the issuance of an interdictum depending on the praetor as an act not of jurisdiction but of his imperium. As it was an extremely summary procedure, there was no long testimony by witnesses and no examination of evidence. What the plaintiff, the person requesting the interdictum, affirmed was taken for granted if the praetor considered his claim to deserve protection in either the individual’s or the public’s interest. If the assertions of the claimant were not true, the defendant would disregard the order and defend his rights in the subsequent ordinary trial. 1.2.1

Possessory Interdicts

Under republican and classical Roman law, possession was protected not by actions but by interdicts. These possessory interdicts, being fully described by Gaius in his seminal work Corpus Iuris Civilis, are better known to us than others. Gaius’ description (in 4.139 ff) suggests that the possessory interdict was a provisional remedy – i.e., that it and its

chap_01.fm Page 13 Thursday, October 10, 2002 8:53 AM

13

The Origins of Uti Possidetis

dependent procedure did not finally settle the question at issue. Its purpose was simply to forbid, pending the outcome of litigation, the disturbance of the existing state of possession between two individuals. This provisional character was not due to something inherent in interdicts but rather derived from the right of possession. As Buckland explains: So soon as the Praetor had resolved that peaceable de facto enjoyment should not be interfered with except by legal process, he had created provisional rights, and the protection would have had the same provisional character whether it were by interdict, as it was in classical law, or by possessory action, without previous issue of an interdict, as it was under Justinian.11

Possessory interdicts were classified into three groups according to the purpose of each: the acquisition of possession by a person who had not had it before, interdicta adispiscendae possessionis; retention of possession by the actual possessor, interdicta retinendae possessionis; and resumption of possession by a claimant who had been violently ejected from his land or house, interdicta recuperandae possessionis.12 They were the principal remedy for the provisional right of possessio. In addition to the true possessory interdicts, there were others in modified form for the protection of the so-called quasi-possessory rights arising in connection with res incorporates – e.g., usufruct. There were two principal forms of interdicts, with variants, for the retention of possession (retinendae possessionis): uti possidetis, when the dispute related to the possession of land or buildings; and utrubi, for the possession of moveables. In the fourth book of his work on legal institutions, Gaius gives the following description of the retinendae possessionis interdicts: An interdict for retaining possession is granted when there are two parties disputing about property of a thing, and there is a prior question which of them ought to be regarded as in possession of it, and which ought to stand pursuer in the action for its recovery; for deciding this matter the interdicts uti possidetis and utrubi have been devised. The first is employed when the question is about the possession of land or of a house, the second when it is about the possession of moveables.13

The interdicts uti possidetis and utrubi awarded interim possession as a preliminary to the determination of ownership. To the possessor there was awarded, on the strength of his possession, the right to be free from disturbance by an adversary. Moore explains that to this extent, “the interdict served, in effect, in place of a regular title.”14 The right

chap_01.fm Page 14 Thursday, October 10, 2002 8:53 AM

14

Determining Boundaries

of the possessor was not affected if the possession had begun by violence or force (vi), secretly or clandestinely (clam), or through a gratuitous revocable loan (precario) as regards any person other than the adversary. In those cases in which the possession was defective (possessio vitiosa), the adversary could then rely on the exceptio vitiosae possessionis.15 Justinian’s historical account of the two interdicts confirms these characteristic features: The interdicts uti possidetis and utrubi are for retaining possession and are employed when two parties claim ownership in anything, in order to determine which shall be defendant and which plaintiff … In uti possidetis the party in possession at the issue of the interdict was the winner provided he had not obtained that possession from his adversary by force or clandestinely, or by permission; whether he had obtained it from someone else in any of these modes was immaterial.16

The formula of the interdict uti possidetis as expounded in Hadrian’s Edict was as follows: “I forbid force to be used to prevent him of you two who is at present in a faultless possession (nec vi nec clam nec precario) of the disputed building from possessing it as he at present does.”17 It is clear that the interdictum uti possidetis decided nothing; it was no more than a prohibition against the disturbance of the status quo.18 The interdict was founded on facts and only on facts; considerations as to juridical title did not impinge on the procedure. Possessory interdicts could be single or double. According to Poste, uti possidetis was a double interdict because, at the outset, both parties were on an equal footing, “neither being exclusively plaintiff or defendant, but both playing both parts, and both being addressed by the Praetor in identical terms.”19 For this reason, at the outset, each party was expected to plead present possession even if only one of them was actually in possession. After this formal pleading, the praetor pronounced the above-mentioned interdict addressed to both parties. Thus there were practically two interdicts in one form of words. Hence the name double interdict and the associated complications in procedure. Muirhead summarizes the complex procedure which then followed: Each of the parties was bound at once to commit what in the case of one of them must have been a breach of the interdict, by a pretence of violence offered to the other (vis ex conventu); each of them was thus in a position to say to the other – “We have both used force; but it was you alone that did it in defiance of the interdict, for it is I that am in possession.” The interim enjoyment of the house was then awarded to the highest bidder, who gave his stipulatory

chap_01.fm Page 15 Thursday, October 10, 2002 8:53 AM

15

The Origins of Uti Possidetis

promise to pay the rent to his adversary in the event of the latter being successful in the long-run; penal sponsions and restipulations were exchanged upon the question which of them had committed a breach of the interdict; and on these, four in number, formulae were adjusted and sent to a judex for trial.20

The interdictum was therefore a provisory remedy intended to protect an existing situation by means of a quick decision of the magistrate. It fulfilled its task – a speedy end to a controversy – only when the adversary complied with the order. If he did not comply, the subsequent procedure, which assumed the form of a normal trial, though not without certain particularities resulting from the fact that an interdict had been issued, was rather complicated and perhaps even slower than an ordinary process.21 Muirhead, in his concluding remarks on interdicts, states: “Whatever we may think of the action-system of the Romans in the period of the classical jurisprudence, one cannot help wondering at a procedure so cumbrous and complex as that of their possessory interdicts.”22 Though originally the subject matters of the interdicts had been excluded from ordinary Roman law, as matters of administration rather than of legislation, after many individual interdicts had been issued and their forms generalized by the authorities, the issues resolved by interdict came to be, in practice, as much subject to law as was any other area of Roman life. For this reason, interdicts gradually came to differ from ordinary litigation merely by a slight procedural distinction “that served as a memento of its historic origin, the extraordinary power of the magistrate in republican Rome.”23 By the time of Justinian’s codification,24 even these slight differences in form between actions and interdicts had been effaced. What had formerly been proposed in the praetorian edict as a form of interdict – an order or a prohibition – became in Justinian’s law a legal rule. Acting against that rule could give rise to a judicial trial, just as in classical times a trial followed the transgression of an interdictum in a specific case, although the later procedure was quite different. Many interdicts lost their applicability entirely, and for this reason Justinian found it unnecessary to discuss the old forms of interdicts in his Institutes:25 “Of the process and effect of interdicts in the olden time it is superfluous now to speak; for whenever the method of decision is extraordinary (and all actions are now of this character), it is unnecessary for an interdict to be issued, but judgement is given without interdicts, as though an utilis actio had been granted upon an interdict.”26 While Justinian’s codification changed much of the existing law, few of the old procedures and legal principles were actually eliminated. Even though the interdictal procedure was no longer used in practice, nevertheless

chap_01.fm Page 16 Thursday, October 10, 2002 8:53 AM

16

Determining Boundaries

Justinian devoted thirty-three chapters of his Digest 27 to a discussion of interdicts. 1.2.2

Interdicts and the Early Common Law of England

Although in Roman law the interdictal procedure came to be replaced by possessory actions, interdicts re-emerged in the early common law of England. In volume 2 of his treatise Laws and Customs of England, written in 1250, Bracton discusses possessory remedies: When one is in possession and we dispute it against him, the dispute involves either that there be restored to us what is ours but we do not possess, [as where we have been wrongfully ejected from our own possession, or another’s, as that of our ancestors,] or that (by interdict) we be allowed to retain (freely and quietly, properly and peacefully) what we do possess. For the restoration of possession, process is by action; for its retention it is twofold, exception or interdict.28

Bracton refers to three interdicts: the action or interdict quod vi aut clam, which lay against a person who had destroyed another’s buildings or had built on another’s land or estate clandestinely in order to avoid being prohibited from doing so; the action or interdict de itinere actuque privato, which was issued against those who wrongfully prevented a person from using his or her servitude; and the action or interdict quorum bonorum which was given to the nearer heirs on the seisin of an ancestor and lay against any one currently in possession of the property in question.29 There is however no mention by Bracton of the interdict uti possidetis. Thus it would appear that though early common law procedure absorbed much of the Roman law of interdicts, uti possidetis disappeared with Justinian’s codification. However, according to Holdsworth, Maitland, and many other commentators,30 the interdicts uti possidetis and unde vi became the remote ancestors of the canonical actio spolii and more importantly of Henry II’s Assize of Novel Disseisin. In his Cambridge lectures on the forms of action at common law, Maitland declares: In sharp contrast to the action begun by the Writ of Right there now stand three possessory actions, the three Assizes of Novel Disseisin, Mort d’Ancestor and Darrein Presentment. There can, I suppose, be but little doubt that the notion of a definitely possessory action may be traced to the Roman interdicts, through that actio spolii which the canonists were gradually developing.31

chap_01.fm Page 17 Thursday, October 10, 2002 8:53 AM

17

The Origins of Uti Possidetis

Maitland explains that the Assize of Novel Disseisin was not a remedy for the recovery of land to which a person was entitled. “To speak roughly, it is an action competent to a person who has been turned out of possession, and competent against the person who turned him out. It decides nothing as to proprietary right.”32 In much the same way as the Roman plaintiff requesting an interdictum uti possidetis, the claimant made no allegation as to his rights in the Novel Disseisin; it was enough that he had been seised and disseised (dispossessed), and there was no mention of rights. Conspicuously absent from Bracton’s discussion of interdicts, yet having undoubtedly influenced the development of the early common law, uti possidetis suddenly reappears in a monumental legal work of the seventeenth century. 1.2.3

Hugo Grotius

Perhaps in response to Reformation theology, the seventeenth century witnessed a strong interest in property rights both in theory and in practice. In 1609, a Dutch jurist and statesman, Hugo de Groots or Grotius (1583–1645), widely regarded as the founder of modern international law, wrote about the right of booty in the context of the Dutch seizure of a Portuguese ship in the East Indies. In his manuscript, Commentary on the Law of Prize and Booty,33 Grotius dealt with the principle of acquisition by occupation as a right whose exercise ‘imitated nature’; all that was necessary to make oneself owner of something without an owner was to engage in some overt act of appropriation. Grotius discusses the application of the interdict uti possidetis with respect to private rights as they pertain to the use of the sea for navigation and fishing. The reference appears in chapter 12, entitled “Wherein it is shown that even if the war were a private war it would be just, and the prize would be justly acquired by the Dutch East Indian Company.” Though Grotius believes that the principle of freedom of navigation should be extended to fishing activities, he declares that no transgression would be committed if an individual fenced in a small portion of the sea for his own use, thus transforming that area of the sea into private property.34 Grotius then proceeds to give a few examples: Lucullus, who brought the sea to his own villa by cutting through a mountain near Naples; the marine fishponds mentioned by Varro and by Columella; Martial’s description of Apollinaris’s villa at Formiae;35 and the following comment in the works of Ambrose: “You bring the very sea into your estates, so that there may be no lack of fish.”36 These historical

chap_01.fm Page 18 Thursday, October 10, 2002 8:53 AM

18

Determining Boundaries

examples, according to Grotius, “serve to clarify the meaning of Paulus in the passage where he says that if a given individual possesses a private right to any part of the sea, he will be entitled to apply the interdict Uti possidetis [in the event that he is hindered from exercising the said right].”37 Still referring to Paulus’s Digest (Dig. XLVII.x.14), Grotius explains that the interdict uti possidetis is intended for use in private suits and not in those of a public nature, among which he includes the suits that may be brought in accordance with the common law of nations. The cases he describes relate to the enjoyment of a right based on a private – rather than on a public or common – title:38 For example, if any person had prevented Lucullus or Apollinarie from fishing in one of the private preserves they had constructed by enclosing a small portion of the sea, then, in the opinion of Paulus, the owner of the preserve would have been entitled to avail himself of an interdict – based, that is to say, on grounds of private possession and not merely to bring an action for damages.39

It is clear that in 1609, Grotius is still applying the Roman law interdict uti possidetis as a means of vindicating private possessory rights. However, by the end of the century, the phrase uti possidetis will have been transferred to the works on the law of nations but without any of the technical significance and limitations that inhered in the Roman interdict.40 As will be discussed below, the words uti possidetis came to be equated with the principle of the status quo post bellum.

1.3

t h e l aw o f w a r a n d p e a c e

Among nations, it became the practice in concluding treaties of peace to agree upon a basis that would constitute the point of departure for new relations between the contracting parties. Such a point of departure was either the state of possession existing at the outbreak of the war, represented by the formula status quo ante bellum, or the state of possession existing at the conclusion of the war, represented by the formula status quo post bellum. The status quo at the outbreak of war was itself sometimes further divided into the status quo de facto, the state of possession as it actually was, and the status quo de jure, the state of possession as it should legitimately have been just before the commencement of hostilities. The simple conclusion of peace, if there were no express stipulations in the peace treaty, vested in the two belligerents as absolute property whatever they respectively had under their actual control at that time, including both territory and the things attached to it. If, then, there was no stipulation as to conquered or occupied territory, it

chap_01.fm Page 19 Thursday, October 10, 2002 8:53 AM

19

The Origins of Uti Possidetis

was regarded as remaining in the hands of the occupant, who was entitled to annex it – the presumption being that the silence of the treaty on this point indicated the other party’s acquiescence and consent. This presumption in favour of the status quo post bellum is found in most of the early writings on the law of war. In his 1563 work, A Treatise on Military Matters and Warfare, Pierino Belli writes: My opinion is that, above all else, the terms and the phrasing of a pact should be scrutinized; for they have the effect of law. Thus: (1) They may be so generous in scope that they can be made to cover everything, and in that case everything will be included, even moveables, as Angelus said; for agreements must be honoured; or (2) Mere peace is made, with pardon for rebels, but with nothing said of the restoration of property; and then I do not think that the rebels recover their goods.41

In his 1612 edition of De Iure Belli Libri Tres, Alberico Gentili indicates in chapter 17, “Of Territory and Postliminium”: “I shall now say of territories, places and buildings, that they all remain in the power of the man who holds them at the time when peace is made, unless it has been otherwise provided by a treaty.”42 Emer de Vattel in his 1758 edition of The Law of Nations also states: Since each of the belligerents claims to have justice on his side, and since there is no one to decide between them, the condition in which affairs stand at the time of the treaty must be regarded as their lawful status, and if the parties wish to make any change in it the treaty must contain an express stipulation to that effect. Consequently all matters not mentioned in the treaty are to continue as they happen to be at the time the treaty is concluded.43

And by way of a final example, Christian Wolff in his 1764 work, Jus Gentium, asserts: “Those things concerning which nothing has been said in a treaty of peace remain as they are.”44 Despite this well established presumption, the principle of status quo post bellum was also at times expressly stipulated in early treaties. Phillipson, for example, lists a number of treaties in which the principle is expressly asserted and specific exceptions allowed.45 Article 3 of the 1648 Treaty of Munster between Spain and the Low Countries provided that each of the contracting parties would keep the towns and territories they possessed at the time of making peace.46 The Treaty of Breda, signed on 31 July 1667 between England, France, the States General, and Denmark, stipulated that each party would retain conquests made before and during the war until 20 May 1667 (Art. 3), that captured vessels would also belong to the captor (Art. 4), but that what had

chap_01.fm Page 20 Thursday, October 10, 2002 8:53 AM

20

Determining Boundaries

been taken after 20 May 1667 should be restored (Art. 6).47 Under the Treaty of Aix-la-Chapelle of 1668 between France and Spain, Articles 3 and 4 gave to the king of France all conquests made by him in the north, but Article 5 required the restoration to Spain of FrancheComté, together with Cambrai, Aire, and St Omer.48 The Treaty of The Hague of 1669 between Portugal and Holland provided that the Dutch should remain in possession of their conquests, except Cochin and Cunanor, which they had to restore on payment of three million florins; and that Portugal should keep Brazil on payment of a million florins.49 The 1813 Treaty of Gulistan, between Russia and Persia, also stipulated in Article 2 the preservation of the status quo, each party remaining in possession of the territories then in its hands.50 This system of consolidating the de facto situation created as a result of hostilities and their aftermath came to be labelled the principle of uti possidetis. It is difficult, however, to determine exactly when this general presumption on treaties of peace became associated with the actual words uti possidetis. In his three-part work on the law of war and peace, De Jure Belli Ac Pacis Libris Tres (1646), Grotius discusses the general rule for the interpretation of peace covenants: 2. Since, however, it is not customary for the parties to arrive at peace by a confession of wrong, in treaties that interpretation should be assumed which puts the parties as far as possible on an equality with regard to the justice of the war. This is usually accomplished in one of two ways; either the possession of property, which has been disturbed by war, is adjusted in accordance with the former right of ownership [status quo ante bellum], the expression used in the speech of Menippus where he discusses the different kinds of treaties; or things remain as they are [uti possidetis], and this the Greeks call “holding what they have.”51

The use of the term uti possidetis, however, is not part of Grotius’s Latin original. Rather, the use of the term uti possidetis represents the choice of a legal term, which according to the text’s translators, Kelsey and Reeves, most clearly expressed Grotius’s concept for contemporary readers. It would appear that Cornelius Van Bynkershoek was one of the first to connect the phenomenon (status quo post bellum) with the Roman law term uti possidetis. Writing in 1737, Bynkershoek refers to Grotius in discussing the limits on the possession of immoveables taken in war and adopts the principle of uti possidetis: “An example will make the matter clearer. The French had occupied Caselle and Turin in Piedmont, but when a truce was made it was agreed that each party should

chap_01.fm Page 21 Thursday, October 10, 2002 8:53 AM

21

The Origins of Uti Possidetis

during the truce continue to hold possession on the principle of uti possidetis of the part he had occupied in the war.”52 Bynkershoek offers no explanation as to the origin of uti possidetis in the law of war; there are no footnotes or notes in the margin refering us to an earlier source. In 1609, Grotius is still relying on the Roman law interdictum uti possidetis to vindicate private possession. By 1737, however, it has been given a much wider scope. From a question of individual possessory rights, uti possidetis has been extended to the rights of warring states. This newly defined uti possidetis becomes a basic tenet of the law of war and peace, and countless international law writers and scholars adopt the vocabulary of uti possidetis to describe the status quo post bellum. In his major work, Elements of International Law, published in 1866, Henry Wheaton devotes a chapter to “The Treaty of Peace.” The note in the margin for title §545 reads “Uti Possidetis the basis for every treaty of peace, unless the contrary be stipulated.” He adds: “The treaty of peace leaves everything in the state in which it found it, unless there be some express stipulation to the contrary. The existing state of possession is maintained, except so far as altered by the terms of the treaty. If nothing be said about the conquered country or places, they remain with the conqueror, and his title cannot afterwards be called in question.”53 In Halleck’s International Law, the author simply states, with no supporting references apparently required, “[t]he principle of uti possidetis being the basis of every treaty of peace, unless otherwise specially provided in the treaty itself.”54 Similarly, Lawrence asserts: “As between the belligerent powers themselves, it is held that the conclusion of peace legalizes the state of possession existing at the moment, unless special stipulations to the contrary are contained in the treaty. This is called the principle of uti possidetis and it is of wide and far-reaching application.”55 Again, Lawrence gives no references. Obviously these scholars felt that no references to sources or documents were required in order to support such a widely accepted and recognized principle of international law.56

1.4

conclusion

From our brief historical review, it is clear that the Roman law interdict uti possidetis was gradually transformed. The key element of the early praetorian interdict was the fact of possession. The interdict uti possidetis provisionally recognized the status quo of possession pending a final determination of ownership between two individuals. The complex forms and procedures associated with the classical interdict gradually merged with those of ordinary litigation. Finally, under Justinian, interdicts, though not eliminated, were superseded by extraordinary

chap_01.fm Page 22 Thursday, October 10, 2002 8:53 AM

22

Determining Boundaries

actions, including possessory actions. Centuries later, and with no indication as to its source, a new manifestation of uti possidetis appears in the general law of war and peace among nations. Though still concerned with the fact of possession, its link with the concept of the status quo post bellum represents a rupture with its Roman past. Bluntschli has criticized the use of the Roman law phrase uti possidetis to describe the status quo post bellum as inaccurate, since it denotes in international law (1) not possession under private law but territorial sovereignty and (2) not merely the recognition of temporary possession but a definite status.57 Furthermore, in international law, uti possidetis no longer refers to a judicial or quasi-judicial procedure resulting in an interim award by a supreme legal authority. Its primary object in private Roman law of preventing and invalidating the use of force also no longer exists, for under international law, the use of force is deemed lawful, and the right of conquest is recognized. This aspect of the new international law principle is also emphasized by Dias Van Dunem: In public international law, the principle of uti possidetis rests on two essential conditions: the first is the existence of a state of war and the second, the de facto territorial possession which results from the said war. If the second element echoes the principal idea behind its application in Roman law, the first gives to the principle a new dimension. It is impossible to speak of uti possidetis in the law of nations without referring, directly or indirectly, to the existence of war.58

However, while acknowledging that these distinctions “are universally admitted to be sound,” Moore does not accept Bluntschli’s criticism of the use of the phrase in international law, arguing that it literally and appropriately conveys the precise meaning it was intended to give: Its entire meaning and application in international law were aptly summed up and expressed in the words uti possidetis, ita possideatis, “As you possess, so may you possess.” But, for the very reason that, in international law, which lacked a supreme political authority and a supreme judicial jurisdiction, the use of force was lawful and the right of conquest was recognized, the principle of uti possidetis … was a rule of peace; since it furnished a date from which rights were to be reckoned, without recurring to prior controversies and hazarding the consequences of their renewal.59

Yet it is important to note that the application of the uti possidetis principle in international law has not been limited to situations in which

chap_01.fm Page 23 Thursday, October 10, 2002 8:53 AM

23

The Origins of Uti Possidetis

territorial possession has been obtained by the force of arms. Uti possidetis has also played an important and decisive role in circumstances in which possession has been acquired by occupation as a result of discovery, exploration, and settlement. Again, according to Moore, nowhere has the principle of uti possidetis been more frequently invoked than in the adjustment of boundaries in Latin America.60 There is no doubt that the application of the uti possidetis principle in the period of decolonization in Latin America represents yet another leap in the development of uti possidetis, signalling an entirely new interpretation of the principle. As a result of this sui generis application, the principle undergoes a questionable semantic interpretation, and its purpose is fundamentally transformed from that envisaged under general international law.61

chap_02.fm Page 24 Thursday, October 10, 2002 8:54 AM

A boundary, like the human skin, may have diseases of its own or may reflect the illnesses of the body. S.B. Jones

2 Uti Possidetis in Latin America

2.1

introduction

While some commentators writing on the principle of uti possidetis will briefly comment on its Roman law origins and its subsequent connection with the rule of the status quo post bellum, nearly all writers emphasize that the modern principle of uti possidetis was founded amidst the disintegration of the Iberian empires in South America. Sorel and Medhi, for example, declare “[I]t is in Latin America that uti possidetis was first officially baptized,”1 while De Pinho Campinos asserts that “the principle of uti possidetis was born in Latin America around 1810.”2 In this chapter, we will assess the importance of this new manifestation of the uti possidetis principle in nineteenth-century Latin America by examining international documents, historical events, and state practice.

2.2

latin america prior to independence

2.2.1

Rivalry between Spain and Portugal

After the first discoveries by Columbus were made known in Europe, Pope Alexander VI decreed by a bull issued on 4 May 1493 that “all lands discovered and to be discovered to the west and south of a line drawn, from the North to the South Pole, 100 leagues west and south of the Azores and Cape Verde Islands, and not in actual possession of any

chap_02.fm Page 25 Thursday, October 10, 2002 8:54 AM

25

Uti Possidetis in Latin America

Christian power, should belong exclusively to Spain.”3 This line, rejected by King John II of Portugal, was modified the following year by the Treaty of Tordesillas, which provided that the dividing line between the lands discovered or to be discovered by Spain and Portugal would be drawn at 370 leagues west of the Cape Verde Islands. However, as described by Moore, “[w]hen in later years the American continents were revealed, and Spain and Portugal had prosecuted their discoveries … it was found to be impossible to apply the line of demarcation of the fifteenth century.”4 Each country had, in its explorations and settlements, trespassed onto the other’s territorial sphere, such that any attempt to run the Tordesillas line would have involved considerable sacrifices. Tentative adjustment was reached with the signing of a new treaty of limits at Madrid on 13 January 1750. In this treaty, Spain and Portugal agreed to abide by two rules: first, that the best-known landmarks, such as the sources and courses of rivers and the most notable mountains, should be adopted in defining their boundaries; and second, that each party should remain in possession of what it then held, with the exception of such mutual cessions as would be made for purposes of convenience, in order that the boundaries might be as little subject to controversy as possible.5 Therefore, and despite the original papal decree, Spain and Portugal agreed to accept the territorial status quo. Spain thus acknowledged Portugal’s title by settlement to very large sections of the Amazon and Paraná basins, while in return Spain’s title to the Philippine archipelago was admitted by Portugal.6 However, when the provisions of the Treaty of Madrid became known in Spain, the territorial concessions in favour of Portugal were violently denounced by the Jesuits and public opinion. Confronted with such bitter protests, the Spanish government dared not carry it out, and by an agreement signed by the parties at Pardo on 12 February 1761, the Treaty of Madrid was annulled. The dividing line between Spanish and Portuguese possessions therefore remained unsettled until a new treaty was signed at San Ildefonso on 1 October 1777. Under Article 2 of the treaty, navigation on the “Plata and Uruguay Rivers, and the land on the northern and southern banks, belong exclusively to the Spanish Crown.” The Portuguese Crown also renounced in favour of Spain “the fort of St-Michel, the colony of St Sacrement with its territory, the island of St Gabriel and the other establishments that the Portuguese Crown has until now claimed.”7 Though important Portuguese concessions were made, Ireland has stated that by the Treaty of San Ildefonso, “Portugal obtained clear title to territory in South America more than twice as large as the area confirmed to her by the Treaty of Tordesillas.”8

chap_02.fm Page 26 Thursday, October 10, 2002 8:54 AM

26

2.2.2

Determining Boundaries

Territorial Organization of Spanish South and Central America 9

The Spanish American territories were divided in 1542 by Emperor Charles V into two great viceroyalties: Nueva Espana and Peru. At the head of each viceroyalty, a viceroy personally represented the Spanish monarch, governing and administering the circumscription in his name. The two viceroyalties were in turn divided into royal audiencias (major provinces), each comprising autonomous governments, and further subdivided into captaincies-general, alcaldias mayores, and corregimientos. The Viceroyalty of Nueva Espana was divided into four royal audiencias: Santo Domingo (1526), Mexico (1527), Guatemala (1543), and Guadalajara (1548). The Viceroyalty of Peru comprised the royal Audiencias of Panama (1535), Lima (1542), Santa Fé de Bogota (1549), Charcas (1559), Quito (1563), Chile (1609), and Buenos Aires (1691). In the eighteenth century, this organization was altered by the creation of new territorial circumscriptions, notably the establishment of two new viceroyalties: those of New Granada and Buenos Aires (with territories formerly belonging to the Viceroyalty of Peru). The territorial reorganization also involved the creation of two new captainciesgeneral: Venezuela and Chile. The Viceroyalty of New Granada, created in 1717, was dissolved six years later and was subsequently reconstituted by royal decree on 20 August 1739. The reconstituted viceroyalty, already incorporating the territory of the Audiencia of Santa Fé de Bogota, was further enlarged by the addition of the Provinces of Panama and San Francisco de Quito, which were detached from the Viceroyalty of Peru, and the Province of Venezuela, which was separated from the Viceroyalty of Nueva Espana. However, the limits of the Viceroyalty of New Granada would be subsequently diminished by the creation in 1742 of the Captaincy-general of Venezuela and by the return of the Provinces of Maynas (1802) and Guayaquil (1803) to the Viceroyalty of Peru. The Viceroyalty of Buenos Aires was created on 7 July 1778 by combining the districts of the Audiencias of Buenos Aires and Charcas as well as a few territories from the Audiencia of Chile. On 15 March 1798, the Captaincy-general of Chile was granted autonomy by royal decree. Finally, and as part of the last major Spanish territorial reorganization, the Audiencia of Charcas was returned in 1810, under the name of Chuquisaca or Alto Peru, to the Viceroyalty of Peru. On the eve of independence, therefore, Spanish Latin America was divided into four viceroyalties (Nueva Espana, Peru, New Granada, and Buenos Aires), eleven audiencias (Santo Domingo, Mexico, Guatemala, Guadalajara, Panama, Lima, Santa Fé de Bogota, Charcas/Alto Peru, Quito, Chile, and Buenos Aires), and seven captaincies-general

chap_02.fm Page 27 Thursday, October 10, 2002 8:54 AM

27

Uti Possidetis in Latin America

(Cuba, Porto Rico, Santo Domingo, Yucatan, Guatemala, Caracas/ Venezuela, and Chile). In addition to a number of lesser civil administrative divisions, the territories were also divided for ecclesiastic purposes into arzobispado (archdioceses), provincias de las religiones (religious provinces), obispados sufraganeos (inferior dioceses), parroquias (parishes), and curatos (abbeys). These ecclesiastic divisions did not necessarily coincide with the civil territorial circumscriptions. 2.2.3

Portuguese Brazil 10

In 1500, Vicente Yáñez Pinzó explored the Brazilian coast and discovered the mouth of the Amazon. In May of the same year, the Portuguese commander Pedro Álvares Cabral landed near present-day Bahia and took possession of the territory in the name of the Portuguese Crown. Between 1534 and 1549, colonization was carried out under a capitania system, with twelve feudal captaincies along the Atlantic Ocean stretching 150 miles and extending inland to the Spanish-Portuguese demarcation lines. These captaincies were under the almost absolute authority of donatários (noble grantees), who were to administer the territory and promote the colonization of their respective captaincies. As the system proved generally unsuccessful, in 1549 the post of governor-general was created. The first governor-general, Tomé de Sousa (1549–53), made São Salvador (Bahia) the judicial and fiscal, as well as the administrative, capital of the colony and fostered colonization, creating general prosperity. However, it was Mem de Sá, the third governor-general (1558–72), who finally succeeded in making Brazil safe for the Portuguese, displacing unpacified Indians and lifting the threat posed to the south by the French colony of Antartique, established on Guanabara Bay (presentday Rio). Mem de Sá’s destruction of France’s Fort Coligny (1565) and foundation of Rio de Janeiro nearby (1567) secured the area for good. Towards the end of the sixteenth century, Portuguese colonists successfully repelled British attacks on coastal towns and ousted the Dutch forces from the north-east territory between the Province of Maranhão and the São Francisco River. In the south, the city of São Paulo was founded, and in the early seventeenth century, inhabitants of the region, the Paulistas, of mixed Indian and white blood, organized expeditions into the interior. The eighteenth century was marked by the development of the Captaincy of Minas Gerais,11 by frequent conflicts between the Portuguese and Spaniards over possession of the Banda Oriental (Uruguay), and ultimately by the recognition of Portuguese claims to large areas in the Amazon and Paraná basins.12 In 1808, following Napoleon’s invasion

chap_02.fm Page 28 Thursday, October 10, 2002 8:54 AM

28

Determining Boundaries

of the Iberian Peninsula, the Portuguese royal family fled to Rio de Janeiro, and in 1816 the regent Dom João was proclaimed João VI. Under Dom João, the economic life of Brazil was greatly stimulated, and measures were taken to modernize the colony. In 1821, “after a liberal upheaval in Portugal”13 and because of growing pressure in the mother country for his return, João set off for Lisbon, leaving his son Pedro behind as regent. A year later, Brazil revolted against the Portuguese government’s attempt to restore the former colonial status. Pedro, ordered by his father to return to Portugal, refused and, allying himself with the colonists, proclaimed Brazilian independence on 7 September 1822. He became Brazil’s first emperor, Pedro I.

2.3

re s p ec t f or th e c ol o ni al s tat us q u o

In much the same way as the United States had done at the end of the eighteenth century, the Latin American republics at the beginning of the nineteenth century proclaimed and sustained by the force of arms their right to independence from the mother country.14 Independence having been wrested from the Iberian powers, the new republics were immediately confronted with an essentially international problem – i.e., the territorial extent of their sovereignty as independent nation-states. Indeed, territorial stability became a necessity for the republics if their survival was to be assured. They therefore undertook to seek and make use of a principle that would be both workable and equitable and that would help consolidate their independence. The republics eventually agreed to define their national territory by reference to colonial administrative divisions existing at the time of independence. That date was commonly regarded as 1810 in the case of South America and 1821 in the case of Central America.15 For the newly independent republics, this principle seemed the most equitable and the only possible option if endless conflict was to be avoided. The practice of adhering to the colonial status quo adopted by the Latin American republics resolved two fundamental problems confronting them in the period following independence. The first issue concerned title to territory and was settled by reference to two legal considerations: (1) the nature and scope of the original international legal title of the Spanish and Portuguese Crowns over their American possessions (papal bulls, and the Treaties of Tordesillas, Lisbon, Utrecht, Madrid, Pardo, and San Ildefonso); (2) the condition of successors to the Spanish and Portuguese American territories assumed by the Latin American republics following emancipation. When the republics succeeded to the Spanish and Portuguese Crowns, they asserted that they fell heir to all that Spain and Portugal

chap_02.fm Page 29 Thursday, October 10, 2002 8:54 AM

29

Uti Possidetis in Latin America

had claimed as their own, that their titles were coextensive with theirs, and that there was no portion of territory in Latin America vacant for further European colonization. The entire South American continent having been divided between Spain and Portugal, without any exceptions, the republics maintained that at the time of the wars of liberation, no territory could be considered terra nullius and therefore subject to occupation or conquest. Thus even territories that had in fact never been occupied either by Spain or Portugal were “by common consent deemed occupied in law from the first hour.”16 The adherence to existing colonial administrative divisions was meant not only to secure Latin America from further European colonization, but also to exclude the rights of conquest and occupation among the republics themselves. By accepting the colonial status quo, the republics committed themselves to a reciprocal respect of their territorial status and abolished among themselves the legitimacy of a right of conquest that still existed under international law. As De Arechaga comments: “Upon being adopted, the principle … prevented the territorial ambitions of any one State and the dissolution of any other.”17 The preservation of the colonial status quo also enabled the newly independent republics to postpone the discussion of the precise location of their boundaries to a more convenient time. This aspect is emphasized by Dias Van Dunem: “The States which adopted it for reasons of opportunism were aware of the impossibility of resolving their boundary problems in the immediate aftermath of their accession to independence and the adoption of the status quo merely reflects a tacit acceptance that these issues would have to be revisited at some point in the future.”18 2.3.1

Early Constitutions and Treaties

Early constitutions and declarations of independence expressed adherence to the colonial status quo and acknowledged the need to postpone the delimitation of boundaries to a more convenient time. Article 2 of the Fundamental Law of the Sovereign Congress of Venezuela, for the Union of the Republics of New Granada and Venezuela, under the Title of the Republick of Colombia (1819) declared: “Its Territory shall be those comprehended in the former Captain-generalship of Venezuela and the Vice-royalty of the New Kingdom of Granada … whereof the exact boundaries shall be fixed at a more seasonable opportunity.”19 Similarly, Article 5 of the Constitution of the Federal Republick of Central America (1824) provided that: “The Territory of the Republick is that which formerly composed the Ancient Kingdom of Guatemala.” Article 7 went on to state: “The limits of the Territory of the State, shall be

chap_02.fm Page 30 Thursday, October 10, 2002 8:54 AM

30

Determining Boundaries

defined by a Constitutional Law, when the necessary information shall have been obtained.”20 Treaties between the new republics also revealed respect for the same principle. In Article 8 of the Treaty of Perpetual Union, League and Confederation between Colombia and Mexico (1823), the parties mutually guaranteed the integrity of their territories on the footing on which they stood before the war of independence. Article 9 further provided: “The specific demarcation of all and each of the Parts composing the territories mentioned in the preceding Article shall be arranged by a particular and mutual agreement between the two Parties, so soon as the approaching Constituent Congress of Mexico has decreed the Constitution of the Nation.”21 Article 5 of the Treaty of Perpetual Union, League, and Confederation between Colombia and the United Provinces of Central America (1825) provided that: “Both contracting parties mutually guarantee the integrity of their respective territories … on the same footing as they existed previous to the present war of independence.” Article 7 further stated: “[R]eserving to themselves to settle in a friendly manner, and by means of a Special Convention, the demarcation or divisional line between the two States, so soon as circumstances will permit.”22 2.3.2

Appearance of the Uti Possidetis principle

Though it had been widely anticipated that the adoption of the colonial status quo policy would do away with territorial disputes between the Latin American republics, in reality it merely postponed them. In the immediate aftermath of independence, the new international actors had merely decided to define their national territory by reference to the particular colonial divisions that the fortunes of war and the power of negotiations had included within their jurisdiction. However, claiming that “[t]he Territory of the Republick of Colombia shall be that comprehended within the ancient Captain-Generalship of Venezuela and the Viceroyalty and Captain-Generalship of the new Kingdom of Granada”23 did not resolve the critical question as to the precise location of the administrative lines delimitating those colonial units. The lack of trustworthy information during the colonial period with respect to large sections of the continent created serious difficulties. Much of the territory was unexplored while other parts which had occasionally been visited were but vaguely known. Acts and instruments of the Spanish and Portuguese monarchs that purported to delimit the various administrative units were enacted in ignorance of the geography of the area. Maps were imperfect, and the names and local-

chap_02.fm Page 31 Thursday, October 10, 2002 8:54 AM

31

Uti Possidetis in Latin America

ities of rivers, streams, and mountains mentioned in colonial documents were often disfigured or could no longer be found. Not only had the boundaries of jurisdiction been imprecisely determined by the Iberian monarchs, but there were also vast areas in which there had been no attempt to assert any semblance of administrative authority.24 Claimant republics therefore often disagreed as to the exact limits of viceroyalties, captaincies-general, audiencias, presidencias, or provincias. After decades of uncertainty, disputes gradually arose among many of the new republics, not on the application of the status quo principle admitted by all, but on the location of the old colonial boundaries.25 Anxious to avert conflict, the republics cast about for a general rule that would become the determinative test of territorial rights. It was agreed that a modified version of the Roman law principle uti possidetis would be adopted as a convenient tool for the delimitation of the vague and imprecise status quo lines. 2.3.3

Rival Versions of the Uti Possidetis Principle

In many areas where boundaries were in dispute, it was discovered that at the time of independence, the colonial administrative authorities of a given territorial unit had in fact been exercising civil jurisdiction beyond the line designated as the limit of their territorial jurisdiction. As Fisher explains: The state which had succeeded to the colonial unit whose area had thus been expanded at the expense of an adjacent one was prone to insist that the uti possidetis meant administrative possession as it actually existed at the time of independence, while the other party to the dispute was certain to assert that the principle of uti possidetis required the restriction of the territorial sovereignty of the Latin American nations to the areas rightfully occupied by the administrators of the antecedent colonial unit.”26

Proponents of the first theory affirmed that the rule was best expressed by the phrase uti possidetis de facto, while those who upheld the opposing view contended that the principle required the establishment of a juridical line, which they called the line of uti possidetis juris. The existence of these two rival versions of the principle rendered its application problematic, particularly in resolving boundary questions between the former Spanish colonies and Portuguese Brazil. According to the Spanish republics, the application of the uti possidetis juris principle compelled a consideration of the titles of both jurisdictions and the granting to each nation not precisely what they had possessed at independence, but what, according to the decrees of the

chap_02.fm Page 32 Thursday, October 10, 2002 8:54 AM

32

Determining Boundaries

sovereign, they had had a right to possess. However, Brazilian jurists and diplomats maintained that in resolving boundary questions, the uti possidetis de facto formula ought to be applied. As such, the doctrine of uti possidetis was applicable, not in the form accepted by the Spanish American writers, but rather as defined in the general law of war, namely as confirming the situation of fact at the conclusion of peace. The Brazilian position was founded on the claim that the Treaty of Madrid (1750) and the Treaty of San Ildefonso (1777), which had defined the boundaries between the two Iberian kingdoms in Latin America, were no longer applicable as a result of the war between the two powers from March to June 1801.27 According to Brazilian authorities, the treaties were no longer determinative as they had not been reconfirmed by the Badajos Peace Treaty, which had terminated the hostilities. Therefore, as no boundary treaty prevailed between Brazil and its Spanish American neighbours, the only possible solution in resolving their boundary disputes was to rely on the doctrine of effective occupation or uti possidetis de facto. Furthermore, Brazil maintained that it gave to the uti possidetis principle the only meaning it could reasonably have, according to its origin and tradition – that of real and effective possession independent of any title – while the Spanish republics were trying to inject into the Roman formula a meaning entirely alien to its origin – namely, the right to possess independent of effective occupation. With respect to Brazil’s interpretation of the principle, Hyde has commented: “It [Brazil] was heedless of previously existing divisions whether administrative or international. It was heedless also of the doctrine of constructive occupation. It followed simply the actual possession of the respective countries, when they acquired independence.”28 Relying on the de facto version of the principle, Brazil was able to defend not only Portuguese expansion during colonial times, but also her own expansion during the post-colonial era.29 However, it was precisely so that such encroachments and attempts at colonization, as well as occupations de facto, should be deprived of any consequence in law that the Spanish republics insisted on the uti possidetis juris principle.

2.4

a l ati n a me r i c a n u t i p o s s i de t i s?

We have now summarized the main aspects of the ‘Latin American uti possidetis’ as presented by most commentators writing on the principle. Yet, thus far, no attempt has been made to evaluate what real impact both the colonial status quo practice and the delimitation principle uti possidetis had in the determination of the new international boundaries. Their role cannot be assessed without a closer examination of

chap_02.fm Page 33 Thursday, October 10, 2002 8:54 AM

33

Uti Possidetis in Latin America

the official documents (constitutions and treaties) and state practice during the period. 2.4.1

Absence of Uti Possidetis in Constitutions and Treaties When in the first decades of the nineteenth century, the Spanish American Republics established themselves as newly independent States in territories of former Spanish America, they proclaimed the uti possidetis principle as the basic or general rule to define their respective titles to territories and boundaries.30

Although it is often stated that the uti possidetis principle was proclaimed by the newly independent republics, in fact very few constitutions actually used the expression uti possidetis.31 Of forty-three constitutions examined from the period 1811 to 1850, only one mentioned the uti possidetis principle. Article 7 of the Political Constitution of the Republic of Costa Rica provided: “The limits of the territory of the Republic are those of the uti possidetis of 1826.”32 Of forty constitutions consulted from the period 1850 to 1901, only four referred to the uti possidetis principle: three of them revised constitutions of the Republic of Costa Rica,33 and the other, the 1886 Constitution of the Republic of Colombia, mentioned uti possidetis only to exclude its application.34 Therefore, out of a total of eighty-three constitutions spanning a century, only Costa Rica used the uti possidetis principle and only to define part of its national territory. With the exception of treaties to which Brazil was a party,35 no reference to the uti possidetis principle was found in any of the fifty treaties examined between the Spanish republics in the period from 1811 to 1850. Of these fifty treaties, thirty-one had specific articles referring to territory and boundaries, yet not one referred to the principle of uti possidetis. In the second half of the nineteenth century, only five treaties out of seventy-seven made reference to the uti possidetis principle, three of them arbitration treaties: the Treaty of Peace, Friendship, and Alliance between the Equator and Peru, 25 January 1860;36 the Treaty between Colombia and Venezuela for Submitting to Arbitration the Question of the Boundary between the two Republics, 14 September 1881;37 the Protocol of the Semi-Official Conference of the Representatives of the Argentine Republic, Bolivia, Colombia, Dominican Republic, Equator, Mexico, Peru, Salvador, and Venezuela, 14 August 1883;38 the treaty between the Dominican Republic and Haïti, 3 July 1895;39 and the Treaty of General Arbitration between Bolivia and Peru, 21 November 1901.40 It has also been stated that the uti possidetis of 1810 was proclaimed by the Congress at Lima in 1848,41 but the statement appears not to be

chap_02.fm Page 34 Thursday, October 10, 2002 8:54 AM

34

Determining Boundaries

altogether accurate. On 16 December 1847, the plenipotentiary of New Granada, in accord with the representatives of Chile and Bolivia, presented to the congress a project of confederation. By Article 7 of the proposal, it was suggested that the confederated republics should “recognize as a principle founded in perfect right, for the fixing of their limits, the uti possidetis of 1810”.42 The plenipotentiary of Peru presented on the same day alternative provisions for a similar treaty and, in conformity with his instructions, proposed as the boundary rule “the uti possidetis of 1824, after the termination of the war of independence with the battle of Ayacucho.”43 However, Article 7 of the final version of the treaty, signed on 8 February 1848, stated: “The Confederated Republics declare their right is perfect to keep the boundaries of their territories as they existed at the time of the independence from Spain of the respective Viceroyalties, Captainciesgeneral or Presidencies, into which Spanish America was divided.”44 Thus it must be acknowledged that in the early part of the nineteenth century, the vast majority of official documents do not make any reference to the uti possidetis principle. To assume, as some do, that while there is no explicit reference to the principle, it is implicitly operative is to make an interpretative leap that exaggerates the importance of the uti possidetis principle. This argument, reinforced by other evidence, is the subject of discussion in section 2.4.7 below. 2.4.2

Variations and Inconsistent State Practice

As discussed above, the uti possidetis principle was infrequently mentioned in the 210 official documents consulted spanning the nineteenth century. Those constitutions and treaties that actually did refer to the uti possidetis principle as the basis for determining legal title to territory made use of a number of conflicting formulae: the Spanish American uti possidetis juris and the Brazilian uti possidetis de facto;45 uti possidetis of 1810;46 uti possidetis of 1821;47 uti possidetis before independence;48 uti possidetis of 1826;49 uti possidetis of 1874;50 and uti possidetis juris of 1880.51 In addition to various and often conflicting versions of the uti possidetis principle, there was also inconsistent state practice in the particular version adopted from one treaty to another. Peru, Venezuela, and Bolivia each concluded a treaty with Brazil on the basis of the uti possidetis de facto – that is, on the basis of actual possession.52 Yet on 25 January 1860, Peru concluded a Treaty of Peace, Friendship, and Alliance with Ecuador on the basis of the uti possidetis juris formula.53 Similarly, the preamble of the 1881 treaty concluded between Venezuela and Colombia refers to the uti possidetis juris of 1880,54 while Article 8 of

chap_02.fm Page 35 Thursday, October 10, 2002 8:54 AM

35

Uti Possidetis in Latin America

the General Arbitration Treaty between Bolivia and Peru instructed the arbitrator to resolve the dispute in strict obedience with the principle of uti possidetis of 1810.55 And, as noted by Kohen: the notion of uti possidetis de facto … was invoked by Paraguay in its dispute with Bolivia over the Chaco boréal, by Guatemala in its frontier dispute with Honduras … and to a certain extent, by Salvador in the Case Concerning the Land, Island and Maritime Frontier Dispute. All these theses have in common the fact of favouring the situation on the ground rather than juridical titles, in other words possession in relation to the right to possess.56

2.4.3

No Particular Colonial Entity Necessarily Adhered To The practices of Spanish American States as they entered into their lives as such revealed a sense of freedom on the part of the new entities which has not generally been perceived.57

When the republics purported to accept, as the basis of their new boundaries, lines of division that had been laid down by the Spanish Crown, no particular colonial unit was necessarily adhered to. The status quo and uti possidetis principles did not determine which colonial entities were to be respected. This aspect is emphasized by Hyde: “If adjacent provinces became States the agreements which registered the wills of the interested parties, and which might be said to be illustrative of what was referred to as instances of uti possidetis, failed to establish that the new States felt themselves obliged to respect the old Spanish colonial circumscriptions known as viceroyalties, audiencias, presidencias, or provincias, although such molds could be used and oftentimes were used to determine the precise limits of any of these entities when once it was agreed that the boundaries of the new State should follow those of a particular colonial predecessor.”58

Moore also gives the following account: In 1819 a congress of delegates from Venezuela and New Granada declared that the two nations would be united under the name of Colombia. In 1822, Bolivar incorporated into the union the territories of Quito and Guayaquil. However, in 1829 Venezuela detached itself, and a year later Quito and Guayaquil also formed a separate republic called Ecuador. New Granada resumed its original name but dropped it again in 1857 for that of Colombia. In another instance, the ancient Viceroyalty and Audiencia of Buenos Aires declared itself independent in 1816 under the name of the United Provinces of the Rio de la Plata. However, its territory was eventually divided among the four independent Republics of

chap_02.fm Page 36 Thursday, October 10, 2002 8:54 AM

36

Determining Boundaries

Argentina, Paraguay, Uruguay, and Bolivia. Nor were the boundaries of audiencias necessarily adhered to in other parts of Spanish America. In Central America, the Audiencia of Guatemala, after a brief existence as part of the Mexican Empire of Iturbide and as a single independent state, broke up into five states roughly corresponding to the old provincias. Moore therefore concludes: It seems clear that although the old audiencias were in some cases considered as the proper entities on which to found the new States, there was no thought that the new States had to coincide with the old audiencias as a matter of law. When convenience and local sentiment, as well as the realities of force, allowed it, the new States might embrace several audiencias (as in the case of Colombia prior to 1830, or of Mexico or Peru), or be coëxtensive merely with minor subdivisions of an old audiencia (as in the case of Paraguay and Uruguay).”59

In fact, upon examining the formation of the Latin American republics, the strict adherence to the circumscription of the old audiencias appears to be the exception rather than the rule. Thus Argentina, Paraguay, and Uruguay were all included in the Spanish Audiencia of Buenos Aires yet became independent republics in their own right. The Audiencias of Lima and Cuzco, as well as parts of the Audiencia of Quito (Jaén and Tumbes) united to form the Republic of Peru; the Republic of Bolivia embraced the Audiencia of Charcas but with the addition of the district of Tarijax, which had formerly belonged to the Audiencia of Buenos Aires; early Colombia included the Audiencias of Santa Fé, Quito (with the exception of Jaén and Tumbes), Panama, and the Captaincy-general of Caracas; and Mexico was originally composed of the Audiencias of Mexico, Guadalajara, and Guatemala, the last of these seceding shortly afterwards.60 2.4.4

Status Quo and Uti Possidetis Easily Discarded

The practice of adhering to the colonial status quo and its delimitation adjunct, the uti possidetis principle, was also easily discarded when they did not serve the republics’ immediate needs. Hyde insists that the idea of the colonial status quo was never meant to apply to situations characterized by post-revolutionary activities that had shifted the control of areas bordering on a former colonial frontier, and that it was not in fact allowed to affect the consequences of those activities: The thought productive of practices referred to as manifestations of uti possidetis had no reference to, or bearing upon, the legal significance of revolutionary or post revolutionary acts in aligning particular areas or entities with

chap_02.fm Page 37 Thursday, October 10, 2002 8:54 AM

37

Uti Possidetis in Latin America

particular States … The significant feature of the use of the Spanish line by the new American Republics was the existence of a condition that was always present – that the Spanish line did no violence to the factual situation that followed on the heels of the revolution. But when or if it did, there was no room for agreement to accept what Spain had decreed.”61

There are numerous instances in which the republics declined to allow an existing colonial division to be enforced against conflicting achievements wrought in connection with, or shortly following, the revolution. Thus, after the successful independence movement of 1821 and the founding of the Republic of the United Provinces of Central America (hereinafter the Central American Republic) – uniting Guatemala, Salvador, Honduras, Nicaragua, and Costa Rica – the district of Nicoya, which had belonged to the Province of Nicaragua under Spanish rule, was transferred in 1825 by an act of the new Federal Congress to the Province of Costa Rica. However, after the break-up of the Central American Republic, Costa Rica remained in possession of Nicoya, succeeding by an effective assertion of control in making its dominion over the district permanent.62 Another example of the boundary between two Latin American republics being established at variance with the boundaries of the colonial subdivision at independence is that of Chiapas. Chiapas was one of the provinces embraced in the Audiencia and Captaincy-general of Guatemala. Like the other provinces of that audiencia, it joined the Mexican Empire of Iturbide but later separated from it. However, instead of joining the newly proclaimed Central American Republic, which united the former provinces of the Audiencia of Guatemala, authorities in Chiapas eventually opted to rejoin Mexico. Mexico freely admitted that the Province of Chiapas and the coastal district of Soconusco had formerly been part of the Captaincy-general of Guatemala but claimed that Chiapas had proclaimed its independence from Spain and its union with Mexico on 3 September 1821, before Guatemala had proclaimed its independence. Furthermore, on 29 September 1821, provincial authorities had declared that Chiapas no longer belonged to Guatemala but to Mexico and had sent representatives to request incorporation on 29 October. The territory had then been formally annexed on 16 January 1822.63 A popular vote in 1824 on the issue had resulted in 96,829 votes for incorporation with Mexico against 60,400 for a return to Guatemala, and another later the same year had yielded a similar outcome.64 The remaining provinces of the Audiencia of Guatemala, which had united to form the Central American Republic, unsuccessfully demanded the return of the Province of Chiapas on the grounds of its

chap_02.fm Page 38 Thursday, October 10, 2002 8:54 AM

38

Determining Boundaries

former possession by the Audiencia of Guatemala and of the alleged involuntary character of the votes. The 1824 Constitution of the Central American Republic provided that: “The Territory of the Republic is that which formerly composed the Ancient Kingdom of Guatemala, with the exception, for the present, of the Province of Chiapas.”65 Following the collapse of the Central American Republic, Guatemala declared independence in 1839 and continued to assert its claim for the return of Chiapas. Repeated negotiations and diplomatic exchanges did little to alter the situation, and in 1882 Guatemala finally capitulated: “The Republic of Guatemala renounces for ever the rights it believes it has to the territory of the State of Chiapas and its district of Soconusco, and consequently, considers said territory as an integral part of the United States of Mexico.”66 It is not necessary for our purposes to consider the question of whether the decision to rejoin Mexico was an entirely voluntary one on the part of the population of Chiapas. The fact remains that the final outcome was at variance with the colonial boundary of the Audiencia of Guatemala. 2.4.5

Nineteenth-Century Post-Colonial Territorial Wars

Not only did the republics reject the colonial status quo policy and the uti possidetis principle when it conflicted with adjustments wrought in connection with the revolution, but a number of boundaries were ultimately determined by force of arms. In addition to the two Cisplatine Wars between Argentina and Brazil, which ultimately led to the founding of the independent Republic of Uruguay, the dispute over the Maranon River basin, the War of the Triple Alliance, and the War of the Pacific also determined territorial issues on the basis of force. Cisplatine Wars. In 1825, war broke out between the Empire of Brazil and the United Provinces of the River Plate over possession of the Province of Montevideo. Montevideo had formed part of the United Provinces up to 1822, when Brazil had forcibly annexed it under the name of the Provincia Cisplatina.67 When in 1825, the Provincia Cisplatina declared its independence, Brazil and the United Provinces of the River Plate declared war upon each other, as each desired to incorporate the provincia into its respective territory. Peace was reestablished on 27 August 1828 by a treaty concluded with the help of the British government and subsequently completed by a convention on 2 January 1859 between Brazil, Argentina, and Uruguay (the Provincia Cisplatina). This convention proclaimed Uruguay’s neutrality,

chap_02.fm Page 39 Thursday, October 10, 2002 8:54 AM

39

Uti Possidetis in Latin America

with Brazil and Argentina pledging to defend its independence and integrity.68 Maranon River Basin. In 1802, the administration of missionary activity in the trans-Andean Maranon River basin was transferred from the Spanish colonial authorities in Quito (following independence, the Republic of Colombia would include the Audiencia of Quito) to those in Lima (the Audiencia of Lima was subsequently embraced in the Republic of Peru). When Spain was finally defeated and evicted from South America in the 1820s, both the Gran Colombian Federation and Peru laid claim to the territory. After suffering a military defeat at the hands of Colombian forces, Peru accepted, by the terms of the 1829 Guayaquil Treaty69 and the 1830 Pedemonte-Mosquera Protocol,70 a boundary that followed the Maranon River to its confluence with the Chinchipe, crossed the Huancabamba watershed, and descended to the Pacific Ocean along the Chaiara and Tumbes Rivers. However, throughout the remainder of the nineteenth century, Peru’s claims to the Maranon basin were both periodically restated and largely substantiated on the ground. Indeed, despite the terms of the agreement, Peru successfully occupied the territory lying between the Maranon River and the Napo-Putamayo watershed.71 In 1890, Peru and Colombia reached a tentative compromise, but the Garcia-Herrera Treaty was not ratified by Peru, and arbitration by the king of Spain could not break the deadlock. In 1922, Colombia agreed to cede to Peru a strip of land between the Napo-Putamayo watershed and the Putamayo that lay immediately north of the territory occupied by Peru. This strip of land had been transferred to Colombia from Ecuador in the 1916 Munoz-Vernaza-Suarez Treaty and was offered, amidst protests from Ecuador, to Peru in exchange for Peruvian recognition of Colombia’s Leticia corridor through the Amazon littoral. However, despite this gesture, negotiations between the two republics collapsed amidst mutual recriminations, and eventually, in July 1941, with the eyes of the world elsewhere, Peru simply invaded and took the disputed territory.72 War of the Triple Alliance (Paraguayan War). This armed conflict, involving Paraguay on the one hand and Argentina, Brazil, and Uruguay (the Allies) on the other, occurred between 1864 and 1870. An undeclared war erupted between Paraguay and Brazil in November 1864 when the Paraguayan government refused to accept Brazil’s involvement in the internal affairs of Uruguay. The decision of the Paraguayan dictator, López, to send his armies across Argentine territory to attack Brazil, coupled with the victory of the Brazil-supported colorados

chap_02.fm Page 40 Thursday, October 10, 2002 8:54 AM

40

Determining Boundaries

in Uruguay, prompted Argentina, Brazil, and Uruguay to form an alliance and to issue a declaration of war against Paraguay on 1 May 1865. In the initial phases of the war, Paraguayan armies carried the war into Brazilian territory, but operating far from their sources of supply and against a numerically increasing enemy, the Paraguayans were eventually forced to retreat behind the river barriers that protected their national territory. Once on Paraguayan territory, the allies were forced to fight in the swampy northwest corner of Paraguay for more than two years. Finally, in February 1868, Brazilian ironclads forced a passage of the strategic river fortress Humaitá and ascended the river to Asunción. In July, Humaitá was abandoned by the Paraguayans, and López moved his forces north, where they were all but annihilated in December of that same year by the allied armies. On 1 January 1869, Asunción fell to the Allies, and in August a provisional government was set up under allied supervision. Paraguay suffered terribly from the war: its population, which had numbered over 500,000 in 1865, was decimated to approximately 28,000 men and 200,000 women and children. In addition, about 55,000 square miles of Paraguay’s territory was lost as a result of the defeat.73 War of the Pacific (1879–83). Since independence, there had been a standing disagreement between Bolivia and Chile over possession of the Antofagasta area and the precise location of their common boundary through the Atacama Desert. When it had become apparent during the decades following independence just how much wealth lay beneath the Atacama Desert, Chilean authorities had proceeded to appropriate what Spanish decrees had apparently left to Bolivia. In 1842, Chile claimed as a boundary the twenty-third parallel while Bolivia claimed the twenty-fifth. A treaty signed by both parties in 1873 recognized Bolivian control north of the twenty-fourth parallel and stipulated that revenues accrued in the area between the two original claims would be shared equally and, further, that the taxes paid by the Chilean companies would not be increased by the Bolivian government for the next twenty-five years. In 1875, the holdings of the Chilean nitrate companies were expropriated by the Peruvian government, and three years later Bolivia, which had signed a secret alliance with Peru in 1873, confiscated the property of the nitrate-producing AngloChilean Company.74 Alarmed by the 85 per cent Chilean majority in its own Antofagasta province, the Bolivian government justified its action on the grounds that the company had refused to pay a new tax on the shipping of nitrates from the Atacama territory. Chile reacted to the confiscation by taking possession of the Bolivian Province of Antofagasta in February 1879.

chap_02.fm Page 41 Thursday, October 10, 2002 8:54 AM

41

Uti Possidetis in Latin America

When Peru rejected Chile’s request that it revoke its alliance with Bolivia, the Chilean government also declared war on Peru in April 1879. A truce was ultimately arranged with Bolivia in 1884, but a peace treaty between the parties was not signed until 1904. As a result of the war, Bolivia lost its entire Pacific coastline. A peace treaty between Chile and Peru was signed in 1883. The Treaty of Ancón, signed on 20 October 1883, left Chile in possession of the Province of Tarapacá and gave Chile the right to occupy the Provinces of Tacna and Arica for a period of ten years, after which their fate was to be decided by plebiscite. Poor relations between the two republics made the holding of the plebiscites impossible, and ultimately an agreement was reached in 1929 that returned Tacna to Peru and awarded Arica to Chile. 2.4.6

Arbitration Treaties and Awards

As discussed in section 2.4.1 above, only one reference to the uti possidetis principle was found in the official documents consulted for the period 1811 to 1850. However, many of the early constitutions and treaties did declare that the republics fell heir to a particular administrative division of the former Spanish Empire.75 For reasons of necessity, the newly independent republics adopted a practice that applied the rules of state succession and protected their hard-won independence from further attempts at colonization. Moore has made the point that it was only after the lapse of years, when wars had opened the way to claims based on violence and the spectre of conquest had arisen, that the actual delimitation of the new boundaries was considered important enough to prompt the mention of uti possidetis in treaties: “As a safeguard against this peril [claims based on violence], an attempt was made to establish, without regard to all the facts, a general principle, having the aspect of rule of law, which any power seeking to establish or enlarge its boundaries by force might be charged with having violated.”76 Hence the appearance of the uti possidetis juris principle in some of the later treaties, particularly arbitration treaties. It must be noted, however, that though references to the uti possidetis principle are more frequent than in earlier decades, most arbitration treaties are still concluded on the basis of the colonial status quo or on other alternative grounds.77 In some cases, though the parties sought to rely on the uti possidetis juris principle for the delimitation of their boundaries, they were unable to agree on the meaning to be ascribed to the principle. By a treaty concluded on 3 July 1895, the Dominican Republic and Haiti were compelled to submit not only their boundary dispute but also

chap_02.fm Page 42 Thursday, October 10, 2002 8:54 AM

42

Determining Boundaries

their rival versions of the uti possidetis principle to arbitration. Article 4 of the Treaty of Peace and Friendship signed by the parties in 1874 had provided: “The two contracting Parties formally undertake to establish, in the manner most in keeping with equity and the reciprocal interests of the two peoples, the frontier lines which separate their actual possessions.”78 After quoting this article, the preamble to the 1895 treaty proceeded: In light of the contradictory interpretation given to the said article four by the two Governments; On one hand, the Government of Haïti maintaining that the uti possidetis of [1874] is the one conventionally accepted and sanctioned for the drawing of our boundary lines; that in fact, the term actual possessions means the possessions occupied at the time of the signing of the treaty; On the other hand, the Dominican Government maintaining that the uti possidetis of [1874] is not conventionally accepted nor established in the said article four, because, by actual possession, one can only mean that which, in law, could belong to each of the two Governments, in other words the possessions determined by the status quo post bellum in [1856], the only uti possidetis possessions to which the clause in article four can reasonably be held to apply … Have resolved to submit to arbitration the dispute in question.79

These conflicting interpretations of the uti possidetis principle were therefore submitted to arbitration as a preliminary to resolving the boundary dispute. The Pope, however, abstained from rendering an award. In many other instances, while the arbitration treaty was concluded on the basis of the status quo or the uti possidetis principle, the principle relied upon was qualified. The Additional Arbitration Convention, concluded between Peru and Ecuador on 15 December 1894, provides an interesting example. Whereas in the treaty signed on 1 August 1887 the two parties had simply agreed to rely on the status quo principle, the 1894 convention stipulated: The … high contracting parties decide that the royal arbitrator (the King of Spain) will render a decision on the subject matter of the dispute, not only on the basis of the titles and legal arguments which have been or will be presented to him, but also with reference to the reciprocal interests of the C.P. by reconciling them in such a way that the boundary line be determined according to the principles of equity as much as those of the law proper.80

Finally, in a number of cases, though the compromis did not specifically provide for the application of subsidiary principles, the arbitrator was in fact unable to precisely determine the status quo or uti possidetis

chap_02.fm Page 43 Thursday, October 10, 2002 8:54 AM

43

Uti Possidetis in Latin America

line and was obliged to rely on alternative principles to resolve the dispute. As noted by De Lapradelle: “[W]hen the compromis did not provide for subsidiary recourse to an established principle, the arbitrator himself declared the insufficiency of the uti possidetis juris and decided in equity.”81 The Boundary Case between Honduras and Nicaragua.82 The 1894 GamezBonilla Treaty 83 between Honduras and Nicaragua was concluded with a view to resolving their differences regarding the demarcation of their common boundary. The treaty provided for the creation of a mixed boundary commission, and it was understood that each republic was the owner of the territory that at the date of independence had constituted the Spanish Provinces of Honduras and Nicaragua. The parties also agreed that in determining the boundary, the mixed commission would only consider “proven ownership of territory” and would not recognize “juridical value to de facto possession alleged by one party or the other.”84 However, Articles 5 and 6 did provide: 5. In case of lack of proof of ownership, the maps of both Republics and public or private documents, geographical or of any other nature, which may shed light upon the matter, shall be consulted, and the boundary line … shall be that which the Mixed Commission shall equitably determine as a result of such study. 6. The same Mixed Commission, if it deems it appropriate, may grant compensations and even fix indemnities in order to establish, in so far as possible, a well-defined natural boundary line.

The mixed commission succeeded in fixing the boundary line from the Pacific coast to the Portillo de Teotecacinte but was unable to agree on the boundary from that point to the Atlantic coast. This section was submitted to arbitration and an award was delivered by the king of Spain on 23 December 1906. King Alphonse III at the outset acknowledged that the arbitration was governed by the provisions of the Gamez-Bonilla Treaty.85 In fixing the terminus of the boundary on the Atlantic coast, the arbitrator considered a number of factors and concluded: “Whereas, from what is inferred from all the foregoing, the point which best answers the purpose by reason of historical right, of equity and of a geographical nature, to serve as a common boundary on the Atlantic Coast between the two contending States, is Cape Gracias á Dios.”86 As to the boundary line between this point and the Portillo de Teotecacinte, the course of the River Coco (Segovia), “owing to the direction in which it flows and to the condition of its beds, offers the most

chap_02.fm Page 44 Thursday, October 10, 2002 8:54 AM

44

Determining Boundaries

precise and natural boundary which could be desired.”87 Acknowledging that a point had to be determined where the course of the River Coco should be abandoned before it turned south-west into Nicaraguan territory, the arbitrator selected the point of its confluence with the River Poteca and determined that the Poteca should be followed upstream until it struck the demarcation site of Teotecacinte: Whereas if the selection of the confluence of the Poteca with the Coco … might give rise to doubts and controversy under the supposition that Honduras would be favoured in the narrow region of the northern valley of the Segovia, which thus remains within the frontier; whilst on the other hand, and as compensation for having taken the mouth of the Segovia in the manner previously mentioned, the bay and town of Cape Gracias á Dios remain within the domain of Nicaragua, which according to facts beyond dispute and with a greater right, would correspond to Honduras.88

Clearly, the status quo principle had little impact on the arbitrator’s determination of the Honduras-Nicaragua boundary. In fact, the decision was subsequently challenged by Nicaragua on the grounds that the arbitrator had fixed a natural boundary without reference to the laws and royal decrees of the Spanish monarch, which had established the relevant administrative divisions.89 But in a decision rendered on 18 November 1960,90 the International Court of Justice (icj) declared that the 1906 decision was indeed valid and that Nicaragua was bound to execute it. Considering that Articles 5 and 6 of the Gamez-Bonilla Treaty were directed as much to the royal arbitrator as to the mixed commission, the Court accepted that, to the extent that colonial titles were non-existent or contradictory, the arbitrator had been perfectly justified in granting compensations in order to establish a well-defined boundary line. It is therefore fairly difficult to reconcile the arbitrator’s obvious reliance on historical, equitable, and especially geographical considerations, subsequently validated by the icj, with Sanchez Rodriguez’s assertion that “[t]he 1906 arbitral award can be considered a perfect example of the practical application of the uti possidetis juris.”91 Bolivia-Peru Arbitration.92 By a treaty of general arbitration signed 21 November 1901, Bolivia and Peru pledged themselves to submit to arbitration all present and future controversies between them. Article 2 provided that: In each case that may arise the contracting parties shall conclude a special agreement with a view to determining the subject-matter of the controversy, to

chap_02.fm Page 45 Thursday, October 10, 2002 8:54 AM

45

Uti Possidetis in Latin America

fixing the points that are to be settled, the extent of the powers of the arbitrator, and the procedure to be observed.93

In the event that no specific rules were established in the special arbitration agreement, Article 8 stipulated that: The arbitrator shall decide in strict obedience to the provisions of international law, and, on questions relating to boundary, in strict obedience to the American principle of “uti possidetis” of 1810, whenever, in the agreement mentioned in article 2, the application of the special rules shall not be established, or in case the arbitrator shall not be authorized to decide as an amicable referee.94

A mixed commission was successful in demarcating a section of the frontier from a point between the Peruvian Provinces of Tacua and Africa and the Bolivian Province of Carangas on the west, as far as the snow field of Palomani. The remaining section was submitted to arbitration by a special agreement concluded 30 December 1902. In the special agreement, the parties specifically referred to Article 2 of the 1901 general arbitration treaty and agreed that: [A]ll the territory which in 1810 belonged to the jurisdiction or district of the Ancient Audiencia of Charcas, within the limits of the viceroyalty of Buenos Ayres, by acts of the ancient sovereign, may belong to the republic of Bolivia; and all the territory which at the same date and by acts of equal origin belonged to the viceroyalty of Peru may belong to the republic of Peru.”95

The parties did not refer to the uti possidetis principle in defining the test of their respective rights, and therefore, through the operation of Articles 2 and 8 of the general arbitration treaty, the colonial status quo became the ‘special rule’ to be applied. So as to give an accurate interpretation and carry out the royal dispositions in question, the arbitrator was further instructed to act in conformity with the laws in the Collection of Statutes of the Indies, the Royal Letters Patent and Orders, and the Ordinances of the Provincial Governors, as well as with diplomatic instruments relating to the demarcation of frontiers, with official maps and descriptions, and generally with such documents of official character as might have been issued.96 If, however, the royal enactments or dispositions did not define in a clear manner the right of possession to a territory, “the Arbitrator shall decide the question equitably, keeping as far as possible to their meaning and to the spirit which inspired them.”97 The arbitral award was rendered by the president of the argentine Republic on 9 July 1909. Having briefly reviewed the Bolivian and

chap_02.fm Page 46 Thursday, October 10, 2002 8:54 AM

46

Determining Boundaries

Peruvian submissions, the arbitrator declared that he could not find “sufficient grounds for considering as the boundary between the Audiencia of Charcas and the Viceroyalty of Lima in 1810, either of the demarcations supported by the respective advocates of the interested states.” [I]n reality the zone in dispute was in 1810, and until a recent date, completely unexplored, as appears from the various maps of colonial and later times presented by both sides, and this is recognized by the parties themselves, which explains the fact that the boundaries of these districts ruled by the same sovereign, had not been fully determined.”98

The status quo principle being of little assistance, the arbitrator invoked and strictly applied the provisions of Article 4 of the 1902 arbitration treaty, which entitled him to decide the question in equity: “That in accordance with the preceding conditions, I am obliged to decide the question fairly, approaching in the decision the signification of the royal dispositions presented by the royal parties and to the spirit of the same.”99 Colombia-Venezuela Arbitral Award.100 The United States of Venezuela and Colombia concluded on 14 September 1881 an arbitration treaty in order to resolve the question of territorial limits that had been troubling their relations for over fifty years. The preamble declared: [A]nd wishing to achieve a truly authentic territorial delimitation at law such as it existed by virtue of the ordinances of the former Sovereign; and after having evaluated … all the titles, documents, evidence and authorities in their archives during repeated negotiations, without being able to reach an agreement concerning respective rights or the uti possidetis juris of 1810 … have agreed … to conclude an arbitration treaty juris.101

The dispute was submitted to the Government of H.M. the King of Spain on the basis that all territory that had belonged to the Captaincygeneral of Caracas until 1810 would remain the territory of Venezuela and that all the territory comprehended in the Viceroyalty of Santa Fé at that date would be recognized as Colombian territory.102 No award having been delivered at the death of King Alphonse III, the parties agreed that his arbitral powers would be exercised by the Government of the Spanish Monarchy. By the Paris Declaration, signed 15 February 1886, the parties further agreed that the arbitrator would be empowered to fix the boundary line according to his or her good judgment: “[T]he arbitrator … will be able to determine the line in the manner

chap_02.fm Page 47 Thursday, October 10, 2002 8:54 AM

47

Uti Possidetis in Latin America

which he believes is most faithful to the existing documents, when, at one point or the other of the said line, they do not present all the clarity one would wish.”103 An award was rendered by Queen Regent Marie-Christine in the name of her son Alphonse XIII on 16 March 1891 in which the disputed boundary was divided into six distinct sectors. In determining the boundary line, the royal arbitrator relied on specific factual considerations that varied from one sector to the next. In order to determine the boundary in sectors 5 and 6, the arbitrator relied on the power contained in the Paris Declaration of 1886 and actually established the boundary line at variance with the uti possidetis juris principle, for the Spanish uti possidetis juris principle mandated that the territory should be apportioned strictly according to royal decrees, without any consideration of de facto occupation. Yet, having determined that royal documents granted all the territory on the west bank of the Orenoco River to Colombia, Queen Marie-Christine decided to award a portion of the territory to Venezuela because of the good-faith settlement of the area by its population. The arbitrator admitted that the royal memorandum of 5 May 1768 … appeared to grant to Colombia all of the left bank of the Oronoco, while between the Oronoco, the Cassiquiare and the Rio Negro, numerous Venezuelan interests existed, created in the honest belief that they were established on Venezuelan territory, and that for this reason, it was right to invoke the Paris Declaration of 1886 … As a result, the arbitrator awarded to Venezuela all the territories to the East of the Atabapo and Rio Negro, even though these territories did not belong to the Spanish province of Guyana according to the royal memoranda of 1768.104

The mixed commissions created to implement the 1891 arbitral award were unable to demarcate the boundary in its entirety, and work was suspended in 1901. The Colombian government subsequently asserted its right to occupy those territories clearly attributed to it by the award and demarcated on the ground by the mixed commissions. The Venezuelan government, for its part, argued that no such right existed until the entire boundary had been demarcated on the ground. By an arbitration convention concluded on 3 November 1916, this particular issue was submitted to the Swiss Federal Council. In the introduction to its award, the council presented a historical summary of the uti possidetis juris principle of 1810: When the Spanish colonies of Central and South America proclaimed their independence … they adopted a principle of constitutional and international

chap_02.fm Page 48 Thursday, October 10, 2002 8:54 AM

48

Determining Boundaries

law to which they gave the name of uti possidetis juris of 1810 for the purpose of laying down the rule that the boundaries of the newly established republics should be the frontiers of the Spanish provinces which they were succeeding. This general principle offered the advantage of establishing an absolute rule that in law no territory of the former Spanish America was without an owner. Although there were many regions that had not been occupied by the Spanish and many regions that were unexplored or inhabited by uncivilized natives, these regions were regarded as belonging in law to the respective republics that had succeeded the Spanish provinces to which these lands were connected by virtue of old royal decrees of the Spanish mother country.105

This oft-quoted passage is usually cited as authority for the proposition that the uti possidetis juris was a principle of general application in Latin America following independence. It is interesting to note, however, that none of the eight constitutions cited by the council in support of its conclusions actually refer to the uti possidetis principle.106 Rather, they are all concluded on the basis of respect for the colonial status quo, a practice consistent with established rules of state succession. Of even greater interest is the fact that the uti possidetis principle ultimately had no impact whatsoever on the council’s actual decision, for the Swiss Council was called upon to resolve a very specific issue, that of the parties’ rights in relation to the partially executed 1891 boundary award. In declaring Colombia’s right to occupy those territories clearly assigned to it by the earlier award, the council did not attempt to reopen the question of the actual location of the boundary. Therefore, and despite its discussion of the importance of the uti possidetis principle, its award of 24 March 1922 confirmed a boundary line that to a large extent had been established at variance with the colonial or uti possidetis line. Guatemala-Honduras Arbitration.107 The territorial dispute between Guatemala and Honduras was referred to a special Tribunal by an arbitration treaty signed at Washington on 16 July 1930.108 Article 5 of the arbitration treaty recorded the parties’ agreement that the only juridical line which can be established between their respective countries is that of the uti possidetis of 1821. Consequently, they are in accord that the Tribunal shall determine this line. If the Tribunal finds that one or both Parties, in their subsequent development, have established, beyond that line, interests which should be taken into account in establishing the definitive boundary, the tribunal shall modify as it may see fit the line of the uti possidetis of 1821 and shall fix the territorial or other compensation which it may deem just that either party should pay to the other.109

chap_02.fm Page 49 Thursday, October 10, 2002 8:54 AM

49

Uti Possidetis in Latin America

From the outset, the Tribunal was confronted with two conflicting interpretations of the “uti possidetis of 1821.” Guatemala contended that by reference to the uti possidetis of 1821, the parties had intended that the boundary line should be drawn “in conformity with a fact rather than a theory” and that the test should be the “sheer factual situation” as it had been in 1821. On the other hand, Honduras insisted that the phrase uti possidetis in Article 5 signified uti possidetis juris and that a line could not be regarded “as being juridically based on a uti possidetis de facto.” In a telling statement, the president of the Tribunal, Charles Evans Hughes, observed that an examination of the historic utilization of the phrase uti possidetis in Latin American settlements as well as a consideration of the views of eminent jurists bearing upon the use of the phrase, “fails to disclose such a consensus of opinion as would establish a definite criterion for the interpretation of the expression in Article V of the present Treaty.”110 According to the Tribunal, the expression uti possidetis undoubtedly referred to possession. The applicable test was one “of administrative control held prior to independence pursuant to the will of the Spanish Crown.”111 This test represented, in effect, a compromise between the parties’ rival versions, for the Tribunal indicated that the evidence that might be taken into account in establishing the boundary included not only express manifestations of the Crown’s will (royal decrees and laws), but also acquiescence in the face of assertions of extended administrative authority. Thus the Tribunal fashioned another version of uti possidetis, combining the juridical and factual elements of the uti possidetis juris and de facto principles. Yet even with this wider concept, the Tribunal found it impossible to establish the line of the uti possidetis of 1821 because of the lack of trustworthy information with respect to a large section of the territory in dispute. Although Article 5 of the arbitration treaty had contained no express mention of the powers of the Tribunal in the event that gaps occurred in the tracing of the boundary line, the Tribunal nevertheless found that such authority was implied by the terms of the arbitration treaty: In the light of the declared purpose of the Treaty, the Tribunal is not at liberty to conclude that the lack of adequate evidence to establish the line of uti possidetis of 1821, throughout the entire territory in dispute, relieves the Tribunal of the duty to determine the definitive boundary to its full extent … And as the Tribunal is expressly authorized in the interests of justice … to depart from the line of uti possidetis of 1821, even where that line is found to exist, the Treaty must be construed as empowering the Tribunal to determine the definitive boundary as justice may require throughout the entire area in controversy, to the end that the question of territorial boundaries may be finally and amicably settled.”112

chap_02.fm Page 50 Thursday, October 10, 2002 8:54 AM

50

Determining Boundaries

Having reconciled the parties’ diametrically opposed definitions of the ‘guiding principle’ of uti possidetis, the arbitrator, for practical reasons, was obliged to discard it and resolve the dispute on a completely different basis. With no agreed-upon meaning for the principle, and in light of the problems encountered in its application, the GuatemalaHonduras award can hardly be considered as evidence of the important role played by uti possidetis in the determination of Latin American boundaries. The Beagle Channel Arbitration and the Land, Island, and Maritime Frontier Dispute. More recent arbitral awards have also cast doubt on the impact of uti possidetis in the resolution of Latin American boundary disputes. In the Beagle Channel Arbitration,113 Argentina and Chile accepted that their rights with respect to the disputed regions were governed exclusively by the Tratados de Limites concluded in 1881. Furthermore, the parties agreed that the 1881 boundary treaty had been intended to provide a complete, definitive, and final settlement of all territorial questions still outstanding at that time. Consequently, the regime created by the treaty – which declared in Article 1 that the boundary line would follow the highest summits of the Cordillera of the Andes – had superseded and replaced all previous territorial arrangements between the parties, as well as any former principles governing territorial allocation in Spanish America.114 The Arbitration Court therefore concluded that “it is no part of its task to pronounce on what would have been the rights of the Parties on the basis of the uti possidetis juris of 1810 because, in the first place, these rights – whatever they may have been – are supposed to have been overtaken and transcended by the regime deriving from the 1881 Treaty.”115 Both the Tratados de Limites concluded by the parties and the Court’s award emphasized the element of consent implicit in the uti possidetis principle. In the Case Concerning the Land, Island, and Maritime Frontier Dispute 116 between El Salvador and Honduras, both parties in their pleadings agreed that the primary principle to be applied in the determination of their land frontier was the uti possidetis juris, even though the principle was not expressly mentioned in the special agreement or in the general treaty of peace. The Chamber also accepted that there could be little doubt as to the applicability of the uti possidetis principle to the land boundary between the parties. According to the Chamber, the uti possidetis juris principle constituted an essentially retrospective principle, capable of investing as international boundaries administrative limits originally intended for quite other purposes.117 With respect to its task of delimitation, the Chamber observed the predominance of local fea-

chap_02.fm Page 51 Thursday, October 10, 2002 8:54 AM

51

Uti Possidetis in Latin America

tures, particularly rivers, in the definition of the agreed sectors, and concluded that it was entitled and bound to have an eye to the topography of each land sector: “When therefore the very many instruments cited, even after minute examination, are found to give no clear and unambiguous indication, the Chamber has felt it right to similarly take some account of the suitability of certain topographical features to provide an identifiable and convenient boundary.”118 The Chamber also confirmed that a uti possidetis juris line could be qualified by adjudication, treaty, acquiescence, or recognition.119 By confirming that a uti possidetis line could be thus qualified, the Chamber provided further authority for the conclusion that the principle of uti possidetis is essentially based on the consent of the parties involved. The case also provides fresh evidence of the practical difficulties encountered by arbitration tribunals when trying to apply the uti possidetis principle to the details of a particular dispute. Whereas in the Guatemala-Honduras and the Bolivia-Peru arbitrations problems arose because the territory in dispute had been largely unexplored, in this instance the Chamber was unable to determine the uti possidetis juris line because conflicting colonial instruments failed to provide clear and unambiguous indications. In these circumstances, the Chamber believed that it was entitled and bound to take into account topographical features in order to provide an identifiable and convenient boundary. 2.4.7

Synopsis

There are two possible interpretations with respect to the role of uti possidetis in the determination of Latin American republican boundaries. The first, espoused by most commentators today, simply equates the status quo policy with the uti possidetis principle. Consequently, every constitution and every treaty that defines a state’s territory by reference to a former colonial unit (viceroyalty, audiencia, captaincygeneral, etc.) is considered an example of the application of the uti possidetis principle in Latin America. Thus Sanchez Rodriguez declares: “As a principle of both constitutional and international law, it [the principle of uti possidetis juris] is found in most of the constitutions of Central America and South America … Similarly, American treaty practice amply testifies to the acceptance of this principle.”120 With respect to the arbitration of Latin American boundary disputes, Kohen is even more categorical: “Finally, with respect to judicial precedents, it can be noted that in every territorial arbitration in Latin America, the uti possidetis principle was invoked, save and excepting arbitral awards concerning the interpretation of a treaty or another arbitral

chap_02.fm Page 52 Thursday, October 10, 2002 8:54 AM

52

Determining Boundaries

award.”121 For Nesi, state practice, as reflected in the bilateral agreements concluded between the republics, is so overwhelming that uti possidetis juris can no longer be considered simply a delimitation principle. Rather, it is a customary norm contributing to the creation, modification, and extinction of objective juridical situations.122 The second interpretation of the principle identifies the colonial status quo policy as the core value and uti possidetis juris as one of several principles relied upon to delimit the boundaries of the colonial entities that succeeded in achieving independent statehood. This second interpretation appears to be more consistent with the results of our research and also, one might argue, with the opinion of jurists writing at the time. In early constitutions and treaties between the Spanish American republics, the declared principle was the desire to maintain the colonial framework into the period of independence. For this reason, during the first half of the nineteenth century, the majority of political instruments defined the republics’ territorial extent by reference to former Spanish administrative divisions. This reference to former colonial units as the pattern for independence was in fact perfectly consistent with generally accepted principles of international law. As O’Connell comments, “the proposition that the revolted colonies fell heir in fact to an administrative division of the Empire could be regarded as an application of the rules of State succession.”123 As defined by Brownlie, “state succession arises when there is a definitive replacement of one state by another in respect of sovereignty over a given territory in conformity with international law.”124 Mohammed Bedjaoui, special rapporteur to the International Law Commission, provided a similar definition in his first report on the law of state succession: The principal object of succession is thus the devolution of territory from the predecessor State to the successor State. All the other succession problems, the application and effects of treaties upon third parties, devolution of property, subrogation of debts, continuity of the legal order, fate of concessions, etc. are, as it were, but secondary effects which are grafted onto the principal effect: the transfer of territory and the sovereignty over that territory.125

The link between state succession and transfer of territorial sovereignty was also acknowledged by the icj in its advisory opinion on Western Sahara when it specifically included state succession among the methods of acquiring territorial sovereignty.126 Sir Robert Jennings further adds: “The law of succession of States – in so far as it is possible to discern any consistent principles – tends to accept the change of

chap_02.fm Page 53 Thursday, October 10, 2002 8:54 AM

53

Uti Possidetis in Latin America

territorial sovereignty as datum, and very little if anything seems to hinge on the method by which the change was brought about.”127 If discovery and symbolic acts were insufficient to confer upon Spain and Portugal territorial sovereignty over the entire Latin American continent, effective occupation of every remote region was not required either. The Iberian powers’ claim to the vast South American territories rested on two fundamental elements: their intention and conduct with respect to the claimed territories and the attitude of third party states. Both Spain and Portugal, through acts that were bilateral (e.g., Treaty of Tordesillas, Treaty of San Ildefonso) as well as unilateral (attribution of the entire territory, including unexplored regions, to various colonial units), established their claim to sovereignty over the Americas. Moreover, this assertion of sovereignty was accepted without protest by the other European powers.128 Thus, when the Latin American republics claimed that they had succeeded to the territories held by their former colonial masters, they were merely demanding that their territorial sovereignty be recognised over the same areas as had already been recognised as belonging to Spain and Portugal. Indeed, the new states could not be held to a stricter standard than that which had been applied to the colonial powers. In other words, with respect to the unoccupied and inhospitable regions of the continent, the republics were entitled to rely on the concept of constructive possession that had so benefited Spain and Portugal. And as Kohen reports, this claim to equal treatment did not give rise to any protests by the European nations.129 Therefore, and despite Kohen’s assertion that much uncertainty surrounded the notion of state succession at the time of emancipation, we would argue, together with Torres Bernárdez, that the condition of successor states assumed by the republics and the denial of the existence of terra nullius in the Americas were perfectly in line with the civilian universal succession theory prevailing in the law of nations at the beginning of the nineteenth century.130 The rules of state succession as reflected in the status quo policy, which effectively secured the continent from further European colonization and eliminated the right of conquest among the new republics, did not however address the question of the precise location of the various administrative borders. This aspect is emphasized by Kohen: “State succession was invoked because there was a change in territorial sovereignty but the extent of the succession did not enter into the analysis of the problem.”131 A Chamber of the International Court reached a similar conclusion in the El Salvador/Honduras case when it examined the relationship between state succession and the

chap_02.fm Page 54 Thursday, October 10, 2002 8:54 AM

54

Determining Boundaries

uti possidetis principle and found that title derived from state succession whereas uti possidetis was but the means to establish the extent of the succession.132 A separate and distinct process necessarily had to come into play: the precise delimitation of the territorial limits of the new states. There is no question that the initial intention was to resolve the issue of boundaries on the basis of the uti possidetis juris principle – that is, on the right of possession as defined by Spanish juridical instruments. However, whether as a result of the balance of power, or freedom of choice, or pratical and theoretical difficulties, uti possidetis juris ultimately had very little impact on the delimitation of the new international boundaries. While Antonopoulos acknowledges that the inaccuracy and ill-definition of the colonial administrative boundaries did prove a major weakness in applying the principle of uti possidetis, he insists that this inherent drawback in the principle is mainly one of evidence: It has not prevented uti possidetis iuris from being applied in state practice as a starting point, at least, for the settlement of boundary or territorial disputes. The lack of evidence may lead a tribunal to apply the test of unopposed actual or effective occupation in a territorial dispute. However, it cannot deprive the application of uti possidetis of the merit of being in accordance with good policy, in the sense of providing a basis for the settlement of a dispute.”133

Kohen also states that criticisms of the uti possidetis principle are founded on an erroneous presupposition – namely, that the application of uti possidetis will always delineate a boundary line. In fact, uti possidetis merely posits that newly independent states will inherit the boundaries of a former administrative division, where such boundaries exist: It is clear that no rule of international law provides that boundaries must be completely delimited and defined, and this is all the more true since administrative divisions were involved where the need for clearly defined limits is less serious compared to international boundaries. If the boundaries or limits are badly defined or not defined at all, then one also inherits this situation. This explains why in certain arbitration compromis, power is conferred upon the arbitrator to apply – alongside uti possidetis – other rules and criteria to deal with the eventuality of a badly defined or non-existent boundary.134

However, at a time when calls are made to extend uti possidetis juris to new situations on the basis that it offers a clear and uncontroversial solution to boundary issues, it is legitimate to consider what success

chap_02.fm Page 55 Thursday, October 10, 2002 8:54 AM

55

Uti Possidetis in Latin America

the principle actually enjoyed, both in fixing boundary lines and in resolving disputes in Latin America. As a result of our investigation and despite claims to the contrary, it appears fairly obvious that, in fact, uti possidetis juris as a means of establishing boundaries had less than stellar success. The flaws identified above, which clouded the attempts to apply uti possidetis juris in Latin America, also necessarily influence any determination of the legal status of the principle. A number of commentators, and even a Chamber of the International Court of Justice, have declared that in the Latin American context, uti possidetis juris was a regional rule of customary law.135 Such an assessment of uti possidetis hinges, of course, on the first interpretation identified in section 2.4.7: that every reference to a colonial unit in official documents is in fact an application of the uti possidetis principle. We have argued, however, that reliance on the uti possidetis juris principle in Latin America must be seen as a separate and distinct process, as a means not of determining title but rather of determining the precise location of boundary lines that revolutionary activities had set up as the new international borders. We would also argue that the mainstream interpretation of uti possidetis juris as a regional rule of customary law does not account for explicit reference being made to the principle in some documents only. If the general practice of referring to the former colonial divisions as the territorial basis for independence were automatically the application of the uti possidetis principle, why do certain documents but not others contain express references to this principle? If one accepts that uti possidetis juris was merely intended as a delimitation mechanism and if one takes into account the difficulties encountered by the principle, even in this limited role, it appears difficult to characterize uti possidetis juris as a rule of customary law. Indeed state practice does not reveal the necessary uniformity and constancy, nor does it indicate that the republics felt in any way compelled to adhere to the principle of uti possidetis juris – all essential preconditions of customary law. Commentators such as Torres Bernárdez, while carefully qualifying the uti possidetis juris principle as a doctrine or rule of international law, emphasize that the Latin American republics were free to discard the principle on the basis of agreement between them. But by claiming that uti possidetis juris applied until and unless the parties agreed otherwise, such commentators are, to all intents and purposes, according it the status of custom, for it is only as a rule of customary international law that the principle of uti possidetis juris would have automatically bound the newly independent republics. Evidence of conflicting versions of the principle as well as inconsistent state practice, which revealed that the republics relied on whatever version of the

chap_02.fm Page 56 Thursday, October 10, 2002 8:54 AM

56

Determining Boundaries

principle advanced their immediate interests in any given situation, cannot be reconciled with claims that the republics felt compelled to apply the uti possidetis juris of 1810. As Hyde comments: “Briefly, in terms of fact, the American Republics of Spanish origin felt no obligation to agree to respect, and were not in fact disposed to respect, a boundary laid down by the Monarch even in the last monarchial hour if for any reason it did not correspond with what revolutionary or postrevolutionary acts served to place within the control of neighbouring States.”136 Indeed, a comparison between maps of Latin America under Spanish rule and at the turn of the twentieth century reveals that ultimately colonial lines accounted for only 10 per cent of the new international boundaries. We would therefore argue that as a principle of Latin American law, uti possidetis juris was applied strictly on the basis of a contracting-in by the parties involved.

2.5

conclusion

It would seem, therefore, that despite the weight of so much learned commentary, the principle of uti possidetis juris had much less influence on the independence process in Latin America than has been attributed to it. In fact, the need for a general boundary principle only arose once the new international actors had been identified and their fragile independence had been consolidated. Radically transformed, the uti possidetis principle was relied upon in the Latin American context to resolve boundary disputes concerning the precise location of a boundary line that had in earlier times divided two colonial units and that postcolonial activities had set up as a new international border. And even in this limited role, uti possidetis had precious little impact because of theoretical and practical problems. One of the most problematic aspects of the Latin American uti possidetis principle was the conflicting meanings it came to possess, particularly the Brazilian uti possidetis de facto formula and the Spanish American version, uti possidetis juris. According to Brazil’s interpretation, the uti possidetis principle refers to actual and effective possession. However, as interpreted by the Spanish American republics, uti possidetis is a right of possession granted to a former colony on the basis of Spanish royal decrees. The essential contradiction between the two positions stands in sharp relief. On the one hand, territorial limits are to be determined on the basis of what each state actually possessed at the time of negotiations. On the other, the territorial extent of each state is to be founded on royal titles granting a right of jurisdiction, a type of fictious possession at the theoretical date of independence.

chap_02.fm Page 57 Thursday, October 10, 2002 8:54 AM

57

Uti Possidetis in Latin America

Both versions of the principle, according to De Lapradelle, must be rejected because of “the legal incorrectness of their foundations.”137 While under Roman law uti possidetis was but a provisional solution pending a final determination of rights, the Latin American version, with its retroactive effect, has transformed it into a definite and permanent solution. As for the Brazilian uti possidetis de facto formula, it is merely a cloak for the concept of effective possession. The Spanish American uti possidetis juris formula, according to which uti possidetis would signify not possession but the right of possession, is equally problematic because the right of possession does not always coincide with the fact of possession. According to Ayala, the Spanish interpretation ascribes to the Roman law principle a meaning incompatible with its very essence: One cannot after all give to the formula of the Roman interdicts, a meaning contrary to its very essence. One writer on Roman law writes: “The protection afforded by the interdicts is not tied to property. It is tied to possession.” And I would add: There is no theoretical possession, there can be no possession, in our case, without effective and material occupation.138

To accept that the word juris excludes a consideration of actual possession is therefore to make the word self-destructive.139 O’Connell links the Spanish version of the uti possidetis principle with the doctrine of constructive possession and concludes that the artificial results produced made the Spanish version of the uti possidetis principle inapplicable save in the most general sense.140 And, though the Spanish American republics professed adherence to the uti possidetis juris principle, boundary treaties and negotiations were often concluded on the basis of effective occupation. Reference has already been made to a number of boundary treaties concluded between Brazil and the Spanish American republics on the basis of the uti possidetis de facto.141 In addition, in the arbitration of boundary disputes between Latin American republics and non-American nations, effective occupation was the determinative test, since foreign nations were not prepared to adhere to the uti possidetis juris doctrine. Antonopoulos shares this opinion: Thus, in the South American context it [uti possidetis iuris] was considered a principle applying only among the former Spanish colonies. Its application in disputes between the former Spanish possession, on the one hand, and Brazil … and other European possessions, on the other, was consistently denied by the latter parties. In such boundary / territorial disputes effective possession and acquiescence were the governing principles.142

chap_02.fm Page 58 Thursday, October 10, 2002 8:54 AM

58

Determining Boundaries

This conclusion is borne out by Article 4(c) of the arbitration treaty between Great Britain and the United States of Venezuela: In determining the boundary-line, if territory of one Party be found by the Tribunal to have been at the date of this Treaty in the occupation of the subjects or citizens of the other Party, such effect shall be given to such occupation as reason, justice, the principles of international law and the equities of the case shall, in the opinion of the Tribunal require.143

The arbitrator in the Clipperton Island case between France and Mexico also relied on the doctrine of effective occupation, stating that “the proof of an historic right of Mexico’s is not supported by any manifestation of her sovereignty over the island.”144 With the exception of the dispute over the Aves Island,145 most of the remaining cases concerning boundary disputes between the Latin American republics and European nations were resolved on the basis of existing treaties: the Esequibo dispute between Venezuela and Great Britain (Treaty of Münster, 1648); the Guiana boundary arbitration between Brazil and France (Treaty of Utrecht, 1713); the dispute between Great Britain and Mexico (Treaty of Limits between England and Spain, 1786); and the Trinity Island case between Brazil and Great Britain (Treaty of Rio de Janeiro, 1825).146 In the settlement of boundary disputes between the Spanish American republics themselves, effective occupation was also at times a factor. Certainly it appears to have been the basis for the award of territories east of the Atabapo and Rio Negro to Venezuela in the arbitration of its dispute with Colombia.147 The 1902 award in the Argentina and Chile dispute was also influenced by acts of occupation, even those undertaken after the parties had concluded an agreement establishing the status quo.148 Ayala has also emphasized that the Spanish American republics relied upon general principles of international law much more frequently than the specialized uti possidetis juris principle in the delimitation of their new international boundaries: “As for the Hispanic States, they settled their boundaries with Brazil and among themselves, in different ways, and in accordance with the general rules of the universal law of nations. The role of the special American rule was certainly not the most important, even if it is true that it did have some influence.”149 In addition to conflicting interpretations and inconsistent state practice, the uti possidetis principle was also limited in application by practical difficulties. As noted earlier in the chapter, many regions in Spanish America were unexplored, and other parts were only vaguely

chap_02.fm Page 59 Thursday, October 10, 2002 8:54 AM

59

Uti Possidetis in Latin America

known. Consequently, jurisdictional limits between the administrative units were often imprecise and, in certain areas, had not been fixed at all. Furthermore, in some of the more remote regions, the territory had never in fact been allocated to any particular unit. Clearly, in those regions, the uti possidetis principle was inapplicable. As McEwen notes: “[A] doctrine which attempts to crystallize, or maintain the status quo of, boundaries is little more than an abstract proposition unless there is a factual and tangible identification of the boundaries themselves.”150 These delimitation problems were often compounded by good faith settlements in the border areas. These practical difficulties were certainly apparent in the arbitral awards examined. In almost every case, the arbitrator was unable to apply the uti possidetis principle, and the decisions were based on equitable considerations or by reference to natural geographical features. In 1928, De Lapradelle concluded his analysis of the uti possidetis principle with the following comments: “In conclusion, everywhere and in every case where the principle of uti possidetis was admitted without any preliminary discussion, its application, calling for the interpretation of texts which were not only ancient, but inaccurate and incomplete, created and prolonged difficulties, which ultimately led to and perforce justified its abandonment.”151 This view is echoed by Fisher in his 1933 discussion of the Guatemala-Honduras boundary dispute: “In support of their opposing contentions, each of the parties invoked the indefinite and illusory concept of uti possidetis, the meaning of which is still as uncertain as when the effort was first made, over a century ago, to elevate it to the dignity of a principle of American international law.”152 Hyde, commenting on the conflicting interpretations adopted by the parties, declared: “This circumstance showed the unwisdom of reliance upon a phrase such as uti possidetis, not in itself indicative of a rule of law and constituting little more than a rough description of a practice that had been variously followed when no supervening policy interposed and in itself easily susceptible to divergent interpretations, as a basis for the adjudication of a boundary dispute.”153 In rendering its award in the Guatemala/Honduras case, the Tribunal itself concluded: “An examination of the historic utilization of the term ‘uti possidetis’ in Latin American boundary settlements and of the views of eminent jurists bearing upon the use of the phrase, fails to disclose such a consensus of opinion as would establish a definite criterion for the interpretation of the expression.”154 Finally, in 1948 Waldock in turn comments: “The doctrine of uti possidetis has proved to be so indefinite and so ambiguous that it has become somewhat discredited even as a criterion for settling boundary disputes between Latin American states.”155

chap_02.fm Page 60 Thursday, October 10, 2002 8:54 AM

60

Determining Boundaries

Therefore, despite many cavalier references in later sources to the ‘Latin American principle of uti possidetis,’ it appears difficult to maintain that the nineteenth-century Latin American republics bequeathed to international law a clearly defined and consistently applied principle that could then serve as a precedent in other boundary disputes or that could elevate uti possidetis to the status of a general principle of international law. This conclusion is echoed by Moore: “It has not been so constantly invoked nor has its practical effect been by any means so important as writers and learned advocates have sometimes asserted.”156

chap_03.fm Page 61 Thursday, October 10, 2002 8:54 AM

Political balance between countries is to a large extent dependent on the borders between them. Ratzel

3 Post-1918 Europe and the Near East 3.1

introduction

In chapter 2 we focused on the emergence of the uti possidetis principle in nineteenth-century Latin America and the role it played in determining the boundaries of the new republics. We questioned the assertion that as a result of the decolonization process in Latin America, uti possidetis had become a general principle of international law. The question remains whether, by the turn of the twentieth century, uti possidetis had begun to play a greater role in the determination of boundaries. In order to assess its influence in the early decades of the twentieth century, its impact on the redrawing of boundaries after wwi will be examined, for the signing of the armistice with Germany in November 1918 signalled an unprecedented redrawing of boundaries. What role did the principle of uti possidetis play in this process? Were the new boundaries merely the outcome of political and strategic imperatives? It is obviously impossible to examine and discuss every boundary created or adjusted in the postwar period.1 Instead, after a brief consideration of the Paris peace conferences, this chapter will focus on three case studies of particular relevance to our analysis of uti possidetis: the dispute between Sweden and Finland over the Aaland Islands, the determination of the Palestine-Egypt boundary, and the definition of the boundary between mandated Palestine and Transjordan. Each of these cases involved the creation of an international boundary where an internal administrative boundary had previously existed. We will

chap_03.fm Page 62 Thursday, October 10, 2002 8:54 AM

62

Determining Boundaries

seek to determine what influence, if any, the principle of uti possidetis exerted in the ultimate determination of these new international boundaries.

3.2

paris peace conference

The effective decision-making body of the Paris Peace Conference, from its official opening on 18 January 1919 until late March, was the Council of Ten.2 Between 1 and 27 January 1919, the Council of Ten established a number of territorial commissions to make recommendations to the preliminary peace conference on the approximate future frontiers of enemy countries.3 It also appointed, belatedly, on 27 February 1919, the Central Territorial Commission to coordinate the work of the various commissions, particularly where their responsibilities overlapped and to deal with questions such as the Austro-German frontier, which lay outside their remit. The ten-volume series Papers Relating to the Foreign Relations of the United States: The Paris Peace Conference 1919 4 reproduces many of the reports prepared by the territorial commissions and contains the minutes of the meetings held by the Council of Ten, the Council of Foreign Ministers, and the Council of Four to consider the commissions’ proposals and to determine the new boundaries. None of the reports examined referred to the uti possidetis principle, nor was the principle mentioned in any of the officially recorded discussions. In some instances, the reports and the notes of meetings referred to an existing administrative line, but in every case examined, strategic, economic, and political considerations ultimately determined a new frontier at variance with the former administrative line. For example, in its second report on the western frontier of East Prussia, the Commission on Polish Affairs confirmed that its conclusions were based primarily on the ethnographic distribution of the two peoples concerned, while at the same time recognizing that in particular regions other considerations might be so strong as to override purely ethnographic facts. This applied notably to the regions of Kreis Rosenberg and Marienwerder, inasmuch as the commissioners considered it their duty to assign the entire Danzig-Mlawa-Warsaw railway to Poland in order to guarantee Poland secure access to the sea. The economic value of the railway, it was concluded, depended on it serving as a means of communication between different parts of Poland. These considerations were held by the commission to outweigh the fact that this new frontier would involve the annexation of two areas that not only were predominantly German, but had been

chap_03.fm Page 63 Thursday, October 10, 2002 8:54 AM

63

Post–1918 Europe and the Near East

part of Ducal or East Prussia for many centuries: “As regards the 73,000 Germans of Kreis Rosenberg and Marienwerder, it should be observed that although their claim for a special consideration is undoubtedly strengthened by their historic connection with East Prussia, the intricate and abnormal character of the historic frontier of East Prussia makes it almost impossible to follow that frontier.”5 On 1 April 1919, the Council of Foreign Ministers met to discuss a report prepared by the Commission on Czecho-Slovak Affairs concerning the frontier between Czecho-Slovakia and Germany. Though the commission’s proposed frontier in many places followed the previous administrative line, strategic imperatives dictated that it should be modified in certain key places. Mr Gambon, in presenting the commission’s proposal to the council, explained that from the point of contact with Germany in the region of Neustadt, the boundary westward followed as a rule the previous administrative line along the mountains. Some alteration of this line, however, was recommended near Glatz. Diminishing the salient created by the German territory surrounding Glatz would greatly improve the strategic position of the new state in this quarter. During the ensuing discussion, Mr Lansing stated that the American delegates objected to the whole method of drawing frontier lines on strategic principles.6 Mr Gambon defended the proposal, stating that it was not strategic interests but considerations of national defence that had guided the commission. President Wilson himself had declared that the new states should be set up under conditions that would enable them to survive.7 Again, when considering the frontier line between Czecho-Slovakia and Poland, the former administrative line was followed in places, but a number of modifications were made for ethnographic, geographic, and political reasons: The line of demarcation … had first been fixed so as to follow the crest of the Carpathians. There were a few Polish villages south of that line, but it had been held preferable to follow the crest as offering a natural frontier, which, moreover, had the advantage of being identical with the administrative frontier between Galicia and the Hungarian province south of it … As regards the region of Spisz, the Special Commission made some modifications; the frontier in this region did not follow the crest of mountains. A frontier geographically more satisfactory was adopted which yielded some dozen village to the Poles.8

On 12 May 1919, the Council of Ten met to discuss the findings of the Commission on Czecho-Slovak Affairs concerning the future frontier between Czecho-Slovakia and Austria. The council noted that the

chap_03.fm Page 64 Thursday, October 10, 2002 8:54 AM

64

Determining Boundaries

administrative boundary between Austria and Bohemia had been followed as far as possible. However, two deviations were proposed for economic and strategic reasons. First, the railway junction at Gmund was to be left within Czecho-Slovakia. This junction, situated some four kilometres from the town, was the junction of the two main rail lines serving Bohemia. The second deviation was near Feldsberg, at the meeting of the rivers Thaya and Morava. These two rivers were the main arteries of Moravia and provided access to the Danube. The line was therefore drawn in such a way as to leave the Morava entirely within Czecho-Slovak territory, while the railway parallel with the river, which was necessary to Vienna, was left within Austria. No objections were raised to the commission’s proposal, and the modified frontier was adopted by the Council of Ten.9 In every other territorial report prepared and from the transcripts of meetings of the various councils, it appears quite clearly that strategic, military, economic, ethnographic, and political factors determined the new boundaries. Clearly, none of the participants felt compelled to respect or to adopt the previous administrative lines as the new international boundaries. However, the three case studies considered in this chapter were resolved after the Paris Peace Conference and may present a stronger case for the application of uti possidetis in the boundary redrawing of the postwar period.

3.3

the aaland islands dispute ( f i n l a n d v. s w e d e n )

3.3.1

Introduction The small Aland archipelago, lost in the seas of the North, has been, in history, one of the great disrupters of world peace.10

The Aaland Islands dispute arose in the turmoil following the Bolshevik coup d’état in 1917. The disintegration of Tsarist Russia was exploited by the Finns, who seized independence on 6 December 1917.11 However, the March Revolution revitalized a strong separatist movement in the Aaland Islands. Just as the Finns had achieved independence, so the Aalanders in turn wanted their islands to be detached from Finland and reunited with their former mother country, Sweden. As the new Finnish state refused to relinquish the Aaland Islands and the Paris Peace Conference of 1919–20 declined to make any decision with respect to the dispute, the Aaland question was submitted to the newly founded League of Nations.12

chap_03.fm Page 65 Thursday, October 10, 2002 8:54 AM

65

3.3.2

Post–1918 Europe and the Near East

Historical Background to the Dispute 13 The modern history of the Aland Islands (Ahuenanmaa) falls into three distinct periods: Swedish occupation from 1157 to 1809; Russian occupation from 1809 to 1917; and Finnish control from 1917 to the present. These varying occupations make it clear that the key factors determining possession of the Aland Islands have been geography and the struggle for control of the Baltic.14

For nearly seven centuries, from 1157 to 1809, Finland was part of the Kingdom of Sweden, and the Aaland Islands were included in the Swedish administrative region of Åbo (Turku). However, in the early nineteenth century, clashes between Sweden and Russia for control of the Baltic intensified. In 1809, Czar Alexander invited a Finnish deputation to St Petersburg, and on 25 March 1809 a diet of the four Estates of Finland was convened at Borga in order to determine the situation of the country in concert with the czar. Alexander I personally made a solemn declaration to the Borga Assembly recognizing the founding of the Grand-Duchy of Finland, an autonomous and constitutional state bound to Russia under the sovereignty of the emperor grand duke. Exhausted by foreign wars and confronted with a resurgent Russia under Peter the Great, Sweden was unable to resist the mounting Russian pressure. On 17 September1809, the king of Sweden was finally compelled to renounce all his rights and titles to the Aaland Islands as well as to continental Finland in favour of the emperor of all the Russias.15 During the first decades of Russian rule in Finland, the Aaland Islands were heavily fortified. The most important fortress was Bomarsund castle, which sometimes held a garrison of 10,000 soldiers. During the Crimean War, 1853–56, Bomarsund castle was destroyed by English and French fleets, and the Russian units surrendered. At the peace negotiations, Sweden, which had remained neutral during the war, reasserted its claim to the Aaland Islands, seeking their return. Russia refused, and the islands continued to form part of Finland’s Åbo and Björneborg county. However, Russia was forced to commit itself to the non-fortification of the islands.16 Throughout the Russian period (1809–1917), the legal position of Finland within the Russian Empire was peculiar and difficult to define. In particular, there was considerable debate as to whether the Treaty of Frederikshamn, together with the solemn promise of Czar Alexander I, had constituted the Finnish provinces as a state in the true sense of the term. While the Grand-Duchy of Finland was included within the Russian state, it nevertheless enjoyed a very wide measure of autonomy

chap_03.fm Page 66 Thursday, October 10, 2002 8:54 AM

66

Determining Boundaries

and independence, except in matters of foreign relations or common interest.17 3.3.3

The Russian Revolution of 1917

Finland’s status did not immediately change after the Russian Revolution of March 1917. The various provisional governments that succeeded one another until the Bolshevik coup d’état continued to send governors-general to Finland. But the Bolshevik manifesto of 15 November 1917, proclaiming the right of the foreign peoples of Russia to determine their future, drastically altered the course of events. On 15 November 1917, the Finnish Diet assumed supreme power and constituted a national government. The Finnish Senate, taking the position that there was no longer any recognized authority in Russia, proclaimed the independence of Finland on 6 December 1917. On 31 December 1917, the Soviet of Commissionaries of the People of Petrograd proposed to the Executive Central Committee that the political independence of the Republic of Finland should be recognized. The latter body accepted the proposal on 4 January 1918. On 4 January 1918, Finland was also recognized, without reservations, by the Swedish government, and on the 5 January, by the French government. Recognition by Denmark and Norway followed on the 10 January 1918 and by Switzerland on 22 February 1918. Exactly how and when aspirations for a reunion of the Aaland Islands with Sweden first materialised and the Aaland movement arose is difficult to determine. Its first outward manifestation took place on 20 August 1917, months before Finland’s declaration of independence, when representatives of the rural districts and the town of Mariehamn held a meeting at Finström to deliberate on the political situation. These discussions resulted in the expression of a desire not for independence shared with Finland but for reunification with Sweden.18 The Finström Assembly appointed a delegation to bring its decision to the attention of the Swedish government and Parliament, but the delegation was unable to fulfil its mandate. Consequently, a committee of Aalanders was constituted in the following months with a view to organizing a public opinion poll that would clearly indicate the political will of the inhabitants. A plebiscite was held on 31 December 1917 that consisted of collecting signatures authorizing the submission of an appeal to the king and the people of Sweden.19 More than 7,000 Aaland Islanders (approximately one-third of the population) expressed their wish that the islands be reunited with the Kingdom of Sweden. The address was presented to King Gustav V on 3 February 1918 at the Royal Palace of

chap_03.fm Page 67 Thursday, October 10, 2002 8:54 AM

67

Post–1918 Europe and the Near East

Stockholm. In replying to this appeal, King Gustav V expressed the hope that the Swedish government would succeed, acting in concert with Finland, in overcoming any difficulties that might impede the realization of the Aaland population’s wishes.20 During the summer of 1918, unofficial conversations took place between the Swedish and Finnish governments on the following basis: Sweden would support the aims of Finland in respect to rectifying her eastern frontier if satisfaction were given to the Aaland Islanders, who were claiming the right to determine their own future.21 In November 1918, the Executive Committee of the Aaland Landsting, a popular representative body created contrary to Finnish law, addressed to the Government of the United States, as well as to the British, French, and Italian governments, an appeal requesting that the desire of the population be taken into consideration in the coming peace negotiations and that the Aaland question receive a definitive solution in accordance with the will of the inhabitants of the archipelago.22 Following this appeal, the Swedish government in mid November 1918 instructed the Swedish minister at Helsinki to express to the Finnish government its wish that the question of the future status of the Aaland Archipelago be decided by a plebiscite. But the negotiations that followed gave no hope of arriving at an agreement upon this basis. At the same time, the Finnish government was seeking to win over the Aalanders by granting an important concession. On 6 May 1920, a law was voted by the Finnish Parliament and confirmed by the president that granted the Aaland Islands a considerable measure of autonomy. The law also excused the Aalanders from military service, replacing it with lighthouse and pilotage duties.23 However, the Aalanders refused to accept autonomy as a substitute for reunification with Sweden. On 4 June 1920, Finland’s prime minister met with all the municipal representatives of the islands and threatened the Aalanders with drastic measures if they refused to accept the new law. The meeting ended abruptly when the councillors walked out. A few hours later, two of the leaders of the Aaland movement were detained. Their detention brought the relations between Sweden and Finland to a crisis point. As Finland declined to give up the Aaland Islands and as the Paris Peace Conference of 1919–20 was unwilling to make any decision on the matter, the Aaland question was submitted by Great Britain to the newly founded League of Nations under Article 11 of the Covenant.24 3.3.4

The League of Nations and the International Committee of Jurists

In response to the British action, Finland denied that there was any threat to the peace and protested that the council was not competent

chap_03.fm Page 68 Thursday, October 10, 2002 8:54 AM

68

Determining Boundaries

to handle the Aaland question. Finland’s position raised an initial problem – namely, whether the Aaland question was one of domestic jurisdiction and hence excluded from the League’s competence. As defined, the League’s duty was to conciliate all disputes threatening the peace but to refrain, under Article 15 of the Covenant, from interfering in the internal questions of a state.25 Since the Permanent Court of International Justice had not yet been established, the council appointed a special commission of jurists to give an advisory opinion to the council as quickly as possible on the questions: (I) Whether, within the meaning of paragraph 8 of Article 15 of the Covenant, the case presented by Sweden to the Council with reference to the Aaland Islands deals with a question that should, according to International Law, be entirely left to the domestic jurisdiction of Finland. (II) The present position with regard to international obligations concerning the demilitarisation of the Aaland Islands.26

With respect to the first question, which will be the focus of our enquiry, the commission of jurists concluded that the dispute between Finland and Sweden did not refer to a question which under international law was to be left to Finland’s domestic jurisdiction. The League Council was therefore competent to make any recommendations it deemed “just and proper” under Article 15, paragraph 4, of the Covenant. As to the 1856 convention stipulating the non-fortification of the Aaland Islands, the commission decided that it was “still in force” and that it had been instituted “in European interests.” The convention, according to the commission, made it possible for any interested state to insist upon the execution of its provisions, and it followed from this that its restrictions were also obligatory and binding upon any state in possession of the archipelago. Aaland Islands Dispute within the League’s Competence. The commission of jurists acknowledged that Article 15, paragraph 8, of the Covenant served to protect a state’s domestic sovereignty and rejected from the outset the belief that bringing a dispute to the League Council was sufficient to label it an international problem. The critical question, according to the jurists, was whether it could be accepted that Finland had enjoyed state sovereignty at the time the Aaland dispute arose: [I]f … territorial sovereignty is lacking, either because the State is not fully formed or because it is undergoing transformation or dissolution, the situation is obscure and uncertain from a legal point of view, and will not become

chap_03.fm Page 69 Thursday, October 10, 2002 8:54 AM

69

Post–1918 Europe and the Near East

clear until the period of development is completed and a definite new situation, which is normal in respect to territorial sovereignty, has been established. This transition from a de facto situation to a normal situation de jure cannot be considered as one confined entirely within the domestic jurisdiction of a State. It tends to lead to readjustments between the members of the international community and to alterations in their territorial and legal status; consequently, this transition interests the community of States very deeply.27

The jurists therefore, had, to determine whether the status of the Aaland Islands within the newly independent Finland was of a definite character or whether it was a transitory and not fully developed situation, in which case the dispute might properly be classified an international problem. To answer this question, the historical background, and the recent internal situation of Finland and the Aaland Islands had to be examined. In their investigation, the jurists looked at the autonomy granted Finland by Czar Alexander I in 1809, the effects of the Russian Revolution in Finland, and the diplomatic recognition extended to Finland by various countries after its proclamation of independence. In addition to these questions, which bore upon the external relations of Finland, the jurists also examined Finland’s internal situation: In the midst of revolution and anarchy, certain elements essential to the existence of a State … were lacking for a fairly considerable period. Political and social life was disorganised; the authorities were not strong enough to assert themselves; civil war was rife; further … the Government had been chased from the capital and forcibly prevented from carrying out its duties; the armed camps and the police were divided into two opposing forces, and Russian troops, and after a time Germans also, took part in the civil war between the inhabitants and between the Red and White Finnish troops.28

It was therefore difficult to say at what exact date the Finnish republic, in the legal sense of the term, had actually become a definitely constituted sovereign state. This certainly had not occurred until a stable political organization had been created and until the public authorities had become strong enough to assert themselves throughout the state without the assistance of foreign troops. These facts also led the jurists to conclude that the formation of the Finnish state between 1917 and 1918 should be seen as a new political phenomenon and not the “mere continuation of a previously existing political entity.”29 The jurists noted that the Aaland Islands had undoubtedly been part of Finland during Russian rule but questioned whether they should, for this reason alone, be regarded as definitely incorporated de

chap_03.fm Page 70 Thursday, October 10, 2002 8:54 AM

70

Determining Boundaries

jure in the State of Finland. Positive international law did not recognize the right of national groups to separate themselves from the state of which they were a part by “the simple expression of a wish” any more than it recognized the right of other states to claim such a separation.30 But this general prohibition applied only to protect a nation definitely constituted as a sovereign state, and the jurists did not accept that Finland had achieved this status during the critical period: “[I]f a separation occurs from a political organism which is more or less autonomous, and which is itself de facto in process of political transformation, this organism cannot at the very moment when it transforms itself outside the domain of positive law invoke the principles of this law in order to force upon a national group a political status which the latter refuses to accept.”31 Finland, itself in the process of transformation, could not claim that the Aaland Islands should share its destiny simply because the islands had previously formed part of Finland’s political organization within the Russian Empire. All of these considerations, as well as a comparison of Finnish and Aalander objectives – the former interested in independence, the latter in union with Sweden – and the military events in the island group in the winter of 1918, brought the commission of jurists to the conclusion that the position of the Aaland Islands was “not yet clearly defined.” The dispute was therefore international in scope and thus within the competence of the League Council since it had arisen at a time when “Finland had not yet acquired the character of a definitely constituted State.” The council, therefore, had full liberty to deal with the fundamental question and to recommend any solution it deemed most conducive to the maintenance of peace, having regard for the legitimate interests of all of the parties concerned. 3.3.5

The Commission of Rapporteurs

The jurists’ decision that the League was competent to deal with the Aaland question gave the council no other choice but to accept the delicate task of solving the Aaland dispute. In order to prepare the way for this solution, the council decided to appoint a commission of rapporteurs. This commission (Baron Beyens of Belgium, Mr Felix Calonder of Switzerland, and Mr Abram J. Elkus of the United States) reported to the council in 1921. It recommended that the Aaland Islands should remain under the sovereignty of Finland subject to guarantees obtained from the Finnish government for the protection of the Swedish language and culture of the Islanders. A brief consideration of the early history of the archipelago confirmed that under the 1634 Swedish Constitution, the islands had

chap_03.fm Page 71 Thursday, October 10, 2002 8:54 AM

71

Post–1918 Europe and the Near East

been joined to the administration of the Provinces of Abo and Björneborg on the Finnish mainland and not to those west of the Bothnian Gulf in Sweden. According to the rapporteurs, this administrative arrangement reflected the fact that the islands were geographically connected to the Finnish mainland.32 Moreover, the report observed that the sheet of water, the skiftet with its numerous rocks and islets, which separated the islands from the Finnish mainland “would be a bad frontier between two States, extremely arbitrary from a geographical point of view.”33 The rapporteurs acknowledged the strategic importance of the Aaland Islands for both states. From the principal Aaland island, it would be easy for an enemy to launch an expedition against Stockholm. Similarly, the winter freezing of the skiftet, which connected the archipelago to the Finnish coast, placed Finland in a dangerous position. Thus the archipelago was a key security interest for both Finland and Sweden.34 In part 2 of the report, the rapporteurs traced the political history of Sweden, Finland, and the Aaland Islands. Although the report touched on the history of the region during the Middle Ages and following the Swedish Constitution of 1634, the rapporteurs believed that the emphasis should rest on more recent events. Of particular relevance to the rapporteurs’ final recommendation was the following description of Finland’s status from 1808 to 1914: In 1809 Alexander had proclaimed the indissoluble union of two nations – the Russian and the Finnish … This State had all the attributes of sovereignty, except as far as her external relations and the defence of the Empire were concerned: a Constitution, legislation and regular government. The Diet voted taxes. Without its assent the Czar could not cede any portion of Finnish territory.35

This historical survey served as an introduction to part 3 of the report, which presented the rapporteurs’ analysis of the issues and their recommendations. In the introduction to part 3, the rapporteurs stated that while they could not share the jurists’ opinion on all points, they did agree with their declaration that the Aaland Islands dispute was one that extended beyond the sphere of domestic policy. Referring to the considerable international importance of the Aaland dispute, the rapporteurs declared: [T]he primary question at issue, and which no ethnical or political considerations allow to be brushed aside, is a legal one – that of Finland’s right of sovereignty with regard to the Aaland Islands.

chap_03.fm Page 72 Thursday, October 10, 2002 8:54 AM

72

Determining Boundaries

We shall first of all see whether Finland was a sovereign State after the dissolution of the bonds which attached her to Russia, and, secondly, whether her sovereignty extended over the Aaland Islands just as over the other parts of her territory.36

Was Finland a Sovereign State after Declaring Independence? The rapporteurs began their analysis by emphasizing once again that the GrandDuchy of Finland had been an autonomous state under Russian rule, granted its own constitution, and enjoying the attributes of sovereignty, with the exception of the direction of foreign policy and national defence, possessing its legislation, its Parliament, its Government (the Senate), its army, its finances, a separate judicial organisation, and clearly defined frontiers, which, in accordance with the Constitution, could only be modified by the consent of the Diet.37

Thus an autonomous Finland had detached itself from Russia by an act of its own free will and had become a sovereign state by proclaiming its independence on 6 December 1917. This finding raised a subsidiary question: was a new state founded thereby? Specifically referring to the jurists’ argument that “the interior situation of Finland was of such a nature after the declaration of independence that for a long time the conditions necessary for the formation of a sovereign State were not in existence,” the rapporteurs nevertheless declared that the sovereign and independent Finnish state had been born from the moment of its declaration of independence: We shall reply to this argument that the legal Government, appointed by the Diet before its dispersion by the insurrection, never ceased to exist throughout a part of the country, even in the midst of the civil war … A State does not lose its sovereign rights because it receives outside aid for the re-establishment of its authority. This is proved by numerous examples in history.38

One such historical example involved the United States, which had dated its independence and therefore its sovereignty as of 4 July 1776 – a fact that had not been contradicted by the Versailles Treaty of 1783. Receiving military assistance as had the Finns (from the Germans) or the Americans (from the French) in winning independence in no way detracted from a state’s sovereignty. Nor would the rapporteurs accept that because the Finnish government had been dispersed by the civil war, it had lost its sovereignty. Though it had taken refuge outside of Helsinki, it had continued to function, raising an army and reconquering provinces, both of which were acts of sovereignty.39

chap_03.fm Page 73 Thursday, October 10, 2002 8:54 AM

73

Post–1918 Europe and the Near East

Does the Right of Sovereignty of the Finnish State Extend to the Aaland Islands? Having determined that Finland had become a sovereign state as of 6 December 1917 and that a new regime had been created but not a new state, the rapporteurs turned to the second issue of whether Finland’s sovereignty had also extended to the Aaland Islands. Throughout its union with Russia Finland did not suffer any partition of her territory … On the Swedish side her frontiers remained definitely outlined as traced by the Boundary Convention of 1810 in accordance with the Treaty of Fredrikshamn. On the Russian side, far from being diminished, they were extended by the province of Viborg and the Finnish territory taken by the Russians from the Swedes in 1721 and 1743 and restored to the Grand-Duchy by Alexander I. She attained independence en bloc, if we may use this expression, and in this “bloc” since 1809 the Aaland Islands were indubitably included.40

Various states had recognized that Finland fulfilled the necessary conditions for statehood, including the possession of sufficiently determined frontiers. Sweden’s argument that its recognition by diplomatic act had never implied the recognition of her frontiers was dismissed by the rapporteurs. The Swedish recognition note had contained no reservation, and it appeared difficult to admit that a diplomatic document of this kind could contain a restriction that had not figured in the actual text. Moreover, under the Treaty of Fredrikshamn, the king of Sweden had renounced possession of the Aaland Islands forever. According to the rapporteurs, the question of Sweden’s recognition was overshadowed by the military events that had taken place on the Aaland Islands during the winter of 1918. Following Finland’s declaration of independence, Russian soldiers had continued to occupy the archipelago, and a Swedish expedition had ultimately succeeded in driving them out. However, the rapporteurs declared: “It seems to have been forgotten that, in accordance with the principles of international law, the fact that a country is occupied for a space of time by the enemy does not mean that the State thus temporarily dispossessed loses its right of sovereignty over the invaded portions of its territory.”41 The rapporteurs also accepted that at the critical time, General Mannerheim had been determined to re-establish Finnish authority by force in the Aaland Islands.42 In fact, even before the Swedish expedition had left the islands, the Finnish government had dispatched a military governor to Aaland. It had performed further acts of sovereignty in withdrawing the exequatur of the Swedish viceconsul and in expelling from the islands a Swedish journalist. Neither action had led to a protest by the Swedish royal government. These findings led the rapporteurs to the conclusion that Finland’s right of

chap_03.fm Page 74 Thursday, October 10, 2002 8:54 AM

74

Determining Boundaries

sovereignty over the Aaland Islands was incontestable and that the islands’ legal status was that they formed part of the State of Finland. Having determined that to detach the islands from Finland and reunite them with Sweden would represent an alteration in their legal status, the rapporteurs nevertheless proceeded to consider whether adequate reasons and sufficiently weighty considerations existed justifying the granting of a plebiscite to the Aalanders. The Principle of Self-Determination and Its Application to the Case of the Aalanders. The rapporteurs began by acknowledging that the “principle of free determination (or self-determination)” was at the bottom of the Aaland question but found that the principle was of limited scope. In an oft-quoted passage, the rapporteurs declared: This principle is not, properly speaking a rule of international law and the League of Nations has not entered it in its Covenant. This is also the opinion of the International Commission of Jurists. “The recognition of this principle in a certain number of international Treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations.”43

Was it possible to admit as an absolute rule that a minority in a definitely constituted state had the right to separate in order to be incorporated into another state or to declare its independence? To concede to linguistic or religious minorities or to any fraction of a people “the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life: it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity.”44 The separation of a minority from a state and its union with another could only be considered an exceptional solution, a last resort when a state lacked “either the will or the power to enact and apply just and effective guarantees.”45 In the case of the Aalanders, the protection of their Swedish culture and language was of paramount importance. They were entitled to guarantees for the preservation of their social, ethnic, and religious character. However, to protect their cultural heritage, it was not necessary for the Aalanders to be incorporated into the Swedish state. Separation could be avoided and a more conservative approach adopted. Finland was prepared to grant to the Aalanders satisfactory guarantees and to faithfully observe its commitments. Historical, geographical, and political arguments militated in favour of the status quo. Historically, especially since 1809, the islands had been part of Finland. Geographically, the islands were a continuation of the Finnish

chap_03.fm Page 75 Thursday, October 10, 2002 8:54 AM

75

Post–1918 Europe and the Near East

mainland and represented the natural dividing line between Finland and Sweden. From a strategic point of view, both Finland and Sweden had equally strong motives for obtaining possession of the Aaland Islands. The rapporteurs also emphasized Finland’s services in repulsing the Bolsheviks. Had it failed, the gates to revolutionary expansion would have been opened and Scandinavia, without question, would have been the first menaced. It would be extraordinary ingratitude towards Finland, the rapporteurs believed, to deprive it of territory to which it attached the greatest importance, more so since Finland was a new state with all the “pride and susceptibility of youth.”46 Finland would be alienated from her Scandinavian neighbours, who needed Finland as Finland needed them. Russia was sure to rise again and become a determining factor in Europe. Therefore it was in the general interest to hasten the consolidation of the states that had once been part of the Czarist Empire. To dispel any apprehensions and to reassure the Aalanders, the rapporteurs proposed a number of guarantees to be demanded of the Finnish government in favour of the Aalanders. The proposed guarantees, dealing with Swedish culture and language, ownership of land, and political representation, would complete the Law of Autonomy voted by the Finnish Diet on 7 May 1920 in favour of the Province of Aaland. In the unlikely event that Finland refused to adhere to their proposals, the rapporteurs warned that they would be obliged to recommend the separation of the islands from Finland based on the expressed wishes of the inhabitants. The rapporteurs’ report was considered by the League Council during its thirteenth session in 1921. Following discussions with representatives from Finland, Sweden, and the Aaland Islands, the League Council on 24 June 1921 recommended that sovereignty over the Aaland Islands should belong to Finland. It was recognized, however, that guarantees for the preservation of the Aalanders’ culture were necessary, together with a convention for the neutralization of the archipelago. The council believed that the elaboration of guarantees for the protection of the Aalanders’ national character would best be achieved through bilateral negotiations. On 27 June 1921, the League Council adopted an agreement that had been negotiated by Finnish and Swedish representatives and that provided extensive cultural guarantees to the Aalanders. 3.3.6

Conclusion

The dispute between Finland and Sweden over the Aaland Islands opposed issues of nationality and territoriality. On the one hand, the

chap_03.fm Page 76 Thursday, October 10, 2002 8:54 AM

76

Determining Boundaries

Aalanders claimed the benefit of the principle of self-determination of peoples in the hope of breaking away from Finland and rejoining Sweden. On the other hand, a newly independent Finnish republic was understandably anxious to safeguard its national territory. The debate within the League Council and the two expert commissions centred largely on the principle of self-determination and its status or lack thereof. In the first report, the jurists concluded that positive international law did not recognize a right of self-determination for national groups within sovereign states. However, in their opinion, the Aaland dispute had arisen at a time when Finland had not yet acquired the character of a definitely constituted state. The situation was obscure and unsettled from a legal point of view, and therefore selfdetermination was potentially relevant. This transitory and not fully developed situation could not be considered entirely confined to Finland’s domestic jurisdiction. The rapporteurs analysis of the relevance of self-determination is more convoluted. The starting point is the same: the principle of selfdetermination is not a rule of international law, and a minority in a definitely constituted state does not have the right to separate in order to be incorporated into another state or to declare independence. However, by the time the rapporteurs delivered their recommendations, the position of Finland had been consolidated, and unlike the jurists, the rapporteurs concluded that Finland was in fact a definitely constituted state whose sovereignty extended to the Aaland Islands. Yet, having determined that to allow the Aaland Islands to separate from Finland and rejoin Sweden would constitute a violation of Finland’s territorial sovereignty, the rapporteurs nevertheless proceeded to examine whether other considerations might override respect for Finland’s established boundaries. It would appear, therefore, that the rapporteurs considered the principle of self-determination to be relevant at all times and capable of displacing the principle of domestic jurisdiction but that territorial integrity remained the dominant value, especially when a solution could be achieved that was consistent with it. While the principle of self-determination was at the heart of much of the debate, it might appear that the final outcome of the Aaland Islands dispute reflected a uti possidetis solution. Under Czarist Russia, the Aaland Archipelago had been a district of the Finnish Province of Åbo Björneborg. Once Finnish independence had been achieved, the Latin American principle of uti possidetis had been applied so as to guarantee Finland’s pre-independence territory. However, it can be argued that no single principle can account for the ultimate resolution of the Aaland dispute.

chap_03.fm Page 77 Thursday, October 10, 2002 8:54 AM

77

Post–1918 Europe and the Near East

The first report drafted by the committee of jurists, explicitly rejected the application of the uti possidetis principle to the Aaland question: “The Aaland Islands were undoubtedly part of Finland during the period of Russian rule. Must they, for this reason alone, be considered as definitely incorporated de jure in the State of Finland which was formed as a result of the events described above? The Commission finds it impossible to admit this.”47 Finland, itself in the process of transformation, could not compel the Aalanders to accept a political status against their will. While not explicitly rejecting the application of the uti possidetis principle as the jurists had done, the rapporteurs’ conclusions appear not to have been influenced by the principle. In this respect, it must be noted that neither report referred to the uti possidetis principle. While acknowledging that Finland’s national territory, as it had been defined in 1809 and had remained under Russian rule, had to be respected, the rapporteurs were nevertheless prepared to consider whether conditions existed that would justify granting a right of selfdetermination to the Aalanders. In the concluding section of their report, as previously noted, the rapporteurs even went so far as to warn that, in the event Finland refused to adhere to their proposals, they would be compelled to recommend the separation of the islands based on the expressed wishes of the inhabitants. Clearly the rapporteurs did not feel compelled to adopt a solution consistent with the uti possidetis principle. It must also be noted that the League Council was extremely reluctant to accept the role of adjudicator in the Aaland dispute, aware of the strong emotions that charged the situation. Barros gives the following account: The League Council, it appeared, wished to avoid its responsibility and Swedish criticism in this matter and believed that it could do so by submitting the question of the Council’s competence to a commission of jurists … Indeed, Joost Adrian van Hamel, the Director of the Legal Section of the League Secretariat, later divulged to Donner that Lord Balfour had hoped, when the question was submitted to the Commission of Jurists, that they would reach the conclusion that the Council was not competent to treat the Aland question on the grounds that it was an internal Finnish problem. The Council could then have easily unshouldered the burden by declaring its noncompetence, an action for which they could never have been criticized.48

If a principle of general international law had existed that was binding on the parties and that provided a clear solution – Finland’s preindependence boundaries were to be respected – it seems likely that

chap_03.fm Page 78 Thursday, October 10, 2002 8:54 AM

78

Determining Boundaries

the council would have seized on the doctrine of uti possidetis as a legal justification for its resolution of the dispute in favour of Finland. Felix Calonder, former president of the Swiss republic, would at least have been familiar with the doctrine, as Colombia and Venezuela, by an arbitration convention signed the 3 November 1916, had submitted their boundary dispute to the Swiss Federal Council to be resolved on the basis of the uti possidetis principle. In addition to geographical realities, it is difficult to ignore the political and international context within which the Aaland question was resolved. While anxious to resolve the dispute according to established principles, it is clear that other considerations influenced the ultimate outcome. In Beyens’s opinion, the problem was “to find the practical solution which would best guarantee future peace in the Baltic, treating the question in broad lines without paying too much attention to theoretical considerations.”49 Beyens might have added that the principle of unfettered national self-determination was no more attractive to a Belgian like himself then it was to a Swiss like Calonder. But what made a Wilsonian like Elkus agree to a decision that was contrary to the whole principle of national self-determination? As had happened to Wilson at Paris, a far more important strategic consideration was presented to Elkus which overruled the application of selfdetermination: Finland in the north of Europe, more so than Sweden, was an obstacle to the spread of Bolshevism. “I am of the opinion,” Elkus wrote to Secretary of State Charles Evans Hughes in a discussion of the Aaland report, “that Finland should be encouraged as much as possible, both because the Finns are an active, energetic and industrious people and because they act as a barrier to the spread of those doctrines which emanate from Russia.”50 In the final analysis, the League’s resolution of the Aaland dispute lends little support to the proposition that by the turn of the century uti possidetis had become a general principle of international law for the determination of boundaries.

3.4

eg y pt - i s ra e l ar b i t rat i o n t r i bu na l: boundary dispute concerning the taba area

3.4.1

Introduction and Historical Background to the Dispute 51

During the nineteenth century and in earlier times, the territories of both present-day Egypt and Israel were part of the Ottoman Empire.52 However in 1841, the sultan conferred upon Mehemet Ali the hereditary Pashalik of Egypt, thereby creating within boundaries defined by

chap_03.fm Page 79 Thursday, October 10, 2002 8:54 AM

79

Post–1918 Europe and the Near East

the sultan a privileged vassal state within the empire. In 1866 Sultan Abdulaziz (as suzerain) widened the administrative reach and powers of his Egyptian vassal. By the sultan’s firmans of May 1866 and June 1867, Isma’il Pasha (grandson of Mehemet Ali, the dynasty’s founder) was granted administrative responsibility for all of the Sinai while legal title over the peninsula remained vested in the sultan. Egypt was also granted jurisdiction over the Port of Aqaba, then part of the Vilayet of Damascus, and a coastal strip of the Vilayet of Hijaz along the length of the Gulf of Aqaba as far south as Al-Wajh on the Red Sea.53 These grants extended Egypt’s territorial reach to all of the Sinai Peninsula and also included a portion of the Vilayet of Hijaz. A year later, Isma’il Pasha was granted the right to adopt for himself and his family the Persian title of khedive or prince, thus elevating Egypt’s status within the Ottoman Empire from a pashalik to a khediviate. In 1869 the Suez Canal was opened, and in the following decade Anglo-French rivalry over the operation and ownership of the waterway as well as over possession of Egypt “raged as never before.”54 In order to secure the canal as its route to India, Great Britain occupied Egypt in 1882 without, however, seeking to alter the formal status of the khediviate as an Ottoman vassal. On 24 October 1885, Great Britain and Turkey concluded a convention recognizing Great Britain’s special status in Egyptian affairs.55 The first crisis over the Sinai boundary occurred in 1892 on the death of the Egyptian khedive Tawfiq. On 8 January 1892, Sultan Abdülhamit II issued a Firman of Investiture to his successor Abbas Hilmi II that purported to restore the 1841 Egyptian boundary and to return the southeastern sector of the Sinai Peninsula, the coastal strip, and the Port of Aqaba to the Vilayet of Hijaz. The new firman defined the territory of the Khediviate of Egypt in terms of a line from Rafah to Suez. However, as noted by Hurewitz, this attempt to restore the original and circumscribed Egyptian boundary met with considerable British resistance: “By then, Britain’s occupation of Egypt, well into its tenth year, was drifting into permanence … Sir Evelyn Baring (later Lord Cromer), the Agent and Consul General in Cairo … left no doubt at the Sublime Porte that its attempt to turn the clock back on the Sinai Peninsula was unacceptable. Three months later, after sustained pressure from London, Sultan Abdülhamit gave in.”56 On 8 April 1892, the grand vizier (or Ottoman prime minister) informed Abbas Hilmi II by telegram that while certain Egyptian garrisons outside the Sinai, including Aqaba, were to be restored to the Vilayet of Hijaz, the status quo in the Sinai Peninsula was to be maintained and that it would be administered by the khedive in the same manner as it had been administered under his grandfather Isma’il

chap_03.fm Page 80 Thursday, October 10, 2002 8:54 AM

80

Determining Boundaries

Pasha and his father, Mehemet Tawfiq Pasha.57 On 13 April 1892, the day before the revised Firman of Investiture took effect, Sir Baring declared in a telegram to the Egyptian foreign minister “that no alteration can be made in the Firman regulating the relations between the Sublime Porte and Egypt without the consent of Her Britannic Majesty’s Government.”58 Sir Baring also confirmed hmg “consent to the definition of boundaries contained in the present Firman, as supplemented, amended and explained by the telegram of the 8th instant [8 April 1892] from His Highness the Grand Vizier, which they consider as annexed to and as forming part of the Firman.”59 Sir Baring went on to define the eastern boundary of the Sinai Peninsula as “a line running in a south-easterly direction from a point a short distance to the east of El Arish [which apparently meant Rafah] to the head of the Gulf of Akaba,” leaving Aqaba itself, “which lies to the east of the line in question,” in the Vilayet of Hijaz.60 The Taba Crisis of 1906. At the end of December 1905, Lord Cromer received intelligence from Constantinople that the sultan had been informed of Egyptian plans to construct barracks on the Sinai frontier near Aqaba and had resolved to establish a Turkish guard house there first. On 2 January 1906, Lieutenant Bramly, the inspector of Sinai (a title equivalent to governor), was instructed by Captain Owen, the British acting director of intelligence for the area, to form a small post at Naqb el Aqaba.61 On 10 January 1906, Bramly reported that he had established himself at the foot of the Naqb el Aqaba in Marashash (present-day Eilat) at the mouth of the Wadi el Arabi, had met the Turkish kaimakam (head of district) at Aqaba, and had ascertained that Turkey was claiming Taba (a small portion of the Sinai Desert on the Gulf of Aqaba) and Kuntilla, both places lying to the west of the Rafah-Aqaba line described by Lord Cromer in April 1892. In the spring of 1906, Lord Cromer suggested that the vague definition of the eastern limit of the Sinai, contained in the 8 April 1892 telegram from the grand vizier, should be clarified through an exchange of notes between Great Britain and Turkey confirming the frontier as defined in the British telegram of 13 April 1892 but describing the limits more precisely as: “[T]he territory bounded to the east by a straight line running from Rafah – a point a short distance east of El-Arish – in a south-easterly direction to a point on the Gulf of Akaba, lying three miles to the west of the existing fort of Akaba.”62 Turkey rejected this definition, reserving to itself the right to interpret the 1892 firman, which spoke only of the Suez-Rafah line as the frontier of Egypt, as well as the right to revoke at any time the grand vizier’s telegram of 8 April 1892 regarding Egyptian administration of the

chap_03.fm Page 81 Thursday, October 10, 2002 8:54 AM

81

Post–1918 Europe and the Near East

Sinai to the east of the Suez-Rafah line. Turkey argued that Taba was a dependency of Aqaba and informed the khedive that it was considering the extension of the Hijaz railway to Aqaba and thence to Suez.63 These proposals and positions alarmed the British, who viewed the Rafah-Aqaba line as vital to the security of the Suez Canal. Lord Cromer suggested that forceful measures were necessary in order to persuade the sultan to accept the British understanding of the Egyptian administrative frontier. On 3 May 1906, an ultimatum was addressed to the sultan, underscored by a British naval threat to seize certain Turkish islands in the Mediterranean. The sultan was given ten days to evacuate Taba and to recognize the boundary line from Rafah to the head of the Gulf of Aqaba as set out in the 8 April 1892 telegram. The sultan capitulated, and on 13 May 1906, Turkish forces at Taba were withdrawn.64 On 14 and 15 May 1906, Great Britain and Turkey exchanged diplomatic notes expressing their agreement “to delimit and record on a map” prepared jointly by representatives of the sultan and the khedive, the status quo defined as “an approximately straight line running southeast from Rafah to a point on the Gulf of Akaba not less than 3 miles from Akaba.”65 Following the completion of survey maps of the area along the Rafah-Aqaba line, problems arose, as the Turkish commissioners indicated that they lacked full powers. Difficult and protracted discussions followed. Eventually an imperial irade was issued by the sultan on 11 September 1906 to the following effect: 1 The starting point of the line on the Gulf to be Marashash. 2 Such commanding positions of Naqb-el-Akaba as are necessary to Akaba from a strategic point of view are to remain on the Turkish side, while Mofrak is to be left to Sinai.66 Agreement on the line was reached soon afterwards and was signed at Rafah on 1 October 1906. Article 1 provided: The administrative separating line, as shewn on map attached to this agreement, begins at the point of ras taba on the western shore of the gulf of akaba and follows along the Eastern ridge overlooking wadi taba to the top of jebel fort, from thence the separating line extends by straight lines as follows.67

According to Hurewitz, the choice of the term “administrative separating line” instead of “boundary,” which would have conveyed an international or quasi-international meaning, was deliberate: “It served as a conciliatory gesture to Ottoman sensibilities. The semantic enabled the

chap_03.fm Page 82 Thursday, October 10, 2002 8:54 AM

82

Determining Boundaries

Sublime Porte to keep alive its claims to legal sovereignty over Egypt, by implying that the agreement created a domestic provincial divider, modifiable at the Sultan’s pleasure.”68 Article 3 of the 1906 agreement provided that telegraph poles would be temporarily erected in the presence of a joint commission at intervisible points along the boundary line. Arrangements were then made for the joint construction of masonry pillars by the Public Works Department of Egypt at the site of each telegraph pole.69 3.4.2

World War I

In August 1914, Egypt established posts at Taba and at Ras el Naqb and used them to observe developments in Aqaba, as there were reports of large troop movements throughout the region. In October 1914, Turkey entered the war on the side of the central European powers, and in November, Great Britain imposed martial law in Egypt. In December, Great Britain declared a protectorate over Egypt due to the state of war with Turkey: His Britannic Majesty’s Principal Secretary of State for Foreign Affairs gives notice that, in view of the state of war arising out of the action of Turkey, Egypt is placed under the protection of His Majesty and will henceforth constitute a British Protectorate. The suzerainty of Turkey over Egypt is thus terminated, and His Majesty’s Government will adopt all measures necessary for the defence of Egypt and the protection of its inhabitants and interests.70

In early 1915, Great Britain withdrew its forces towards the Suez Canal, and Turkey occupied much of the Sinai, remaining there until El Arish was taken by the Allies in December 1916.71 Following the fall of Aqaba to the Arabs of Hijaz in 1917, Allied forces advanced into Palestine. At the conclusion of the war, British forces occupied both sides of the administrative boundary line. In Article 101 of the Treaty of Sèvres of 10 August 1920, which never entered into force, Turkey renounced all rights and titles in Egypt.72 By Articles 16 and 17 of the Treaty of Lausanne of 24 July 1923, which replaced the Treaty of Sèvres and was ratified, Turkey renounced all rights and titles over territories lying outside of the Turkish frontiers established by the treaty, and this was declared effective with respect to Egypt and the Sudan as of 5 November 1914, the date on which Great Britain had instituted martial law in Egypt.73 Egypt sought independence from British rule after the war, but negotiations foundered largely on the question of continued British military occupation in the Suez Canal zone. Great Britain achieved its objective by unilaterally

chap_03.fm Page 83 Thursday, October 10, 2002 8:54 AM

83

Post–1918 Europe and the Near East

terminating the protectorate and recognizing Egypt as an independent sovereign state on 28 February 1922 but reserved to its discretion four areas of interest, including in particular the defence of Egypt and the security of its communications, which evidently included the canal.74 3.4.3

The Mandate Period

At the time that the Council of the League of Nations approved the text of the Palestine Mandate on 24 July 1922, and later when the mandate finally entered into force on 29 September 1923, no boundaries had been established for the mandated territory. The preamble to the mandate resolution recited that the principal Allied powers had decided to entrust to Great Britain the mandate for Palestine, “within such boundaries as may be fixed by them.” Article 5 of the mandate stipulated, however, that: “The Mandatory shall be responsible for seeing that no Palestine territory is ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.”75 In answer to a question raised on 16 July 1925 in the British House of Commons with regard to the status of Aqaba, Mr McNeill answered for the Government of Great Britain that “[t]he line dividing the territories under Egyptian and Turkish administration respectively was defined in 1906 by a boundary commission and has not since been modified.” He informed the House that “Aqaba lies a few miles to the east of this line.”76 On 6 October 1925, Great Britain invited Egypt to recognize the special situation of Great Britain in the territory of Palestine. The Egyptian prime minister and minister for foreign affairs did so in a letter to the British high commissioner in Cairo on 4 February 1926 but reserved Egypt’s position regarding the Egyptian frontier with Palestine since the mandate provided that the frontiers of Palestine would be decided at a later date by the principal Allied powers. The letter further stated that the principal Allied powers were in no way empowered to alter the established Egypt-Palestine boundary.77 Following consultations with the relevant British authorities, the British high commissioner informed the Egyptian foreign minister by a letter of 25 June 1926 that “the Palestine and Egyptian frontier as defined in the year 1906 will be in no way affected by the delimitation of the frontiers of the mandated territory of Palestine.”78 On 4 April 1932, the Eastern Department of the British Foreign Office issued a lengthy memorandum on the question of frontiers of mandated territories in the Middle East.79 Attached to this memorandum was an annex describing the frontiers of each of the mandated territories. The description of the Egypt-Palestine frontier affirmed

chap_03.fm Page 84 Thursday, October 10, 2002 8:54 AM

84

Determining Boundaries

that the then-present frontier was the same as the “Separative Administrative Line” established by the 1906 agreement between Great Britain and Turkey, but noted that the line “does not appear at any stage to have been formally constituted an international frontier.”80 After noting the contents of the letter of 4 February 1926 from the Egyptian government to the British high commissioner, the annex stated that the assurance given in response to Egypt’s reservation “seems to imply recognition by His Majesty’s Government and the Egyptian Government of the 1906 line as the definitive frontier between Palestine and Egypt.”81 Following World War II, a Foreign Office official, Mr D.M.H. Riches, in a letter dated 16 April 1947 to Mr W. Low of the Air Ministry, recalled the assurance given by Great Britain in 1926 that the delimitation of the frontiers of mandated Palestine would in no way alter the 1906 line and observed that “although the 1906 boundary-line was a Turkish creation, its position as the correct and suitable line between Palestine and Egypt has not been called into question since that time. The status of the countries which it divides has changed since 1906, but not the line.”82 3.4.4

The Post-Mandate Period

With the end of the mandate on 14 May 1948, Israel proclaimed its independence. The Act of Independence took effect at one minute after midnight on 15 May 1948. Military forces from neighbouring states simultaneously entered Palestine and informed the United Nations Security Council on 15 May 1948 that they intended to restore order. Hostilities between the forces of the new State of Israel and the Arab forces ensued. The United Nations Security Council ordered a truce, having concluded that the situation in Palestine constituted a threat to the peace within the meaning of Article 39 of the Charter.83 On 16 November 1948, the Security Council established an armistice to facilitate the transition from the truce to a permanent peace in Palestine. The general armistice agreement between Egypt and Israel was entered into at Rhodes on 24 February 1949 and provided that no armed forces were to cross the armistice demarcation line set forth in the agreement nor elsewhere to violate the international frontier.84 During the Sinai War of 1956, on the 2 November, the General Assembly of the United Nations adopted a resolution urging (1) all parties involved in the hostilities to agree to an immediate cease-fire and (2) all parties to the armistice agreements to withdraw behind the armistice lines. In March 1957, Israeli forces withdrew from the Sinai and the Gaza Strip, and a United Nations Emergency Force (unef)

chap_03.fm Page 85 Thursday, October 10, 2002 8:54 AM

85

Post–1918 Europe and the Near East

was deployed on the Egyptian side of the armistice line. A framework for peace in the Middle East was established on 17 September 1978 at the conclusion of the Camp David Conference.85 In the framework agreement, Egypt and Israel agreed to the withdrawal of Israeli armed forces from the Sinai Peninsula and “the full exercise of Egyptian sovereignty up to the internationally recognized border between Egypt and mandated Palestine.”86 This settlement was incorporated in the Treaty of Peace concluded on 26 March 1979 between the Arab Republic of Egypt and the State of Israel. Article 1 provided that the state of war between the parties had been terminated and stipulated that Israel would withdraw its armed forces and civilians from the Sinai behind the international boundary, enabling Egypt to resume the exercise of its full sovereignty over the Sinai.87 Article 2 of the Treaty of Peace established that: “The permanent boundary between Egypt and Israel is the recognized international boundary between Egypt and the former mandated territory of Palestine.”88 A joint commission was established pursuant to Article 4 to facilitate the implementation of the treaty and to “organise the demarcation of the international boundary.”89 The joint commission reached agreement on the location of most of the 100 pillars demarcating the boundary line between the two states. However, it was unable to agree on the precise locations of fourteen of these pillars, including the final southern pillar (no. 91). The Treaty of Peace provided that “disputes which cannot be settled by negotiations shall be resolved by conciliation or submitted to arbitration.”90 Negotiations between Egypt and Israel with the participation of the United States did not resolve any of the disagreements over the remaining fourteen pillars. Consequently, by a compromis dated 11 September 1986, the parties agreed to submit to arbitration the dispute regarding the location of the pillars, and a five-member Tribunal was appointed.91 The arbitration compromis strictly limited the Tribunal’s remedies to choosing pillar locations proposed by either party in its submissions. 3.4.5

Award of the Egypt-Israel Arbitration Tribunal

Article 2 of the 1979 Treaty of Peace had provided that “[t]he permanent boundary between Egypt and Israel is the recognized international boundary between Egypt and the former mandated territory of Palestine.” This formula was reiterated in the preamble of the compromis submitting to arbitration the dispute regarding the location of the fourteen boundary pillars: “Reaffirming their adherence to the provisions of the Treaty of Peace of 26 March 1979, and their respect for

chap_03.fm Page 86 Thursday, October 10, 2002 8:54 AM

86

Determining Boundaries

the inviolability and sanctity of the recognized international boundary between Egypt and the former mandated territory of Palestine.”92 The “recognized international boundary” was based on the 1906 agreement between Great Britain, then in occupation of Egypt, and Turkey, the sovereign power in the area, of which Egypt was nominally a vassal.93 The 1906 agreement was crucial to the arbitration, as the Tribunal had to decide whether the international boundary should be the line formed by the masonry pillars as they had been demarcated, consolidated, and understood during the period of the Palestine Mandate (even if some pillars had been misplaced or constructed unilaterally) or whether the international boundary should correspond to the actual text of the 1906 agreement: Israel submits that both Great Britain, as mandatory power, and Egypt in 1926 explicitly recognized the line defined in 1906 as the boundary between Egypt and Palestine. By virtue of this renvoi to the 1906 Agreement, Israel contends, the Tribunal is referred to the line defined in the 1906 Agreement, not to the boundary pillars established pursuant thereto. The Tribunal cannot share this view. First of all, the expressions “defined in 1906” and “defined by the 1906 Agreement” which were used in British and Egyptian declarations in 1926, do not have a particular technical meaning in the sense that they refer only to the description of the boundary line in the Agreement to the exclusion of the demarcation of the boundary also expressly provided for by the 1906 Agreement. It can hardly have been the meaning of Great Britain and Egypt in 1926 that the demarcation of the boundary, as it took place in 1906–07 could be disregarded. It is important in this respect that both Great Britain and Egypt were well acquainted with the demarcated boundary. Egypt had taken part in the demarcation of the boundary.94

Therefore, and in so far as there were doubts as to the precise location of the boundary pillars during the mandate period, the majority was prepared to consider the 1906 agreement but only as one indication, among others, as to what the situation on the ground had been during the mandatory period. In its analysis, the majority of the Tribunal referred to the doctrine of the critical date, this being the point in time at which the parties’ conduct was relevant. In the case at hand, that critical date was deemed to be the date of the formal entry into force of the Palestine Mandate on 29 September 1923. Evidence of both earlier or later conduct was therefore excluded except when it served to confirm the situation at the critical date. On this basis, the majority concluded that the boundary line was where it had been “commonly understood [to be] during the period of the Mandate.” Egypt, Great Britain, and Turkey had by their conduct agreed to that boundary, even though its demarcation

chap_03.fm Page 87 Thursday, October 10, 2002 8:54 AM

87

Post–1918 Europe and the Near East

might have been at variance with the terms of the 1906 agreement. The majority’s decision was founded on the principle of the stability of boundaries, confirmed by the International Court of Justice in the Temple of Preah Vihear case,95 “which requires that boundary markers, long accepted as such by the States concerned, should be respected and not open to challenge indefinitely on the basis of error.”96 The majority’s view was strongly rejected by the arbitrator Lapidoth in her dissenting opinion. She relied on the Burkina Faso/Mali Frontier Dispute case and a judgment of the Swiss Federal Court97 to draw a distinction between a de jure, or lawfully established and recognized, boundary and a de facto boundary. The gravamen of Lapidoth’s dissent was that the ‘valid’ boundary recognized by Egypt, and by Great Britain as the mandatory power, was the line defined by the 1906 agreement and demarcated by the telegraph poles, irrespective of any later developments. According to Lapidoth, the preference for the boundary as it had been established by the 1906 agreement was in conformity with the principle of uti possidetis juris, and she cited the International Court in support: “[I]ts first aspect, emphasized by the Latin genetive juris, is found in the pre-eminence accorded to legal title over effective possession as a basis for sovereignty.”98 The Chamber of the International Court in the Frontier Dispute case had distinguished between the notions of uti possidetis juris and uti possidetis de facto and had preferred the former. Referring to the majority’s expressed preference for the ‘situation on the ground’ and its reliance on the Temple of Preah Vihear case, Lapidoth expressed wholehearted agreement with the rule that boundaries should be stable and permanent. However, the stability and permanence referred to in the Temple case should be attributed to the de jure boundary, the line delimited in the 1906 agreement: To sum up, the Treaty of Peace refers to the boundary recognized during the British Mandate and the latter refers us to the line established by the 1906 Agreement. The majority errs in assuming that the recognized international boundary during the mandatory period was formed by the pillars that in fact existed on the ground, whether wrongly or rightly erected. Those pillars had never been “recognized” during the Mandate period … It is the legal and lawful 1906 line which deserves protection for the sake of stability and permanence.99

It can be seen from the summary of the majority and dissenting judgments that both considered the 1906 Egyptian-Turkish agreement to be the starting point in their analysis of “the recognized international boundary between Egypt and the former mandated territory of Palestine.” The split between the majority and Lapidoth occurred

chap_03.fm Page 88 Thursday, October 10, 2002 8:54 AM

88

Determining Boundaries

as a result of the weight each afforded the various demarcation efforts subsequently undertaken pursuant to the 1906 agreement. The Taba arbitration case might therefore be considered an example of a preexisting administrative boundary subsequently upgraded or transformed into an international boundary. Can it also be said that the Taba case was resolved on the basis of the uti possidetis doctrine? 3.4.7

Conclusion

If by the early twentieth century, the Latin American principle of uti possidetis had been elevated to the status of a general, binding, principle of international law, this would undoubtedly raise questions as to its influence in determining the boundaries of the new entities emerging from the former Ottoman Empire. Although no trace of the uti possidetis principle was found in the official documents and correspondence pertaining to the delimitation of the Sinai boundary in 1906, the ultimate resolution of the boundary between Egypt and Israel in 1988 could be seen as consistent with the uti possidetis doctrine. An administrative separating line between two entities subject to the same sovereign power was subsequently adopted and respected as the international boundary between two independent states. But it can be argued that the history of the region and of the boundary as well as certain political circumstances are sufficient to account for the adoption of the Ottoman boundary, without any reference to the uti possidetis principle. It is important to consider the special status of Egypt at the time the Sinai boundary was established. As early as 1841, the sultan had created within Egypt a privileged vassal state of the empire. Egypt enjoyed a wide measure of autonomy and in many respects constituted a semiindependent state. With the arrival of the British in 1882, Egypt’s unique political status was strengthened. From the time of Britain’s occupation in 1882 until the end of its protectorate in 1922, British interests and policy played a determinative role in the affairs of the region. Had it been a purely “Turkish creation” as indicated by Mr D.M.H. Riches,100 the sultan would have been free to alter the line according to his wishes. It will be recalled that it was under fierce British military pressure that the sultan was persuaded to accept the then-existing administrative line between Egypt and the Vilayet of Hijaz in the Sinai Peninsula. Turkey was not in a position to amend the line unilaterally. The boundary agreement signed at Rafah on 1 October 1906 was the result of three-way discussions and negotiations between British, Egyptian, and Turkish officials. Subsequent demarcation operations were supervised both by British and Turkish authorities. Thus Britain was instrumental in obtaining and demarcating the Sinai boundary line.

chap_03.fm Page 89 Thursday, October 10, 2002 8:54 AM

89

Post–1918 Europe and the Near East

In these circumstances, it is difficult to consider the 1906 boundary as a mere internal division. By 1906, the Rafah-Aqaba line had been accepted as the northern boundary of Egypt. In a very real sense, the Sinai boundary line had achieved the status of an international boundary – both because of Egypt’s special status as a privileged vassal state and because of Britain’s involvement in Egyptian affairs. For these reasons, it does not appear that the Taba case can be considered an application of the Latin American uti possidetis doctrine.

3.5

palestine (state of israel) and transjordan (jordan): the semakh triangle

3.5.1

Introduction

The cessation of hostilities at the end of World War I found Britain as ruler of the Ottoman Middle East. The whole area of the Levant was under the authority of Lord Allenby, the British commander of the Egyptian Expeditionary Force.101 By the end of 1923, the former Ottoman territories in Asia had been carved up, and Palestine, Transjordan, Syria, and Lebanon had been established as distinct political units. This section will examine what role the uti possidetis principle may have played in the delimitation of the new frontiers. Our case study will be the determination of the Palestine-Transjordan boundary and will lead up to but not beyond Britain’s announcement in September 1922. 3.5.2

Early Division Lines

Opinion remains divided as to whether the Aqaba–Dead Sea–Jordan line has throughout history constituted a boundary or frontier, understood as “a line or zone of established socio-political discontinuity.”102 Notwithstanding the importance of the River Jordan as a symbolic frontier zone, geographic and historical evidence appears to support the conclusion that it has not. Throughout the long history of human settlement in the region, lands lying on both sides of the Aqaba–Dead Sea–Jordan line have formed part of the territory of successive empires. However, if the natural hydraulic boundary has never served as an important divide between kingdoms and empires, its use as a lesser, administrative limit has been a recurring feature. Nor has the use of the Aqaba–Dead Sea–Jordan line as an administrative separating line been confined to the distant past. Sections of the Wadi Araba also served this purpose during the Ottoman Empire.

chap_03.fm Page 90 Thursday, October 10, 2002 8:54 AM

90

Determining Boundaries

Ottoman Administrative Divisions. Early in the sixteenth century and after defeating the Mamluk rulers of Egypt in 1517, the Ottomans under the rule of Selim and Suleiman conquered Syria, the Hijaz, and Mesopotamia.103 In general, the Ottomans maintained the existing Mamluk administrative divisions in the Near East and simply changed their designation. Baylson describes the administrative divisions following the Ottoman conquest: After 1864, Ottoman territories were administratively divided into (from largest to smallest): vilayet – department or province; sanjaq or liva – subprovince or arrondissement; and kaza or qada – canton or district. Vilayets were centred on large towns and comprised the town and its hinterland … The boundaries of the vilayets were not drawn specifically to encompass major economic or geographic regions but were delimited primarily for Ottoman administrative convenience. Since it was not in the Ottomans’ best interests to foster ethnic or national identities among the minority communities, national and historic units were often deliberately divided.”104

Under Ottoman rule, Palestine never formed a single administrative unit “although it was a geographical term employed throughout the world.”105 Of little economic significance to the Sublime Porte, its importance derived primarily from the holy places. Palestine was divided among several sanjaqs, which until the beginning of the seventeenth century were included in the Vilayet of Damascus. During the seventeenth century, the Galilee districts were transferred to the Vilayet of Sidon, while most districts in central and southern Palestine, as well as those east of the River Jordan, remained under the jurisdiction of the Vilayet of Damascus.106 With the end of Egyptian occupation in 1841, all of Palestine except the area east of the Jordan became part of the Vilayet of Sidon (later the Vilayet of Beirut). Another Ottoman administrative reorganization of the Near East occurred in the 1870s and 1880s. By this administrative reform, the autonomous Sanjaq of Jerusalem was founded similar in status to the Sanjaq of Mt. Lebanon, which had been created in 1864. The Sanjaq of Jerusalem was subsequently enlarged to 7,700 square miles, given the higher status of mutesarrifliq (autonomous sanjaq), and placed under the direct control of the Sublime Porte. The mutesarrifliq extended from a line in the north between Ramallah and Jaffa to the Egyptian frontier in the south.107 Thereafter, northern Palestine (the Sanjaqs of Acre and Nablus) was included in the Vilayet of Beirut, central and southern Palestine in the Mutessarrifliq of Jerusalem, and eastern Palestine in the Vilayet of Damascus.

chap_03.fm Page 91 Thursday, October 10, 2002 8:54 AM

91

Post–1918 Europe and the Near East

In the south-east, the Negev Desert wedge of the Wadi Araba was incorporated within the Sanjaq of Ma’an, even though most of the sanjaq lay east of the Wadi within the Vilayet of Damascus.108 What was to become Transjordan was divided more or less equally between the Sanjaqs of Hauran in the north and Ma’an in the south, both of which were part of the Vilayet of Damascus.109 These administrative divisions remained unchanged until a further Ottoman reform in 1906 transferred responsibility for the Sanjaq of Ma’an (including the Negev wedge) to the Vilayet of Hijaz.110 3.5.3

Political Events Leading up to the Delimitation of the Palestine-Transjordan Boundary

The McMahon-Hussein Correspondence. Between July 1915 and January 1916, Sir Henry McMahon (the British high commissioner in Egypt) and Hussein ibn Ali (the sherif of Mecca) exchanged ten letters discussing the conditions under which Sherif Hussein would agree to lead an Arab revolt against the Ottomans.111 In return for Arab allegiance, Sherif Hussein demanded British recognition of the independence of all Arabic-speaking areas in Ottoman Asia east and north-east of Sinai, including Mesopotamia and Greater Syria. In his letter of 14 July 1915, Hussein proposed independence for Arab territories bounded in the north by Mersina and Adana up to 37° latitude, on the east by the borders of Persia up to the Gulf of Basra (Persian Gulf), on the south by the Indian Ocean (Aden to remain unchanged), and on the west by the Red Sea and the Mediterranean up to Mersina. As described by Baylson, this area included Alexandretta, all of Greater Syria, Mesopotamia, and Arabia, excluding Aden.112 In his second letter dated 24 October 1915, McMahon indicated that the principles outlined by Hussein were acceptable but that he could not agree with the delimitation of the area reserved for Arab independence. McMahon wrote that the “districts of Mersina and Alexandretta and portions of Syria lying to the west of the districts of Damascus, Homs, Hama and Aleppo cannot be said to be purely Arab, and must on that account be excepted from the proposed delimitation.”113 Moreover, as a direct result of pressure by the Indian government, which was opposed to the establishment of a large panArab state, McMahon also reserved for Britain the Baghdad and Basra vilayets of Mesopotamia.114 McMahon therefore replied: With the above modifications, and without prejudice to our existing treaties with Arab chiefs, we accept those limits and boundaries and, in regard to those

chap_03.fm Page 92 Thursday, October 10, 2002 8:54 AM

92

Determining Boundaries

portions of the territories therein in which Great Britain is free to act without detriment to the interests of her Ally, France, I am empowered in the name of the Government of Great Britain to give the following assurances and make the following reply to your letter: Subject to the above modifications, Great Britain is prepared to recognize and support the independence of the Arabs within the territories included in the limits and boundaries proposed by the Sherif of Mecca.115

Although the McMahon-Hussein correspondence did not constitute a formal treaty, it did establish a British-Arab alliance on the basis that Britain would support Arab independence after the war, but the Arabs would be disappointed by the Sykes-Picot Agreement, the Balfour Declaration, and the postwar Palestinian settlement. Hussein had proposed the Mediterranean as the western boundary of the new Arab state. Since the Damascus district had been the southernmost point excluded by McMahon from Hussein’s territorial delimitation, the Arabs believed that Palestine was to be included within the independent Arab area. The question of whether or not McMahon had excluded Palestine from the area reserved for Arab independence in his despatch of 24 October 1915 led to a protracted disagreement between the British and the Arabs.116 Although Britain consistently affirmed its intention to exclude Palestine, a government statement accompanying the publication of the McMahon-Hussein correspondence in 1939 acknowledged the ambiguity. The Sykes-Picot Agreement. The Sykes-Picot Agreement117 between France, Britain, Russia, and Italy was the only wartime agreement in which boundaries were defined and maps drawn.118 Signed in March 1916, over two years before the end of wwi, the agreement detailed the partition of the Ottoman Empire after its conquest.119 The Sykes-Picot Agreement divided the Fertile Crescent into five distinct areas: * a red zone comprising Lower Mesopotamia (including Haifa Bay, the towns of Haifa and Acre and the territory surrounding the Zebulum Valley) allocated to Britain as an area of direct rule; * a blue zone approximating closely the future territorial extent of Lebanon but extending north to include the coastal margins of present-day Syria, Alexandretta (Iskanderun) and Sivas in Central Anatolia, as an area of French direct rule; * a brown zone or international zone corresponding to the sanjaqs of Nablus and Acre and the autonomous sanjaq of Jerusalem but with shortened southern limits (a line running westwards from the north-west corner of the Dead Sea to a point just south of Gaza on the Mediterrranean) as an area

chap_03.fm Page 93 Thursday, October 10, 2002 8:54 AM

93

Post–1918 Europe and the Near East

under international control with representatives from Britain, France, Russia, Italy and Sherif Hussein; * a land-locked area entitled zone a corresponding to the hinterland of modern-day Syria and the former Ottoman Vilayet of Mosul in which it was agreed to recognize an independent Arab State subject to the proviso that France would have privileges amounting to a quasi-protectorate over the proposed State; * a three-way spur of territory entitled zone b, stretching from the central Persian-Ottoman borderlands in the north-east to the Rafah-Aqaba tract in the west and the littoral of the Persian Gulf in the south-east, also to become an independent Arab State or Confederation with Britain enjoying similar privileges as the French in Zone A.

The original map annexed to the agreement was drawn to a small scale and thus yielded a number of often conflicting interpretations. Lake Tiberias, the lower River Jordan, and the northern end of the Dead Sea appear to have been the natural features utilised to mark the eastern limits of the Brown or International Zone. The territory lying to the south of the Brown/International Zone (the Dead Sea-Gaza line) and east of the 1906 Egyptian boundary fell within Zone B, as did all territory east of the River Jordan from Lake Tiberias. The Port of Aqaba was also included within Zone B. Occupied Enemy Territory Administration. Following the successful Allied campaign of 1917–18, General Edmund Allenby, commander-in-chief of the Egyptian Expeditionary Force, was given the responsibility of making arrangements for the administration of the autonomous Sanjaqs of Jerusalem and Lebanon and the Vilayets of Beirut and Syria. Following the fall of the Holy City to Allied forces, Allenby established an Occupied Enemy Territory Administration (oeta) in the Sanjaq of Jerusalem. Once Damascus and Aleppo had also been ‘liberated’ from Ottoman rule, Allenby and the British and French governments attempted to allocate temporary administration of the territory along the lines envisaged in the Sykes-Picot Agreement.120 General Allenby’s instructions were to allow the French to move into their designated areas in the Blue Zone and Zone A.121 On 23 October 1918, General Allenby issued guidelines for the division of the occupied territory into three zones: oeta North, oeta South, and oeta East: oeta North comprised the Blue Zone of the Sykes-Picot Agreement, minus the qadhas of Ba’albeck, Hasbiya and Rashaiya, which had been temporarily attached to oeta East in deference to Hashemite sensibilities. Like the Brown

chap_03.fm Page 94 Thursday, October 10, 2002 8:54 AM

94

Determining Boundaries

Zone earmarked for international control in the Sykes-Picot Agreement, oeta South comprised the autonomous sanjaq of Jerusalem, with the sanjaqs of Nablus and Acre to its north. Yet its southern limits were not the shortened ones depicted on the Sykes-Picot map, running from the Dead Sea eastwards to Gaza. The south-western limits of oeta South followed the 1906 PalestineEgypt boundary and its south-eastern limits, the Wadi Araba from the Dead Sea to the Gulf of Aqaba. oeta East basically comprised Zones A and B of the Sykes-Picot Agreement plus the qadhas enumerated above, essentially everything east of oeta North and oeta South.122

No official map was produced along with Allenby’s description of the three oeta s, though with respect to oeta South, it is likely that military authorities relied on a 1918 map of Palestine published by the Survey Department of Egypt. This map of Palestine depicted the Wadi Araba as the south-eastern limit of the autonomous Sanjaq of Jerusalem and the eastern limits of the Acre and Nablus sanjaqs as stretching east of Lake Tiberias and the lower River Jordan.123 Referring to the 1918 Egyptian map, Gil-Har states: According to this map, the limits of the Kaza of Tiberias (Sanjak of Acre) outlined the plains adjoining the eastern bank of the Sea of Galilee, and the areas east of the Jordan River to the north and to the south of the Yarmuk River up to Jisr El Mejamie; the Kaza of Jenin (Sanjak of Nablus) extended to the east of the Jordan up to the confluence of Wadi Abu Zivaa with the Jordan.124

It would appear, therefore, that areas east of Lake Tiberias and the River Jordan were included within oeta South, which appears to contradict studies claiming that “for all practical purposes, the River Jordan was taken to be that frontier [Palestine-Transjordan] from the establishment of the first oeta.”125 The definition of Palestine according to Ottoman administrative divisions would endure even when, on 1 July 1920, Allenby’s military administration was replaced by a civil administration. 3.5.4

Conflicting Commitments and the Palestine-Transjordan Boundary

The Balfour Declaration further complicated the postwar resolution of the Palestine question and the determination of boundaries in the area. On 2 November 1917, in a letter from Foreign Secretary Lord Balfour to the Zionist Organization, the British government pledged its support for the creation of a Jewish national home in Palestine: “His Majesty’s Government view with favour the establishment in Palestine

chap_03.fm Page 95 Thursday, October 10, 2002 8:54 AM

95

Post–1918 Europe and the Near East

of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object.”126 The declaration sought to rally international Jewish support for the Allied cause and to commit the Zionist Organization to a British policy. It was also designed to secure Palestine for Britain and therefore to do away with the international regime described in the Sykes-Picot Agreement. As a result of the Balfour Declaration, or perhaps for other reasons, Lloyd George and Clemenceau127 did reach an oral understanding on the eve of the Versailles peace conferences that Palestine would come under British rather than international control. On the strength of the Balfour Declaration, the Zionist delegation at Versailles presented in February 1919 the following proposal for Palestine’s boundaries: Starting in the north from a point in the Mediterranean Sea in the south of Sidon, following the watershed of the foothills of the Lebanon to Jasr-elDarum, from there following the line separating the basins of wadi El Tayah: from this point southwards along a line which divided between the eastern and the western slopes of the Hermon to a point west of Beit Jaun and from there eastwards following the northern watershed of the Myjarga river to the west of the Hejaz railway. In the east a line close and west of the Hejaz railway reaching the Gulf of Aqaba. In the south, the border would be determined by negotiation with the Egyptian Government and in the west, by the Mediterranean Sea.128

This proposal advocated a Palestine-Transjordan boundary east of the Aqaba-Dead Sea-Jordan line. As a result of the Balfour Declaration, there was considerable British interest in extending Palestine’s eastern boundary in sympathy with Zionist aspirations. Both Ormsby-Gore and the Political Intelligence Committee of the Foreign Office advocated a boundary line that would have run east of the River Jordan but west of the Hijaz railway.129 In a memorandum dated 26 June 1919, Lord Balfour also provided sound economic arguments for the inclusion within Palestine of territory east of the Jordan: “[T]he eastern frontier should be so drawn as to give the widest scope to agricultural development on the left bank of the Jordan, consistent with leaving the Hijaz railway completely in Arab possession.”130 Britain’s military delegation at Versailles also argued for the retention within Palestine of territory east of the Jordan and for a port in the Gulf of Aqaba to constitute its south-eastern limit, mirroring the claims put forward by the Zionist delegation. This line was subsequently referred to as the Meinertzhagen line or proposal, named after its author, Colonel Meinertzhagen. While the Allied powers agreed at Versailles that

chap_03.fm Page 96 Thursday, October 10, 2002 8:54 AM

96

Determining Boundaries

Syria’s boundaries with Palestine and with British Mesopotamia should be confirmed, it was felt that the determination of boundaries south of the Anglo-French interface could wait. There was a tacit acknowledgment that many of them would be resolved by the British government. No doubt Britain also needed time to consider how it could possibly reconcile its commitment to Sherif Hussein and the Zionists in fixing the new boundary lines. A further complicating factor was the position as it existed on the ground; the oeta s continued to be defined in terms of the former Ottoman administrative divisions. Hashemites and Transjordan. Although Zionist lobbying had led to strong British support for extended Palestine boundaries, once the League Council had approved granting Britain the mandate for Palestine, local considerations began to weigh heavily. This aspect is emphasized by Hurewitz: Until late in April 1920 Britain’s strongest argument in the Supreme Council for an exclusive mandatory presence in Palestine derived from its support of Zionism and the Zionist request for a single protecting power as the only workable form of external tutelage. Once the Supreme Council approved placing Palestine in Britain’s custody Whitehall had to pay growing attention to the local and regional, and correspondingly less to Zionist, repercussions.131

Herbert Samuel, Britain’s first high commissioner in Jerusalem, advocated the annexation of Transjordan to Palestine.132 While he had earlier supported Meinertzhagen’s proposal, his annexation plan perhaps evidenced Britain’s growing realization that it was no longer possible to push for Palestine boundaries east of the River Jordan. To have done so would have been to break faith altogether with the Hashemites and the McMahon independence pledge, for if the McMahon-Hussein correspondence had left some doubt as to whether Palestine had been excluded from the area earmarked for Arab independence, “by no stretch of the imagination could any territory east of the Jordan line be considered exempt from McMahon’s pledge.”133 Britain’s foreign secretary, Lord Curzon, was determined that France should not find a foothold south of the Yarmuq River.134 However, rather than annexing Transjordan to Palestine, Curzon proposed that the political vacuum east of the Jordan should be filled by the establishment of an independent state that would nevertheless remain closely connected to Palestine. As for Palestine’s eastern boundary, Curzon declared: “The eastern boundary of Palestine will be fixed by agreement between us and the French down to the Sykes-Picot line but south of that line by agreement between us and local authorities.”135

chap_03.fm Page 97 Thursday, October 10, 2002 8:54 AM

97

Post–1918 Europe and the Near East

Curzon and Samuel had essentially different ideas of what constituted a good or bad political boundary. Ever since his days as viceroy of India, Curzon had championed natural or physiographic boundaries. In one of the few areas of the Middle East where prominent physical features existed, it was no surprise when Curzon advocated a natural, hydraulic boundary from the Tiberias down to the Gulf of Aqaba. Samuel, on the other hand, argued that a line down the River Jordan was a “bad frontier, strategically, economically and politically.”136 Curzon’s formula eventually won the day; his seniority over Samuel was undoubtedly the determining factor. By the end of 1920, Palestine was still without a fixed boundary in the east, and Transjordan’s territorial and political structure remained to be defined. British officials had by this time accepted that extending Palestine’s eastern boundaries into Transjordan was simply no longer a possibility if Britain was to maintain its ties with the Arabs in the region. Yet discussions continued concerning the future allocation of an area south of Lake Tiberias. Should Transjordan comprise all the territory east of the River Jordan after it left Lake Tiberias (Curzon’s natural boundary), or should Palestine retain the Semakh triangle to the south-east of Lake Tiberias? According to this second proposal, land on the east bank of the Jordan that lay to the south of the Yarmuq and that had been part of the Ottoman Qadhas of Tiberias and Janin until the Treaty of Sèvres, subsequently integrated within oeta South, would become Palestinian territory.137 In late November 1920, a first attempt was made to reconcile Britain’s contradictory war-time commitments. Sir Herbert Young of the Foreign Office argued that before World War I, Curzon’s natural hydraulic boundary had formed the western limits of the Ottoman Vilayet of Damascus: The western boundary of Damascus before the war was a line bisecting the lakes Huleh and Tiberias; following the course of the Jordan, bisecting the Dead Sea: and following the Wadi Araba to the Gulf of Aqaba … Palestine itself west of the Jordan was specifically excluded from these territories by Sir Henry McMahon’s letter of 24th October, lying as it does to the west of the District of Damascus.138

Britain would continue to advocate this line for the next year, even though Young’s justification for relying on the Aqaba-Dead Sea-Jordan line was flawed. As we have seen, Allenby’s Expeditionary Force was not of the opinion that the Tiberias-Aqaba line constituted the western limit of the Vilayet of Damascus. If it had, oeta South would not have been defined so as to include “plains east of Lake Tiberias and

chap_03.fm Page 98 Thursday, October 10, 2002 8:54 AM

98

Determining Boundaries

territory to the north and south of the Yarmuq river as far south as Qisr al Majame.” This conclusion is endorsed by Gil-Har: “It was obvious that Young’s interpretation did not coincide with the definition of Palestine as had been understood since the establishment of its Military Administration in October 1918.”139 Apart from the debate surrounding the interpretation of McMahon’s pledge, another controversy developed regarding the location of the Palestine-Transjordan boundary. Representatives of the Ajlun autonomous administration,140 which had been set up by Samuel in 1920, requested that areas east of the Jordan be encompassed within their administration. The lands in question had been confiscated by the Ottoman Empire in the 1870s and had been registered in the name of the Ottoman sultan Abdul Hamid. Initially, the lands to the north of the Yarmuk River had been administered by Tiberias and to the south by Ajlun. Following an Ottoman administrative reform in 1887, the territory to the south of the Yarmuk had been detached from Ajlun and transferred to the Beisan administration in the Kaza of Jenin. Ajlun officials pressed Samuel for the return of this territory within their administration. Commenting on the clauses of the Palestine Draft Mandate in December 1921, Samuel rejected the territorial definition of Transjordan in terms reminiscent of his controversy with the Ajlun administration. “Certain villages near Semakh north of the Yarmuk on the east side of the Jordan have always been included in the area of the Palestine Government, and there has been a long dispute, which is still unsettled, as to a certain area south of the Yarmuk which is claimed to be within the territory of the Transjordan administration.”141 The issue was again revived in July 1922 by St John Philby, chief representative in Amman, in connection with the Rutenberg concession for the production and supply of electricity in Palestine and Transjordan. According to Samuel, the well-being and stable political development of Palestine and Transjordan required a clear separation in their political status. This separating line should include within Palestine the areas of the Semakh triangle and the regions of the lower Yarmuk east of the Jordan, for three reasons: 1 The continuance of the government in the area ever since the establishment of the military administration. 2 The strategic importance of the area for the defence of Palestine. 3 The connection of the area to Rutenberg’s hydro-electric scheme.142 Samuel was convinced that economic and strategic considerations would ultimately prevail over Britain’s desire to be seen as acting consistently and fairly towards the Hashemites.

chap_03.fm Page 99 Thursday, October 10, 2002 8:54 AM

99

Post–1918 Europe and the Near East

According to Gil-Har, Samuel seemed deliberately to use unclear terms to define the area to the south of the Yarmuk.143 While he connected the northern section with the district of Galilee, the “regions of lower Yarmuk” were not specifically connected with the Beisan administration in the Kaza of Jenin. Therefore, when the Colonial Office accepted his reasons for the extended boundary, it referred only to the Galilee district: “As you suggest area east of Jordan hitherto included in Galilee district, should be left in Palestine by the definition of the boundary. South of the Dead Sea a line down the centre of the Wadi Araba down to Gulf of Akaba should be taken as the boundary.”144 In the same telegram, Winston Churchill agreed with Samuel’s assessment of the importance of retaining the Semakh triangle within Palestine: “Possible political objection to proposed boundary must I agree be outweighed by strategic and economic considerations.”145 Chuchill even came up with a geographic argument that might, in the Colonial Office’s opinion, serve as a trade-off and justify Britain’s u-turn: “If necessary you can explain that south of Dead Sea the boundary actually recedes west of Jordan while north of Dead Sea it encroaches slightly to the east of Jordan since point where Wadi Araba runs into Gulf of Akaba is considerably west of longitude of Jordan as it lies on longitude 35 east.”146 Samuel tried to rectify his earlier oversight and introduced the areas belonging to the Beisan administration in his draft definition of the boundary: “A line commencing from the Gulf of Akaba drawn up through the centre of Wady Araba, Dead Sea, River Jordan, Beisan and following the eastern Boundary of the Admistrative sub-district of Tiberias defines the boundary.”147 The Colonial Office, fearing that reference to Tiberias’ eastern boundary would mean nothing to the League Council, questioned the vagueness of Samuel’s definition but only with respect to Tiberias. No mention was made of the reference to Beisan, and perhaps the British officials were thinking of the town of Beisan:148 “Definition of the Boundary of Trans-Jordan … is not precise enough. Which bank of the Jordan constitutes the boundary? Does only half or the whole of the Dead Sea fall within Palestine? What is eastern boundary of Tiberias. An accurate geographical definition is required and wherever possible you should give approximate longitude or mention villages or natural features.”149 Within the next two days, Samuel had hastily redefined the boundary, this time excluding the area south of the Yarmuk from Palestine. No explanation was ever give for this sudden change. Gil-Har has speculated that perhaps Samuel felt pressed for time: “The boundary line because of Britain’s obligation to the League of Nations, was due to be published on 1 September 1922. Samuel, who thought that a clear-cut separation between Palestine

chap_03.fm Page 100 Thursday, October 10, 2002 8:54 AM

100

Determining Boundaries

and Trans-Jordan was vital for their development, decided to cut the political knot even at the cost of detaching a strip of territory from Palestine east of the Jordan.”150 Thus, after a minor modification to Samuel’s revised definition, Transjordan was defined as: “TransJordan comprises territory lying to the east of a line drawn from a point two miles west of the town of Akaba in the Gulf of that name up the centre of the Wadi Araba, Dead Sea and River Jordan to its junction with the River Yarmuk: thence up the centre of that River to the Syrian frontier.”151 Samuel agreed to publish this latest version, and on 1 September 1922, the Palestine-Transjordan boundary was announced under Article 86 of a Palestine Order in Council. This description of the Palestine-Transjordan boundary was approved by the League of Nations, and the language defining the boundary was actually incorporated within the text of the Palestine Mandate by decision of the League Council.152 The positive international sanction given by the League effectively transformed the British administrative line into an international boundary. 3.5.5

Conclusion

If the outcomes of the Aaland Islands dispute and the Taba case could appear at first glance to be an application of the uti possidetis doctrine, the final definition of the Palestine-Transjordan boundary clearly was not influenced by the uti possidetis principle. It is obvious from maps and official statements at the time that British authorities possessed all the necessary information but chose to disregard the existing Ottoman administrative divisions. Even if it is accepted that the Sanjaqs of Nablus and Acre did extend beyond the River Jordan and across to its east bank, it can be seen from the various maps that territories included in these sanjaqs also extended south of the Semakh triangle into what is now Jordan. These territories lying south of the Semakh triangle were not included within Palestine. Rather, the British government carved out of the former Ottoman divisions the portion of territory named the Semakh triangle and included it within the territory of Palestine for political and strategic reasons. The principal Allied and associated powers, acting in consequence of their victory over Turkey in World War I, simply redrew the map of the region according to political, economic, and military imperatives. There appears to have been no discussion of the application of the uti possidetis doctrine to the question of the Palestine-Transjordan dividing line. It is therefore difficult to reconcile the notion of uti possidetis as a general principle of international law with its obvious absence from the discussions and negotiations leading up to the establishment

chap_03.fm Page 101 Thursday, October 10, 2002 8:54 AM

101

Post–1918 Europe and the Near East

of the Palestine-Transjordan boundary. Perhaps the parties involved in the negotiations thought that the principle of uti possidetis only applied once independence had been attained, as in the case of the Aaland Islands dispute. Britain might not have felt compelled to respect the internal Ottoman boundaries during its colonial rule in the Middle East, as Palestine and Transjordan were merely on the road to independence. Unlike the 1906 Egyptian-Ottoman boundary, none of the Ottoman lines dividing the territory of mandated Palestine and Transjordan had ever acquired a quasi-international status.

3.6

conclusion

In examining the role played by uti possidetis in the aftermath of World War I, we have focused on one fundamental question: if uti possidetis had become a general principle of international law subsequent to its application in the decolonization of Latin America, what influence did it exert in the unprecedented boundary redrawing that took place in the postwar period? The dispute between Sweden and Finland over the Aaland Islands initially appeared to be at least one example in which uti possidetis had determined the final outcome: Finland’s boundaries under the Russian Empire were respected once independence had been achieved. Yet a closer examination of the historical background to the dispute and an analysis of the two expert reports submitted to the League Council on the Aaland question revealed no mention of the doctrine of uti possidetis. Among numerous factors – geographical, historical, and political – the principle of uti possidetis seemed to have had little or no articulated impact. Rather, the commission of rapporteurs emphasized Finland’s autonomy under Russian rule and noted that for over a century it had possessed well-defined boundaries that had included the Aaland Islands. It also relied on acts of authority performed by the Finnish government on the islands in the months following its declaration of independence to conclude that Finland’s sovereignty in 1917–18 had extended to the Aaland Islands. The League was also very anxious to restrict the newly defined self-determination principle within reasonable limits. These considerations and interests rather than any application of the uti possidetis principle account for the ultimate resolution of the Aaland Islands dispute in favour of Finland. Our second case study, the adoption of the Egyptian-Ottoman boundary line as the international boundary between Palestine and Egypt, also appeared at first glance to be an application of the Latin American uti possidetis principle. A detailed examination of the events leading up to the Rafah agreement in 1906 as well as British-Egyptian-Turkish

chap_03.fm Page 102 Thursday, October 10, 2002 8:54 AM

102

Determining Boundaries

correspondence in the decades following the demarcation of the Sinai boundary appeared to indicate, however, that the Rafah-Aqaba boundary line was not a mere internal division between two entities subject to a common sovereign. For the reasons outlined more fully above, it seems fairly clear that as of 1906 the Sinai boundary possessed an international character and that the sultan was not free to unilaterally modify it. Furthermore, no mention of the uti possidetis principle was found in any of the agreements, correspondence, despatches, or announcements examined. Finally, the case of the Palestine-Transjordan line can in no way be seen as an application of the uti possidetis principle. Despite having all the necessary information with respect to the prior Ottoman divisions in the region, Britain created a boundary line in accordance with its own political objectives. In the wake of the Allies’ victory over the Ottoman Empire, and in setting up its administration of Palestine and Transjordan, Britain clearly did not feel bound by any international legal principle. The Aaland Islands dispute, the determination of the southern boundary of mandated Palestine, and the creation of a dividing line between Palestine, and Transjordan were all discussed and resolved in the decade immediately following the conclusion of peace in 1918. At the very same time that the League of Nations and state officials struggled to find just and acceptable solutions, a number of Latin American republics were submitting their territorial disputes to arbitration according to the principle of uti possidetis. Except for Lapidoth’s dissenting judgment in the Taba case, no actual reference to the principle of uti possidetis was found in any of the official documentation and correspondence. Nor is there any evidence that the uti possidetis principle influenced in any way the resolution of these disputes. Had uti possidetis achieved the status of a binding, general principle of international law, it would undoubtedly have influenced the outcome of the three cases considered in chapter 3. It is doubtful, therefore, whether uti possidetis in relation to existing internal administrative boundaries can be considered a general principle of international law during the decades immediately following World War I.

chap_04.fm Page 103 Thursday, October 10, 2002 8:55 AM

Looking at the map of Africa, if one sees boundaries as the “scars of history,” it seems quite evident that Africa has had a pretty rough time during its history. Samuel Chime

4 Africa

4.1

introduction

Throughout the nineteenth century, European colonial powers drew lines across the African continent, both to define their respective possessions and to subdivide their own empires for administrative purposes. It is a commonplace that European expansion in Africa produced territorial divisions that bore little or no relation to the character and distribution of local populations.1 Prior to independence, many African political parties advocated the readjustment of these artificial boundaries to accord with local realities. The revisionist movement culminated in the resolution proclaimed by the All-African Peoples Conference held in Accra in December 1958, which called for the abolition or readjustment of colonial frontiers at an early date.2 However, the 1958 Accra resolution was adopted at a time when very few African nations had attained independence. With the emergence of the majority of African colonies as independent states, the widespread rejection of inherited borders gradually gave way to their almost unanimous acceptance.3 In the period of independence, African leaders debated the principles of regional organization, and in 1963 the Organization of African Unity (oau) was created. The outcome of the debate was the adoption of a general program of African unity, but in practical terms this was to be based upon a unity of action between independent states. Article 3(3) of the oau Charter affirmed every member’s adherence to

chap_04.fm Page 104 Thursday, October 10, 2002 8:55 AM

104

Determining Boundaries

“respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.”4 As an important aspect of the policy-making of this period, the members of the oau, meeting in Cairo the following year, adopted a resolution in which the Assembly of Heads of State and Government reaffirmed “the strict respect by all member States of the Organization for the principles laid down in Article III, paragraph 3 of the Charter” and declared “that all member States pledge themselves to respect the frontiers existing on their achievement of national independence.”5 Many commentators have argued that this respect for boundaries inherited from the colonial past is simply the application in the African context of the Latin American principle of uti possidetis.6 Indeed, the Charter and the resolutions of the oau are considered strong evidence that the uti possidetis principle has had a major impact in the decolonization of the African continent. One such commentator is Quéneudec: “It was therefore possible to consider, from that time, that the heads of State and of government meeting at Addis Ababa in 1963 had defended ‘the principle of an African uti possidetis.”7 It is therefore our purpose in this chapter to consider whether African state practice during the period of independence with respect to internal boundaries can be assimilated to the Latin American principle of uti possidetis juris. However, the comparison with the Latin American precedent is valid only with respect to those African boundary lines which prior to independence divided territories belonging to the same colonial power – for, as defined by the Latin American republics, uti possidetis was concerned with internal administrative boundaries. Consequently, in assessing the impact of the uti possidetis principle in Africa, those boundaries settled through international agreements between two or more colonial powers will not be taken into account as they raise quite separate issues. Of the remaining thirty intracolonial boundaries, the reorganizations and the ultimate determination of the boundaries in French territories will be our main case study. After a brief history of the partition of Africa, we will consider the territorial organization of French West Africa and French Equatorial Africa as well as the boundary regime between the British colonies of Kenya and Uganda. We will then examine the attitudes of the new African states to the determination of their boundaries and attempt to determine the influence exerted by uti possidetis in this process. Finally, a comparative analysis of the Latin American uti possidetis principle and the African status quo doctrine will be undertaken in order to discover whether there can accurately be said to be an ‘African uti possidetis.’

chap_04.fm Page 105 Thursday, October 10, 2002 8:55 AM

105

4.2

Africa

brief history: the ‘scramble’ for africa

Until the latter half of the nineteenth century, the impact of Europe upon Africa in general terms was relatively minor. European trade with Africa prior to 1880 constituted only a small part of the total foreign commerce of Europe. By the late 1870s, however, the increasing activity in Africa by explorers, merchants, and missionaries led not only to a greater impact upon indigenous societies but also to a growing awareness in Europe’s political capitals of the advantages to be derived from a more forward policy in Africa. According to Hertslet, the ‘scramble’ for Africa may be said to have commenced in earnest about the year 1882, when a Belgian expedition known as the International Association of the Congo started for the Upper Congo and Niadi-Quillou. The association entered into treaties or ‘contracts’ with certain native chiefs and obtained important territorial and other rights over their territories.8 The principal European powers occupying territory in Africa in 1882 were Great Britain, France, Portugal, and Spain. At that time, neither the king of the Belgians (later sovereign of the Congo Free State), nor Germany, nor Italy held any recognized possessions in Africa.9 In 1884, a German colonization society penetrated the Kilimanjaro and other districts of eastern Africa and concluded treaties with native chiefs in order to obtain territorial concessions and other rights. At about the same time, other German explorers visited the southwest coast of Africa (Namaqualand and Damaraland) and the west coast (the Cameroons district), and concluded protection treaties with native chiefs. However, British agents had also concluded treaties with local chiefs in these various districts, and disputes ensued between Great Britain and Germany.10 As the attention of all the principal powers of Europe was focused on the African continent, Bismarck convened a conference in Berlin to establish the principles that would govern the colonization of Africa. Uppermost in the minds of the organizers was the fear that a territorial dispute in Africa might become the direct cause of an armed conflict between the European powers.11 Accordingly the great nations of Europe met in Berlin to draw up the rules for the “great game of scramble.”12 Great Britain, Austria-Hungary, Belgium, Denmark, France, Germany, Italy, the Netherlands, Portugal, Russia, Spain, Sweden and Norway, Turkey, and the United States were represented by plenipotentiaries.13 The conference held its first meeting on the 15 November 1884 and concluded on 26 February 1885 with the

chap_04.fm Page 106 Thursday, October 10, 2002 8:55 AM

106

Determining Boundaries

signing of a general act known as the Berlin Act, which recorded the result of the deliberations.14 The Berlin Act recognized European spheres of influence in Africa and stipulated new rules: “occupations on the coast of Africa in order to be valid must be effective, and any new occupation on the coast must be formally notified to the Signatory Powers.”15 These requirements of effective occupation and notification referred strictly to acquisitions on Africa’s coasts and did not extend to acquisitions or protectorates in the interior. In accordance with this understanding, Great Britain, France, Germany, Italy, and Portugal notified each other of the various protectorates that they had assumed on the coasts. When spheres of influence had been established according to the rules of the Berlin Act, they were then extended inland from short stretches of coast giving rise to a pattern of long narrow colonies. In addition to these formal notifications, agreements were entered into between the European powers to define their respective boundaries and spheres of influence in the interior of the African continent and over the neighbouring islands, as well as on the African coasts. The majority of African boundaries were thus delimited between 1884 and 1904, and the partition was effectively completed by 1920. The speed with which the partition took place required that boundaries be quickly agreed upon. Most delimitation agreements were negotiated before detailed knowledge of terrains and peoples was available. As Lord Salisbury declared in 1890: “We have been engaged … in drawing lines upon maps where no white man’s feet have ever trod; we have been giving away mountains and rivers and lakes to each other, but we have only been hindered by the small impediment that we never knew exactly where those mountains and rivers and lakes were.”16 Consequently, the vast majority of the boundaries were defined in terms of astronomical or mathematical criteria or by reference to prominent physical features. For example, a Franco-British declaration in 1899 delimited the French sphere of influence in the following terms: [T]o the north of the 15th parallel the French zone shall be limited to the north-east and east by a line which shall start from the point of intersection of the Tropic of Cancer with the 16th degree of longitude east of Greenwich (13°40′ east of Paris), shall run thence to the south-east until it meets the 24th degree of longitude east of Greenwich (21°40′ east of Paris), and shall then follow the 24th degree until it meets, to the north of the 15th parallel of latitude, the frontier of Darfour as it shall eventually be fixed.17

Germany insisted on having access to the Zambesi, so the finger of the Caprivi strip was drawn on Europe’s map of Africa. The Katanga

chap_04.fm Page 107 Thursday, October 10, 2002 8:55 AM

107

Africa

pedicle, defined by a watershed that officials could hardly find when they went to look for it, fortuitously divided the central African copperbelt. In this way, Africa was divided up and provided with its colonial boundaries. When doubts arose, the straight line was employed: lines of latitude and longitude or, failing those, any straight line. As Griffiths explains: The scramble was a division of Africa by Europeans for Europeans. Its geographical importance lies in the fact that the colonial boundaries became the territorial framework for African independence. The political map of colonial Africa was virtually complete by 1914 and there has been little subsequent change. During the next 50 years, that colonial boundary mesh would become the almost exact basis for territorial division of independent Africa which would then be fossilized by the resolution of the Organization of African Unity in 1964.18

4.3

un i l at er a l or i n tr ac o lo n i al boundaries

Two different kinds of boundaries can be distinguished in the process of boundary-making in Africa. The first kind, involving boundaries between territories possessed by different metropolitan powers, will be referred to as ‘boundaries established by international agreement.’ The second, concerning boundaries separating territories belonging to the same European power, will be labelled ‘unilateral boundaries’ because they were fixed by the unilateral act of a single government.19 Respect for the many African boundaries established ‘by international agreement’ can readily be understood according to the doctrines of stability of boundaries and state succession.20 In order to determine whether respect for the various unilateral or intracolonial boundaries can be attributed to the influence of the uti possidetis doctrine, it will be useful to consider a few examples. 4.3.1

French West Africa – Afrique Occidentale Française

During the first half of this century, France ruled her African mainland possessions in two large federal blocks, Afrique Occidentale Française (aof, 1902) and Afrique Équatoriale Française (aef, 1908). Administered by governors-general at Dakar and Brazzaville respectively, the federations returned elected African representatives to the French National Assembly in Paris. Although they did not include the territories of Togo and Cameroun, the federations were enormous: aof with eight territories covered 1.8 million square miles (4.7 million square

chap_04.fm Page 108 Thursday, October 10, 2002 8:55 AM

108

Determining Boundaries

kilometres) and aef with four territories covered 1 million square miles (2.5 million square kilometres), making both larger than Africa’s largest independent state today.21 Before French dominance in western Africa, the territory had been divided into a considerable number of independent regions, each occupied by different ethnic groups. French administration divided aof into eight colonies (Mauritanie, Sénégal, Soudan, Niger, Dahomey, Côte d’Ivoire, Guinée française, and Upper Volta)22 and one independent district (Dakar), which together formed the gouvernement général de l’aof.23 The governor-general of aof, assisted by a conseil de gouvernement, was the highest representative of the French republic throughout the territory and directed and commanded the heads of the various colonies. The conseil de gouvernement was both a financial and legislative assembly, responsible for, among other things, the determination of administrative districts. Each colony was divided into a certain number of administrative districts called cercles, which could in turn contain one or more subdivisions. Several cercles could eventually be united to form a region or territory, as in the case of the Tombouctou region in French Sudan and the Casamance territory in Senegal. These various administrative units were separated by internal boundary lines that were subjected to frequent modifications. As unilateral (or intracolonial) boundaries were under the control of a single metropolitan power, they were modified much more frequently during the colonial period than boundaries established by international agreements. Various factors prompted these boundary readjustments. Some changes were dictated by the political preferences of the French government. Others were prompted by local administrative and economic considerations or simply reflected the desire of colonial administrators to improve boundaries that, in the light of experience, they regarded as inconvenient. Mali, formerly known as French Sudan, provides an excellent example of these frequent boundary adjustments in French West Africa. Its history of transformation is described by Touval: French Sudan was established in 1890 as a distinct administrative entity. In 1899 it was abolished and dismembered, and parts of it were attached to each of the neighboring territories. In 1902 a new colony under the name of Senegambia and Niger was created. In 1904 the western parts of the colony were detached, and its name was changed to Upper Senegal and Niger. The eastern part of the colony was detached in 1919 and included in the new colony of Upper Volta. Consequently, the reduced territory of Upper Senegal and Niger was renamed French Sudan. In 1932 Upper Volta was abolished, and two of its cercles comprising some 50,000 square kilometres and containing approxi-

chap_04.fm Page 109 Thursday, October 10, 2002 8:55 AM

109

Africa

mately 700,000 inhabitants were attached to Sudan. In 1944 parts of four cercles were transferred from Sudan to Mauritania. In 1947 the two cercles acquired in 1932 from Upper Volta were detached from Sudan and returned to Upper Volta, which was reconstituted as a separate territory.24

Other examples can be cited. In 1903, the southern frontier of Mauritania was aligned with the Senegal River, dividing in two the Toucouleur nation and the Soninke, who had never been subjected to Moorish authority prior to the French conquest. However, in 1944, and for no better reason, according to Tran Van Minh, than a passing whim of Governor Laigret, the immense territory of Hodh was detached from Mali and transferred to Mauritania.25 The fate of Upper Volta illustrates the diverse considerations that might lead to boundary changes. By a decree of 1 March 1919, the Colony of Haut Sénégal et Niger was divided, and the new Colony of Upper Volta was constituted. The decision to establish the new territory was a result of an administrative policy designed to introduce greater reliance on traditional institutions following the Niger revolt in 1916. However, by a decree of 5 September 1932, the colony was abolished, and its administrative divisions were absorbed by the neighbouring territories of Sudan, Niger, and the Ivory Coast. In 1947, Upper Volta was reconstituted as a separate territory, and the districts annexed by each of the neighbouring territories in 1932 were detached from them and reincorporated into the colony. The re-establishment of Upper Volta in 1947 was essentially motivated by the desire of the French government to limit the influence among the Mossi people of the Rassemblement Démocratique Africain (rda), an interterritorial political party in French Africa, which at the time maintained close ties with the French Communist Party. The territory of French West Africa was also subjected to other reorganizations in addition to those affecting French Sudan and Upper Volta. A series of decrees and decisions promulgated between 1899 and 1938 modified and redefined the limits of its constituent units.26 The initiatives and proposals of one colonial governor were often met by the opposition and counterarguments of another governor from a neighbouring French colony. For example, in 1949, the high commissioner of French West Africa proposed to the governor of French Sudan a transfer of the Sénoufo-inhabited areas of Sudan to the colony of Upper Volta. Touval recounts that the governor of French Sudan opposed the transfer on a number of grounds: (1) it was desirable to maintain the administrative organization of the territory …; (2) historically, the area in question was part of Sudan; (3) politically,

chap_04.fm Page 110 Thursday, October 10, 2002 8:55 AM

110

Determining Boundaries

the transfer might weaken the Sudanese progressive party (psp) affiliated with the French Socialist party, and strengthen the rda, which was linked with the Communists; and (4) the transfer would harm the economy of Sudan.27

These arguments reflected the many considerations that could be deemed relevant by colonial authorities in deciding boundary changes. 4.3.2

French Equatorial Africa – Afrique Équatoriale Française

French Equatorial Africa was made up of four colonies: Gabon, MoyenCongo,28 Oubangui-Chari,29 and Tchad. It was administered by a governor-general at Brazzaville and by lieutenant-governors in each of the colonies. According to Grandidier, the internal divisions of aef were also subjected to numerous changes during the colonial period and consequently never achieved permanency or stability: The limits of these various colonies have often varied and nothing guarantees that the actual limits are definitive, for they must take into account means of transportation and ethnographic considerations, the first in question being variable while the second have not always been sufficiently taken into consideration. We have not had the limits of the circonscriptions and subdivisions traced on the map … for these limits are even less settled than those of the colonies.30

Brownlie provides a concise survey of these various territorial reorganizations within French Equatorial Africa.31 aef was preceded by the organization of Gabon, Moyen-Congo, Oubangui-Chari, and Tchad into a grouping called Possessions du Congo Français et Dépendances established by a French decree on 29 December 1903.32 A decree of 11 February 190633 described the limits of the four entities that were later to form French Equatorial Africa. The first organization of French Equatorial Africa was accomplished by a decree dated 15 January 1910.34 The new entity included the colonies of Gabon, Moyen-Congo, and Oubangui-Chari-Tchad, the last including the Territoire militaire du Tchad. Further reorganization and centralization of French Equatorial Africa was accomplished by a decree of 30 June 193435 that also conferred upon the four units the status of regions. Additional territorial reorganizations were also effected by the decrees of 29 April 193636 and 24 July 1936.37 A final version of the latter two measures was announced in the decree of 28 December 1936.38 In addition to these various general measures, the boundaries between the four units were also modified. For example, the French

chap_04.fm Page 111 Thursday, October 10, 2002 8:55 AM

111

Africa

administrative division between Tchad and Oubangui-Chari during the colonial period varied considerably and appears only to have been settled in a general way in 1941 or 1942. Brownlie reports that the division between the Territoire du Oubangui-Chari and the Territoire militaire du Tchad (as it then was) was first established by a decree of 27 September 1909, and subsequently modified by a decree of 30 July 1912.39 The administrative divisions of Gabon as well as the frontiers of Moyen-Congo and Oubangui-Chari were also reorganized following the decree of 30 July 1912. A further decree on 30 March 1918 modified the boundaries of Gabon and Moyen-Congo.40 Between 1925 and 1936, Moyen-Chari (a circumscription) was allocated to OubanguiChari. However, in 1936, Logone and Moyen-Chari were restored to Tchad,41 and their status was not affected by administrative reorganizations of French Equatorial Africa in 194142 and 1946.43 4.3.3

French Africa and the Path to Independence

The French Constitution of 1946 reaffirmed the integration of aof and aef into the French republic. Initially, only the designation of the colonies changed; the federal units were renamed territoires d’outre-mer. In the period from 1946 to 1955, the French republic attempted to fully integrate the territoires into the French state by gradually recognizing equal legal status for the inhabitants of the French colonies. Having until 1946 possessed only French nationality, the native inhabitants of the colonies also acquired citoyenneté and the basic rights guaranteed by the French Constitution, including the right to vote and to be elected. These political changes facilitated the gradual development of the organs of self-development and enabled French compétences to be transferred to these organs. The full integration policy, however, quickly proved impractical since representation in the state organs of the French republic proportionate to the African populations would have led to a “colonization of the motherland.”44 Under growing pressure from the colonies to recognize full equality with respect to basic democratic rights, the French government in 1955 shifted away from integration towards a policy of self-administration. Under the Loi Cadre of 1956, the federal structures of aof and aef were abandoned in favour of an administration based on individual territories. The Loi Cadre also conferred upon the territories the right to elect between several different options, including at one end of the spectrum the transformation of the overseas territories into overseas administrative departments and, at the other, the status of autonomous states within the French Communauté. Furthermore, General de Gaulle declared that the population of each African territory could

chap_04.fm Page 112 Thursday, October 10, 2002 8:55 AM

112

Determining Boundaries

decide in referenda for or against the Loi Cadre. A vote rejecting the Loi Cadre resulted, as the example of Guinea demonstrated, in immediate and unsupported independence. The great majority of the French territories opted for autonomy within the French Communauté. These territories enjoyed far-reaching powers in their own domestic sphere; only matters of common foreign, defence, and economic policy were reserved for the French Communauté. In a futher bid to accommodate African aspirations, the 1958 Constitution conferred on the French overseas territories full decisionmaking powers regarding their future legal status, including their ties to the French republic. While the path to independence had been envisaged as a gradual one, the French government, under increasing pressure from the Algerian conflict, was compelled to move its overseas territories en masse towards independence, irrespective of individual preparedness.45 A total of fourteen French African colonies were granted independence in 1960. 4.3.4

British African Possessions

The Kenya-Uganda border provides a further example of intracolonial boundary modification. The region now constituting the States of Uganda and Kenya was recognized as a British sphere of influence by an exchange of notes between Britain and Germany in 188646 and by the Anglo-German agreement of 1 July 1890.47 In 1896, various territories previously placed under British protection were consolidated as the East Africa Protectorate.48 The northern limit of the East Africa Protectorate (the River Juba) marked the division of spheres of influence as arranged with Italy in 1891. In 1920, the East Africa Protectorate was annexed and became the colony of Kenya, with certain territories under the sultan of Zanzibar retaining the status of protectorate. The parcel of territory bearing the name the Uganda Protectorate varied considerably in extent from its establishment in 1894, when it comprised the Kingdom of Buganda.49 An agreement between Great Britain and the kabaka of Buganda dated 10 March 1900 provided that its eastern frontier would lie near Lake Naivasha (in the south) and cut through Lake Rudolf (in the north).50 However, consolidation of British administrative control over the protectorate was very hesitant and episodic. Apart from political indecisiveness in London, other reasons accounted for Britain’s tentative approach to the determination of frontiers: “In the first place, the nature of the ‘limited’ Protectorate and relations with the traditional Kingdoms of Buganda, Toro and Ankole were somewhat provisional … Secondly, the eastern frontier was regarded as a matter of administrative policy rather than a ques-

chap_04.fm Page 113 Thursday, October 10, 2002 8:55 AM

113

Africa

tion of substantial importance.”51 Immediately to the east lay the British East Africa Protectorate, and in the period between 1900 and 1902, its merger with the Uganda Protectorate was a much debated possibility. Unsuccessful proposals by Sir Harry Johnston and others for an East Africa Federation resulted in the transfer on 1 April 1902 of a large part of eastern Uganda to the British East Africa Protectorate. The transfer included the Eastern Province, the southern part of the Elgon district of the Central Province, and the southern portion of the Rudolf Province. The transfer was effected by an order of the British secretary of state dated 5 March 1902,52 and the territories became the Provinces of Kisumu and Naivasha of the East Africa Protectorate. The transfer was motivated by administrative considerations, as Sir Clement Hill, the superintendent of the African protectorates administered by the British Foreign Office, believed that the transfer would allow closer supervision of the area than was possible under Uganda’s administration.53 He also considered it desirable that the whole of the territory traversed by the Uganda railway be placed under one administration.54 The transfer called for the delimitation of a new boundary. At first, a new border following natural features was considered by Sir Clement, but in the end, the boundary was delimited by local officials, who had better knowledge of the frontier area. The principle on which the demarcation proceeded was primarily that of avoiding tribal division so that, for example, all of the Kavirondo would be within East Africa. The prevalence of intertribal raiding, however, made it desirable that administrative criteria be taken into account, and some exceptions were made on these grounds.55 In some sectors, including Mount Elgon, precise adherence to tribal divisions proved impossible: “It was an indication of the weight given to administrative considerations that the boundary which finally emerged was ‘merely provisional.’ It was amended in 1910 after effective administration had been established in the region and additional administrative experience attained.”56 In 1910 a minor adjustment was made involving a transfer by Uganda in the Mount Elgon region. In 1926, the remaining part of the Rudolf Province of Uganda was transferred to Kenya57 by an order in council dated 1 February 1926.58 Administrative control had already been transferred de facto in 1919. The boundary across the crater of Mount Elgon was further altered in 1936 by a letter dated 7 March 1936 from the colonial secretary of Kenya to the chief secretary of Uganda. The 1926 alignment, as adjusted in 1936, remained unchanged until Uganda became independent on 9 October 1962. However, an anomalous situation arose in 1931 when the two neighbouring governments agreed that, for reasons of convenience, a region of Kenya would be provisionally administered as part of Uganda. No formal transfer of

chap_04.fm Page 114 Thursday, October 10, 2002 8:55 AM

114

Determining Boundaries

territory was involved, however, and the area concerned remained within the legal boundaries of Kenya.59 Although never intended as a permanent solution, this region of Kenya known as Karasuk was administered as part of Uganda for over thirty years, from 1932 to 1970. In this way, at the date of independence (Uganda on 9 October 1962 and Kenya on 12 December 1963), the de jure boundary between the two states did not coincide with the de facto limits of Ugandan administration. However, acknowledging the intended provisional nature of the initial agreement, both governments agreed in 1970 to restore the limits of Ugandan jurisdiction to the 1926 alignment, which was accepted as the international boundary. 4.3.5

Boundaries at Independence

By the 1950s, territorial adjustments had for the most part been completed in aof and aef and between the British colonies of Kenya and Uganda. Though some of the later administrative decisions had transferred significant territories from one colony to another, the French and British colonies nevertheless accepted as their international boundaries the colonial alignments existing at the date of independence. With respect to those boundaries examined, Brownlie reports: mali – upper volta: In principle the alignment depends upon administrative practice in the colonial period … As a matter of principle the boundary is that of the colonial unit of Upper Volta created in 1919, abolished in 1932 and reconstituted – as it had been in 1932 – in 1947.60 central african empire – chad: No international agreements relate to the boundary but since independence both neighbours have accepted the alignment by acquiescence … The alignment is the French administrative division between Chad and Oubangui-Chari at the time of independence.61 congo (brazzaville) – gabon: No international agreements relate to the boundary but since independence both States have accepted the alignment by acquiescence … The alignment is the French administrative division between Moyen-Congo and Gabon as it was immediately prior to independence.62 kenya – uganda The alignment results from the boundary description in the Order in Council of 1926 … Since independence the two States have accepted the principle of the alignment.63

This record of uncertainty, adjustment, and change raises the question: to what extent did the African states feel compelled to respect the

chap_04.fm Page 115 Thursday, October 10, 2002 8:55 AM

115

Africa

former administrative boundaries established by the colonial powers? In particular, did the Latin American uti possidetis juris principle influence the attitude of the African states with respect to their frontiers? A consideration of attitudes and positions during the various Pan-African conferences may help provide the answer.

4.4

pan-african conferences, 1945–1964 Prior to independence, African attitudes … were somewhat ambiguous and reflected a general dissatisfaction with the colonial boundaries that had created a variety of Europeandelimited territories. It appeared that a general campaign of frontier rearrangement was under consideration.64

In the development of Pan-Africanism, the conferences organized by W.E.B. Dubois after World War I played an important role.65 These conferences, however, focused primarily on questions of racial equality and humane colonial policies. Boundaries and their effect on the indigenous inhabitants attracted little attention and were not addressed until the Pan-African conference held in Manchester, England, in 1945. While the Manchester Conference did discuss the West African and Ethiopian boundary problems, it did not consider the question of African boundaries in general. The conference passed a resolution concerning West Africa which declared “that the artificial divisions and territorial boundaries created by the Imperialist Powers are deliberate steps to obstruct the political unity of the West African peoples.”66 Many factors accounted for African discontent with colonial boundaries, from the artificial nature of such entities in geographical, ethnic, and economic terms to the psychological effect of the European partition of Africa.67 African nationalists viewed the frontiers as humiliating reminders of the way in which their territories had been carved up by the colonial powers.68 This encouraged pre-independence African political parties to think in terms of the readjustment of colonial boundaries once independence had been achieved. The high point of this approach and the boldest call for boundary revisions occurred at the first All-African Peoples Conference held in Accra in December 1958.69 It was included in a series of resolutions entitled Frontiers, Boundaries and Federations, of which there were four parts. The third of these denounced the artificial frontiers of Africa, and the text read in part: Be it resolved and it is hereby resolved by the All-African Peoples Conference that the Conference:

chap_04.fm Page 116 Thursday, October 10, 2002 8:55 AM

116

Determining Boundaries

(a) denounces artificial frontiers drawn by imperialist Powers to divide the peoples of Africa, particularly those which cut across ethnic groups and divide people of the same stock; (b) calls for the abolition or adjustment of such frontiers at an early date.70

Boundary readjustment, and even abolition, was seen as a desirable prelude to the formation of regional groupings based on cultural, linguistic, and religious affinity that would eventually become an African Commonwealth. President Nkrumah of Ghana was the leading advocate of the rearrangement and eventual removal of international boundaries in Africa, and the following year he would call on the Sanniquellic Conference to examine methods of “eradicating the artificial divisions and boundaries which are responsible for the Balkanisation of our continent.”71 But the revisionist movement ran into the need for pragmatic solutions in the post-independence period. Indeed, once independence had been achieved, African leaders soon realized the risk involved in abolishing the entire colonial territorial framework or in systematically revising all existing boundary regimes. Such a policy would inevitably have raised the spectre of endless conflict. This new attitude towards inherited boundaries was already evident at the fifteenth (1960) and sixteenth (1961) sessions of the un General Assembly. In 1960, African leaders were called upon to take a stand on the issue of colonial boundaries when Mauritania’s admission to the un was debated. Morocco argued that Mauritania was an artificial, colonial creation whose territory rightly belonged to it. While these claims received some support from the Arab and Communist states, the majority of African states rejected Morocco’s claims.72 As indicated by Tredano: “[T]he black francophone African States, already independent, took up the cause of this new entity while fiercely opposing Morocco’s claims, which were deemed expansionist. One and all acted in the name of the principle of the colonial territorial status quo.”73 This position was reiterated on the eve of Algeria’s independence. This time the territorial status quo was enforced against France, who sought to detach from Algeria a part of the Sahara Desert.74 The Congo crisis in 1960 was also an important landmark as the Katanga region sought to secede. At the Leopoldville Conference in August 1960, the secession was condemned, and at the Monrovia Conference in 1961, African states were called upon to desist from such activities as the hasty recognition of breakaway regimes. At its Lagos Conference in 1962, the Monrovia Group75 proclaimed its adherence to the principle of respect for existing borders. The conference also adopted the Charter of the Inter-African and Malagasy Organization, which

chap_04.fm Page 117 Thursday, October 10, 2002 8:55 AM

117

Africa

emphasized at Article 3 “respect for the sovereignty and territorial integrity of each State” and which stressed at Article 5 that “each State has the right of defence of its territorial integrity.”76 While the vast majority of African states by the early 1960s acknowledged the desirability of preserving the territorial status quo, a few states did dissent. Morocco continued to claim Mauritania, Spanish Sahara, as well as parts of Algeria and Mali on historical grounds, while Somalia pursued its goal of a Greater Somalia, seeking to reunite all Somali tribesmen under Ethiopian and Kenyan authority. Even among those states that recognized its expediency, the principle of the status quo was not accepted without some resentment. For instance, a dispute between Mali and Mauritania concerning the interpretation of French decrees delimiting their mutual border was complicated by a residue of resentment in Mali against France’s transfer of Malian territory to Mauritania as late as 1944.77 4.4.1

Inaugural Conference of the Organization of African Unity

When the Conference of Independent African States met at Addis Ababa in May 1963, several events served to remind the assembled leaders that territorial disputes constituted a pressing problem.78 One was the absence of King Hassan of Morocco, who boycotted the conference on the grounds that Mauritania, which was still claimed as Moroccan territory, had also been invited. The intrusion of the Somali dispute into conference proceedings was another reminder.79 An address by the Somali president to the conference in which he justified the Somali position in its territorial dispute with Ethiopia and Kenya provoked a dramatic incident.80 Other heads of state spoke of border problems in more general terms. In his speech, President Kwame Nkrumah of Ghana referred to the existing boundary disputes as justifying the call for a political union of African states on a continental scale: “[O]nly African Unity can heal this festering sore of boundary disputes between our various States.”81 The majority of states, however, argued that the existing borders should be maintained, fearing that practical attempts at reshaping the map of Africa might well prove disastrous. In the words of President Tsiranana of Madagascar: “It is no longer possible, nor desirable, to modify the boundaries of Nations, on the pretext of racial, religious or linguistic criteria … Indeed, should we take race, religion or language as criteria for setting our boundaries, a few States in Africa would be blotted out from the map.”82 President Modibo Keita of Mali also declared: “[W]e must take Africa as it is, and we must renounce any territorial claims, if we do not wish to introduce what we might call

chap_04.fm Page 118 Thursday, October 10, 2002 8:55 AM

118

Determining Boundaries

black imperialism in Africa.”83 These remarks, and similar views expressed by other delegates, represented the overwhelming opinion of the conference. The vast majority of states, notwithstanding the Moroccan and Somali objections, endorsed the supremacy of the principle of territorial integrity. Despite the attention that the question of boundaries received, the matter was not explicitly referenced in either the oau Charter or the resolutions of the conference. No doubt the African leaders felt that opinions on the subject were too divided. Touval argues that as the participants of the conference regarded the adoption of the Charter as their principal objective, “nothing was done which could have prevented its unanimous approval.”84 Padelford appears to confirm this interpretation of the events, reporting that the heads of state were urged “in the name of all our peoples” to adopt the draft Charter, lest history “never forgive us for it shall not give us another occasion.”85 Although not explicitly set out, the commitment of member states to the respect of each other’s sovereignty and territorial integrity was nevertheless emphasized throughout the oau Charter. The preamble proclaimed their determination “to safeguard and consolidate the hard-won independence as well as the sovereignty and territorial integrity” of each member state. As defined in Article 2, one of the purposes of the Organization of African Unity was “to defend their sovereignty, their territorial integrity and independence”. Finally, among the principles of the oau listed in Article 3 were “the sovereign equality of all member States” and the “respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence.”86 4.4.2

Cairo Resolution

In the months leading up to the Cairo summit conference in July 1964, the oau had been called upon to intervene in the AlgerianMoroccan War (Fall 1963) and in the Somali dispute with Ethiopia and Kenya. Both disputes were placed on the conference agenda. In addition, a new dispute between Ghana and Upper Volta was also scheduled for discussion. A fourth dispute between Dahomey and Niger, though not referred to the conference, contributed to the general feeling that border disputes had come to plague interstate relations in Africa. According to Touval, under the impact of these events, which struck many African leaders as seriously impeding the quest for Pan-African solidarity, an initiative was taken to have the oau affirm explicitly and more strongly the principle, already embodied in the Charter, concerning the preservation of the territorial status quo.87

chap_04.fm Page 119 Thursday, October 10, 2002 8:55 AM

119

Africa

The Assembly of Heads of State and Government had on its agenda an item sponsored by Tanzania entitled “The Study of Ways and Means Which May Help to Avoid New Disputes Among African States.”88 The discussions surrounding the Tanzanian proposal, as well as several of the formal speeches delivered at the public sessions of the assembly, reflected concern over the territorial disputes. Prime Minister Kenyatta declared that a special charter was urgently needed that would bind the oau members to the preservation of the territorial status quo.89 Emperor Haile Selassie stressed that the acceptance of colonial boundaries was necessary for Africa’s safety and that the provisions of the oau Charter on territorial integrity had to be reinforced.90 Consequently, a resolution strengthening the members’ charter commitments was duly drafted. Despite Somali and Moroccan objections, the resolution enjoyed the overwhelming support of the heads of state present and was adopted by acclamation.91 The preamble of Resolution 16(1) noted that border problems constituted a factor of dissension, warned that there existed extra-African manoeuvres aimed at dividing the African states, and further added that the borders of African states, on the day of their independence, constituted “a tangible reality.”92 The preamble also recalled that all member states had pledged, under Article 6, to scrupulously respect all principles laid down in Article 3 of the Charter of the Organization of African Unity.93 The operative section of the resolution contained only two articles that reaffirmed “the strict respect by all Member States of the Organization for the principles laid down in Article III, paragraph 3 of the Charter of the Organization of African Unity” and declared that all member states pledged themselves “to respect the frontiers existing on their achievement of national independence.”94

4.5

an african uti possidetis?

What role can be assigned to uti possidetis in the crystallization of the African states’ attitudes towards their inherited boundaries? Commenting on Article 3, paragraph 3, of the oau Charter, Boutros-Ghali for example states: “It appears that the principle of African uti possidetis was adopted at Addis Ababa.”95 Similarly, Klabbers and Lefeber comment: “The doctrine of uti possidetis can be read into the constituent document of the oau, albeit not in so many words.”96 There is no question that the oau’s policy on the territorial status quo resulted in former intracolonial administrative boundaries being transformed into international boundaries. Yet a number of considerations may militate against equating African state practice with the Latin American principle of uti possidetis.

chap_04.fm Page 120 Thursday, October 10, 2002 8:55 AM

120

4.5.1

Determining Boundaries

The oau Charter and International Law

The oau Charter proclaimed at Addis Ababa reaffirmed the principles of the United Nations, as proclaimed in the un Charter, the Universal Declaration of Human Rights, and the Declaration on the Granting of Independence to Colonial Countries and Peoples. To promote unity among African states, eradicate colonialism, and provide a solid foundation for “peaceful and positive cooperation among States,” the member states agreed to harmonize and coordinate their general policies in certain fields. Among the principles to which the members agreed to adhere were respect for the sovereignty and territorial integrity of each member state.97 Territorial integrity is one of the hallowed principles of international law and has been enshrined in the most important international instruments drafted since the founding of the League of Nations. Therefore, in expressing their adherence to the principle of territorial integrity, the newly independent African states were merely agreeing to accept their rights and obligations as defined by international law. This interpretation is shared by Boutros-Ghali: “At Addis Ababa, however, there was no time to study precedents … It was essential to produce immediately a text that would command unanimous support. The authors of the Charter achieved unanimity by appealing to the rules of classical public international law.”98 There appears to be no reason to infer from the straightforward and unequivocal language of the oau Charter adherence to the principle of uti possidetis, particularly as there is no trace of the principle in any of the official documents. Indeed, Boutros-Ghali has pointed out that “the American precedent was never explicitly invoked during the travaux préparatoires of the Addis Ababa conference, and even less by the heads of State in their inaugural speeches.”99 And Tredano adds: “Quite rightly, in reading the text of these speeches, one cannot find the least trace of an explicit reference to the principle.”100 4.5.2

The Cairo Resolution and International Law

At the second oau summit conference in Cairo in July 1964, the threat posed by a number of territorial disputes led to calls to strengthen the charter commitments. Resolution 16(1) declared that all member states pledged themselves to respect the frontiers existing on their achievement of national independence. Again, there is no reference to the principle of uti possidetis, and yet the African leaders would undoubtedly have been aware of its importance. Its omission appears to have been the result of a deliberate choice.

chap_04.fm Page 121 Thursday, October 10, 2002 8:55 AM

121

Africa

At the Cairo conference, as at Addis Ababa, the African leaders debated the question of boundaries against the background of the un Declaration on Colonial Peoples, which proclaimed the “necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.” The declaration, in conjunction with the un Charter, attests to the status of self-determination as a legal principle: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” At the same time, the Declaration on Colonial Peoples reiterated the primacy of the territorial integrity principle. The principle appears in the preamble and in three of the seven articles, including Article 4: “All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence and the integrity of their national territory shall be respected.”101 According to Shaw, while the application of the self-determination principle to non-self-governing territories is indisputable, the basis of the principle in the colonial context has been transformed “from the personal concept implicit in the political definition of selfdetermination to the strict territorial concept of international practice.”102 In this way, the two principles can be reconciled. The ‘self’ of self-determination is to be understood in spatial terms as a right accruing to a colonial people within the framework of an existing territorial unit as established by a colonial power.103 After reviewing a number of General Assembly resolutions and pronouncements by the icj, Corten reaches a similar conclusion: “[T]he very essence of self-determination is to confer rights on peoples identified not on the basis of ethnic, cultural, historical or other factors, but on the basis of their belonging to a particular territory.”104 It can therefore be argued that Resolution 16(1) merely reflected the position of the new African states as it existed under international law. Touval describes the African policy as a “common law of successor states,” each state having the right of undisturbed possession of its inheritance.105 In fact, in addition to the principles of territorial integrity and self-determination, other international rules and customary principles would also have guaranteed the territorial status quo. These concepts will be examined in chapter 5 in the context of our discussion of the stability of boundaries doctrine. At the time of independence in Latin America, two fundamental problems had to be resolved. In the midst of revolution, which entities would ultimately have their independence recognized? And then, how

chap_04.fm Page 122 Thursday, October 10, 2002 8:55 AM

122

Determining Boundaries

would their boundaries be determined? For the Latin American republics, it was not simply a question of maintaining the territorial status quo but of actually creating the territorial status quo. In Africa, in almost every instance, independence was not achieved through revolution but by virtue of grants of independence. Independence was devolved to a territorially defined colony, irrespective of whether its territorial limits were the product of international or administrative acts. There was therefore no need for a retroactive principle to provide a legal basis for the determination of boundaries. Devolution occurred within the territorial limits as defined by the metropolitan powers, which were at liberty to adjust boundaries and to transfer territories right up to the date of independence.106 Those boundaries that had been established and clearly demarcated were, following independence, protected according to general principles of international law. Those boundaries that had been unsettled during the colonial period remained unsettled. There was also nothing in Resolution 16(1) that might help resolve disputes arising from different interpretations of documents defining the boundaries. Strauch identifies a number of post-independence disputes that resulted in part from ill-defined or non-existent colonial boundaries or from conflicting interpretations of colonial instruments: Morocco-Algeria, Somalia-Ethiopia, Algeria-Tunisia, Mali-Mauritania, Ghana-Upper Volta, Niger-Dahomey, and Upper Volta-Niger.107 These disputes were eventually resolved through direct negotiations and on the basis of mutual concessions. Furthermore, a comparison of the post-colonial position in Latin America with the emergence of independent African states reveals that boundary criteria and attitudes, though possibly somewhat similar, were of an entirely different character. By adopting the principle of uti possidetis juris, the Latin American republics agreed that they should be entitled to the frontiers that, at law, had constituted the former Spanish administrative divisions. Their mutual boundaries were to be defined according to Spanish juridical titles. The newly independent African states, for their part, merely agreed to accept those boundaries that, in fact, existed between them at the date of their independence. This is an important consideration and one that is often overlooked by proponents of an ‘African uti possidetis.’ On this issue, Tredano writes: The request made to the African States to respect the colonial boundaries is acceptable even where juridical titles exist supporting the claims of the plaintiff State. For they are simply requested to accept their colonial territorial inheritance and to refrain from putting forward any claim which might compromise this inheritance and therein lies the difference between the principle

chap_04.fm Page 123 Thursday, October 10, 2002 8:55 AM

123

Africa

of intangibility of frontiers and uti possidetis, at least according to Latin American practice.108

The African colonial status quo policy was never relied upon as the means of proving territorial limits, but rather it was the effective occupation prevailing at the time of independence that conferred legal title. Furthermore, the Latin American principle of uti possidetis had been intended to help settle the territorial limits of states that had acceded to independence with uncertain borders. In practice, the principle was of little assistance, as the 1810 Spanish administrative lines had been ill-defined and had been based on vague and inaccurate geographical information. Moreover, the lines set down on paper had often differed from the limits to which occupation or effective jurisdiction had been carried. Thus the question of whether de facto or de jure possession should guide decisions about disputed territory had created additional difficulties in Latin America. For their part, the African states had acceded to independence within generally well-defined and recognizable borders. Many borders had been established by international treaties, and they were, in any case, defined with much greater precision than the Spanish administrative lines. Thus the African policy of respecting all borders as they actually existed on the ground at the moment of independence proved to be a much more workable system than the vague doctrine of uti possidetis juris.109

4.6

approach of the icj and international tribunals

The International Court of Justice and international arbitration tribunals have had on a number of occasions to consider the role of uti possidetis in the determination of African boundaries. In the Frontier Dispute (Burkina Faso/Mali) case, the icj declared that uti possidetis was a “general principle” and a “rule of general scope” for all cases of decolonization.110 Referring to this oft-cited dictum, Ratner notes that the repeated assumption by the Court that uti possidetis is a norm of international law is probative.111 Before endorsing any such conclusion, however, it is necessary to look at each of the cases in some detail, focusing both on the positions taken by the parties and on the precise formulation of the uti possidetis rule that was suggested or applied – for the question is not simply whether uti possidetis in relation to internal boundaries is in some sense part of international law, but how it should be formulated, whether as a general principle, as a presumption dependent on the consent of the parties, or as a fixed and relatively inflexible rule. All three might be included within the rubric of ‘a norm

chap_04.fm Page 124 Thursday, October 10, 2002 8:55 AM

124

Determining Boundaries

of international law,’ but there are important differences between kinds of norms. 4.6.1

Dubai-Sharjah Border Arbitration112

Although this dispute did not involve African states or boundaries, it is noteworthy because of its discussion of the influence of uti possidetis in Africa. From 1892 until 1971, the Emirates of Dubai and Sharjah were under the protection of Great Britain. The extent of the territory controlled by each ruler depended on the allegiance of nomadic tribes, and consequently, there were no clearly defined boundaries. In 1937, however, when the discovery of oil led companies to seek concessions from the emirates, Great Britain took steps to define these boundaries. Julian Walker, a British official, surveyed the territory, and on the basis of his reports, the British political agent, Mr Tripp, made a series of decisions or awards in 1956–57 establishing the land boundary.113 The ruler of Dubai declined to accept the Tripp awards notwithstanding the fact that in 1954 both rulers had requested that the British government determine their boundaries. The continuing uncertainty over the location of the land boundary impeded good relations between the two emirates. In 1971, United Kingdom protection ceased, and Sharjah and Dubai, together with a number of other states formerly under British protection, established the Federation of the United Arab Emirates. Still without a territorial settlement, the two parties signed an arbitration compromis on 30 November 1976 under the auspices of the Supreme Council of the Federation. The subject matter of the arbitration was broadly defined as the “outstanding dispute between the two Emirates of Dubai and Sharjah concerning the demarcation of the boundaries between them.”114 As a preliminary matter, the Court characterized the Tripp awards as administrative decisions that were binding upon the two rulers. President Cahier then recalled that a great number of African and South American boundaries had been established as a result of administrative decisions “even though the procedures may not have been exactly the same as those employed in the present case.”115 It is unnecessary to emphasise that the re-opening of the legal status of the boundaries of a State may give rise to very grave consequences, which may endanger the life of the State itself. This is the justification for the doctrine of uti possidetis which itself is at the root of the respect accorded to the administrative boundaries established in South America in earlier colonial times by the

chap_04.fm Page 125 Thursday, October 10, 2002 8:55 AM

125

Africa

authorities of Spain and Portugal and which seems to have been revived more recently in Africa … It is clear that the principle of respect of administrative boundaries emerges from the practice of African and South American States on achieving independence. They could, of course, have adopted quite a different attitude and have rejected such boundaries.116

Yet the Court could not attribute the same value to a boundary that had been settled under a treaty or as a result of an arbitral or judicial proceeding – in which independent interested parties had had a full opportunity to present their arguments – as it could to a boundary that had been established by way of a unilateral administrative decision.117 In the first situation, except in the case of nullity, the principles of pacta sunt servanda 118 or of res judicata119 could be invoked to prevent the boundary so determined being called into question. In the second situation, the boundary would usually have been established in the interests of the administering power on some basis other than legal criteria and according to political and economic imperatives. In this context, the Court observed that the principle of respect for administrative divisions adopted by the oau had not prevented certain African states from claiming, after independence, “territory under various pretexts, such as that the established boundaries did not correspond with legal reality.”120 That is not to say that such administrative decisions may be lightly set aside. However, if a State, on achieving independence, protests against a boundary established in this way and subsequently behaves as if such a boundary had never existed … then the non-application of the decision by both of the interested States may deprive that decision of legal value.121

The evidence disclosed that, after independence, the parties had not accepted the Tripp awards as binding. Thus, to the extent that the awards had not been accepted, they had lost any binding character they might have originally possessed. The arbitration of the boundary dispute between Dubai and Sharjah illustrates the consensual nature of the uti possidetis principle. While acknowledging that the doctrine of uti possidetis was at the root of the respect afforded administrative boundaries in South America and Africa, the Court nevertheless emphasized that states were at liberty to reject such boundaries and adopt alternative criteria. Indeed, the Court concluded that, even though the Tripp awards had initially been binding on the parties, the very fact that they had not been accepted by the rulers meant that they had lost their binding character. In the

chap_04.fm Page 126 Thursday, October 10, 2002 8:55 AM

126

Determining Boundaries

final outcome, the Court did not refer to the uti possidetis principle to fix the boundary line, relying instead on the conduct of the parties and on assertions of sovereignty. 4.6.2

Guinea – Guinea-Bissau Maritime Delimitation Case 122

By a special agreement signed on 18 February 1983, the parties requested that an arbitration Tribunal, consisting of three members of the International Court of Justice,123 effect a delimitation of the maritime zones of the two states, including their respective territorial waters, exclusive economic zones, and continental shelf. The special agreement further requested the Tribunal to effect the delimitation by applying the “relevant rules of international law.”124 In 1886, the predecessor colonial powers, France and Portugal, had concluded a convention in which certain islands had been assigned to Portugal. The arbitration agreement directed the Tribunal to determine whether the 1886 convention, or the protocols and documents annexed to the convention, had also established a delimitation of the maritime zones of the respective states. In the event that the Tribunal found that no such delimitation had occurred, the Tribunal was directed to “fix and determine a precise line of delimitation of the maritime zones of each Party.”125 Before tackling the principal issue – namely, whether the 1886 convention had determined the maritime boundary between the parties – the Court noted that the parties had agreed in the preamble to their special agreement that the 1886 convention represented a precise definition of their land boundary. Furthermore, the parties had agreed to regard the 1886 convention as the primary document for their discussions concerning their maritime boundary and had not contested the validity of the convention with respect to the “relevant rules of international law.” It remained in force between France and Portugal until the end of the colonial period, and became binding between the successor States by virtue of the principle of uti possidetis. This principle, recalled in the preamble to the Special Agreement, was solemnly proclaimed in Cairo … when the … oau declared that all Member States pledged to “respect the boundaries existing at the time they reached independence.”126

The Tribunal’s reference to the uti possidetis principle is noteworthy because it appears to attribute to uti possidetis a wider role than is normally assigned to it. Even if one were prepared to view the African

chap_04.fm Page 127 Thursday, October 10, 2002 8:55 AM

127

Africa

colonial status quo policy as a manifestation of the uti possidetis principle, it is important to note that in this case the land boundary had been established pursuant to an international convention. Traditionally, uti possidetis has been deemed to apply to situations in which a colonial administrative line separated two colonial units subject to the same administering power. On the basis of the uti possidetis principle or respect for the colonial status quo, this administrative line, following independence, was elevated and recognized as the new international boundary. In the case before the Court, however, the former colonies had been administered by two separate European powers, and the boundary between them had been determined not by a unilateral administrative decision, but by an international convention. In these circumstances, the binding nature of the 1886 convention need not have been attributed to an expanded version of the uti possidetis principle. The parties were bound by the 1886 convention on the basis of wellestablished rules pertaining to state succession, later embodied in Article 11(a) of the Vienna Convention on the Succession of States in Respect of Treaties. With respect to the delimitation of the maritime boundary, which was the actual subject matter of the dispute, the Tribunal was not called upon to discuss or apply the uti possidetis doctrine as it found that the 1886 convention had failed to establish a maritime boundary between the parties. 4.6.3

Frontier Dispute (Burkina Faso/Republic of Mali) 127

The Frontier Dispute case is the most important pronouncement with respect to the role of uti possidetis in Africa. Indeed, it is often cited as authority for the proposition that uti possidetis is a general principle of international law “logically connected with the phenomenon of the obtaining of independence, where it occurs.”128 This particular aspect of the judgement will also be analyzed in the section on Yugoslavia in chapter 6. In 1960, the colony of French Sudan became the independent State of Mali, and the colony of Upper Volta became the independent State of Upper Volta (subsequently renamed Burkina Faso). Following bilateral negotiations between the two new states, agreement was reached on the demarcation of most of their common frontier, but the line of the frontier in one sector remained in dispute. In 1974 the two states agreed to the creation of a mediation commission under the auspices of the oau. The commission’s final communiqué reported that the parties had agreed to the establishment of a neutral technical committee that would proceed with the demarcation of the boundary in the

chap_04.fm Page 128 Thursday, October 10, 2002 8:55 AM

128

Determining Boundaries

disputed sector. However, the technical committee was prevented from carrying out an aerial survey of the area with the result that the mediation commission was unable to propose an overall solution. By a special agreement dated 16 September 1983, the parties submitted their frontier dispute to a Chamber of the International Court of Justice. The Chamber was asked to determine the line of the frontier in an area that extended from the sector Koro (Mali) – Djibo (Burkina Faso) up to and including the region of the Béli. In the preamble to their special agreement, the parties agreed that the dispute should be settled according to the “principle of intangibility of frontiers inherited from colonization.”129 Though requested to adjudicate on the basis of the intangibility principle,130 the Chamber felt that it could not disregard the uti possidetis principle. The Chamber thus began its analysis: “Although there is no need, for the purpose of the present case, to show that [uti possidetis] is a firmly established principle of international law where decolonization is concerned, the Chamber nonetheless wishes to emphasize its general scope, in view of its exceptional importance for the African continent and for the two Parties.”131 The Chamber noted that the uti possidetis principle seemed to have first been applied in Spanish America, inasmuch as this was the first continent to witness the phenomenon of decolonization involving the formation of a number of sovereign states on territory formerly belonging to a single metropolitan state: “Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.”132 The Chamber continued: “It was for this reason that, as soon as the phenomenon of decolonization characteristic of the situation in Spanish America in the 19th century subsequently appeared in Africa in the 20th century, the principle of uti possidetis, in the sense described above, fell to be applied.”133 According to the Chamber, elements of uti possidetis were latent in many declarations made by African leaders “in the dawn of independence,” and the principle had been indirectly referred to in Article 3 of the oau Charter: “However, at their first summit conference after the creation of the Organization of African Unity, the African Heads of State, in their Resolution … deliberately defined and stressed the principle of uti possidetis juris contained only in an implicit sense in the Charter of their organization.”134 These numerous affirmations of the “intangibility of the frontiers existing at the time of independence of African States,” concluded the Chamber, were declaratory rather than constitutive: they recognized and confirmed an existing principle and

chap_04.fm Page 129 Thursday, October 10, 2002 8:55 AM

129

Africa

did not seek to establish a new principle or to extend to Africa a rule previously applied only in another continent.135 “The fact that the new African States have respected the administrative boundaries and frontiers established by the colonial powers must be seen not as a mere practice contributing to the gradual emergence of a principle of customary international law, limited in its impact to the African continent as it had previously been to Spanish America, but as the application in Africa of a rule of general scope.”136 The Chamber made it clear that the principle of uti possidetis antedated both the creation of the oau and the Cairo Resolution. This of course enabled the Chamber to apply the principle of uti possidetis to the dispute before it, which involved two states that had achieved independence in 1960, prior to Resolution 16(1). In fact, it appears that the Chamber considered uti possidetis to have been part of positive international law as early as the nineteenth century, as evidenced by its reference to the “application in Africa of a rule of general scope.” Certainly the Chamber is joined by many commentators – for example, Cukwurah,137 Brownlie,138 Boutros-Ghali,139 and BourjorlFlécher140 – in describing African state practice as simply the application of the Latin American principle of uti possidetis. As discussed in this chapter, there are some difficulties with this interpretation. In particular, the Chamber’s characterization of African state practice as a manifestation of the uti possidetis juris principle is problematic. It will be recalled that oau member states pledged in the 1964 boundary resolution “to respect the frontiers existing on their achievement of national independence.”141 The African states undertook to respect the colonial boundaries as they existed in fact, even in situations where juridical evidence might have lent support to their territorial claims. The newly independent states were protected from secession in return for forfeiting any legal claims they might have entertained regarding territories effectively held within the borders of a neighbouring state.142 Therefore, if African practice is to be equated with the uti possidetis principle, it should at least be assimilated to the much less influential uti possidetis de facto formula. On this rival formulation of the uti possidetis principle, the Chamber is silent. This emphasis on de facto territorial possession is the critical difference between the African status quo policy and the Latin American uti possidetis juris principle and may well account for two seemingly contradictory pronouncements by chambers of the icj. In the El Salvador/ Honduras case, a Chamber of the Court emphasized that uti possidetis juris was “essentially a retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes.”143 This is undoubtedly an accurate description of the

chap_04.fm Page 130 Thursday, October 10, 2002 8:55 AM

130

Determining Boundaries

uti possidetis juris principle as applied in Latin America. As defined by the Latin American republics, uti possidetis juris involved referring back to colonial juridical lines existing at a critical date, which in almost every case predated the actual date of independence. However, in the Burkina Faso/Mali case, it was underlined that “the principle of uti possidetis freezes the territorial title: it stops the clock but does not put back the hands.”144 This statement is perfectly consistent with the African states’ commitment to respect the de facto boundaries existing at the time of independence. It is also difficult to accept the Chamber’s characterization of the uti possidetis principle not merely as a regional rule of customary law confined to the South American and African continents, but as a customary rule of general scope. Article 38 of the Statute of the International Court of Justice refers to international custom as “evidence of a general practice accepted as law.” This brief definition identifies the two essential elements of custom: a material element (evidence of state practice) and a psychological element (opinio juris sive necessitatis). It is impossible to enumerate exhaustively the acts or kinds of behaviour that constitute relevant state practice. Clear positive acts of state organs that represent the state in international relations are certainly the most conclusive evidence of state practice.145 However, what is decisive is not the kind of acts (or omissions) but the uniformity, consistency, and generality of the state practice. Complete uniformity is not required, but substantial uniformity is, and thus in the Asylum case, the International Court declared: “The Colombian Government … has relied on an alleged regional or local custom peculiar to Latin American States … The Colombian Government must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question.”146 And while the International Court has not insisted on universality, it did conclude in the Nicaragua case that in order to deduce the existence of customary rules, “the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule, should generally have been treated as breaches of that rule.”147 Article 38 also refers to a general practice accepted as law. Brierly speaks of recognition by states of a certain practice “as obligatory,” and Hudson requires a “conception that the practice is required by, or consistent with, prevailing international law.”148 As stated by the International Court in the North Sea Continental Shelf cases: “Not only must the acts concerned amount to settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requir-

chap_04.fm Page 131 Thursday, October 10, 2002 8:55 AM

131

Africa

ing it.”149 Opinio juris is therefore the element that distinguishes binding legal norms from ordinary rules of behaviour. Our investigation into state practice in nineteenth-century Latin America, the only actual theatre of application of uti possidetis, has not revealed a uniform, constant, and general practice with respect to the principle and the delimitation of boundaries. In fact, our assessment of the role played by uti possidetis in Latin America closely ressembles the International Court’s findings in the Asylum case: The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on different occasions; there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all of this any constant and uniform usage, accepted as law.150

Nor is there any evidence of the second and critical psychological element. As discussed at some length and as revealed by the official documents examined, neither the Latin American republics nor the African states considered themselves bound to adopt the uti possidetis juris principle in delimiting their new international boundaries. Rather, they eventually agreed to adopt a status quo policy for reasons of expediency and convenience and in the interests of peace. The uti possidetis juris principle, therefore, does not appear to meet the traditional definition of custom: a general practice among states accepted as law. It cannot be denied that as a result of the independence process, administrative boundaries both in Latin America and in Africa were transformed into international frontiers in the full sense of the term. However, the Chamber’s declaration that “[i]ndeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis”151 is difficult to accept. Uti possidetis gained prominence during the Colombia-Venezuela Boundary Affair (1922) and the Guatemala-Honduras Arbitration (1933), and there is no doubt that African statesmen meeting at Addis Ababa and Cairo would have been aware of the existence and importance of the uti possidetis principle. Yet it was not even mentioned, referred to, or discussed in any of the preparatory meetings. None of the speeches delivered at the two conferences made even vague reference to uti possidetis. Rather than concluding, as the Chamber did in the Frontier Dispute case, that the

chap_04.fm Page 132 Thursday, October 10, 2002 8:55 AM

132

Determining Boundaries

African states embraced the principle of uti possidetis, it would appear more accurate to say that the oau and the new African states disregarded uti possidetis and made the deliberate choice of adopting the territorial integrity principle. 4.6.4

Guinea-Bissau v. Senegal 152

Senegal became an independent state, distinct from the Republic of Mali, on 20 August 1960, following a transitional period during which it had become an autonomous state within the French Communauté and a member of the short-lived Federation of Mali. Guinea-Bissau attained independence from Portugal on 24 September 1973. On 12 May 1886, France and Portugal had concluded a convention establishing land boundaries between the then Portuguese Province of Guinea and the French territory of Senegal. Both Guinea-Bissau and Senegal accepted the land boundaries established under the 1886 convention, and both states also accepted that the convention had not fixed the maritime boundaries between them.153 However, by an exchange of letters in 1960, France and Portugal had fixed the maritime boundaries between the two territories. The arbitration Tribunal was asked to determine whether the 1960 agreement had the force of law in relations between the Republic of Guinea-Bissau and the Republic of Senegal. The Tribunal discussed uti possidetis when it considered GuineaBissau’s arguments on the rules of succession. The Tribunal noted that the question of succession of states in the matter of boundaries had acquired special importance in Latin America during the nineteenth century because of the accession to independence of the republics born of the Spanish colonial empire:154 In certain cases, the new States decided by common agreement that the international limits of their respective territories would be those which already existed to mark the administrative subdivisions of the colonial period. In other cases, the States claimed as part of their national territory what had previously corresponded to a Vice-royalty, an Audiencia or a Captaincy-General.155

In both cases, Spanish colonial law had been invoked to determine the international boundaries between the new states. This method of establishing international boundaries was known under the name of uti possidetis or uti possidetis juris.156 However, in Africa, uti possidetis had a broader meaning “because it concerns both the boundaries of countries born of the same colonial empire and boundaries which during the colonial era had already an

chap_04.fm Page 133 Thursday, October 10, 2002 8:55 AM

133

Africa

international character because they separated colonies belonging to different colonial empires.”157 Judge Bedjaoui, in his dissenting opinion, rejected “this specifically African uti possidetis” as unfounded. No such distinction between the Latin American and African versions of the uti possidetis principle could be found in the writings of jurists. “The Award introduces here an innovation which could have unforeseen consequences and of no proven usefulness.”158 The Tribunal recalled the parties’ agreement that boundary treaties signed during the colonial period would continue to be valid as between the new states. Therefore, the declaration of tabula rasa by Guinea-Bissau did not apply to treaties relating to frontiers. Furthermore, the Tribunal refused to draw a distinction between colonial land frontiers and colonial maritime frontiers. “From a legal point of view, there is no reason to establish different régimes dependent on which material element is being delimited.”159 Thus the uti possidetis juris principle was deemed to apply to the maritime boundary delimited in the 1960 agreement. This extension of the uti possidetis principle to maritime boundaries was also strongly criticized by Judge Bedjaoui. According to Bedjaoui, it had not been Senegal’s contention that maritime limits were not frontiers but rather that they were governed by a distinct legal regime. This unique legal regime distinguished maritime limits from land frontiers to such an extent that there had to be a difference in treatment regarding the application of uti possidetis. Furthermore, the obligation to respect colonial frontier treaties did not apply to maritime delimitations because the authors of the African instruments had never had that particular category of treaty in mind.160 Finally, Judge Bedjaoui recommended caution in applying the uti possidetis principle to new situations: It is also necessary to bear in mind that the claim to extend today the scope of application of uti possidetis to maritime boundaries is being made at a time when the application of that principle to land frontiers themselves is encountering some resistance. It is possible to observe in recent writings renewed criticisms of the uti possidetis principle in Africa … Frontier disputes have actually broken out in Africa; and whenever uti possidetis is mentioned, it is always with the reminder that it applies to frontiers otherwise described … as unjust, artificial and designed to serve the interests of colonial empires.161

The majority decision purported to widen the scope of the uti possidetis principle in much the same way as the Tribunal in the Guinea/ Guinea-Bissau delimitation case. In this case, the Tribunal expressly referred to the traditional definition of uti possidetis as a method of

chap_04.fm Page 134 Thursday, October 10, 2002 8:55 AM

134

Determining Boundaries

transforming administrative divisions between colonies belonging to the same colonial empire into international boundaries. However, according to the majority, uti possidetis had taken on a wider meaning in the context of Africa and now applied equally to boundaries that had been established between colonies belonging to different colonial empires. Yet there was no need for the Tribunal to distort the uti possidetis principle in this way, as customary rules on state succession as well as the Vienna Convention on the Succession of States with Respect to Treaties would have effectively resolved the dispute. Indeed, Judge Bedjaoui rejected “this specifically African uti possidetis” as “an innovation … of no proven usefulness.” Thus the question of whether uti possidetis should apply to maritime boundaries between the parties should not have arisen at all. However, having introduced this “innovation,” the majority saw no reason to distinguish between colonial land frontiers and colonial maritime boundaries. With respect to the Tribunal’s decision to apply uti possidetis to the settlement of the maritime boundaries, Judge Bedjaoui’s objections appear well founded. Intertemporal law is an important element of both the stability of boundaries doctrine and the uti possidetis principle. The Tribunal acknowledged this when it stated that Spanish colonial law had been invoked to determine the international boundaries between the former colonies. Yet maritime boundaries are far more dependent on the underlying law than territorial boundaries (e.g., the crystallization of the concept of the exclusive economic zone in the span of eight years). Furthermore, maritime territory is not subject to human occupation as such, nor do historical considerations generally have a strong impact in this area. In addition, the relationship between maritime boundaries and the principle of self-determination is of a different nature. These unique facts militate against the application of the uti possidetis principle to maritime boundaries.162

4.7

conclusion

In nineteenth-century Latin America, the uti possidetis juris principle constitutes a non-binding rule of regional application in relations between the Spanish American republics. However, according to the Chamber of the International Court of Justice in the Frontier Dispute case, in light of the boundary policy adopted in Africa, the principle now constitutes a “customary norm of international law” applicable to every decolonization case. According to Torres Bernárdez, this new status affects the consensual basis of the uti possidetis principle: Does this mean that the “consent of the Parties” to the application of the uti possidetis juris rule to a given decolonization case is now irrelevant? Not at all.

chap_04.fm Page 135 Thursday, October 10, 2002 8:55 AM

135

Africa

But the role played by the “consent of the Parties” with regard to the applicability of the principle has certainly changed. It cannot any longer be in general the role of a “contracting-in consent” but only of a “contracting-out consent.” It follows that in decolonization situations the uti possidetis juris principle is today generally applicable, unless there is a “contracting-out consent” of the parties concerned.163

These conclusions, however, are difficult to accept for a number of reasons. Brief reference should again be made to the fact that the uti possidetis principle is nowhere mentioned either at Addis Ababa or at Cairo. Instead, African statesmen agreed, as a matter of policy, to respect the boundaries existing on the ground at the date of independence. The territorial integrity principle and the right of selfdetermination, both entrenched in the law of the un, would have guaranteed this territorial outcome. In Africa, devolution is a legal act with territorial implications. There is no need to credit uti possidetis with the preservation of intracolonial boundaries in Africa or indeed to assign to it the new and entirely superfluous role of guaranteeing boundaries established by international conventions and treaties. Even if the African status quo policy is equated with the uti possidetis de facto principle, it is clear that consent of the parties involved has remained the sine qua non of its application. This aspect was emphasized by the Court in the Dubai-Sharjah Border Arbitration: This is the justification for the doctrine of uti possidetis which is itself at the root of the respect accorded to the boundaries established in South America … and which seems to have been received more recently in Africa … It is clear that the principle of respect of administrative boundaries emerges from the practice of African and South American States on achieving independence. They could, of course, have adopted quite a different attitude and have rejected such boundaries.164

The consensual nature of the principle is also highlighted by the arbitration Tribunal in the Guinea-Bissau v. Senegal dispute: “In certain cases, the new States decided by common agreement that the international limits of their respective territories would be those which already existed to mark the administrative divisions of the colonial period.”165 While in general the newly independent African states did not challenge their inherited boundaries, there is no evidence that they felt compelled to adhere to the colonial status quo. In fact, African practice appears initially to have been premised on the contrary assumption that African states were not bound to accept their artificial colonial boundaries and that the eventual decision to respect the boundaries existing at the time of independence was made for practical reasons. Whereas the Latin American republics sought to guard against Europe’s territorial

chap_04.fm Page 136 Thursday, October 10, 2002 8:55 AM

136

Determining Boundaries

ambitions, the new African states were concerned to prevent what has been called ‘black imperialism.’ The greatest deterrent to territorial revisionism was the fear of ‘opening Pandora’s box.’ As a statement of policy,166 the 1964 boundary resolution has undoubtedly had a considerable impact, but its legal effect is questionable. For instance, the form in which the pledge was recorded – a resolution – is not suggestive of an intention to create binding legal obligations. Nor does the language of the resolution, in particular the choice of the term “pledge,” suggest that the resolution was intended as a statement or recognition of a legal rule.167 The proposition that the resolution represents opinio juris has also been rejected by a majority of commentators.168 Thus Cukwurah has declared: “At best the oau Resolution on Border Disputes as formulated represents a code of conduct on boundaries of the new States of Africa. Nothing more.”169 Bourjorl-Flécher has described Resolution 16(1) as “a code of neighbourly relations”170 while Shaw has referred to the resolution as a “political statement of the highest order.”171 McEwen has concluded that the resolution “should not be regarded as an automatic acceptance of the theory of state succession but as an attempt to find an African solution to an inherited African problem.”172 These statements are consistent with the views expressed by some of the participants themselves. Following the Cairo conference, President Nyerere explained that the resolution “was intended as a guide for the future and should not prejudice any discussions already in progress.”173 The assessment of the Zambian delegate five years later during the debates on the question of state succession to treaties is more forceful: “The fact that the majority of member States of the oau had pledged to respect the boundaries existing when they achieved independence does not necessarily imply that the mechanism which they adopted in the interest of peace in Africa was elevated to the status of a rule of international law.”174 And in a 1977 interview, former secretary-general of the oau William Etiki Mboumoua declared “that the respect of boundaries inherited from colonization is not a principle which is sacrosanct. It is certainly an irreplaceable working basis, but one which will be overtaken or revised in the context of a vast consensus, for in the long term, the right of self-determination must be taken into account.”175 African state practice has also attested to the nonbinding character of Resolution 16(1). Somalia, the state most directly concerned, declared from the outset that it did not feel bound by it. Morocco interpreted the pledge to “respect the borders existing on their achievement of national independence” as legitimizing its claims to territories that

chap_04.fm Page 137 Thursday, October 10, 2002 8:55 AM

137

Africa

had been part of Morocco during its independent existence prior to the colonial partition at the end of the nineteenth century. Kenya and Uganda, both signatories of the Cairo Resolution, adopted for a period of seven to eight years a boundary at variance with the colonial alignment. The current de facto boundary between Egypt and Sudan does not follow the international boundary as defined in the Anglo-Egyptian agreement of 19 January 1899.176 Ratner has also concluded that “uti possidetis was not … a uniform practice by or obligation upon colonial powers – although the General Assembly … sought to limit those states’ ability to divide a colonial territory unilaterally during the independence process.”177 In a number of situations, states emerged from colonial rule with other than their pre-independence boundaries. For example, the British half of the former German colony of Togo became part of Ghana at independence instead of joining Togo or of constituting a separate state. In the case of German Kameroun, also divided between Britain and France following World War I, the northern region of the British section voted to merge with Nigeria and the southern region to merge with the French section as Cameroun.178 British and Italian Somaliland became independent as one state and not two. And various enclaves were absorbed by the surrounding states at independence or shortly thereafter. These developments lead Corten to conclude: The practice of the u.n. bodies is in fact not as univocal as one might think at first glance … [T]he extent of the territory of a newly independent State is directly dependent upon the position taken by the u.n. in the context of supervising the exercise of the right to self-determination. Precedents like … Cameroon or Togo are not really exceptions to the principle of uti possidetis juris since to speak of exceptions is to imply that the principle normally applies in an autonomous fashion, which has not been the case. In fact what these precedents show is precisely that colonial delimitations acquired a juridical value only insofar as they were accepted by the u.n. 179

oau pronouncements and African state practice – described by the icj as manifestations of the uti possidetis principle – appear therefore to confirm that though uti possidetis may constitute a general principle of international law, its content can be and often is overestimated. In short, it does no more than require states to presume the inheritance of their colonial administrative boundaries. Uti possidetis remains an after-the-event presumption as to the boundaries of an entity that has achieved independence. It is not a before-the-event norm – at least not one of general application – as to what those boundaries ought to be.

chap_05.fm Page 138 Thursday, October 10, 2002 8:55 AM

In any system of internatinal law founded upon sovereign and independent States, the principle of the protection of the integrity of the territorial expression of such States is bound to assume major importance. Malcolm Shaw

5 The Doctrine on the Stability of Boundaries 5.1

introduction

Chapter 4 traced in broad outline the history of African boundaries from the Berlin Conference until the adoption of the 1964 boundary resolution. Of particular interest was the evidence of intracolonial boundary readjustments and the fact of their acceptance at the date of independence. In considering the impact of the oau Charter and the Cairo Resolution, it was argued that these pronouncements merely referred to rights and obligations as defined by international law. It is therefore essential at this point to examine in more detail the various norms of international law, such as the rules on state succession, the nemo dat principle, the territorial integrity principle, and the right of self-determination, which would have determined the outcome in Africa independently of any reliance upon the uti possidetis principle.

5.2

origins of the stability doctrine

One of the most fundamental concerns for a state is the maintenance of a maximum degree of territorial stability.1 As the function of a boundary is to attribute territory between neighbouring states, boundary regimes are necessarily closely connected with the concepts of territorial integrity and sovereignty. As Kaikobad explains:

chap_05.fm Page 139 Thursday, October 10, 2002 8:55 AM

139

The Doctrine on the Stability of Boundaries

In most cases, boundary changes imply the diminution and enhancement of territory for the States on either side of it, with all the attendant escalation in friction and tension between them. States, therefore, have come to appreciate the importance of stable boundaries, the finality of frontier settlements and the general continuity of alignments … It is this need which has found expression in the rule of law which, in general terms, is to the effect that a boundary established in accordance with law attains a compelling degree of continuity and finality.2

The importance of ensuring the stability of boundaries was perhaps first recognized in 1909 by the Permanent Court of Arbitration in the Grisbadarna case, when it stated that “it is a settled principle of the law of nations that a state of things which actually exists and has existed for a long time should be changed as little as possible.”3 In the Eastern Greenland case, the Permanent Court of International Justice (pcij) noted that Denmark had maintained territorial sovereignty over the disputed territory for a considerable period of time. On this basis, the Court ruled in favour of Denmark’s title to Greenland.4 Referring to the Court’s decision in the Eastern Greenland case, Sir Hersch Lauterpacht observed that a determination of terra nullius “would have been contrary to those principles of finality, stability and effectiveness … which have characterised the work of the Court.”5 The stability principle was also explicitly recognized by the International Court of Justice in the Temple of Preah Vihear case. The Court observed that: In general, when two countries establish a frontier between them, one of the primary objects is to achieve stability and finality. This is impossible if the line so established can, at any moment, and on the basis of a continuously available process, be called in question, and its rectification claimed, whenever any inaccuracy by reference to a clause in the parent treaty is discovered. Such a process could continue indefinitely, and finality would never be reached so long as possible errors still remained to be discovered. Such a frontier, far from being stable, would be completely precarious.6

Similarly, Chairman Lagergren in the Indo-Pakistan Western Boundary (Rann of Kutch) case referred to the “paramount consideration of promoting peace and stability in this region.”7 The Court in the Beagle Channel case affirmed that “a limit, a boundary, across which the jurisdictions of the respective bordering States may not pass, implies definitiveness and permanence.”8 This point was reiterated in the Aegean Sea Continental Shelf case, in which the International Court declared that

chap_05.fm Page 140 Thursday, October 10, 2002 8:55 AM

140

Determining Boundaries

“[w]hether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence.”9 The question of the stability of boundaries between colonial possessions of two different powers was also referred to the International Court of Justice in the Continental Shelf case between Tunisia and Libya. The Court accepted that in order to delimit the continental shelf between the parties, the undisputed land frontier became a circumstance of considerable relevance. It therefore briefly considered the history of the land frontier. The Court found that the convention of 19 May 1910 between the bey of Tunis and the emperor of the Ottomans had established a boundary that had subsequently become the frontier between the Regency of Tunis under French protectorate and the Italian colony of Tripolitania after Turkey had ceded the region to Italy. Following decolonization, the 1910 boundary had become the international boundary between the independent States of Tunisia and Libya. The boundary remained unchanged through the vicissitudes of the two World Wars, and it exemplifies the principle declared in the 1964 Cairo Resolution of the Organization of African Unity, according to which “all Member States pledge themselves to respect the borders existing on their achievement of national independence.” This rule of continuity ipso jure of boundary and territorial treaties was later embodied in the 1978 Vienna Convention on Succession of States in respect of Treaties. Thus the permanence and stability of the land frontiers is one of the points where the Parties are in full agreement.10

The Court’s long-standing commitment to the stability principle was again reaffirmed in 1994 in the Territorial Dispute between Libya and Chad: “Once agreed, the boundary stands, for any other approach would vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly emphasized by the Court.”11 Jennings has endorsed the Court’s bias in favour of stability and finality: [T]he bias of existing law is towards stability, the status quo, and the present effective possession; the tendency of the International Court is to let sleeping dogs lie. This is right, for the stability of territorial boundaries must always be the ultimate aim. Some other kinds of legal ordering need to be capable of constant change to meet new needs of developing society; but in a properly ordered society, territorial boundaries will be among the most stable institutions.12

chap_05.fm Page 141 Thursday, October 10, 2002 8:55 AM

141

5.3

The Doctrine on the Stability of Boundaries

nature of the principle The recurrence of the principle of finality and stability, and its appearance in different forms in frontier matters, prompts the suggestion that it constitutes one of the more fundamental and important precepts in the corpus of the rules relating to boundaries and that, to some extent, it is a doctrine in the general principles of international law.13

The nature of the stability principle may usefully be considered in the light of Dworkin’s discussion of “legal standards” in his work Taking Rights Seriously.14 For Dworkin, the difference between legal principles and legal rules is a logical distinction: “Rules are applicable in an allor-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.”15 Yet this is not the way in which principles operate: principles do not provide legal consequences that follow automatically when the conditions for their application are met. In fact, principles do not even purport to set out conditions that make their application necessary. Rather, principles “incline a decision one way, though not conclusively, and they survive intact when they do not prevail.”16 As Utz explains: “[P]rinciples, unlike rules, have no areas of central application in which their consequences are hard and fast.”17 This basic distinction between rules and principles involves another: unlike rules, principles have an added dimension of weight and importance.18 Where two or more principles collide, an adjudicator must take into account the relative weight and importance of each in order to resolve the conflict: “What principles appear to have in common, despite differences in subject matter, is a peculiar kind of relevance to a broad range of legal decisions. Each principle demands consideration wherever it may apply; and yet legal officials are free to decide that a particular principle does not govern an outcome to which its relevance is uncontested.”19 Legal standards or principles are not so determinate as to yield specific results by mechanical application even in what are accepted to be central occasions for their application.20 The international law doctrine on the stability of boundaries is a true ‘principle,’ capable of generating new elements and new results in different circumstances. In particular, it does not set out conditions that make its application in any given case necessary, nor does it yield specific results in every case in which it is applied. The Rann of Kutch

chap_05.fm Page 142 Thursday, October 10, 2002 8:55 AM

142

Determining Boundaries

case (India v. Pakistan) is a good illustration of the principle’s potential to fashion novel results. In the Rann of Kutch case, an international Tribunal chaired by Lagergren was constituted to determine the boundary between India (successor to the British vassal State of Kutch) and Pakistan (successor to Great Britain as sovereign over Sind, a province of British India) in the Rann of Kutch (Gujarat-West Pakistan region). The Tribunal’s first task was to determine “whether there was a historically recognized and well-established boundary in the area in dispute.”21 On this critical issue, Chairman Lagergren concluded: The evidence relating to the two most important processes in which such a boundary, if settled and confirmed, would doubtless have been so recognized, does not support such a conclusion … All the evidence pertaining to those processes points to the conclusion that there did not exist at any time relevant in these proceedings a historically recognized and well-established boundary in the disputed region.22

Having determined that no established historical boundary line existed between the parties, the Tribunal then examined the acts and assertions of territorial sovereignty made by the parties and their predecessors in the disputed region. Following an extensive review of the historical materials submitted by both parties and a careful assessment of the strengths and weaknesses of the two cases, the Tribunal awarded to India those sectors of the Rann in relation to which no specific evidence of continuous Sind authority had supported Pakistan’s claim (about 90 per cent of the disputed territory). Pakistan was awarded those sectors where a consistent and intensive Sind activity, meeting with no effective opposition from the Kutch authorities, had been established: “In summary, on the evidence on record it may be taken as positively established that, in this century, prior to Independence … the police and criminal jurisdiction of Sind authorities over disputed territory extended, in the sector between the eastern loop and Dhara Banni, to Ding, Vighokot and Biar Bet.”23 With reference to Dhara Banni and Chhad Bet, the chairman accepted that the presence of Sind authorities had come as close to effective peaceful possession as could reasonably be expected in the circumstances.24 Chairman Lagergren stated: “[I]n respect of sectors where a continuous Sind activity … is established, I am of the opinion that Pakistan has made out a better and superior title. This refers to a marginal area south of Rahim ki Bazar, including Pirol Valo Kun, as well as to Dhara Banni and Chhad Bet.”25 However, with respect to the two deep inlets on either side of the Nagar Parkar, which were also awarded to Pakistan, Chairman Lager-

chap_05.fm Page 143 Thursday, October 10, 2002 8:55 AM

143

The Doctrine on the Stability of Boundaries

gren appears to have been more concerned with the need to ensure stability than with evidence of state activity: “In my opinion it would be inequitable to recognize these inlets as foreign territory. It would be conducive to friction and conflict. The paramount consideration of promoting peace and stability in this region compels the recognition and confirmation that this territory which is wholly surrounded by Pakistan territory, also be regarded as such.”26 Thus, as a matter of equity and in the interests of peace, the Tribunal awarded sovereignty over the two inlets to Pakistan.27 In this case, therefore, the principle of stability was not relied upon to preserve or confirm an existing boundary as in the Temple case and the Continental Shelf case. Rather, it was held to affect the allocation of territory, overriding evidence as to title.

5.4

m an if es tati on s o f th e p ri nc ip le

Although our main concern is to evaluate the role of uti possidetis in cases in which former internal administrative lines are transformed into international boundaries, the assumption made by the icj that uti possidetis also acts as a guarantor of international boundaries existing at independence raises the question of whether the sphere of application of the principle has been extended. In chapter 4, this question was briefly considered, and it was argued that respect for the international boundaries existing at the time of independence could be justified by reference to other established principles of international law. These principles, which inform the doctrine on the stability of boundaries, therefore require some investigation. 5.4.1

The Rebus Sic Stantibus Rule

There have been few questions of treaty law more controversial than that of the place to be given to an essential change of circumstances as a ground for termination, often described as the rebus sic stantibus rule. According to this rule, a party may unilaterally invoke as a ground for terminating or withdrawing from a treaty, the fact that a fundamental change of circumstances has occurred with regard to those existing at the time of the conclusion of the treaty. Most modern jurists28 admit the existence of the rebus sic stantibus rule in the law of treaties29 yet at the same time enter a caveat as to the need to restrict the scope of the rule within narrow limits.30 Evidence of this acknowledged need to restrict the scope of the doctrine can be found as early as 1932 in the Free Zones of Upper Savoy and the District of Gex case. In its submissions, the French government relied on the rebus doctrine, declaring that “the rule according to which a

chap_05.fm Page 144 Thursday, October 10, 2002 8:55 AM

144

Determining Boundaries

change in circumstances renders treaties void … cannot be disputed.”31 While admitting the existence of the rebus doctrine in international law, the Swiss government maintained that “territorial settlements cannot be legally affected by changes in circumstances.”32 According to the Swiss agent, the Free Zones were part of a territorial regime and therefore constituted an exception to the rebus principle. France, in its reply, did not deny the territorial exception to the rebus principle but rather drew a distinction between territorial rights as such and personal rights created on the occasion of a territorial settlement.33 The International Law Commission (ilc) studied the scope of the rebus sic stantibus rule as part of its work on the general law of treaties. Begun in 1949 and guided by four successive rapporteurs, its work culminated in the Vienna Convention on the Law of Treaties, adopted following two sessions of the United Nations Conference on the Law of Treaties held in 1968 and 1969. Article 62, which recognizes the rule concerning the fundamental change of circumstances, nevertheless attests to the priority that the international community assigned to the stability of boundaries:34 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty, and (b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. 2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty: (a) if the treaty establishes a boundary.35

Although a few governments did express opposition to the exception in paragraph 2(a), the provision was generally supported at the 1968 un conference. A majority of states felt that paragraph 2(a) was essential for the maintenance of international peace and stability and was the logical extension of the territorial integrity principle enshrined in Article 2 of the oau Charter.36 Waldock, special rapporteur to the ilc, commented: “The reason for that exclusion [Art. 62(2)(a)] was not that provisions of those treaties [boundary treaties] were ‘executed’ provisions, but that treaties of that type were intended to create a stable position.”37 African colonial boundaries that had been established by treaty between two different metropolitan powers would therefore have benefited from the boundary excep-

chap_05.fm Page 145 Thursday, October 10, 2002 8:55 AM

145

The Doctrine on the Stability of Boundaries

tion to the rebus sic stantibus rule, later adopted as Article 62(2)(a) of the Vienna Convention. The new African states could therefore not have invoked the attainment of independence as a fundamental change in circumstances entitling them to call into question boundaries settled through international agreements. 5.4.2

State Succession to Treaties

The whole question of state succession to treaties is complex and largely outside the scope of our study.38 For our purposes, it will be sufficient to refer to certain aspects of the question in order to assess the impact of the stability principle on the rules of succession to boundary treaties.39 Theories of succession have evolved according to particular conceptions of the state.40 In the nineteenth century, Hegel articulated a new theory of the state that signalled a novel approach to the question of state continuity. According to Hegel’s theory, a state possessed its own personality, which existed apart from its members, and consequently had a will of its own as a single unit or self.41 Territory became a constituent element of the state along with the people and its government, instead of being merely regarded as property.42 The effects of political and territorial changes could then be rationalized by reference to the concept of legal personality, and treaties characterized as contractual relationships. It became accepted that a successor state could not be bound by treaties of the predecessor state to which it had not been a party; the successor state assumed sovereignty over the territory with a clean slate. Hegel’s model thus gave rise to the clean-slate theory, which has been widely accepted in the twentieth century. However, proponents of all succession theories have accepted that boundaries established by treaty and cessions of territory affected prior to the succession of states remain unaffected by succession.43 Cleanslate theorists have sought a rationale for this immutable proposition within the confines of the law of treaties and have returned to De Vattel’s conception of executed and executory treaties: “We must not confound those treaties and alliances which, since they impose the obligation of repeated acts on both sides, cannot remain in force except through the continued existence of the contracting powers, with those contracts by which a right is once and for all acquired, independently of any subsequent acts of either party.”44 In his seminal work on state succession, O’Connell defines a category of treaties creating real rights as “dispositive treaties.” Among the three possible types of dispositive treaties identified, he lists “those fixing territorial boundaries.”45 Their legal effect, according to O’Connell, “is to impress on a

chap_05.fm Page 146 Thursday, October 10, 2002 8:55 AM

146

Determining Boundaries

territory a status which is intended to be permanent, and which is independent of the personality of the state exercising sovereignty.”46 Cukwurah has also stated that “[b]oundary agreements are sui generis. Unlike ordinary contractual arrangements, they create an objective juridical situation which continues independent of the existence of original signatory parties, provided, of course, that effective link between one or both of them and the succeeding state (one or both) can be established.”47 In 1961, the International Law Association (ila) established a committee to study the “Succession of New States to the Treaties and Certain Other Obligations of their Predecessors.”48 This committee presented to the Fifty-third Conference of the ila (1968) an interim report that contained a draft of nine resolutions.49 Resolution 8 stipulated: “When a treaty which provides for the delimitation of a national boundary between two States has been executed in the sense that the boundary has been delimited and no further action needs to be taken, the treaty has spent its force and what is succeeded to is not the treaty but the extent of national territory so delimited.”50 This resolution as well as the statements reproduced above reflect the general acknowledgment among states and international jurists that executed boundary agreements and existing frontier lines are best left undisturbed. This same emphasis on continuity was also apparent when the International Law Commission deliberated upon the question of state succession to boundary treaties. When in 1963 the International Law Commission began its study of the law of state succession, it did so against the background of the clean-slate theory, which at that time was widely adhered to by international jurists and states alike. However, in his very first report as special rapporteur, Sir Humphrey Waldock introduced draft Article 4, which declared that boundary treaties remained unaffected by the occurrence of a succession of states.51 Waldock commented that Article 4 had been drafted for reasons very similar to those that had led the Commission on the Law of Treaties to except from the rule concerning the fundamental change of circumstances rule a treaty establishing a boundary: “The weight both of opinion and practice seems clearly to be in favour of the view that boundaries established by treaties remain untouched by the mere fact of a succession. The opinion of jurists seems, indeed, to be unanimous on the point even if their reasoning may not always be exactly the same.”52 A greater number of states expressed their agreement with the general principles expressed in draft Article 4 and Waldock’s commentary.53 The same general consensus was evident in the records of the commission’s 1972 session.54 In his first report in 1974, Special Rapporteur Sir Francis Vallat discussed the various notions underlying the

chap_05.fm Page 147 Thursday, October 10, 2002 8:55 AM

147

The Doctrine on the Stability of Boundaries

principle of the continuity of boundary and territorial rights and concluded that important considerations militated “in favour of the application of the principle of continuity rather than that of the clean slate in these exceptional cases.”55 “[T]o allow a succession of States in itself to provide a ground for unilateral rejection of settled boundaries or of territorial rights and obligations would tend towards uncertainty and instability, and would not, generally speaking, be in the interests of the maintenance of international peace and security.”56 Article 11 of the 1978 Vienna Convention on Succession of States in Respect of Treaties eventually provided in its final form: “A succession of States does not as such affect (a) a boundary established by a treaty; or (b) obligations and rights established by a treaty and relating to the régime of a boundary.”57 Many states endorsed Article 11 at the Vienna Conference because of its importance for the maintenance of international peace and security.58 The convention was adopted by an overwhelming majority of the delegates by 82 votes to 0, with only 2 abstentions and with few amendments to the ilc’s draft articles.59 Therefore, according to both customary international law and the Vienna Convention on Succession of States in Respect of Treaties, international boundaries between two colonial powers or between an independent state and a colony, established pursuant to an international treaty, were binding from the time the instrument came into effect and remained unaffected by the attainment of independence by one or both of the parties. Where the boundaries of dependent African territories were internationally established, the rules of state succession ensured that the lines in question simply continued in force and thus bound the new states.60 5.4.3

Rules of Interpretation

The interpretation of boundary treaties is also influenced and guided by the principles of stability. As the Permanent Court noted in the Treaty of Lausanne case, “the very nature of a frontier and of any conventions designed to establish frontiers between two countries imports that a frontier must constitute a definite boundary line throughout its length … [and] … it is … natural that any article designed to fix a frontier should, if possible, be so interpreted that the result of the application of its provisions in their entirety should be the establishment of a precise, complete and definitive frontier.”61 This position was reiterated in the Frontier Land case, the Temple of Preah Vihear case, and the Libya/Chad case. In the 1959 case concerning Sovereignty over Certain Frontier Land, the International Court of Justice took note of the preamble to the 1843 boundary convention between the Netherlands and Belgium. The

chap_05.fm Page 148 Thursday, October 10, 2002 8:55 AM

148

Determining Boundaries

preamble recorded the parties’ common intention to “fix and regulate all that relates to the demarcation of the frontier.” On this basis, the Court concluded that “[a]ny interpretation under which the Boundary Convention is regarded as leaving in suspense and abandoning for a subsequent appreciation of the status quo the determination of the right of one State or the other to the disputed plots would be incompatible with that common intention.”62 Article 1 of the relevant treaty between Cambodia and Thailand in the Temple of Preah Vihear case stated that the frontier between Siam and Cambodia in the area in question “follows the watershed between the basins of the Nam Seng and the Mekong,” and Article 3 provided that “[t]here shall be a delimitation of the frontier” to be carried out by mixed commissions. The Court reasoned that the parties had included Article 3 “because they regarded a watershed indication as insufficient in itself to achieve certainty and finality.” There is … no reason to think that the Parties attached any special importance to the line of the watershed as such, as compared with the overriding importance, in the interests of finality, of adhering to the map line as eventually delimited and as accepted by them. The Court, therefore, feels bound, as a matter of treaty interpretation, to pronounce in favour of the line as mapped in the disputed area.63

In the Territorial Dispute between Libya and Chad, the Court noted that according to the relevant 1955 Franco-Libyan treaty, the parties had “recognized certain frontiers.” However, the treaty in question stipulated that it would be in force for a period of twenty years and could thereafter be terminated. The Court had to consider whether this affected the permanency of the boundaries. Notwithstanding the provision referred to, the Court held that the Treaty must, in the view of the Court, be taken to have determined a permanent frontier … The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, independently of the fate of the 1955 Treaty … A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary.64

It had been argued on behalf of Libya that the 1955 treaty had not converted lines which were not territorial boundaries into such boundaries and that this was a plausible interpretation of the term ‘recognized.’ But the Court preferred an interpretation that would settle the boundary.65

chap_05.fm Page 149 Thursday, October 10, 2002 8:55 AM

149

The Doctrine on the Stability of Boundaries

Although these three cases affirm the priority the icj has afforded the stability principle in interpreting boundary treaties, it is not an absolute value. The Court did not decide that a line purporting to represent a boundary established by treaty could never be challenged on the grounds that it did not correctly represent the purport of the treaty.66 Nor did the Court conclude that a boundary line, once actually drawn, became intangible. As Thirlway comments: “A discrepancy between the frontier line and the text of the treaty might well be covered by estoppel (as in the Temple case), or by appeal to the subsequent conduct of the parties as an interpretation, or a modification, of the treaty; but in the absence of such circumstances, the desirability of finality could not over-ride the need to apply the treaty according to its terms.”67 The Court’s pronouncements in the Preah Vihear and the Libya/Chad cases are no more than the statement of a presumption in the interpretation of boundary treaties. States must always retain the freedom to conclude a treaty that expressly provides that a boundary will exist only so long as it and the relevant treaty are not simultaneously terminated according to conditions laid down in the treaty.68 Shaw also maintains that the presumption can only apply absent contrary evidence.69 “One cannot utilise the presumption, for example, in order to determine that a boundary has been established where the treaty itself does no such thing.”70 As Judge Shahabuddeen declared in his separate opinion in the Libya/Chad case: “The principle of the stability of boundaries, as it applies to a boundary fixed by agreement, hinges on there being an agreement for the establishment of a boundary; it comes into play only after the existence of such an agreement is established and is directed to giving proper effect to the agreement. It does not operate to bring into existence a boundary agreement where there was none.”71 For this reason, Judge Shahabuddeen cautioned against misinterpreting the remarks made by the Permanent Court in the Treaty of Lausanne case.72 The Court had noted at the outset that Article 3 of the relevant treaty had intended to lay down the frontier of Turkey from the Mediterranean to Persia. Therefore, between the two undisputed terminal points established by the treaty itself, the frontier necessarily had to be continuous and definitive.73 According to Judge Shahabuddeen, it was not the intention of the Court to suggest that every boundary agreement between two parties was to be presumed to extend to the entirety of their adjacent territory: “The case was not about overall length, but about gaps within an undisputed overall length.”74 The principle of stability of boundaries therefore creates a presumption in the interpretation of boundary treaties: a boundary treaty

chap_05.fm Page 150 Thursday, October 10, 2002 8:55 AM

150

Determining Boundaries

will be assumed to have comprehensively settled the entire boundary between two contracting parties absent evidence of a contrary intention. Any ambiguity in colonial instruments establishing boundaries between African colonies would therefore have been resolved in favour of continuity. In addition to these various rules and principles that would have dictated respect for inherited international boundaries, a number of international norms would also have contributed to the maintenance of unilateral or intracolonial boundaries. 5.4.4

Nemo Dat Principle

A number of jurists have rationalized the rule of boundary continuity by reference to the principle nemo dat quod non habet. De Vattel was one of its earliest proponents: We must not confound those treaties or alliances which, since they impose the obligation of repeated acts on both sides, can not remain in force except through the continued existence of the contracting powers, with those contracts by which a right is once and for all acquired, independently of any subsequent acts of either party. If, for example, a Nation has granted in perpetuity to a neighbouring prince the right to fish in a river or to keep a garrison in one of its fortresses, the prince does not lose his rights even though the Nation from which he has received them should happen to be conquered by, or in any other way subjected to the control of, a foreign Power. His rights do not depend upon the continued existence of the State from which he received them, for the latter alienated them, and its conqueror could only take over what it actually possessed.75

The conqueror acquired the territory subject to the prince’s fishing rights because the conqueror could only acquire that which the conquered nation possessed – nemo dat quod non habet. This aspect of the principle has been endorsed by McNair: In many cases it suffices to invoke such principles as nemo dat quod non habet, nemo plus juris transferre quam ipse habet, and res transit suo onere, for when a State cedes a piece of territory over which it has granted to another State a right of transit or a right of navigation on a river, or a right of fishery in territorial or national waters, it cannot cede that territory unencumbered by that obligation.76

Other commentators have emphasized the territorial implications of the nemo dat principle. Shaw, for example, has declared that a “pre-

chap_05.fm Page 151 Thursday, October 10, 2002 8:55 AM

151

The Doctrine on the Stability of Boundaries

decessor State may transfer to the successor State only the territorial extent of its own competence.”77 O’Connell has also argued that a “State can acquire from another only so much territory as that other possessed.”78 And Brownlie has asserted that this maxim is “undoubtedly part of international law,” referring to a statement by Max Huber in the Palmas case to support his position: “The title alleged by the United States of America as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region … It is evident that Spain could not transfer more rights than she herself possessed.”79 These various statements are undoubtedly linked to the “territorial theory”80 whereby certain rights and obligations, including boundaries, are deemed to attach to territory and ipso facto to pass with the territory to the successor state.81 Shaw explains: “Thus, in a sense, one is not considering a question of succession to boundary treaties, but rather succession to the existing and delimited territorial dimensions of the predecessor State.”82 The raison d’être of the maxim nemo dat quod non habet is undoubtedly the need to preserve the continuity and stability of boundary regimes and territorial obligations. In the context of the decolonization of Africa, the metropolitan powers could only transfer to their former colonies the territorial extent of their own competence and nothing more. Therefore, the newly independent African states acquired from the colonial powers only so much territory as they had possessed. To that extent, the operation of the nemo dat principle would itself have contributed very substantially to the preservation of administrative and international boundaries in Africa. 5.4.5

The Inviolability of Frontiers

According to Jean-François Lachaume, “the great international dramas of our time arose out of a lack of comprehension of the inviolability of frontiers.”83 The inviolability of frontiers appears to be a recognized and uncontested principle of international law84 even though international texts and documents have rarely made express reference to it. However, the principle has not always been defined with precision, especially in relation to other boundary elements. Lachaume provides the following definition: The inviolability of frontiers signifies first and foremost that the sovereignty of a State cannot by force cross the frontier of another State to violate, without its consent, the sovereignty of this other State. Such a breach constitutes an illicit

chap_05.fm Page 152 Thursday, October 10, 2002 8:55 AM

152

Determining Boundaries

act, in the view of international law, on the part of the guilty State … The inviolability of frontiers protects States against incursions by the sovereignty of other States.85

The principle of inviolability safeguards the territorial sovereignty of independent states by prohibiting sporadic and temporary violations of boundaries. The commitment of African leaders to respect the boundaries existing at independence therefore encompassed the concept of the inviolability of frontiers. 5.4.6

The Intangibility of Frontiers

The need to ensure stability in international relations has given rise to an important rule expressed in terms of the intangibility of boundaries. From a strictly legal perspective, the intangibility principle implies that existing boundaries, whether established by international agreement or through effective occupation, cannot be called into question through the use of force. The two concepts of inviolability and intangibility are undoubtedly closely linked insofar as they both prohibit unilateral violations of the boundaries of another state. Yet Charpentier maintains that they are not interchangeable: [T]he only specific meaning of the intangibility principle seems to me to be … that States must not dispute the validity of the title on the basis of which the boundary is established, even if this title appears somewhat questionable, as can be uti possidetis. I believe that this is its only meaning. In other words, while the inviolability principle protects territorial integrity, the intangibility principle protects the territorial unit.86

In contrast to the uti possidetis juris principle, the intangibility principle is limited to the juridical consequences flowing from a situation already in existence and does not formulate any presuppositions as to the title at the root of the delimitation. For this reason, the Cairo resolution of 1964 is more accurately described as the application, in Africa, of the principle of the intangibility of frontiers. In this respect, it should be recalled that in submitting their boundary dispute to a Chamber of the icj, Burkina Faso and Mali, both members of the oau, professed their continued adherence to the intangibility principle. In the preamble to their special agreement, the parties affirmed that the settlement of their boundary dispute by the International Court of Justice “must be based in particular on respect for the principle of the intangibility of frontiers inherited from colonization.”87

chap_05.fm Page 153 Thursday, October 10, 2002 8:55 AM

153

5.4.7

The Doctrine on the Stability of Boundaries

Territorial Integrity

It is with respect to the rules for the maintenance of international peace and security that the principle of the territorial integrity of states has had the greatest impact. Its role has been emphasized not only in the sphere of customary law but also in the most important international documents and conventions. The Covenant of the League of Nations provided in Article 10 that “the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all the Members of the League.”88 Article 11 of the Montevideo Convention on Rights and Duties of States provides that “the territory of a State is inviolate and may not be the object of military occupation nor of other measures of force imposed by another State directly or indirectly or for any motive whatever even temporary.”89 Article 2(4) of the United Nations Charter emphasizes that “all Members shall refrain in their international relations from the threat of use of force against the territorial integrity or political independence of any State.”90 The Declaration on the Granting of Independence to Colonial Countries and Peoples (hereinafter Colonial Declaration) affirms the right to territorial integrity four times, including paragraph 6, which provides that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”91 This principle was reiterated in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (hereinafter Declaration on Friendly Relations). Under the heading “Equal rights and selfdetermination of peoples,” the Declaration provides that every state “shall refrain from any action aimed at the partial or total destruction of the national unity and territorial integrity of any other State or country.”92 The principle was also incorporated under the section on the sovereign equality of states, which was deemed to include the proposition that “the territorial integrity and political independence of the State are inviolable.”93 Article 1 of the 1974 Consensus Definition of Aggression defines aggression as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state.94 The territorial-integrity principle has also been adopted by regional organizations. Article 17 of the Charter of the Organization of American States proclaims that “the territory of a State is inviolate,”95 while one

chap_05.fm Page 154 Thursday, October 10, 2002 8:55 AM

154

Determining Boundaries

of the stated purposes of the Organization of African Unity is to defend the territorial integrity of member states. Further, in Article 3(3) of the oau Charter, member states solemnly affirm and declare their adherence to the principles of respect for sovereignty and territorial integrity of each state.96 While all of these instruments testify to the importance of the territorial integrity principle in international relations, the particular formulation of the principle in the Colonial Declaration may prove to be the most crucial. Paragraph 6 of the Colonial Declaration provides: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”97 The Declaration on Friendly Relations contains a similar formulation. Under the section “The principle of equal rights and self-determination of peoples,” the Declaration refers to every state’s obligation to “refrain from any action aimed at the partial or total disruption of the national unity and the territorial integrity of any other State or country.”98 These references to territorial integrity as an attribute of a “country” rather than of a “State,” particularly in the Colonial Declaration, have been interpreted as conferring the right to territorial integrity upon non-selfgoverning territories as well as trust and mandated territories. Blay argues that the term ‘country’ relates to a geographical territorial unit and may therefore require the reintegration of a precolonial territory, the non-dismemberment of a non-self-governing unit prior to independence, or the non-dismemberment of an existing sovereign state.99 (A) Reintegration of a Precolonial Territory. A territorial integrity claim is sometimes based on historical ties between the claimant state and the disputed territory. In these cases, the disputed territory has often been severed from the claimant state during the colonial period. Once independent, the claimant state argues for the return of ‘its territory.’ As the concept of historical titles is well founded in international law,100 the territorial integrity principle may give the claimant either a remedial right to restore pre-colonial boundaries or a right of retrocession. Some states have argued that this interpretation of the territorial integrity principle lies at the heart of paragraph 6 of the Colonial Declaration. Both Indonesia and Guatemala have formulated demands for the recognition of particular pre-colonial boundaries and have argued that paragraph 6 should be interpreted so as to allow Indonesia to reintegrate West Irian and Guatemala to reintegrate Belize. Morocco has construed paragraph 6 as prohibiting the “efforts … of French colonialism to partition Morocco and disrupt its national territorial unit, by setting up an artificial state in the area of Southern Morocco which

chap_05.fm Page 155 Thursday, October 10, 2002 8:55 AM

155

The Doctrine on the Stability of Boundaries

the colonialists call Mauritania.”101 It has also advanced an interpretation of the 1964 oau boundary resolution that preserves its claim to pre-colonial territories.102 However, in the Western Sahara case, the icj concluded that it was unlikely that paragraph 6 of the Colonial Declaration could be interpreted as a principle of territorial integrity overriding the right of a people to self-determination.103 (B) Non-Dismemberment of a Non-Self-Governing Unit. Paragraph 6, together with chapters 11104 and 12105 of the un Charter,106 has also been interpreted as condemning the dismemberment of colonial units prior to independence. According to this theory, administering powers are under an obligation to maintain the unity of a non-selfgoverning entity to ensure that the inhabitants exercise their right to self-determination as a single indivisible unit and to guarantee that the wishes of the whole of the population are implemented. The un General Assembly has condemned attempts by metropolitan states to subdivide non-self-governing territories prior to independence on the basis that such actions are contrary to their obligations under paragraph 6 of the Colonial Declaration. In 1965, when the United Kingdom announced its intention of detaching the Chagos, Farquhar, Desroches, and Aldabra Islands from the colonies of Mauritius and the Seychelles to form the British Indian Ocean Territories, the General Assembly warned the United Kingdom that such action would violate paragraph 6.107 When the United Kingdom did in fact proceed with the separation of the islands, the General Assembly denounced the action as a violation of the uk’s obligations under the Colonial Declaration.108 In 1976, France’s policy on Mayotte was also condemned by both the Security Council and the General Assembly. On the basis of a preindependence referendum, the Island of Mayotte remained under French control after the Comoros Islands became independent. In July 1977, the oau Conference added its support to Comorese demands for the reintegration of Mayotte. In analogous circumstances, the General Assembly also supported Madagascar’s claim for the reintegration of Juan de Nova, Glorieuses, Europa, and Bassas da India, which though part of colonial Madagascar, had remained under French control after independence.109 This prohibition against the dismemberment of non-self-governing units prior to independence was also very much at the heart of the debate within the General Assembly respecting administrative unions within trust territories.110 During Africa’s colonial period, the exercise of sovereignty in trust territories was clearly vested in the administering powers subject to supervision by and accountability to the United

chap_05.fm Page 156 Thursday, October 10, 2002 8:55 AM

156

Determining Boundaries

Nations. Yet according to Oppenheim, it is manifest that trust territories did not form part of the territory of the states entrusted with their administration. A distinction has to be made between sovereignty as such (what Oppenheim describes as residual sovereignty111) and the exercise of sovereignty: For this reason the latter cannot cede or otherwise alter the status of trust territories except with the approval of the United Nations in which the residuary sovereignty must be considered to be vested … The notion of delegation of powers and of the primary and residuary sovereignty of the authority from which the powers of the administering State are derived is a general principle of law of enduring value and practical application for both mandates and trust territories.”112

However, the majority of un-approved trusteeship agreements specifically provided that the trust territories could be administered as an “integral part” of the administering state. Essentially identical articles in the trusteeship agreements for Tanganyika, Togoland and the Cameroons (British), Togoland and the Camerouns (French), Ruanda-Urundi, New Guinea, and the Pacific Islands gave the administrative authorities the power to enter into “customs, fiscal, or administrative unions of federations, including the establishment of common services with adjacent areas under their control or sovereignty.”113 Such administrative arrangements, however, were limited by the requirement that they respect the basic objectives of the trusteeship system114 and the trusteeship agreements. The General Assembly was sufficiently concerned about the potential impact of administrative unions on trust territories to adopt at its 160th Plenary Meeting, on 18 November 1948, Resolution 224(3), which called upon the Trusteeship Council to investigate the question in all its aspects. On the basis of Resolution 224(3), the Trusteeship Council appointed a Committee on Administrative Unions to undertake the preparatory work for this investigation. During the discussions surrounding the initial proposals for a trusteeship system and eight specific trusteeship agreements, the ussr had objected to the clause permitting administration of a trust territory “as an integral part” of the administering state on the grounds that trust territories were under the jurisdiction of the United Nations and should not be regarded as the property of metropolitan states. No provision that could result in the incorporation of a territory or its unilateral disposal should be allowed, “since a provision of that sort would allow the equivalent of annexation in violation of the Charter.”115 India also feared that a union, though originally conceived for purely

chap_05.fm Page 157 Thursday, October 10, 2002 8:55 AM

157

The Doctrine on the Stability of Boundaries

administrative purposes, would inevitably evolve into a political union. These political consequences would have the effect of “extinguishing the separate political status of Trust Territories and of prejudicing their development towards independence or self-government.”116 The United Kingdom replied to these criticisms by maintaining that it was not its intention to diminish the individual political status of the territories and recalled that “C” mandates under the League of Nations system had allowed the powers to administer territories as an integral part of their own territory. The British government further argued that there was simply no other practical way to administer Togoland and the Cameroons, which were long narrow strips of territory adjoining Nigeria and the Gold Coast. France and Belgium, for their part, maintained that the clause was for mere administrative convenience and strongly denied any intention of reducing the political individuality of the trust territories. The ultimate outcome of the decolonization process in the British Cameroons appears to have vindicated the Soviet and Indian position. In carrying out its trust obligations, the United Kingdom had divided the British Cameroons into two parts, and the Northern Cameroons had been administered as an integral part of Nigeria. On the eve of independence, separate plebiscites were conducted in both areas with the result that the southern section voted to join the independent Republic of Cameroon while the northern section voted for integration within an independent Nigeria. In an application brought before the International Court of Justice in 1963, the Republic of Cameroon alleged that the United Kingdom had breached the trusteeship agreement by not respecting and preserving the separate political status of the Northern Cameroons. The Court was never called upon to pronounce itself on these issues as the case was dismissed on preliminary objections.117 More recently, the principle of pre-independence territorial integrity was relied upon by Portugal in defending the rights of the East Timorese people. During the course of oral pleadings on 1 February 1995, Mr Correia argued on behalf of the Portuguese government that [o]ne of the major principles of the right of peoples to self-determination … is that according to which the territory of a colony or other non-self-governing territory has, under the Charter, a separate and distinct status from that of the territory of the State which administers it … This principle … which an author has called the ‘principle of alterity’ … is not only a formal principle. It is linked to other principles; on the one hand to that of the pre-eminence of the specific interests of the people of the non-self-governing territory, become in its own right a juridical entity, on the other hand, to the sovereignty of that

chap_05.fm Page 158 Thursday, October 10, 2002 8:55 AM

158

Determining Boundaries

people. Moreover, the assertion of alterity is clearly related … to the rule established in Resolution 1541 (xv) according to which the integration of the nonself-governing territory with an independent State can only occur through the free choice of its people.118

Although the rule against the dismemberment of non-self-governing territories has on occasion been disregarded by metropolitan powers, General Assembly and oau condemnation of these situations attests to the status of the rule in the law on decolonization. This aspect of the territorial integrity rule would have had important implications for the decolonization process in Africa. It obliged the European colonial powers to devolve independence to colonies as defined by existing unilateral or international boundaries. This protection would have been afforded the African colonies as of the date of the Colonial Declaration, four years before the Cairo resolution. (C) Non-Dismemberment of an Existing Sovereign State. Paragraph 6 of the Colonial Declaration also proscribes any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of sovereign, independent states. Paragraph 7 further imposes on all states the strict and faithful observance of the un Charter, the Universal Declaration of Human Rights, and the Colonial Declaration on the basis of equality, non-interference in the internal affairs of all states, and respect for the sovereign rights of all peoples and their territorial integrity. This definition of territorial integrity obviously restricts the right of self-determination, as it prohibits any actions that would modify the existing boundaries of an independent state. This uneasy and complex relationship between the territorial integrity principle and the right of peoples to self-determination warrants particular attention and will be the focus of the next section.

5.5

territorial integrity and s e l f - d e t e r m i n at i o n

As we have seen, the right of states to territorial integrity represents one of the fundamental norms of international law. Within the international legal system, each state is entitled to an area of exclusive jurisdiction under Article 2(7) of the un Charter, and under Article 2(4), no use of force is permitted against the territorial integrity or political independence of a state. As Simpson explains, the territorial integrity principle is the foundation stone upon which rests the entire legal order: This specific right to the fruits of statehood is merely the statement of a broader policy that informs the international legal system. International law is

chap_05.fm Page 159 Thursday, October 10, 2002 8:55 AM

159

The Doctrine on the Stability of Boundaries

an inherently conservative system of rules dedicated to maintaining stability in the international order. The commitment to the maintenance of borders and stability is native to the Charter system. Hence, the ambivalence towards the principle of self-determination.119

International disputes surrounding the decolonization of Belize and the status of Western Sahara have highlighted the long-standing and troublesome problem of the interplay between the right to territorial integrity and a possible exception to that right, the principle of selfdetermination. The root of the problem lies in various international instruments. Article 1(2) of the un Charter states as one of the purposes of the United Nations, the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Article 55 uses the same formula to express the general aims of the un in the fields of international economic and social cooperation. Yet the Charter in Article 2(4) also guarantees to all member states the right to territorial integrity: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”120 On 14 December 1960, the General Assembly adopted Resolution 1514(xv), the Colonial Declaration, which states as its political objective the speedy and unconditional end of colonialism.121 The preamble to the Declaration reads in part “[c]onscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and selfdetermination of all peoples,”122 and Article 2 declares unequivocally that “[a]ll peoples have the right of self-determination.”123 At the same time, the preamble also reaffirms the right of all peoples to the integrity of their national territory, and this principle is further explicitly recognized in Articles 4, 6, and 7. The Declaration on Friendly Relations is contained in the annex to Resolution 2625(xxv) of the un General Assembly, adopted without vote on 24 October 1970. The legal significance of the Declaration lies in the fact that it provides evidence of the consensus among member states as to the meaning and operation of the charter principles. Both the principle of territorial integrity and the right of selfdetermination are recognized in the preamble to the Declaration and are proclaimed as principles of international law. In the section entitled “The principle of equal rights and self-determination of peoples,” the Declaration provides: “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter … all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural

chap_05.fm Page 160 Thursday, October 10, 2002 8:55 AM

160

Determining Boundaries

development.”124 However, the final paragraphs of this section warn: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states … Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”125 The two competing principles have also been adopted by regional organizations. In Article 3(3) of the oau Charter, member states solemnly affirm their adherence to the principle of the “respect for the sovereignty and territorial integrity of each State,” while in paragraph 6 of the same article, they declare their “[a]bsolute dedication to the total emancipation of the African territories which are still dependent.”126 5.5.1

The Colonial Context

While the problem of definition has dogged self-determination ever since Woodrow Wilson coined the expression in his Fourteen Points address, its role in the decolonization context now appears indisputable. In the Namibia Advisory Opinion, the majority of the International Court of Justice found that, despite the different categories of mandates and the different formulations of mandate and trust responsibilities, as well as the reference to non-self-governing territories in the un Charter, “the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.”127 In the Western Sahara Case, the icj cited this passage with approval and upheld the right to self-determination of the inhabitants of Western Sahara notwithstanding claims for reintegration by Morocco and Mauritania.128 Several of the separate opinions also reaffirmed self-determination as the relevant juridical principle. Judge Dillard emphasized that “[t]he pronouncements of the Court thus indicate, in my view, that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations.”129 These pronouncements are clearly justified by reference to the un Charter and other key international instruments. The preamble to the un Charter records the determination of the founding nations “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and nations large and small.”130 Article 1(2) lists as one of the purposes of the United Nations to “develop friendly relations among nations based on

chap_05.fm Page 161 Thursday, October 10, 2002 8:55 AM

161

The Doctrine on the Stability of Boundaries

respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”131 Two chapters of the Charter are devoted to non-self-governing territories and peoples. Under Article 73 of chapter 11, members of the un assuming responsibilities for the administration of non-self-governing territories accept as a sacred trust the obligation to promote the wellbeing of the inhabitants. To this end, administering powers are charged with the responsibility of developing self-government, of taking due account of the political aspirations of the peoples, and of assisting them in the progressive development of their free political institutions.132 Chapter 12 of the Charter established an international trusteeship system for the administration and supervision of particular dependent territories. Article 76, referring specifically to Article 1 of the Charter, lists the basic objectives of the un trusteeship system. Subparagraph (b) provides that one of these objectives shall be “to promote the political, economic, social and educational advancement of the inhabitants of trust territories, and their progressive development towards selfgovernment or independence as may be appropriate to the particular circumstances of each territory and its peoples.”133 Therefore, by virtue of the principle of equal rights and self-determination of peoples, the un Charter grants to non-self-governing territories the right to selfgovernment and to trust territories the right to self-government or independent statehood. The international community’s commitment to the principle of equal rights and self-determination of peoples was subsequently reaffirmed in the Colonial Declaration. The Declaration, adopted by the General Assembly in Resolution 1514(xv),134 is in the form of an authoritative interpretation of the un Charter. However, it reveals a fundamental change in attitudes in the intervening years since the founding of the United Nations. With the support of the vast majority of states, the General Assembly declares in the preamble that the “peoples of the world ardently desire the end of colonialism in all its manifestations.” The preamble goes on to provide: Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small and to promote social progress and better standards of life in larger freedom, Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly relations based on respect for the principles of equal rights and self-determination of all peoples …,

chap_05.fm Page 162 Thursday, October 10, 2002 8:55 AM

162

Determining Boundaries

Recognizing the passionate yearning for freedom in all dependent peoples and the decisive roles of such peoples in the attainment of their independence, Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitutes a serious threat to world peace …, Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manisfestations;135

No longer must international law provide organizational principles for the administration of non-self-governing territories. International law, driven by a renewed commitment to fundamental human rights, must now oversee the speedy and unconditional end to colonialism in all its manifestations. Article 2 of the Declaration therefore provides that all peoples have the right to self-determination and that, by virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development. Article 4 then declares that all armed action directed against dependent peoples is to cease in order to enable them to exercise peacefully and freely their right to complete independence. Thus, by 1960, the principle of selfdetermination is deemed to confer on all dependent peoples a right of independence. However, this aspect of the self-determination principle, involving a right to independence, is strictly limited. Already, under chapter 12 of the Charter, only territories held under mandate of the League of Nations, territories that had been detached from ‘enemy’ states following wwii, and territories voluntarily placed under the trusteeship system by the states responsible for their administration could benefit from the right to independence contained in Article 76. As for the Colonial Declaration, the right to complete independence is conferred only on peoples in non-self-governing territories or trust territories or on peoples subjected to alien domination and exploitation. Once the colonial people has asserted its right to self-determination through the attainment of independent statehood, the stability imperative reasserts itself. After decolonization, though the self-determination principle is still deemed to confer on the ‘people’ or the population of each state, as a single group, a right to independence, it is interpreted as a right to freely determine, without external interference, its political status and to pursue its economic, social and cultural development.

chap_05.fm Page 163 Thursday, October 10, 2002 8:55 AM

163

The Doctrine on the Stability of Boundaries

Thus, within the colonial context, the principles of territorial integrity and self-determination coexist without contradiction. As Shaw summarizes: Where a non-self-governing territory has attained independence, the principle of self-determination coupled with that of territorial integrity will operate to protect the territorial unity and framework of the new state. Indeed, a basic presumption of the application of self-determination is that it will be exercised by the people in question within the territorial framework of the entity as administered by the colonial power before independence … The territorial framework of the non-self-governing entity has been, with only a few exceptions, substantially accepted as the identification pattern for the exercise of the right to self-determination. Once a state has obtained independence, international law imposes a duty upon other states to respect and preserve this territorial arrangement.136

In much the same way, Crawford concludes that the principle of selfdetermination has evolved in the colonial context so as to accord with the stability doctrine.137 Prior to independence, the principle of selfdetermination operates hand-in-hand with the obligation to respect the territorial integrity of non-self-governing territories by imposing restrictions upon a colonial power’s right to alienate or dismember such territory. In post-independence situations, self-determination is then interpreted so as to protect the territorial expression of the new state and prevent outside interference in its internal affairs. As a member of the international community, the newly independent state also benefits from a panoply of rights and guarantees, including Article 2(4) of the un Charter, which prohibits the threat or use of force against the territorial integrity of any state. 5.5.2

Exceptions to the Primacy of Self-Determination

Clearly, in the colonial context, the right of self-determination cannot be derogated from on the basis of a need to preserve territorial integrity. Simpson, for example, argues that it would be absurd to suggest that Angola had no right to self-determination in 1970 on the grounds that its exercise would infringe Portugal’s territorial integrity. This position has arguably been endorsed by the icj sub silentio in the Western Sahara case138 and explicitly by two of its members in their separate opinions. Judge Nagendra Singh declared that “even if integration of territory was demanded by an interested State … it could not be had without ascertaining the freely expressed will of the people – the very

chap_05.fm Page 164 Thursday, October 10, 2002 8:55 AM

164

Determining Boundaries

sine qua non of all decolonization.”139 Judge Dillard referred to selfdetermination as the “cardinal restraint” in the context of decolonization140 and said that it seemed to him “unlikely that paragraph 6 [of the Colonial Declaration] could justifiably be applied to the decolonization of the Western Sahara as a principle of territorial integrity overriding the right of the people to self-determination.”141 On the other hand, Maguire has suggested that in the decolonization context, self-determination does not necessarily and categorically override other competing values.142 He argues that, in appropriate circumstances, “a strong historical claim overrides the right of an indigenous population to self-determination even though the claim is centuries old.”143 Conversely, “[a] weak claim will not affect the right of self-determination no matter how recently the claim arose.”144 Maguire suggests that when self-determination and historical claims conflict, it is not a question of categorically overriding one in favour of the other but rather of weighing and balancing the merits of the competing claims. Blay rejects this argument on the grounds that it is inconsistent with the cases cited by Maguire. “The practice of the General Assembly indicates that the principle of self-determination in paragraph 2 of the [Colonial Declaration] almost always takes precedence over claims to a particular unit.”145 This statement is certainly borne out by the icj’s judgment in the Western Sahara case. But, while the International Court has consistently ruled in favour of the self-determination principle in situations in which historical claims were also asserted, international law does recognize exceptions to the primacy of self-determination in the colonial context: in cases involving ‘plantations,’ colonial enclaves, and pre-emptive rights under treaties and leases.146 ‘Plantations’: The Falklands and Gibraltar. Gibraltar and the Falkland Islands have been described as ‘plantations’ because they are populated to a large extent by citizens or subjects of the colonial power who settled in the disputed territory. The residents are not the indigenous inhabitants of the territories and are, in effect, the beneficiaries of colonial rule. Some commentators maintain that in its approach to the self-determination claims of Gibraltar and the Falkland Islands, the un General Assembly has determined that non-indigenous residents do not constitute ‘a people’ entitled to benefit from the selfdetermination principle.147 However, this approach appears to have little merit when the ‘imported’ inhabitants have occupied the territory for centuries. Historical claims vindicated on such an interpretation of the self-determination principle would have a serious destabilizing effect.148

chap_05.fm Page 165 Thursday, October 10, 2002 8:55 AM

165

The Doctrine on the Stability of Boundaries

Colonial Enclaves. A colonial enclave is a unit of territory virtually surrounded by another independent state. It has been argued that, in the case of small nonviable enclaves claimed by a contiguous state, Article 6 of the Colonial Declaration149 takes priority over Article 2,150 the territory’s only option for decolonization thus being its integration within the claimant state. This specific issue was raised in the Western Sahara case.151 The General Assembly’s practice indicates that it regards enclaves as parts of the surrounding states and that it accepts reversion as the most appropriate method of resolving disputes on such territories.152 However, Crawford argues that if colonial enclaves do represent an exception to the primacy of self-determination, international practice narrowly limits its application to “minute territories which approximate, in the geographical sense, ‘enclaves’ of the claimant State, which are ethnically and economically parasitic upon or derivative of that State, and which cannot be said in any legitimate sense to constitute separate territorial units.”153 Preemptive Rights and Leases. The supremacy of the self-determination principle may also be called into question when a non-self-governing territory is subject to a treaty obligation. When a state can prove an existing right of pre-emption over a territory, its rights may take precedence over other claims, including those to self-determination. The Treaty of Utrecht154 between Spain and Great Britain is an interesting example. Under the treaty, Spain ceded Gibraltar to Great Britain, but the terms provided that in the event Great Britain chose to grant, sell, or otherwise alienate the territory, Spain would have preferential status over all other potential takers.155 Thus, when the issue of Gibraltar’s decolonization arose, Spain argued that the preference granted it by the terms of the treaty took precedence over all other claims to the territory, including that of the inhabitants of Gibraltar themselves. Great Britain, for its part, had also assumed that the Treaty of Utrecht restricted the options available to the people of Gibraltar in the determination of their political future. Thus the uk representative to the un Human Rights Committee declared in 1988 that independence was excluded under the provisions of the 1713 Treaty of Utrecht, which stated that, if the United Kingdom gave up its sovereignty over those territories, Spain would exercise its rights. In 1967, a referendum on the future of Gibraltar had produced clear-cut results: 99 per cent of the voters had chosen to maintain the current constitutional relationship with the United Kingdom. Independence was therefore not an option for Gibraltar: the choice was between the present constitutional relationship and becoming part of Spain.156

chap_05.fm Page 166 Thursday, October 10, 2002 8:55 AM

166

Determining Boundaries

However, if Gibraltar represents a self-determination unit under international law, it is clearly the inhabitants of Gibraltar and not Great Britain or Spain who may exercise the right to self-determination. It is therefore difficult to accept that their right to self-determination could be restricted by a treaty between two states.157 Territorial leases, in cases like those of Hong Kong and the Panama Canal Zone, also involve pre-emptive rights. As in municipal law, an international lease presupposes a continuation of the title of the lessor state over the leased territory. Thus the lessor’s reversionary right ought to take precedence over all other claims when the lease term ends.158 Blay, however, provides one counterargument to this proposition. Chapter 11 of the Charter provides for non-self-governing territories, and under Article 73, administering states accept as a sacred trust the obligation to promote self-government in non-self-governing territories. If an administering state’s charter obligations conflict with its rights and obligations under a treaty or international agreement, the Charter resolves the conflict by providing that the charter obligations take precedence.159 Article 103 of the Charter stipulates that “[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”160 According to this theory, therefore, if the Treaty of Utrecht or the Hong Kong lease, for example, are deemed to be ‘international agreements,’ then the obligations of the administering states under Article 73 would take precedence over their obligations under those international agreements. In this way, pre-emptive rights under treaties or leases could not operate so as to deprive the territory’s inhabitants of their right to self-determination. However, it must be noted that thus far the General Assembly’s practice does not appear to support this position. 5.5.3

Post-Colonial Context

As mentioned in our discussion of the relationship between territorial integrity and self-determination in the colonial context, once independence has been achieved, self-determination is interpreted by the international community as a right that belongs to the population of the new state as a whole and that serves to protect its national unity and political independence. This interpretation of the right to selfdetermination in post-independence situations is substantiated by paragraph 7 of the Colonial Declaration: “All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declara-

chap_05.fm Page 167 Thursday, October 10, 2002 8:55 AM

167

The Doctrine on the Stability of Boundaries

tion on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign right of all peoples and their territorial integrity.”161 A decade after the Colonial Declaration was adopted, the General Assembly once again reaffirmed its commitment to the un Charter’s principles. However, this time, the pledge to respect the rules of international law in accordance with the Charter was not confined to the colonial context. The preamble of the Declaration on Friendly Relations provides that the faithful observance of the principles of international law concerning friendly relations and cooperation among states and the fulfilment in good faith of the obligations assumed by states in accordance with the Charter is of the greatest importance for the maintenance of international peace and security and for the implementation of the other purposes of the United Nations. The preamble and the operative paragraphs of the Declaration reiterate the un’s commitment to the principle of equal rights and selfdetermination of peoples: “[A]ll peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.”162 While the Declaration proclaims that the right of self-determination inures to all peoples and not merely to non-self-governing peoples, the Declaration also attests to the priority afforded the territorial integrity principle and the international community’s constant preoccupation with ensuring territorial stability: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign independent States conducting themselves in compliance with the principle of equal rights and selfdetermination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.163

These two paragraphs also testify to the continued relevance of the jurists’ conclusion in the Aaland Islands dispute: “Positive international law does not recognize the right of national groups to separate themselves from the State of which they are a part by the simple expression of a wish, any more than it recognizes the right of other States to claim such a separation.”164 The Commission of Rapporteurs had then provided in their report the justification for this rule: “To concede to

chap_05.fm Page 168 Thursday, October 10, 2002 8:55 AM

168

Determining Boundaries

minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity.”165 Clearly these considerations still underlie the international community’s response to secessionist claims. However, the two paragraphs cited do appear to legitimize independence for minority groups within sovereign independent states in certain situations akin to colonialism – for instance, when a people is subjected to foreign or alien domination or is oppressed by a racist or discriminatory regime. Of course, as Higgins notes, there can be no question of a legal entitlement to independence when there is representative government.166 International law at present does not recognize a right to independence – understood as a legal entitlement – for national groups within sovereign states possessed of a government representing the whole people without discrimination.167 Hannum has argued that this does not mean that other aspects of the self-determination principle are also limited: “Both the right of a people organized as a state to freedom from external domination and the right of the people of a state to a government that reflects their wishes are essential components of the right of self-determination.”168 Franck has also emphasized the internal aspect of the right to selfdetermination. According to Franck, the right to self-determination, at least for the time being, has stopped being a principle of exclusion (secession) and has become one of inclusion – the right to participate: “The right [of self-determination] now entitles peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each state.”169 Thus, in the post-colonial context, while the right of self-determination has been extended to all peoples, the options available in exercising the right have been severely curtailed. In the absence of systematic discrimination or foreign domination, the principle confers upon the population of every state the right to be free from external interference and a right to internal participation. 5.5.4

Conclusion

Territorial integrity and self-determination are two competing principles in contemporary international law. In every case, the preeminence of one over the other will be determined by the nature of the intended beneficiaries. When the decolonization of a colonial

chap_05.fm Page 169 Thursday, October 10, 2002 8:55 AM

169

The Doctrine on the Stability of Boundaries

unit is involved, United Nations practice suggests that the territory’s right to self-determination will, in almost every instance, pre-empt the claims of an existing sovereign state to the territory based upon the territorial integrity principle. The only exceptions to this rule appear to be ‘plantations,’ colonial enclaves, territories subject to rights of pre-emption, and leased territories. However, beyond the colonial context, territorial integrity will generally pre-empt claims to selfdetermination by individuals or groups who reside within the boundaries of an independent sovereign state possessed of a government representing all of the people belonging to the territory without distinction as to race, creed, or colour. Clearly, the interaction of these two principles would have greatly contributed to the outcome of the decolonization process in Africa. Prior to independence, un instruments, particularly the Colonial Declaration, conferred on African colonial peoples a legal entitlement to independent statehood. This right of self-determination, coupled with the prohibition against the dismemberment of non-self-governing territories, ensured that decolonization occurred on the basis of preexisting colonial boundaries. Once independence had been achieved, the two principles combined to protect the newly independent states from external and internal attempts aimed at disrupting the national territory. Irrespective, therefore, of the oau Charter and the 1964 boundary resolution, these two cardinal principles of international law would have acted in concert to guarantee the territorial status quo.

5.6

uti possidetis versus s e l f - d e t e r m i n at i o n

As we have demonstrated, the territorial integrity principle has had a considerable impact on the decolonization process, particularly in Africa. As a result of the rule prohibiting the dismemberment of non-self-governing territories, which is an important aspect of the territorial integrity principle, the colonial territorial unit was accepted as the basic framework for the exercise of self-determination. This conclusion has been endorsed by Shaw: “[A] basic presumption of the application of self-determination is that it will be exercised by the people in question within the territorial framework of the entity as administered by the colonial power before independence.”170 There is no such link, however, between the principles of uti possidetis and selfdetermination prior to independence, for uti possidetis is not involved in identifying the entities entitled to claim a right to independent statehood. It is simply an after-the-fact presumption as to what the boundaries of an independent, definitely constituted state ought to

chap_05.fm Page 170 Thursday, October 10, 2002 8:55 AM

170

Determining Boundaries

be. In post-independence situations, uti possidetis merely records state acceptance of former internal administrative lines as the new international boundaries. However, recent pronouncements characterizing uti possidetis as a binding rule in the determination of boundaries outside the colonial context may have set uti possidetis on a collision course with evolving norms of self-determination, particularly with the right to democratic governance and participation. This potential conflict between the two principles will be further canvassed in our discussion of the Yugoslavia precedent in chapter 6.

5.7

conclusion

The chapters leading up to our discussion of the stability doctrine examined the evolution of the uti possidetis principle since Roman times and its role in the determination of boundaries in various parts of the globe. It was argued in chapter 2 that the Latin American uti possidetis juris principle was ambiguous, rarely practical, invariably the result of agreement rather than prescriptive, and readily overturned. Having concluded that the uti possidetis principle had not influenced the determination of three post-wwi international boundaries in situations in which a prior administrative line had clearly existed, we considered in chapter 4 its role in the decolonization process in Africa. Particularly noteworthy was the conspicuous absence of uti possidetis from the pronouncements and declarations of the independence period. The oau Charter and Cairo resolution were described as non-binding policy statements that merely echoed rights and obligations defined by international customary law and un instruments. While pronouncements of the icj had undoubtedly endowed the uti possidetis principle with some normative status in international law, cases and state practice supported the conclusion that at its strongest, uti possidetis constituted a presumption in favour of the continuity of pre-independence borders. Finally, in this chapter we have attempted to show that any alleged benefits of uti possidetis could as well have been obtained by reliance on a number of other international rules and instruments. We are therefore left with a fundamental question: why has it been deemed necessary to justify policies and state practice by reference to an ever-changing principle of uti possidetis when international law already provides adequate guarantees? In this respect, Judge Bedjaoui’s warning in the Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) seems apropos:

chap_05.fm Page 171 Thursday, October 10, 2002 8:55 AM

171

The Doctrine on the Stability of Boundaries

It is also necessary to bear in mind that the claim to extend today the scope of application of uti possidetis to maritime boundaries is being made at a time when the application of that principle to land frontiers themselves is encountering some resistance. It is possible to observe in recent writings renewed criticisms of the uti possidetis principle in Africa, and at least one of the learned counsel for Senegal … has in his academic works questioned the solidity and the validity of the same principle even for land frontiers … Yet it is precisely in this period when the uti possidetis principle is receiving dire strokes and maintaining only with difficulty its integrity for a sound application to land frontiers, that attempts are being made to extend the scope of application of that principle to maritime limits.171

If such weaknesses are apparent in what is supposed to be its natural context, will current attempts aimed at transposing uti possidetis to noncolonial situations provide any benefits?

chap_06.fm Page 172 Thursday, October 10, 2002 8:56 AM

Borders are scratched across the hearts of men By strangers with a calm, judicial pen And when the borders bleed we watch with dread The lines of ink along the map turn red. S.B. Jones

6 Yugoslavia and Quebec

6.1

introduction The doctrine of uti possidetis … has been slowly mutating over time.1

The accuracy of the statement above is borne out by our investigation into the historical roots of the principle. In nineteenth-century Latin America, the newly independent Spanish republics adopted a modified version of the Roman law interdict with the aim of facilitating the delimitation of their boundaries inherited from Spain. In Africa, since decolonization, the uti possidetis principle has been held not only to guarantee the continuity of internal administrative lines, but also to protect international boundaries established between different colonial powers. In other instances, such as in the Guinea/ Guinea-Bissau Maritime Delimitation case, the principle of uti possidetis appears to have been equated with the doctrine of state succession to boundary treaties.2 The statement is also confirmed by more recent formulations of the uti possidetis principle. In 1992, the Badinter Arbitration Commission, constituted within the framework of the European Conference on Yugoslavia, relied on the uti possidetis principle to resolve boundary issues arising from the dissolution of the Socialist Federal Republic of Yugoslavia (sfry). Its application in the context of Yugoslavia marks the first time the uti possidetis principle has been applied outside the

chap_06.fm Page 173 Thursday, October 10, 2002 8:56 AM

173

Yugoslavia and Quebec

colonial context. Furthermore, while in the colonial context the principle has always rested on the consent of the parties involved,3 a solution based on respect for the uti possidetis principle was imposed on the constituent republics of the sfry. Similarly, in the current Canadian debate, separatist Québécois have declared that the principle of uti possidetis would be binding upon Canadian federal authorities in the event of secession – a position shared by a panel of five international law experts. This history of transformation certainly lends support to Higgin’s conclusion: “If self-determination has come to mean all things to all men, so has the concept of uti possidetis.”4 Following our assessment of African state practice in chapter 4 and our review in chapter 5 of the international norms that inform the doctrine on the stability of boundaries, we questioned the need to extend the principle of uti possidetis to new colonial situations already regulated by existing principles of international law. This is obviously also a critical question with respect to recent pronouncements describing uti possidetis as a general principle of international law applicable to the accession of independence “wherever it occurs,”5 including in non-colonial situations like that of Yugoslavia. In the final chapter we will therefore consider this most recent extension of the uti possidetis principle and attempt to evaluate what impact it will have on the interpretation and application of other important international rules. What value should be attributed to the legal principles formulated and to the state practice adopted in resolving the Yugoslavia conflict? Is uti possidetis now the default solution for any future territorial or boundary disputes? Certainly a number of Québécois jurists are now relying on the Yugoslavia precedent and the Badinter Commission’s interpretation of uti possidetis to justify their claim to statehood within existing provincial boundaries. With respect to the former Yugoslavia, the Badinter Commission’s opinions will be the focus of our inquiry. Of specific interest are two of its controversial conclusions – namely, the characterization of the crisis as one of dissolution rather than of secession and the declared inviolability of all boundaries whether internal or external. As for Quebec, the report drafted by the five international law experts will be the focal point of our investigation. However, the recent decision by the Supreme Court of Canada in the Reference on Secession as well as some of the pleadings in the case will also be examined. While these various documents raise a host of important issues, the analysis will focus almost exclusively on the uti possidetis principle and the question of boundaries.

chap_06.fm Page 174 Thursday, October 10, 2002 8:56 AM

174

Determining Boundaries

6.2

y u g o s l av i a

6.2.1

The Context

It is a fairly widely accepted conclusion that the international community was ill-prepared for the intensity of the fighting in Yugoslavia and overwhelmed by the obstacles barring the way to any lasting settlement. In fact, it may not be too harsh a judgment to characterize the international response as a hit-and-miss policy, as a reaction to new and unforeseen events rather than an articulated plan of action. One of the most interesting shifts in official policy occurred with respect to the characterization of the legal nature of the crisis unfolding in Yugoslavia. Until the conflict escalated in Croatia in mid July 1991, the United States, the Soviet Union, and the European Community (ec) dealt with the situation as one of attempted secession by Slovenia and Croatia. A number of official statements were issued reaffirming the absence in international law of any right of secession and emphasizing Yugoslavia’s right to territorial integrity. In a letter dated 28 March 1991 to Yugoslav prime minister Ante Markovic, President George Bush declared that “[t]he United States … will not encourage those who would break the country apart.”6 In April 1991, Soviet foreign minister Bessmertnykh remarked that Yugoslavia’s territorial integrity was “one of the essential preconditions for the stability of Europe.”7 In May 1991, the us State Department again issued a detailed statement declaring that the “the United States will not encourage or reward secession” and reiterating American support for the territorial integrity of Yugoslavia within its existing borders.8 As late as 21 June 1991, us secretary of state James Baker warned during a visit to Yugoslavia that the United States would not recognize the planned declarations of independence by Slovenia and Croatia.9 The American and Soviet commitment to Yugoslavia’s territorial integrity was also endorsed by the European Community. In late May 1991, a high-powered ec delegation expressed support for Yugoslavia’s unity.10 On 19 June 1991, the thirty-five-member Conference on Security and Cooperation in Europe (csce) issued a statement in which ministers expressed “their friendly concern and their support for democratic development, unity and territorial integrity of Yugoslavia.”11 This position was reaffirmed by ec foreign ministers meeting on 23 June 1991 in a statement declaring that the European Community would not recognize declarations of independence by the Republics of Slovenia and Croatia.12 Despite these pronouncements, Slovenia and Croatia declared their independence on 25 June 1991.13 Their declarations of statehood

chap_06.fm Page 175 Thursday, October 10, 2002 8:56 AM

175

Yugoslavia and Quebec

were rejected by central Yugoslav authorities, and the federal army (jna) quickly moved into Slovenia. Although an ec-brokered ceasefire led to the withdrawal of jna forces from Slovenia on 19 July 1991, hostilities had already broken out in Croatia, particularly in Serbdominated areas. With the outbreak of hostilities, responsibility for the management of the Yugoslav crisis fell to the European Community. On 29 June 1991, the European Council issued a statement in which earlier pronouncements by the csce and ec ministers were reaffirmed but which also ambiguously called for a three-month moratorium on the declarations of independence instead of rejecting them outright. Commentators have suggested that the call for a moratorium was a necessary compromise behind which lay deep divisions within the ec on the question of recognition of the break-away republics.14 While France and Spain favoured maintaining a federal Yugoslavia, Belgium and particularly Germany advocated the early recognition of Slovenia and Croatia as the most effective means of curbing the escalating violence. Thus German chancellor Helmut Kohl, soon after the European Council moratorium statement, declared his support for the principle of self-determination,15 and Belgian prime minister Wilfrid Martens encouraged ec members “to envisage the recognition of independence of Slovenia and Croatia, if, after a period of three months, it is not possible to organise the co-existence of the republics on a new legal basis in a peaceful manner.”16 The conflicting views on the issue of recognition were clearly evident in an official statement issued following an emergency meeting of ec foreign ministers on 5 July 1991. This statement openly referred to the “clash” of international legal principles relating to self-determination and the territorial integrity of existing sovereign states. However, Jacques Delors’s declaration17 on 8 July 1991 that the European Community had not ruled out the possibility of recognizing Slovenia and Croatia and that there was no question of contesting a people’s right to self-determination18 effectively forecast the outcome of the debate. The next important step in the formulation of the new European policy on Yugoslavia came on 27 August 1991. At a meeting in Brussels, the European Community and its member states agreed to convene an international conference with a view to finding a peaceful and permanent solution to the crisis in Yugoslavia.19 It was also decided that an arbitration commission should be created within the framework of the conference20 to which the relevant authorities would submit their differences and which would promote the peaceful accommodation of the conflicting aspirations of the Yugoslav people. The declaration also provided, with reference to Croatia, that the ec was determined never to

chap_06.fm Page 176 Thursday, October 10, 2002 8:56 AM

176

Determining Boundaries

recognize changes to frontiers that had been brought about by force.21 This point was further clarified on 7 September 1991 at the opening ceremony of the Conference on Yugoslavia when officials emphasized that the ec was determined never to recognize changes to any borders that had not been brought about by peaceful means or by agreement.22 Any speculation as to the significance of the word “any” in reference to borders was soon put to rest by two official statements in October 1991. On 10 October 1991, the csce warned that member states would “never … recognise any changes of borders, whether external or internal, brought about by force.”23 This position was then unequivocally endorsed on 18 October 1991 in a joint declaration by the ec, the us, and the ussr in which the parties declared that any changes to internal or external borders obtained by force would be unacceptable.24 With these statements, the ec and its partners signalled their intention to preserve not only the international borders but also the internal federal boundaries of the sfry. This assertion was also a strong indication of the momentum the pro-recognition forces had gathered since the month of July. Further evidence of the shift towards recognition was provided in an ec declaration on 8 November 1991 which referred to the “prospects of recognition of independence of those Republics wishing it.”25 Having established the institutions to articulate Europe’s program for peace in Yugoslavia, ec member states were anxious to present a united front in dealing with the crisis, particularly in the lead up to Maastricht.26 Germany, still firmly convinced that only recognition would curb the violence, was putting intense political pressure on its European partners by threatening to unilaterally recognize Slovenia and Croatia. The problem for the other member states was how to extend recognition without, however, opening the long-feared floodgates of self-determination and secession. The unenviable task of rationalizing ec policy fell to the newly constituted Arbitration Commission. Its delicate task was to articulate the legal principles that would justify the preferred solution, while at the same time minimizing the impact of such a course of action. This assessment of the commission’s role is shared by Craven: “Ultimately, the significance of the Arbitration Commission’s opinions may be appreciated in two ways. First, the opinions served to provide a legal rationalization for elements of State practice that were otherwise contradictory or incoherent.”27 6.2.2

The Arbitration Commission

The epc 28 declaration on 27 August 1991 convening the International Conference for Peace in Yugoslavia also provided for the creation of an arbitration commission to advise the conference on legal issues arising from the conflict. Pursuant to the rules of procedure adopted, the ec and

chap_06.fm Page 177 Thursday, October 10, 2002 8:56 AM

177

Yugoslavia and Quebec

its member states nominated to the Arbitration Commission the president of the French Conseil Constitutionnel (Robert Badinter), the president of the German Federal Constitutional Court (Roman Herzog), and the president of the Italian Constitutional Court (Aldo Corasaniti). The Yugoslav federal presidency,29 however, was unable to reach unanimous agreement on the appointment of its two candidates. Consequently, the two remaining candidates were designated by ec officials – namely, the president of the Spanish Constitutional Court (Francisco Tomas y Valiente) and the president of the Belgian Cour d’Arbitrage (Irène Petry). The Arbitration Commission’s members were nominated at a time when the European Community was still confident that an internal solution to the crisis could be found, which no doubt accounts for the emphasis on expertise in constitutional rather than international law. At the commission’s first session, the five members appointed Robert Badinter as chairman of the commission. In honour of its president, the Arbitration Commission is often referred to as the Badinter Commission or Committee.30 It is clear from the August declaration that ec ministers had intended to establish an arbitration procedure leading to legally binding decisions. However, the commission’s initial terms of reference fell considerably short of even the minimum requirements suggested by the International Law Commission’s Model Rules on Arbitral Procedure. As Pellet notes: The establishment of the Arbitration Commission was indeed decided by an “extraordinary ministerial meeting” of the Twelve in the context of political cooperation and the Declaration is, evidently, neither a treaty nor a decision of the community. It is a gentleman’s agreement or, even better, a concerted act without any binding legal force, which cannot but fail to have a considerable impact on its interpretation and on its application.31

As a matter of international law, therefore, the opinions delivered by the Badinter Arbitration Commission were not binding on any of the parties concerned. Rather, it acted as a consultative organ rendering advisory opinions to the conference and to the parties. However, advisory opinions delivered by independent judicial bodies32 can have considerable moral and political authority and may be declaratory of general international law. Indeed, the opinions delivered by the Badinter Commission represent an important study by a body of legal experts of the international legal dimensions and repercussions of the dismemberment of a state. Their importance has been emphasized by Szasz: Brief, cursory and not always convincingly reasoned, [the opinions] deal with many complex issues of international law in a few pages. Nevertheless, they

chap_06.fm Page 178 Thursday, October 10, 2002 8:56 AM

178

Determining Boundaries

constitute nearly all the judicial decisions we have on the subject of state dissolution; therefore, one must pay attention to them. Though not binding on the States and entities concerned … these opinions have generally guided the Conference, as well as its successor, and even the world community at large, with respect to the issues covered.”33

6.2.3

Key Aspects of the Opinions

The Arbitration Commission delivered ten opinions between December 1991 and July 1992 in response to questions formulated by the chairman of the peace conference, Lord Carrington, or on the initiative of the ec Council of Ministers. In addition, the commission also rendered an interlocutory decision prior to its eighth opinion and a further five opinions after it had been reconstituted in January 1993. With respect to the principle of uti possidetis, Opinion Nos. 1–3 are particularly relevant, and Opinion No. 3 will be the main focus of our investigation. Opinion No. 1. In its first opinion, the Arbitration Commission was asked to advise the conference as to the legal nature of the crisis within the sfry. According to Milenko Kre´ca, author of a critical commentary published in Belgrade in 199334, the first question that Serbia submitted to the Arbitration Commission – “Is secession a legal act from the standpoint of the United Nations Charter and other relevant rules of international law?” – was reworded by the chairman, Lord Carrington, in his letter to the commission dated 20 November 1991: We find ourselves with a major legal question. Serbia considers that those Republics which have declared themselves or would declare themselves independent or sovereign have seceded or would secede from the sfry which would otherwise continue to exist. Other Republics on the contrary consider that there is no question of secession but the question is one of a disintegration or breaking-up of the sfry as the result of the concurring will of a number of Republics. They consider that the six Republics are to be considered equal successors to the sfry, without any one of them or group of them being able to claim to be the continuation thereof. I should like the Arbitration Commission to consider the matter in order to formulate any opinion or recommendation which it might deem useful.35

It is Kre´ca’s contention, especially in light of the fact that Croatia and the other republics had approved Serbia’s draft question, that “[b]y

chap_06.fm Page 179 Thursday, October 10, 2002 8:56 AM

179

Yugoslavia and Quebec

deliberating on the questions put by Lord Carrington, the Arbitration Commission allowed itself to be turned into a political advisory body serving the chairman of the Conference instead of an expert, advisory body of the Conference established to clarify legal issues.”36 Certainly, the wording of Lord Carrington’s question was critical, as it appeared to cast doubt on the position that until then the ec had officially maintained in its approach to resolving the crisis: that of the continued existence of Yugoslavia as a state. Of course, had the Arbitration Commission simply deliberated on the legality of secession under international law, its task would have been quite straightforward. Except for an emerging and in any case very limited right of external self-determination under the Declaration on Friendly Relations, the international community has consistently refused to recognize a right of secession, and international instruments since 1945 have repeatedly emphasized the primacy of the territorial integrity of existing states. Lord Carrington’s letter no doubt reflected the growing tension within the European Community. The fear in many European capitals was that by withholding recognition, the member states might well be reaffirming a fundamental principle of international law but might also be paving the way to the unlimited use of force in the name of territorial integrity. As Warbrick notes, while the Yugoslav presidency and army claimed to be fighting in defence of the federal union, the domination of the federal institutions by the Serbs and the overlapping practical consequences of their objectives created considerable obstacles to identifying the reality of the jna’s ambitions.37 Lord Carrington’s interpretation of the situation as one of disintegration or breaking-up was an attractive solution for members of the European Community: it left the rules on self-determination and secession intact while at the same time allowing for recognition.38 Moreover, events within the sfry in late November 1991 lent support to this interpretation of the crisis. Whereas on 25 June 1991, the date Slovenia and Croatia first declared their independence, it would have been difficult to characterize their actions as anything but secession, at the time of Lord Carrington’s request the situation within the sfry had considerably deteriorated. Slovenia and Croatia had renewed their declarations of independence on 8 October 1991 following the expiry of the three-month moratorium. In Bosnia-Hercegovina, a sovereignty resolution had been adopted on 14 October 1991. Macedonia, following a referendum in September 1991, had adopted a new constitution on 17 November 1991 proclaiming its independence. Civil war engulfed the sfry, and Serbia effectively controlled the Yugoslav federal army.

chap_06.fm Page 180 Thursday, October 10, 2002 8:56 AM

180

Determining Boundaries

It was against this backdrop that the Badinter Commission studied the questions raised in Lord Carrington’s letter and delivered its first opinion. The commission began by outlining a number of considerations: a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a State; that in this respect, the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory; b) that the State is commonly defined as a community which consists of a territory and a population subject to an organised political authority; that such a State is characterised by sovereignty; c) that, for the purpose of applying these criteria, the form of internal political organisation and the constitutional provisions are mere facts, although it is necessary to take them into consideration in order to determine the Government’s sway over the population and the territory; d) that in the case of a federal-type State, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the Federation, the existence of the State implies that the federal organs represent the components of the Federation and wield effective power.39 Having set up the criteria for statehood in the case of federal states, the commission proceeded to make three critical findings: a) [A]lthough the sfry has until now retained its international personality, notably inside international organisations, the Republics have expressed their desire for independence;40 b) The composition and workings of the essential organs of the Federation, be they the Federal Presidency, the Federal Council, the Council of the Republics and the Provinces, the Federal Executive Council, the Constitutional Court or the Federal Army, no longer meet the criteria of participation and representativeness inherent in a federal State; c) The recourse to force has led to armed conflict between the different elements of the Federation which has caused the death of thousands of people and wrought considerable destruction within a few months. The authorities of the Federation and the Republics have shown themselves powerless to enforce respect for the succeeding ceasefire agreements concluded under the auspices of the European Communities or the United Nations Organization.41

chap_06.fm Page 181 Thursday, October 10, 2002 8:56 AM

181

Yugoslavia and Quebec

On the basis of these findings, the Arbitration Commission concluded that the Socialist Federal Republic of Yugoslavia was in the process of dissolution. The Arbitration Commission’s starting point – that the existence or disappearance of a state is a question of fact – is uncontroversial. Its definition of the ‘state’42 also mirrors the classical criteria for statehood as defined in the Montevideo Convention on the Rights and Duties of States 43. Article 1 of the 1933 convention stipulates that “[t]he State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other States.” What is much more of a novel interpretation is the commission’s conclusion that the internal constitutional structure of a state impacts on the question of whether or not that state exists as a matter of fact. In particular, the commission declares that in a federal-type state like Yugoslavia, the existence of the state necessarily implies that the federal institutions represent every component of the federation and wield effective power. Thus the political structure and the effectiveness of the Yugoslav federal organs were facts that had to be taken into consideration when applying the traditional criteria for statehood. The facts, at the time of the commission’s deliberations, were stark. Slovenia, Croatia, and Macedonia had refused to participate in the presidency 44 and had withdrawn their representatives from other federal institutions following a dispute over the nomination of a representative for Kosovo45 and Serbia’s rejection of the incoming Croatian president, Stipe Mesic.46 The remaining republics had formed a ‘rump presidency,’ which assumed the powers of the presidency but with no constitutional authority. The federal army was also in a state of turmoil. On 5 July 1991, General Adzic had invited all ‘non-Yugoslav’-oriented officers to leave the jna, and on 12 September, Defence Minister Kadijevic had rejected an order from the federal presidency to withdraw jna troops to barracks, prompting Mesic to call on the soldiers to desert.47 Furthermore, as successive ec and un brokered cease-fire agreements collapsed, it was also clear by November 1991 that the federal organs no longer had direct control over the conflict. These events led the commission to conclude that “the composition and workings of the essential organs of the sfry no longer met the criteria of participation and representativeness inherent in a federal state and that therefore the sfry was in the process of dissolution.”48 While there is little doubt that Yugoslavia’s federal institutions were in crisis, the commission’s emphasis on the internal structure of the federation remains problematic, for according to general principles of international law, the criteria governing the legal existence of a

chap_06.fm Page 182 Thursday, October 10, 2002 8:56 AM

182

Determining Boundaries

state do not vary according to the type of political or social system in place.49 Indeed, the icj declared in the Western Sahara case: “No rule of international law, in the view of the Court, requires the structure of the State to follow any particular pattern, as is evident from the diversity of the forms of States found in the world today.”50 Even if, as Fawcett argues,51 it is accepted that self-determination, understood as a minimum level of representativity, has now become an additional criterion for statehood, as Crawford notes, “[t]his principle does not – at this stage of the development of international law and relations – constitute a principle of law with respect to existing States.”52 What needs to be distinguished according to Craven, is the notion of control on the one hand, which concerns the de facto authority exercised by the government over the people, and the notion of participation on the other, which serves as a legitimising principle, but which traditionally has no significance with respect to a State’s personality … [I]t has to be accepted from State practice that so long as a government continues to wield power over its territory, any lack of representativity will be of little consequence as far as its continuity is concerned.”53

Craven’s distinction, with its emphasis on effective control, must be accepted. To hold otherwise would be to render any state organized on federal principles extremely vulnerable, as the unilateral withdrawal of any of the constituent units, with the resulting impact on representativeness and participation, would be sufficient to call into question the continued existence of the state. The Arbitration Commission itself appears to have recognized this difficulty and subsequently narrowed the implications of its findings. In its eighth opinion, which tackled the question of whether the sfry had ceased to exist, the commission once again emphasized the relevance of the internal constitutional structure of a state with respect to the issue of statehood. However, the commission clarified that the existence of a federal state, composed of several distinct federal entities, would only be seriously jeopardized when a majority of the latter, comprising the majority of the territory and population of the federation, constituted themselves as sovereign states in such a manner that federal authority could no longer be exercised in practice.54 Although at the time the commission delivered its first opinion it would have been difficult to maintain that the federal Yugoslav government was in complete control and effectively governing the entire territory of the federation, commentators have questioned whether this state of affairs justified the conclusion that the sfry was in the process of dismemberment, for the presumption in favour of the continuity of

chap_06.fm Page 183 Thursday, October 10, 2002 8:56 AM

183

Yugoslavia and Quebec

existing states has traditionally meant that loss of territory or change in government will not affect the legal personality of a state.55 In the case of Yugoslavia, even though four of the constituent republics had indicated a desire for greater independence, in early December 1991 only Slovenia and Croatia had actually issued a declaration of independence and taken concrete steps to assert their independence. Macedonia and Bosnia-Hercegovina at that stage, despite the referendum and sovereignty resolution, had not entirely dismissed the possibility of continued participation in a redefined Yugoslavia. Furthermore, the federation continued to exist in the form of the rump presidency with the participation of Serbia and Montenegro. In light of these facts, the commission’s conclusion that the sfry was in the process of dissolution may perhaps have been premature. No doubt the Badinter Commission was aware of the difficulty of determining at that particular point in time and in the context of a fluid situation whether the sfry’s legal personality had been extinguished and for this reason concluded that the federation was in the process of dismemberment. This intermediate finding has been criticized by Craven: If the issue is simply whether or not a State continues to exist, it makes no sense to speak of dismemberment as a process. Indeed the Commission later made it clear that, at the time of its first opinion (December 1991), the sfry was ‘still an international entity’. If that was the case, one can only understand the Commission’s finding as a prediction about events of which it could only guess, and in which case it should properly have refrained from offering its opinion.56

However, Crawford believes that the underlying rationale for the commission’s conclusion in Opinion No. 1 was that, “in the absence of a reconstituted federal government which represented the population of Yugoslavia as a whole, there was no government which had the authority to prevent the break-away of the constituent republics, and that this would lead inevitably to the disappearance of the Socialist Federal Republic itself.”57 Whether Opinion No. 1 was the result of guesswork or rational analysis, the importance of its conclusion that the sfry was in the process of dissolution cannot be overstated. It formed the basis for the commission’s subsequent analysis of minority rights and self-determination in Opinion No. 2 and was the linchpin for the commission’s critical findings with respect to the sfry’s boundaries in Opinion No. 3. For Kre´ca, Opinion No. 1 was the critical first step towards Europe’s preferred solution: “In the ec’s peace-making efforts in the Yugoslav crisis, it fell

chap_06.fm Page 184 Thursday, October 10, 2002 8:56 AM

184

Determining Boundaries

to the lot of the Arbitration Commission to spin a cloak of legal plausibility for the set political goal of disintegration of the sfry.”58 Opinion No. 2. In its second opinion, the Arbitration Commission was asked to consider the issue of self-determination: “Does the Serbian population in Croatia and Bosnia-Hercegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?”59 It is Kre´ca’s contention that Lord Carrington, on his own initiative, also rephrased the second question that Serbia submitted to the Arbitration Commission. According to Kre´ca, the original question read: “Who is entitled to the right of self-determination from the standpoint of public international law: a nation or a federal unit? Is the right to self-determination a subjective collective right or the right of a territory?”60 In the context, these were loaded questions. In October 1991, the Albanian leadership in the former autonomous region of Kosovo had declared its independence.61 By January 1992, the Serbian population in Bosnia-Hercegovina, representing approximately 35 per cent of the entire population, had formed its own Parliament and conducted a plebiscite, and on 9 January 1992 it had proclaimed the independence of the Republic Srpska. Serbs in Croatia had also established a Serbian autonomous republic in the Krajina, which was seeking international recognition as an independent state. The commission’s second opinion was handed down on 11 January 1992. Some of its key findings included: 1. The Commission considers that international law as it currently stands does not spell out all the implications of the right of self-determination. However, it is well established that, whatever the circumstances, the right of self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the States concerned agree otherwise. 2. Where there are one or more groups within a State constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law … 4. The Arbitration Commission is therefore of the opinion: (i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups under international law … (ii) that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality.62

chap_06.fm Page 185 Thursday, October 10, 2002 8:56 AM

185

Yugoslavia and Quebec

The commission’s findings in the first paragraph are ambiguous and subject to various interpretations. One interpretation could be that by referring to “existing frontiers” and the “States concerned,” the commission was declaring that the right of self-determination could not involve changes to existing international boundaries. This conclusion would accord with international instruments such as the Declaration on Friendly Relations and the Helsinki Final Act which have repeatedly emphasized that in the post-colonial context, the right of selfdetermination cannot be invoked so as to reduce or impair the territorial integrity of an existing state.63 However, this interpretation does not account for the reference to the uti possidetis juris principle, nor does it explain why this guarantee was deemed to apply to existing frontiers “at the time of independence.” Alternatively, the commission may have been declaring that by virtue of the uti possidetis juris principle, the right of self-determination could not involve changes to internal frontiers once independence had been achieved. As Croatia and Slovenia, together with Macedonia and Bosnia-Hercegovina, had applied for recognition pursuant to European guidelines and as Germany had already recognized Slovenia and Croatia, the Badinter Commission was perhaps anticipating their status as sovereign independent states. This interpretation appears to be borne out by the commission’s discussion in paragraph 2 of minority rights “within a State” and its subsequent application of those guarantees to the Serbian minorities within Bosnia-Hercegovina and Croatia. However, internal frontiers adopted as international boundaries by entities that have attained independent statehood would benefit from the protection of general principles of international law such as the inviolability and intangibility of frontiers and the principle of territorial integrity. As a result, the commission’s reliance on the uti possidetis juris principle appears superfluous. In light of these problematic aspects, few commentators believe that the Arbitration Commission intended to limit its analysis to existing international boundaries or internal frontiers transformed into international boundaries following independence. Rather, it is generally accepted that the commission was declaring that by virtue of the uti possidetis juris principle, the right of self-determination could not involve changes to the Croatian and Bosnian federal boundaries even in advance of formal independence. If this last interpretation of Opinion No. 2 is the correct one, it raises a number of difficult questions, for in deciding to protect the republican borders but to deny such protection to the newly constituted entities (e.g., Kosovo, the Republic Srpska), the Badinter Commission was effectively determining the

chap_06.fm Page 186 Thursday, October 10, 2002 8:56 AM

186

Determining Boundaries

new international actors that would emerge from the process of dissolution within the sfry. If one accepts Kre´ca’s contention as to the original wording of the second question submitted to the commission, it appears that Serbian authorities had anticipated this arbitrary restriction on the right of self-determination, for the commission’s conclusion with respect to existing frontiers necessarily shaped the exercise of the right of selfdetermination. As a result of the commission’s analysis, the right of self-determination is no longer a subjective collective right but rather has become the right of particular units of territory. No convincing argument was put forward to justify the conclusion that the right of selfdetermination of the Serbian minorities had to be restricted in order to preserve the territorial integrity of Croatia and Bosnia, considering that by their declarations of independence, the two republics had themselves violated the territorial integrity of the sfry. If, as the commission had concluded in Opinion No. 1, the entire constitutional framework was collapsing, by virtue of what principle were the republican borders and only the republican borders entitled to protection? The commission attributed this pre-selection to the operation of the uti possidetis principle. Yet none of the various versions of the uti possidetis principle examined thus far would account for this outcome. As Ratner has pointed out, “uti possidetis is agnostic on whether or not secessions or break-ups should occur.”64 In Latin America, uti possidetis was merely a delimitation principle applied to boundary disputes between sovereign independent states. In Africa, international instruments conferred on all colonial peoples a legal entitlement to independent statehood. The territorial framework of these non-self-governing entities, as defined by the metropolitan powers and if sanctioned by the un, was then largely accepted as the identification pattern for the exercise of the right of self-determination. Only once independence had been attained did the territorial integrity principle and status quo policy, also described as an ‘African uti possidetis,’ operate so as to protect the territorial unity of the new states. Neither the Latin American nor the African uti possidetis determined the actual units of statehood. An earlier and distinct process – armed revolution in the case of Latin America and devolution in that of Africa – had established the identity and extent of the new international actors. This critical issue also lies at the heart of the commission’s third opinion and will be further canvassed in this context. Opinion No. 3. The Arbitration Commission’s third opinion in early January 1992 flowed from a question put to Lord Carrington by the Republic of Serbia that brought the issue of boundaries squarely to the

chap_06.fm Page 187 Thursday, October 10, 2002 8:56 AM

187

Yugoslavia and Quebec

fore: “Can the internal boundaries between Croatia and Serbia and between Bosnia-Hercegovina and Serbia be regarded as frontiers in terms of public international law?”65 At the outset, the Arbitration Committee noted that its answer would “necessarily be given in the context of a fluid and changing situation,” as it had found in Opinion No. 1 that the sfry was in the process of dissolution. On this basis, the commission concluded that “once the process in the sfry leads to the creation of one or more independent States, the issue of frontiers, in particular those of the Republics referred to in the question before it, must be resolved in accordance with the following principles.”66 In light of its reference to the “creation of one or more independent States,” the Arbitration Committee appears at first glance to have answered a completely different question to the one put before it. Indeed, the opening paragraph appears to suggest that the principles elaborated by the commission would only apply to resolve the issue of frontiers once the dissolution process had resulted in the creation of one or more independent states. This interpretation, however, is not supported by the commission’s subsequent analysis, and therefore the meaning to be ascribed to the opening paragraph is unclear. The commission was of the view that the question of boundaries had to be resolved in accordance with four general principles. The first three principles are particularly relevant to our investigation: First Principle [O]nce the process in the sfry leads to the creation of one or more independent States, the issue of frontiers … must be resolved in accordance with the following principles: First – All external frontiers must be respected in line with the principle stated in the United Nations Charter, in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV)) and in the Helsinki Final Act, a principle which also underlies Article 11 of the Vienna Convention of 23 August 1978 on the Succession of States in Respect of Treaties.67

Without doubt, this first principle reflects traditional legal doctrine. Second Principle Second – The boundaries between Croatia and Serbia, between BosniaHercegovina and Serbia, and possibly between other adjacent independent States may not be altered except by agreement freely arrived at.68

chap_06.fm Page 188 Thursday, October 10, 2002 8:56 AM

188

Determining Boundaries

This pronouncement regarding the inviolability of the frontiers between Croatia, Serbia, and Bosnia-Hercegovina would seem indisputable, as the Badinter Commission appears to have been referring to the eventual frontiers between an independent Croatia, Serbia, and Bosnia-Hercegovina – hence the opening proviso and the reference to “other independent States.” As discussed in chapter 5, many international boundary principles would act to safeguard the frontiers of the newly independent states, including the right to territorial integrity and the principles of the intangibility and inviolability of frontiers. Reference to the word “possibly” remains problematic, however, as it appears to cast doubt as to whether boundaries between other independent states might or might not be altered “except by agreement.” Third Principle Third – Except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. Uti possidetis, though initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle, as stated by the International Court of Justice in its Judgement of 22 December 1986 in the case between Burkina Faso and Mali (Frontier Dispute, icj Reports 1986, 554 at 565): Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles. The principle applies all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the sfry stipulated that the Republics’ territories and boundaries could not be altered without their consent.69

Once the dissolution process in the sfry had led to the creation of one or more independent states, and “except where otherwise agreed,” the Arbitration Commission concluded that the former republican boundaries would be transformed into international boundaries. Without any further analysis, it might be possible to argue that the commission was once again declaring that in those cases in which the former republics had been successful in achieving independence – and therefore in asserting effective control over their administratively defined territory – their former internal borders would be transformed into

chap_06.fm Page 189 Thursday, October 10, 2002 8:56 AM

189

Yugoslavia and Quebec

international boundaries. This interpretation, resting on the principle of effectiveness, would accord with general principles of international law. However, the commission proceeded to find that “[t]his conclusion follows from respect for the territorial status quo and, in particular, from the principle of uti possidetis.”70 In light of this reference to the uti possidetis principle, few commentators believe that the commission was referring to the successful attainment of independence by one or more of the republics. Rather, the uti possidetis principle would act in the context of Yugoslavia to guarantee the internal administrative boundaries of the former republics in advance of formal independence. Although it is difficult to reconcile this interpretation with the commission’s statement in its opening paragraph that only “once the process in the sfry had led to the creation of one or more independent States” would the issue of frontiers be resolved in accordance with the principles outlined, there is no doubt that this is the generally accepted interpretation of the commission’s third principle. Antonopoulos has commented that this application of the uti possidetis juris principle was both unfortunate and inappropriate: It was unfortunate because it came before the recognition of independence of the seceding Republics … In other words, the Arbitration Commission called for the application of the principle in a pre-emptive manner. It was inappropriate because it implied that the sfrj [sfry] was a quasi colonial administrative entity, namely, a party totally alien to the constituent nations of the old state.71

Nesi rejects this criticism, arguing that as interpreted by the Badinter Commission, the uti possidetis juris principle did not confer any right of pre-emption: For our part, we will content ourselves with saying that it seems to us inaccurate to speak of a ‘pre-emptive’ application of uti possidetis iuris with respect to the recognition of the independence of the secessionist Republics, given that uti possidetis iuris does not establish any ‘right of pre-emption.’ As long as the State, whose boundaries must be determined, does not in fact exist, the problem of the applicability of uti possidetis iuris does not even present itself.72

However, Nesi’s conclusion does not appear to accord with the facts as established by the commission itself. It must be emphasized that in Opinion No. 1, delivered on 29 November 1991, the Arbitration Commission noted that “the sfry has until now retained its international personality.”73 Indeed, it was only in its eighth opinion, handed down on 4 July 1992, that the commission concluded that “the process of

chap_06.fm Page 190 Thursday, October 10, 2002 8:56 AM

190

Determining Boundaries

dissolution of the sfry … is now complete and that the sfry no longer exists.”74 Thus, when Opinion No. 3 was delivered on 11 January 1992, the sfry still enjoyed the status of a ‘state’ under international law. An interpretation that provides for the application of an international legal principle such as uti possidetis juris to the internal borders of an existing sovereign state is clearly contrary to the founding principles of the modern international legal order as guaranteed by Article 2 of the United Nations Charter – namely, the principle of respect for the sovereignty and territorial integrity of states as well as the principle of non-intervention in the internal affairs of states. As Levrat explains: [I]t is impossible to conclude that international law – as it refers to inter-State relations – applies to the internal boundary lines of a sovereign State, with the aim of delimiting territories eventually called upon to constitute sovereign States … Such a rule … would imply that rules of international law determine the conditions under which a sovereign State can be dismembered.75

Uti possidetis juris involves an evaluation, based on domestic laws and instruments no longer in force, of the location of administrative lines separating two or more states recognized as subjects of international law but whose territories prior to independence belonged to a single authority. Yet in Opinion No. 3, uti possidetis is applied in an anticipatory manner; in advance of formal independence, the principle is deemed to confer on the internal republican borders of the sfry a definite status in international law. It is therefore difficult to argue with Levrat’s conclusion that “[f]rom the retroactive, we move to the anticipatory.”76 To justify its interpretation of the uti possidetis principle, the Badinter Commission refers to its role in settling decolonization issues in Latin America and Africa. However, while uti possidetis may have played a part in resolving some colonial boundary disputes, it has been emphasized throughout this work that the question of the meaning and influence to be attributed to the uti possidetis principle in the colonial context is not beyond doubt. But at least when referring to the decolonization principle of uti possidetis, the Arbitration Commission was expressing the widely accepted, cavalier view of uti possidetis. What is much more of a novel development is the commission’s reference to uti possidetis as a general principle of international law applicable to situations outside the colonial context. According to the Badinter Commission, this characterization of the uti possidetis principle is supported by the decision of a Chamber of the International Court of Justice in the Frontier Dispute case between

chap_06.fm Page 191 Thursday, October 10, 2002 8:56 AM

191

Yugoslavia and Quebec

Burkina Faso and Mali. The Arbitration Commission reproduced the following passage from the Court’s decision: “Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles …”77 It is interesting to note that the Badinter Commission chose to omit the last few words of the final sentence. The entire sentence actually reads: “Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles once the administering power has withdrawn.”78 When reproduced in full, the sentence and indeed the entire passage no longer support the same conclusion. The Chamber was obviously still very much referring to the colonial context but was denying that uti possidetis was a specific phenomenon confined to the decolonization of the South American continent. At least four other instances confirm that the Chamber’s discussion of the uti possidetis principle was firmly grounded in the colonial context. In the same paragraph as that containing the reference to the “administering power,” the Chamber states: “Although there is no need, for the purposes of this case, to show that [uti possidetis] is a firmly established principle of international law where decolonization is concerned …”79 Immediately following this paragraph, the Chamber continues: “It was for this reason that, as soon as the phenomenon of decolonization characteristic of the situation in Spanish America in the 19th century subsequently appeared in Africa in the 20th century, the principle of uti possidetis, in the sense described above, fell to be applied.”80 At the very beginning of its analysis, the Chamber had also recognized that the characteristic feature of the legal context of the frontier determination to be undertaken was that both states involved had derived their existence “from the process of decolonization.”81 The Chamber further states that “Uti possidetis, as a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers, is therefore a principle of a general kind which is logically connected with this form of decolonization wherever it occurs.”82 These various statements clearly indicate that according to the Chamber, uti possidetis had become a firmly established principle of the law on decolonization. This view has been endorsed by Hannum: The Special Agreement between Burkina Faso and Mali submitting their dispute to a Chamber of the Court was explicitly based on “respect for the principle of the intangibility of frontiers inherited from colonization,” and the

chap_06.fm Page 192 Thursday, October 10, 2002 8:56 AM

192

Determining Boundaries

Chamber’s dictum is clearly limited to the principle of uti possidetis juris as “a firmly established principle of international law where decolonization is concerned.”83

Therefore, when considering the judgment as a whole, it is not easy to draw from the Frontier Dispute case any support for the commission’s conclusion that the uti possidetis principle should apply to non-colonial situations like Yugoslavia. Even if one were prepared to accept that uti possidetis should perhaps be extended to non-colonial situations, as defined and applied by the Badinter Commission, the principle has been transformed almost beyond recognition. No colonial version of the principle, whether in Latin America or Africa, can account for the pre-independence selection of the republican borders and only the republican borders as the new international boundaries. Whenever it has been invoked in the colonial context, uti possidetis has been applied to entities that have already achieved independence through various processes. As Craven notes, “uti possidetis is only understandable when it is operated within an identifiable time-frame and with respect to identifiable units of statehood.”84 The Latin American republics achieved their independence amid the disintegration and dissolution of the Spanish American Empire. Gains achieved during the wars of liberation ultimately determined the configuration of the new republics. As discussed in chapter 2, in some instances the new Latin American republics corresponded to a former Spanish vice-royalty or audiencia and in others to lesser administrative divisions such as a captaincy-general. Only once their independence had been consolidated and the republics were at liberty to consider the exact delimitation of their respective territories did the principle of uti possidetis come into play, and then, only in relation to the territory each had come to control. In contrast, the existence of territorially defined colonies in Africa and the phenomenon of their accession to independence through devolution agreements provided the framework for independence and ensured the feasibility of the status quo policy in Africa. In both Latin America and Africa, two separate and distinct processes were at work: first, the identification of the presumptive units of statehood, whether by virtue of the principle of effectiveness or the right of self-determination of colonial peoples; and second, the determination of the boundaries of those entities through the application of various principles including uti possidetis. Yet the Badinter Commission in Opinion No. 3 assigns to the uti possidetis principle the unprec-

chap_06.fm Page 193 Thursday, October 10, 2002 8:56 AM

193

Yugoslavia and Quebec

edented role of selecting which administrative units will be entitled to join the international community of states. Craven also comments on this novel interpretation of the principle: “The manner in which the Arbitration Commission addressed the issue, however, was to use uti possidetis as a tool for establishing the presumptive statehood of the entities to emerge from the dismemberment of the sfry and to deny the autonomous Serbian Republics the benefit of that presumption.”85 As applied by the Arbitration Commission, the uti possidetis principle was used to identify Yugoslavia’s six constituent republics as the only legitimate succeeding entities to the sfry. The difficulty with the commission’s approach is that in the absence of any legitimizing principle such as effectiveness or the right of selfdetermination, uti possidetis does not itself provide any criteria for deciding which administrative units should benefit from international legal protection. This difficulty is also highlighted by Angelet: The principle of uti possidetis can only fulfil its stabilizing role on condition that the beneficiary of the principle is designated beforehand: in the absence of this designation, the uti possidetis principle could generate a multitude of solutions depending on whether independence is proclaimed at one or the other level of organization of the predecessor State. Yet, outside the decolonization context, international law does not designate such beneficiairies.86

As a distinct and territorially defined administrative unit, the 91 per cent Albanian majority in the former autonomous Province of Kosovo could also have benefited from the presumption – for the uti possidetis principle does not provide any legal justification for the essentially political decision to grant international status to the former republics within their administratively defined borders while denying such status to Kosovo or the Republic Srpska. As Hannum aptly comments: Ultimately, the principle of uti possidetis was employed a priori, to protect the integrity of the constitutionally-defined units which were then, and only then, able or entitled to exercise some form of self-determination – whether that be full independence or integration into a Confederation of States. In other words, a principle of boundary delimitation was used as the primary determining tool not only of the shape of the new territorial entities, but also of their international personality as States.87

Indeed, as applied by the Badinter Commission, the uti possidetis principle is far from neutral. It ultimately legitimized certain secessionist endeavours (Slovenia, Croatia) while branding others as illegitimate

chap_06.fm Page 194 Thursday, October 10, 2002 8:56 AM

194

Determining Boundaries

(Serb entities within Croatia and Bosnia-Hercegovina). And therein lies the entire problem according to Salmon. How can one justify this discriminatory treatment of the aspirations of peoples?88 6.2.4

State Practice and Uti Possidetis Juris as a Customary Norm of International Law

We have identified a number of difficulties in the Badinter Commission’s application of the uti possidetis principle and have argued that the Frontier Dispute case does not constitute conclusive authority. However, despite these difficulties, a number of commentators insist that this newest version of the uti possidetis principle was accepted by the parties themselves and was endorsed by the European Union and its partners. According to these jurists, the numerous pronouncements in favour of the maintenance of Yugoslavia’s former republican boundaries must be taken as evidence of state practice leading to the emergence of a new rule of customary law. This interpretation of the Yugoslav precedent is espoused, for instance, by Nesi: After an initial period when the central authorities of the former sfry tried to dispute the very existence, or the importance from a legal standpoint, of the territorial delimitations even of an administrative nature existing between the different Republics during the federal period, all the negotiations and the proposals put forward by the international negotiators and which aimed to bring peace to these zones took as their point of departure, undisputed, the territorial situation at the time of independence of the new States.89

And further: All aspects of [State] practice seen thus far would be sufficient to demonstrate the acceptance, on the part of the States born of the dissolution of the former sfry, of uti possidetis iuris as a norm of territorial delimitation.90

Shaw, in referring to the collapse of the sfry and the ussr, is also of the opinion that the many declarations, both individual and collective, as well as relevant Security Council resolutions, are proof of a constant practice in favour of the application of the uti possidetis juris principle, outside the colonial context.91 However, this general assessment of recent state practice is not universally accepted. Indeed, in an article analysing in great detail the positions adopted by the various parties involved in the Yugoslav crisis, Delcourt declares: “[I]t is possible to argue that the ambiguity of the positions, their fluctuating character and the confusion which sur-

chap_06.fm Page 195 Thursday, October 10, 2002 8:56 AM

195

Yugoslavia and Quebec

rounded the resolution of the conflict make it difficult to consider the Yugoslav case a precedent testifying to the extension of the uti possidetis rule outside the decolonization situations.”92 Delcourt proceeds to a thorough and very detailed analysis of the positions adopted by the Yugoslav actors throughout the critical period93 as well as those of the European Community and its members. Security Council resolutions and those of the General Assembly bearing on the Yugoslav conflict are considered in the final section of her study. Her principal findings warrant close attention. Delcourt cautions as a preliminary that the Yugoslav participants did not all stand on an equal footing. Indeed, as representatives of the Yugoslav state itself, federal authorities enjoyed a distinct status: “The position of the federal authorities, since it represents that of the Yugoslav State, is decisive especially with respect to the problem of the application and effects of the uti possidetis rule and consequently its effectiveness in resolving the Yugoslav crisis.”94 As early as 1990, confronted with growing demands for greater autonomy on the part of Slovenia and Croatia, the federal presidency insisted on the need to preserve the territorial integrity of the Yugoslav state. Aware, however, of these republics’ determination, the presidency did clarify that in any event appropriate procedures and specific rules would have to be elaborated to govern any secession. In particular, negotiations would have to be conducted regarding the territorial delimitation of any future entity.95 During this period, the position of the federal government was identical;96 it was firmly opposed to any attempt at unilateral secession and to any modification of the internal and external boundaries of Yugoslavia.97 Even as the balance of power shifted in favour of the secessionist republics, the federal government remained convinced that the use of force to modify the internal and external frontiers of Yugoslavia was unacceptable; only an agreement between all the constituent republics could lead to such changes. Thus a unilateral act of secession was likened to the use of force to modify the external boundaries of the sfry. On 20 August 1991, during the last meeting of the entire Yugoslav federal presidency and in response to the unilateral declarations of independence by Slovenia and Croatia, an agreement was reached on the right of self-determination of all nations,98 including the right of secession, but only under certain strict conditions: “Any changes of external and internal borders through unilateral acts and use of force is unacceptable. It can be done exclusively, if that were to happen, on the basis of the right of peoples to self-determination through a democratic procedure and in a legal manner.”99 On this basis, the unilateral declarations of independence were declared illegal as contrary to the

chap_06.fm Page 196 Thursday, October 10, 2002 8:56 AM

196

Determining Boundaries

right of self-determination of the other Yugoslav nations. The principle prohibiting changes to the external boundaries of the sfry through the use of force was also reiterated, as was the duty to resolve peacefully and democratically the Yugoslav crisis. Alarmed by reports of the possible recognition of the break-away republics, the federal presidency declared in mid October that secession in no way resolved the issue of boundaries, which had to be settled according to Yugoslav law. Reference was made to an agreement of principle negotiated between the various Yugoslav actors which provided that a “consensual solution of open and disputed questions of reciprocal demarcation has to be ensured without the imposition of someone else’s view.”100 On 22 October 1991, the federal presidency reiterated this principle, which it viewed as essential.101 It did so again with even greater vehemence in December following the release of the Arbitration Commission’s first opinion.102 The federal position therefore rested on legal arguments, both domestic and international. It insisted that the right of self-determination conferred on all nations by the Yugoslav constitution as well as the prohibition against the use of force to modify existing boundaries had to be respected. In addition, federal authorities were adamant that to confer on secessionist entities a right to territory was nothing less than interference in the internal affairs of the Yugoslav state and a violation of its right to territorial integrity. Thus federal pronouncements can hardly be interpreted as acceptance of the uti possidetis principle. As Delcourt summarizes: i) reference to the right of self-determination of the Yugoslav ‘peoples’ is incompatible with the intangibility of the federal republican boundaries as those limits rarely coïncided with the territory inhabited by these peoples; ii) the obligation to arrive at a consensus among all the interested parties appears to exclude the a priori application of a specific rule; iii) the rule prohibiting changes to the internal frontiers is intrinsically linked to that concerning external frontiers – rejection of the one implies the exclusion of the other; iv) the letter of protest sent to the Badinter Commission contained a number of legal arguments, excluding the application of the uti possidetis principle.103 The position of the Serb republic was very close to that of the federal authorities. If anything, it relied to an even greater extent on political and historical arguments to exclude a solution based on respect for administrative lines in the event of secession. According to Serb

chap_06.fm Page 197 Thursday, October 10, 2002 8:56 AM

197

Yugoslavia and Quebec

authorities, the internal frontiers were only legitimate so long as the Yugoslav state existed.104 Furthermore, the internal limits could not determine the framework for the exercise of the right of self-determination conferred on the Yugoslav nations under the Constitution.105 Nor could the issue of boundaries be resolved unilaterally or by a fait accompli. For this reason, the Serb Assembly refused in July 1991 to accede to the demand for incorporation presented to it by the autonomous Serb region of Krajina “because in this case, we would unilaterally change the internal borders and we would probably be considered as aggressors.”106 This position was reiterated by President Milosevic during the opening ceremony of the International Conference for Peace on 7 September 1991: The acts of those federal units that have unilaterally proclaimed state sovereignty within internal administrative borders and established the primacy of republican regulations over federal regulations cannot be recognised. By imposing the idea of the inviolability of the internal borders, one conceals the unlawful attempt to change external borders of Yugoslavia unilaterally by simply renaming internal administrative borders as external state borders, something that directly threatens the territorial integrity of the country.”107

Thus the position adopted by the Serb republic was that, in resolving the crisis, a general agreement had to be negotiated among all the interested parties. Authorities in Montenegro aligned themselves with the federal and Serb positions. While acknowledging that Slovenia and Croatia had a right to secede, they affirmed that the issue of boundaries remained to be settled.108 In particular, the boundary between Croatia and Montenegro in the regions of Boka and Kotorska would have to be revised.109 The position adopted by the secessionist republics, though much more favourable to the transformation of federal borders into international boundaries, was not however devoid of ambiguity. An analysis of the position of both Slovenia and Croatia on the issue of boundaries highlights the confusion surrounding the whole question of the determination of the new international boundaries during the critical period. From the very start, Slovenian authorities argued that the accession to independence of the republic should occur within existing federal borders. However, they also acknowledged that this principle was simply a basis for discussion, as an official statement issued in January 1991 following a meeting with Milosevic attests: “As set out, Slovenia on the other hand acknowledged the interest of the Serbian nation to live in one state and the future Yugoslavia accord should respect this

chap_06.fm Page 198 Thursday, October 10, 2002 8:56 AM

198

Determining Boundaries

interest.”110 Therefore, at this juncture, the Slovenian representative to the federal presidency maintained that the question of boundaries in the event of a claim to self-determination would necessarily have to be negotiated. There is no doubt, however, that in the following months the Slovenian position hardened in favour of the automatic transformation of administrative limits into international boundaries. Indeed, responding to a question from Lord Carrington, the Slovenian president affirmed that the administrative lines should be transformed into international boundaries “because they are ‘elder’ or at least as old as Yugoslavia’s external borders, and moreover they have been reaffirmed by history.”111 However, this statement, which could be seen as adherence to the uti possidetis principle, was not motivated by any legal consideration. On the contrary, Slovenia’s initial attitude can only lend support to the conclusion that it did not feel compelled to respect any particular legal principle. Rather, political considerations, it would appear, and the balance of power eventually led Slovenian authorities to adopt a status quo solution. The position of the Croatian authorities also revealed some inconsistencies. Confronted with the creation of the autonomous region of Krajina in the spring of 1991, President Tudjman declared that if the question of boundaries was to be reopened, “the borders with which Croatia entered the common state in 1918” had to be taken into account.112 In other words, historical rights and not the 1991 Yugoslav administrative lines were to be the determinative factor. Yet subsequently, Stipe Mesic, the Croatian representative to the federal presidency, did embrace the principle of the intangibility of external and internal frontiers.113 Similarly, President Tudjman, denying talks with Milosevic over the possible carving up of Bosnia-Hercegovina, stated in June 1991 that Croatia would recognize the existing boundaries of Bosnia if its population were allowed to have a say in its future.114 However, he also added, rather ambiguously, that existing boundary lines were inadequate.115 In his speech marking the independence of the Croatian State on 25 June 1991, Tudjman declared that Croatia would respect the boundaries of each republic, particularly those of Bosnia-Hercegovina. However, this commitment was conditional on the absence of any territorial claims by Serb leaders within Croatia.116 In July 1991, the Croatian president reiterated his promise to respect the boundaries of Bosnia-Hercegovina but again added a proviso: so long as they were not modified by force.117 However, increasingly concerned about losing control over Croatian territories inhabited by Serb majorities, Tudjman did suggest during a meeting with German foreign affairs minister H.D. Genscher “an official ec announcement to state that a

chap_06.fm Page 199 Thursday, October 10, 2002 8:56 AM

199

Yugoslavia and Quebec

solution to the [Y]ugoslav cris[e]s will have to rely upon conserving the exist[e]nt internal and external boundaries of Yugoslavia.”118 From that point onward, the Croatian position did not vary, and the question of its territory, as defined by the former federal borders, was held not to be open to negotiations. Though Croatian authorities eventually embraced the principle of the intangibility of internal frontiers, it is fairly evident that this commitment was the result of opportunistic considerations rather than because of any conviction that a legal rule dictated this particular outcome. Indeed, Croatia’s initial willingness to discuss boundary modifications only gave way to self-preservation once it was confronted with territorial claims by its own Serb population. This self-preservation reflex, more than any legal rule, also accounts for the position adopted by Bosnian authorities, according to whom Bosnia-Hercegovina was a sovereign and indivisible state whose boundaries were inviolable and inalienable.119 Delcourt concludes her analysis of the various positions adopted by the Yugoslav parties by referring to the clear split between the secessionist republics on the one hand and the federal Serb and Montenegrin authorities on the other: The first (Slovenia, Croatia, Bosnia-Hercegovina, Macedonia) ultimately wished to exercise their sovereignty … within the framework of the administrative borders of Yugoslavia. Their motives rested mainly on moral considerations and/or political opportunism, on appeals to history, and, more rarely, on recourse to the rule against the unilateral modification of internal frontiers (article 5 of the Yugoslav constitution). With respect to international law, no explicit reference is made to the rule of uti possidetis … The second (Yugoslav State, Serbia, Montenegro) referred continually to the need to arrive at a global settlement of all disputes (including those pertaining to an eventual delimitation) based on the express consent of all Parties concerned. They therefore excluded a priori the application of any given rule of international law on territorial delimitation120

Though the secessionist republics did eventually advocate the maintenance of the Yugoslav federal borders, clearly the arguments and motives that account for each group’s position do not reflect any commitment whatsoever to the uti possidetis principle. We have argued that the response of the European Community and its member states, as well as of the international community, to the Yugoslav crisis was influenced by a number of considerations. Of critical importance is the fact that as long as the situation was characterized as one of secession, international actors insisted upon respect for

chap_06.fm Page 200 Thursday, October 10, 2002 8:56 AM

200

Determining Boundaries

the territorial integrity of the Yugoslav state. However, faced with growing evidence of atrocities committed within the region and anxious to contain the situation, the ec and its partners welcomed the Badinter Commission’s conclusion that the process unfolding in Yugoslavia was one of dissolution. Comforted by this important legal determination, the European Union and the international community eventually rallied around a solution based upon the transformation of the former federal borders into international boundaries. However, the question remains: does this eventual acceptance of a status quo policy reflect a general practice accepted as law? Shaw reaches the conclusion that the weight of state practice clearly supports the view that the uti possidetis principle applies presumptively to post-colonial independence situations, attributing considerable importance to the European Guidelines on Recognition of New States in Eastern Europe and the Soviet Union.121 Adopted by the European Union (eu) on 16 December 1991, shortly after Badinter’s Opinion No. 1, the Guidelines provide for a common policy on recognition that includes “respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement.”122 However, the fact that the inviolability of frontiers is made a condition for recognition is not sufficient to confer on the principle the status of a customary norm of international law. As Delcourt explains, “it [the principle of the inviolability of territorial limits] means that the Republic, to be recognized, must adopt this solution, which has value only in the context of a bilateral relationship, where a future State undertakes to respect such or such a norm vis-à-vis another State.”123 In addition, nothing confirms that this particular condition for recognition emerges from the corpus of international law. Many of the other conditions for recognition refer to political principles contained in various European instruments. Klein also makes the point that the Guidelines do not constitute a binding legal instrument, neither for their authors (the members of the eu) nor for their intended beneficiaries (Eastern European states and the Soviet Union).124 Although it is true that once the situation in the former Yugoslavia was characterized as one of dissolution the eu and its member states endorsed the various peace plans, all of which were premised on respect for the former internal federal limits, the absence of any legal justification for this policy is noteworthy. Discussions within the eu reveal a much greater concern for political and moral considerations.125 And if a ‘generally accepted’ principle like uti possidetis presumptively applied as suggested by the Badinter Commission, it is indeed curious that none of the statements issued by European authorities or member states explicitly referred to the principle. We would argue with Corten

chap_06.fm Page 201 Thursday, October 10, 2002 8:56 AM

201

Yugoslavia and Quebec

that the absence of any reference to the uti possidetis principle reveals that the European states agreed not on a specific rule or on its application, but on a solution valid only for that particular situation.126 Indeed, what is clear is that the eu exerted tremendous pressure on the Yugoslav actors to accept a solution based on the maintenance of administrative frontiers; however, this is a radically different proposition from imposing on the parties an established norm of international law. This assessment of Europe’s policy is confirmed by an important eu declaration subsequently issued in the context of the dissolution of the Soviet Union: “Recognition shall not be taken to imply acceptance by the European Community and its member States of the position of any of the Republics concerning territory which is the subject of a dispute between two or more Republics.”127 Clearly, this declaration is incompatible with the principle of uti possidetis, which requires the automatic transformation of administrative lines into international boundaries without there being any question of claims by any of the parties. Other key European instruments, such as the Stability Pact for Eastern Europe128 concerning boundaries and minorities, merely reflect the classical rules concerning the inviolability of international boundaries; no reference is made either to the sanctity of internal borders or to the uti possidetis principle. For this reason, Klein concludes: “The subsequent declarations and official positions of the European States, whether they were issued in the community context or in that of the c.s.c.e./ o.s.c.e. cannot … be interpreted as establishing the theory of uti possidetis as it applies to the internal limits of dismembered States.”129 It is also Shaw’s contention that Security Council resolutions constitute relevant state practice.130 The Security Council’s first resolution concerning the Yugoslav crisis on 25 September 1991 had as its primary aim the imposition of an embargo on all military materials bound for Yugoslavia.131 The resolution does however refer to a c.s.c.e. declaration on 3 September 1991 which provided that “no territorial gains or changes within Yugoslavia brought about by violence are acceptable.” However, the Security Council merely ‘took note’ of the declaration and did not adopt as its own the c.s.c.e. position. In any event, the role of the Security Council is neither to state the law nor to allocate territories but above all to guarantee international peace and stability. If, therefore, it concludes that the use of force to modify the boundaries existing within a particular state threatens international peace and security, one cannot ipso facto rely on such a finding to deduce the existence of a rule requiring respect for internal borders in cases of accession to independence. All of the Security Council’s subsequent resolutions referring to the issue of boundaries followed the proclamation of the new Yugoslav

chap_06.fm Page 202 Thursday, October 10, 2002 8:56 AM

202

Determining Boundaries

Constitution on 27 April 1992. Promulgated after international recognition had been extended to five of the former Yugoslav republics, the Constitution of the new federal Republic of Yugoslavia merely recorded a fait accompli with respect to the territorial integrity of each republic. Security Council resolutions therefore simply reflected the accepted solution and drew from it the logical consequences by repeatedly calling for respect for the territorial integrity of BosniaHercegovina and by denouncing the use of force to modify existing boundaries.132 As a result, it is difficult to view Security Council resolutions as evidence of state practice motivated by a legal imperative. After reviewing the positions adopted by the various parties to the Yugoslav conflict and considering eu pronouncements and Security Council resolutions, it does not appear, despite claims to the contrary by such distinguished jurists as Angelet, Nesi, and Shaw, that state practice during the critical period satisfies the material and subjective elements of custom. Indeed, as Corten shows, international case law dealing with custom is characterized by a much more prudent approach, one much more respectful of the will of states, in comparison with what has been proposed in some recent doctrinal commentaries. He recalls that in the Nicaragua case,133 the International Court of Justice, called upon to determine whether principles such as the non-use of force and non-intervention were customary norms, did not content itself with citing a few random treaties and international instruments. Rather, the Court proceeded to a comprehensive demonstration of the existence of an opinio juris, not only in general, but also with respect to the parties involved in the case. Consequently, Corten’s conclusion appears indisputable: “This method, applied to rules as universal and undisputed as that of non-use of force, should a fortiori apply to principles like that of uti possidetis juris, whose ‘status as a rule of general international law remains strongly in doubt.›134 6.2.5

Conclusion

Following our analysis of Opinion No. 3 and state practice, there appears to be no legal basis for the Arbitration Commission’s characterization of uti possidetis as a general principle of international law. Not only did the commission transpose a colonial principle of uncertain status to a radically different situation – the dissolution of a sovereign state – but it also radically transformed the principle. Whereas in the colonial context uti possidetis constitutes a delimitation principle, as applied by the Arbitration Commission it serves as an inconsistent rule for the identification of units of statehood. Furthermore, this new version of the uti possidetis principle is no longer founded on the consent

chap_06.fm Page 203 Thursday, October 10, 2002 8:56 AM

203

Yugoslavia and Quebec

or contracting-in of the parties involved but has become a binding solution that can be imposed upon unwilling participants. Though the commission’s novel interpretation of the uti possidetis principle is clearly supported neither by the Frontier Dispute case nor by state practice during the critical period, the question remains whether this most recent formulation of the uti possidetis principle should in the future be considered a guiding principle for the resolution of boundary issues arising from the dissolution of existing states. This question will be addressed in the conclusion to the chapter, following an analysis of a report drafted for the Quebec government and an assessment of the pleadings and ruling in the Reference on Quebec Secession before the Supreme Court of Canada.

6.3

quebec

6.3.1

Introduction

The “Commission sur le processus de détermination de l’avenir politique et constitutionnel du Québec” (hereinafter Commission on the Future of Quebec) was created on 4 September 1990 under the authority of the Quebec National Assembly and pursuant to legislation adopted unanimously by all political parties.135 The Parliament of Quebec conferred on the commission the mandate “to examine and analyse the political and constitutional status of Quebec and to make recommendations in respect thereof.”136 This mandate was based on an observation made on 23 June 1990 by the premier of Quebec and confirmed by all members of Quebec’s National Assembly, according to which rejection of the 1987 agreement on the Constitution (Meech Lake Accord) had called into question the political and constitutional future of Quebec and had made it necessary to redefine Quebec’s status.137 To enable the commission to fulfil its mandate and reach a “consensus based on a concern to serve Quebec’s interests, aspirations and needs,” the act specifically provided that it would be entitled to carry out any research and consultation it considered necessary.138 These briefs, expert analyses, and public hearings were to constitute a body of information and opinions that would help guide the commission members in their deliberations.139 6.3.2

The Issue of Quebec’s Territorial Integrity

Very early on in the public consultations, it became apparent that the question of Quebec’s boundaries in the event of its accession to statehood would be one of the most sensitive and important questions

chap_06.fm Page 204 Thursday, October 10, 2002 8:56 AM

204

Determining Boundaries

before the commission. Consequently, in early March 1992, five international law experts were retained by the commission to prepare an opinion on various legal questions relating to Quebec’s territorial integrity. In a letter dated 4 March 1992, François Geoffrion, the commission’s secretary, summarized for Thomas M. Franck, Rosalyn Higgins, Alain Pellet, Malcolm N. Shaw, and Christian Tomuschat the main aspects of the boundary issue: Some people maintain that Quebec could not attain sovereignty within its present territory, but only within the territory which it possessed in 1867 at the time of the creation of the Canadian federation. In fact, Quebec’s boundaries were altered twice by federal legislation subsequent to this date. These alterations, which occurred in 1898 and 1912, substantially extended the northern territories of Quebec. The federal Act of 1912, moreover, contained conditions respecting the relations between the government of Quebec and the aboriginals which inhabited the northern part of its territory. These conditions were repealed by a federal Act enacted in 1977, which put into effect the James Bay and Northern Quebec Agreement. Nevertheless, some people continue to maintain that these conditions would be breached if Quebec became a sovereign State. Others consider that the territories which are the subject of the 1898 and 1912 legislation were granted to Quebec as a province within the framework of the Canadian federation and that Quebec could not retain them in the event of any change of status.140

Geoffrion further noted that Quebec’s Native peoples were claiming their own right of self-determination. Matthew Coon Come, grand chief of the Grand Council of the Crees of Quebec, had warned that “if Canada is divisible, then Quebec too is divisible.”141 Furthermore, members of Quebec’s English minority were also claiming that areas in which the minority was concentrated should continue to form part of Canada. Residents of all ethnic backgrounds living in border regions might also wish to remain within Canada. Other residents might try to claim a Canadian corridor across Quebec territory to link the Maritimes to the rest of Canada. Geoffrion concluded his summary by explaining that “[t]he questions we are putting to you are intended to address all of these concerns as a whole. These questions relate to the application of the principle of uti possidetis assuming Quebec were to attain sovereignty.”142 6.3.3

Impact of the Five Experts’ Opinion

The five experts’ final opinion was drafted by Alain Pellet in close collaboration with the other four signatories and was delivered on 8 May 1992.143 The opinion had a significant impact on the ongoing political

chap_06.fm Page 205 Thursday, October 10, 2002 8:56 AM

205

Yugoslavia and Quebec

debate surrounding Quebec’s future and continues to influence political and legal discussions on the issue of boundaries. On 25 May 1994, the Montreal newspaper La Presse ran an article by Jacques Parizeau, then Parti Québécois leader, entitled “Boundaries of an independent Quebec: the situation ‘could not be any clearer.›144 To support this assertion, Mr Parizeau referred to the five experts’ opinion. Relying essentially on two paragraphs of the fifty-page opinion, Mr Parizeau declared that the borders of Quebec could not be put in issue if it were to secede from Canada. The five jurists had unanimously concluded that: If Quebec were to attain independence, the borders of a sovereign Quebec would be its present boundaries and would include the territories attributed to Quebec by the federal legislation of 1898 and 1912, unless otherwise agreed to by the province before independence, or as between the two States thereafter. If Quebec were to attain independence, the principle of legal continuity (absence of a vacuum juris) would allow the territorial integrity of Quebec, guaranteed both by Canadian constitutional law and public international, to be asserted over any claims aimed at dismembering the territory of Quebec.”145

Mr Parizeau heaped scorn on the comments of then British Columbia premier Michael Harcourt and Federal Indian Affairs Minister Ron Irwin, who in the preceding week had warned that Quebec’s Natives might have a right to remain in Canada if Quebec decided to separate. Their concerns were dismissed as “attitudes which are part of a campaign of terror and which trample the intelligence of citizens.”146 Mr Parizeau also warned that a “great deal of your ill will, of your hollering, has absolutely no legal or constitutional basis.” He invited Prime Minister Jean Chrétien to “read the Constitution and abide by it.”147 Yet some Canadian legal experts have warned that the law is not on Mr Parizeau’s side. In an article entitled “The Parti Québécois leader says the experts support Québec’s claim to its current borders after separation – Not so,” Patrick Monahan has stated: “Mr Parizeau was fortunate that none of the reporters questioning him happened to have a copy of the expert legal opinion that he relied so heavily upon. They would have found that the document bears no resemblance whatsoever to Mr Parizeau’s description of it.”148 It is therefore necessary to investigate what conclusions the five experts arrived at with respect to the boundaries of an independent Quebec. While it will not be possible to reproduce their entire discussion and conclusions, or even to analyse all of the issues they were asked to tackle, their interpretation of the uti possidetis principle warrants close scrutiny; though drafted in 1992, the report’s importance is undiminished. Indeed, in the recent Reference on Quebec Secession before the Supreme Court

chap_06.fm Page 206 Thursday, October 10, 2002 8:56 AM

206

Determining Boundaries

of Canada, the opinion was cited in the attorney-general’s factum, and Professor Alain Pellet, in an expert opinion drafted for the amicus curiae, declared that the report’s conclusions were still valid. 6.3.4

The Questions

The five international experts were asked to advise the commission on the two following questions: 1. Assuming that Quebec were to attain sovereignty, would the boundaries of a sovereign Quebec remain the same as its present boundaries, including the territories attributed to Quebec under the federal legislation of 1898 and 1912, or would they be those of the Province of Quebec at the time of the creation of the Canadian Federation in 1867? 2. Assuming that Quebec were to attain sovereignty, would international law enforce the principle of territorial integrity (or uti possidetis) over any claims aiming to dismember the territory of Quebec and more particularly: a) claims of the Natives of Quebec invoking the right of self-determination within the meaning of international law; b) claims of the anglophone minority, particularly in respect of those regions of Quebec in which this minority is concentrated; c) claims of the inhabitants of certain border regions of Quebec, regardless of ethnic origin?”149

The first point to note is that the questions put to the international experts presupposed Quebec’s accession to sovereignty. The jurists themselves referred to this proviso: “From their very wording the questions which the authors are faced with view independence ‘after the fact’: independence is assumed and it remains to be determined how international law will react to this event.”150 As the second question posits as a starting premise Quebec’s accession to sovereignty, the answer appears straightforward enough. “Clearly, if Quebec were to attain sovereignty, then the territorial integrity of the new State would be guaranteed by international law, just as international law now guarantees the territorial integrity of Canada.”151 The reference to uti possidetis as synonymous with the territorial integrity principle is however more problematic. As discussed in chapter 5, the two principles operate in different circumstances and do not yield the same results. Once Quebec has attained independence, it has satisfied a number of identifiable international law criteria, including effective control over a defined territory. Having fulfilled the requirements for statehood, the boundaries of the new Quebec state would be protected by the international law principles of territorial integrity and inviolability of frontiers.

chap_06.fm Page 207 Thursday, October 10, 2002 8:56 AM

207

Yugoslavia and Quebec

The real uti possidetis question follows the Serbian model: can the internal provincial boundaries of Quebec be regarded as frontiers in terms of public international law? Does the uti possidetis principle dictate, prior to independence, the boundaries of the soon-to-be new Quebec state? Manifestly, this was not the question the five international law experts were asked to address. However, the jurists acknowledged that the real issue “is whether Quebec is entitled to achieve independence within the configuration of its present boundaries as a Canadian province or whether such boundaries, having become international frontiers, can (or must) undergo a modification as a consequence of independence.”152 6.3.5

Principal Conclusions of the Five Experts

Before considering the experts’ analysis of uti possidetis in relation to the future boundaries of an independent Quebec, it will be helpful to reproduce the jurists’ main conclusions, which embrace all aspects of the problem: i/ On a legal level, a possible sovereignty of Quebec cannot be founded on the principle of equal rights and the self-determination of peoples, which allows independence for colonial peoples or only for those whose territory is the subject of foreign occupation.153 ii/ Nor do linguistic, ethnic or religious minorities enjoy such rights; present-day international law ensures such minorities the extensive protection of their culture, broadly defined, but does not guarantee any specific territorial rights.154 iii/ The same does not hold true for indigenous peoples whose special relationship with their ancestral territories and lands are taken into account by international law, which increasingly guarantees them greater territorial rights. Nevertheless, whatever the exact substance of these rights the extent of which is, at present, difficult to ascertain, they do not translate into the recognition of a right to independence.155 iv/ Therefore, in a non-colonial context, the attainment of sovereignty by a territory is merely a question of fact in the eyes of international law: the new State is considered as such if its existence is effective. The recognition by thirdparty States (and by the State from which the territory concerned was severed) is a test of this effectiveness.156 v/ Moreover, in the case of Canada and Quebec, the territorial integrity of the latter is guaranteed before independence by the constitutional rules of Canada, and would be after a possible sovereignty by the well-established and peremptory principles of general international law. There is no room for any intermediate situation in which different rules would apply.157

chap_06.fm Page 208 Thursday, October 10, 2002 8:56 AM

208

Determining Boundaries

vi/ When secession occurs within the framework of a well-defined territorial district, the former boundaries of this district become the borders of the new State (principle of uti possidetis juris). Recent international practice leaves no doubt as to this fact where the predecessor State is a federation, and reflects the existence of a generalized opinio juris along these lines.158 vii/ These rules are not defeated by the circumstances in which certain territories were attached to Quebec. The only consideration is the ‘territorial snapshot’ at the time of sovereignty.159 viii/ If sovereignty occurs, Quebec will ‘inherit’ the integrity of the territory which now belongs to it and all the powers over this territory now exercised by the federal authorities, including notably powers over Indian reservations.”160

6.3.6

Analysis of the Five Experts’ Conclusions

Although the experts’ conclusions raise a number of key issues and have sparked considerable debate, our discussion will focus specifically on conclusions iv, v, and vi. Conclusion iv. As discussed in chapter 5, the right of a people to selfdetermination is so widely recognized in international conventions that the principle has now acquired the status of a general principle of international law.161 However, the principle of self-determination has evolved within a framework of respect for the territorial integrity of existing states. As noted by the Supreme Court of Canada, “[t]he various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or the stability of relations between sovereign states.”162 It is indeed clear from the formulations of the principle in international instruments such as the Declaration on Friendly Relations,163 the Vienna Declaration,164 or the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations165 that the international community expects that the right of self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states. The right of self-determination will therefore be exercised ‘internally’ in most cases, as it guarantees a people the pursuit of its own political, economic, social, and cultural development but within the existing framework of the state. Nevertheless, as we have seen, there are certain defined contexts within which international law may allow the right of self-determination to be exercised ‘externally’ and that could potentially involve a right to independence. As noted in chapter 5, such a right to external self-

chap_06.fm Page 209 Thursday, October 10, 2002 8:56 AM

209

Yugoslavia and Quebec

determination could arise in situations in which a people is subjected to colonial rule, or even in which a people is oppressed under foreign military occupation, or in which an identifiable group is denied meaningful access to governmental structures. As such exceptional circumstances are manifestly inapplicable to Quebec, the five experts concluded at paragraph i that Quebec’s sovereignty could not be founded on the principle of self-determination of peoples. However, while international law may not grant Quebec a positive right, understood as a legally enforceable entitlement,166 to unilateral secession, neither does it prohibit secession. Indeed, international law contains neither a legal right of unilateral secession nor the explicit denial of such a right.167 International law is in fact neutral with respect to secession, and in certain circumstances, it may well adapt to recognize effective political realities. This legal vacuum has led Professor Franck to conclude that while international law may not confer a positive entitlement to secede, peoples have a right, understood as a privilege, to attempt secession: “It cannot seriously be argued today that international law prohibits secession. It cannot seriously be denied that international law permits secession. There is a privilege of secession recognized in international law and the law imposes no duty on any people not to secede.”168 Yet Christakis argues that international law not only does not permit secession, but is in fact hostile to all secessionist endeavours: [W]e believe that it is wrong to regard international law as affording such an ‘indirect right,’ such a ‘privilege’ to secessionist groups. International law neither ‘permits’ nor ‘authorizes’ secession. Rather what it does … is to erect against it important obstacles, by protecting the State against secessionist movements. Law is hostile to secession and scarcely ‘permits’ it. It does no more than take into account reality when secession succeeds against all odds … Thus, as J. Crawford has commented, “a secessionist group informed that international law permits it to secede or confers on it the privilege to do so, could be disappointed by the consequences.”169

Though Cassese agrees that state practice and the overwhelming view of states remain opposed to secession, and that this is one of the few areas on which full agreement exists among all states, he does emphasize that secession “is a fact of life, outside the realm of law.”170 As Quaye comments: “The legitimacy of any secessionist movement depends on whether or not that movement succeeds, and, to a certain extent, without any regard to how that success is brought about.”171 Accordingly, the criteria for statehood in the event of Quebec’s secession would be “the maintenance of a stable and effective government

chap_06.fm Page 210 Thursday, October 10, 2002 8:56 AM

210

Determining Boundaries

over a reasonably well-defined territory, to the exclusion of the metropolitan / predecessor State in such circumstances that independence is in fact undisputed or manifestly undisputable.”172 As Monahan explains, Quebec’s “claim to statehood through a udi [unilateral declaration of independence] would ultimately be based on political reality – the fact that it had been able to oust the jurisdiction of Canadian authorities over its territory.”173 This analysis is reflected in the experts’ fourth conclusion: “Therefore, in a non-colonial context, the attainment of sovereignty by a territory is merely a question of fact in the eyes of international law: the new State is considered as such if its existence is effective. The recognition by third-party States (and by the State from which the territory concerned was severed) is a test of this effectiveness.”174 Conclusion v. Conclusion v respecting the territorial integrity of Quebec both before and after independence, rests on the following analysis: [B]efore independence, the present boundaries of Quebec are guaranteed by the Constitution (essentially by s. 43 of the Constitutional Act, 1982 and s. 3 of the Constitution Act, 1871). After independence, these boundaries will be secured by the principles governing the territorial integrity of States and the stability of frontiers. Between these two situations there is no room for a vacuum juris and one can hardly see at what moment this protection would cease.175

The conclusion that the Canadian Constitution protects provincial boundaries from unilateral change is undoubtedly correct but would be irrelevant if Quebec’s unilateral declaration of independence were to be disputed by Canada. There is, not surprisingly, no provision for provincial secession in the Canadian Constitution.176 Absent a constitutional amendment or negotiated agreement, the decision to proceed by way of a unilateral declaration of independence would involve a break in legal continuity. It would amount to a repudiation of the Canadian constitutional order. As Monahan indicates: In that situation [udi], Quebec would be attempting to jump outside the existing constitutional order. It could not pick and choose among parts of the Constitution, ignoring those provisions with which it disagreed while seeking to rely on others that operated in its favor … If Quebec was attempting to ignore the Constitution and secede unilaterally, it could not be heard to complain that the borders of the new State differed from those permitted under the existing Canadian Constitution.177

chap_06.fm Page 211 Thursday, October 10, 2002 8:56 AM

211

Yugoslavia and Quebec

This aspect of the problem is also highlighted by the Supreme Court: If the principle of “effectivity” is no more than that “successful revolution begets its own legality” (S.A. de Smith, “Constitutional Lawyers in Revolutionary Situations” (1968), 7 West. Ont. L. Rev. 93, at p. 96) it necessarily means that legality follows and does not precede the successful revolution. Ex hypothesi, the successful revolution took place outside the constitutional framework of the predecessor state, otherwise it would not be characterized as “a revolution.”178

To be ‘unilateral,’ a declaration of independence must necessarily have taken place in the absence of a constitutional amendment or negotiated agreement and therefore outside the existing constitutional framework. Of course, if Quebec succeeded in asserting effective control over the entire provincial territory and the effectiveness of its claim to statehood were recognized by the international community, there is no doubt, as indicated by the experts, that Quebec’s territorial integrity would be guaranteed “by the well-established and peremptory principles of general international law.” Like all sovereign states, an independent Quebec (with the territory it had then come to control), would benefit from the protection afforded by the principles of territorial integrity, stability, and inviolability of frontiers. But as Mr Cameron, a member of the National Assembly for the Jacques Cartier Riding, pointed out to the Commission on the Future of Quebec on 11 February 1992, “The trouble is, that leaves out the whole point that is of interest to everyone … which is what do we do in between?”179 With respect to this critical issue, the experts’ assertion that there could be no transitional period is puzzling, especially in light of its earlier conclusion that Quebec’s claim to statehood would rest on the principle of effectiveness. While it is undoubtedly true that the point in time at which an entity achieves statehood can be determined, it is usually a determination ex post facto, once the assertion of independence has been deemed effective. As Craven comments: Generally speaking, unless an explicit process of devolution is at work, the process by which an entity acquires or loses Statehood is shrouded by doubt, both as regards the relevant factual circumstances and as to their legal significance. As such, it is only when nascent entities come to be recognised as States by other members of the international community that these issues will be presumptively resolved.180

chap_06.fm Page 212 Thursday, October 10, 2002 8:56 AM

212

Determining Boundaries

This statement is borne out by events in the former Yugoslavia. Only on 15 January 1992, and on the basis of the Arbitration Commission’s fifth and seventh opinions, did the European Community and its member states decide to proceed with the recognition of Slovenia and Croatia.181 It therefore took the members of the European Community some six months to recognize Slovenia and embattled Croatia and, in so doing, to confirm that they were entitled to the protection of international law. As stated, there is no doubt that should effective control of the provincial territory be achieved and international recognition extended, Quebec as a newly independent state would benefit from the full range of international principles protecting its territory. However, the principle of effectiveness offers no guarantees. While Quebec were seeking to assert effective control, Canadian federal authorities would, for their part, be entitled to resist such an attempt by all lawful means. International law has always promoted and defended the right to territorial integrity and consequently authorizes states to oppose by all lawful means claims to secession. In addition, third party states are expected to remain neutral, as any assistance proffered to the seceding entity can be deemed an intervention in the internal affairs of the state in question. Thus, while international law is prepared to acknowledge political realities once the independence of a seceding entity is firmly established, it will do so only in relation to the territory that the entity effectively controls. Woerhling warns that, “[i]f secession gave rise to hostilities and if the federal government forcibly gained control over part of the territory of Quebec, the secessionist government managing to retain control of the rest, at the end of the hostilities the territory would have to be divided between the former surrounding State and the new State born of the secession.”182 In such circumstances, federal control or indeed native control over part of Quebec’s territory would constitute the reality against which Quebec’s claim to effective statehood would be assessed. At first glance, the experts appear to accept this conclusion when they state: “What matters, therefore, is the overall effectiveness of the State’s power over the entire territory of Quebec.”183 However, it is difficult to reconcile this statement with the experts’ final sentence in conclusion v: “There is no room for any intermediate situation in which different rules [rules other than the constitutional and international rules guaranteeing Quebec’s territorial integrity] would apply.”184 The experts do not appear to recognize the impact secession, as an independence process, would have on the question of boundaries. Their assessment seems more suited to a devolution process as in the case of

chap_06.fm Page 213 Thursday, October 10, 2002 8:56 AM

213

Yugoslavia and Quebec

decolonization than to a struggle for factual control outside of any positive legal entitlement. International law allows for a radical distinction between the two kinds of situations that can characterize accession to independence. Either it is a case involving a right to external self-determination, wherein accession to independence is based on legitimacy, or it is a case of secession or dissolution, wherein independence is based on effectiveness. For Corten, this critical distinction inevitably affects the consequences of independence, chief among which is the delimitation of new boundaries: “This split, valid for the modes of accession to independence, must also be valid for its consequences, among which must undeniably be included the delimitation of frontiers.”185 The same jurist identifies the consequences that flow from each mode of accession to independence. When independence is founded on legitimacy, the sequence is as follows: right of self-determination,186 therefore right to the creation of a state, therefore right to a territory, and therefore right to benefit from definite boundaries.187 According to Corten, this right to boundaries rests on the application of the uti possidetis principle. We would argue, however, that entities acceding to independence on the basis of legitimacy would also benefit from the territorial guarantees identified in chapter 5, including the rule of nemo dat and the principles of the intangibility of frontiers and territorial integrity. Independence established on the basis of effectiveness triggers an entirely different sequence: no right to self-determination, therefore no right to the creation of a state, therefore no right to territory, and therefore no right to benefit from definite boundaries, whatever they may be and whether they are the product or not of the uti possidetis juris principle. We agree wholeheartedly with Corten when he states that to detach one element in the sequence, namely the determination of boundaries, from the particular mode of accession to independence is illogical and legally untenable: “[T]he argument based on analogy does not work, that is to say that one can not in any circumstance jump from one chain to the other by isolating one of its elements and, more specifically, by separating the delimitation of frontiers from the mode of accession to independence.”188 And yet this is precisely the difficulty with the experts’ approach. While acknowledging that the Québécois nation’s claim to independence would be based on effectiveness, they conclude that it would be entitled to benefit from predetermined boundaries. And according to the experts: [r]einforcing this conclusion is another argument which, though it has played a very important role in the debate on sovereignty, we consider to be no more than subsidiary in nature. It supports the argumentation based on a

chap_06.fm Page 214 Thursday, October 10, 2002 8:56 AM

214

Determining Boundaries

combination of constitutional law rules and the other applicable principles of international law. But this argumentation is sufficient in itself and there is no need to invoke that other principle of the law of nations: the rule ‘uti possidetis, ita possideatis’ (‘as you possess, so you shall continue to possess’).189

Conclusion vi. According to the experts, when secession occurs within the framework of a well-defined territorial district, by virtue of the uti possidetis juris principle, the former borders of this district become the boundaries of the new state. The experts further declare that “[r]ecent international practice leaves no doubt as to this fact where the predecessor State is a federation, and reflects the existence of a generalized opinio juris along these lines.”190 The experts begin their discussion of the uti possidetis principle, however, by referring to a definition that does not accurately describe its scope:191 It is generally admitted in international law that the successor State is bound by the frontiers established by the ceding State – i.e. the former colonial power in the case of decolonization. The territory passes to the new State on the basis of the pre-existing boundaries, regardless of the procedure by which these boundaries were established, be it by international treaty, municipal law or a unilateral act.192

The situation described by the experts involves territory devolved or ceded by one state to another. As we have argued in our discussion of Africa, a number of established international law principles would account for such an outcome in these situations: nemo dat, territorial integrity, and state succession to treaties. There is, therefore, no justification for crediting uti possidetis for the continuity of boundaries in such situations. The experts’ definition does not delimit the true area of application of the colonial uti possidetis principle, which transformed the administrative borders of entities that had successfully achieved independence. The experts then briefly refer to the Latin American origin of the uti possidetis principle and comment on its extension in the context of the decolonization of Africa.193 While noting that the principle has been applied in various circumstances, the experts acknowledge that international law has long hesitated in recognizing uti possidetis as a general principle of international law that would apply outside of the colonial context. However, according to the experts, the dictum of the chamber of the International Court of Justice in the Frontier Dispute case has now settled the issue beyond doubt. To justify this conclusion, the experts reproduce essentially the same passage from the case as

chap_06.fm Page 215 Thursday, October 10, 2002 8:56 AM

215

Yugoslavia and Quebec

the Badinter Commission had done in Opinion No. 3: “Nevertheless, [uti possidetis] is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.”194 Reference must be made to our earlier discussion of the Frontier Dispute case and the evidence there adduced to justify the conclusion that the above passage has been misinterpreted. It will be recalled that the sentence immediately following the two quoted by the experts refers to the “withdrawal of the administering power.” When reproduced in full, the passage does not support the experts’ broad interpretation. Considered in its proper context, it is quite clear that the chamber was merely affirming that the principle was not a special rule that pertained solely to one specific system of international law and therefore could apply to cases of decolonization elsewhere than in Latin America. Perhaps aware of the problems surrounding their interpretation of the Frontier Dispute case, the experts state: Yet because of the numerous allusions made by the Court to the specific problem of decolonization, and because of the object of the dispute itself, some doubt remained as to the applicability of the principle outside the colonial framework. This cannot be said of Opinion No. 3 rendered by the Arbitration Committee on Yugoslavia on January 11, 1992.195

The experts then proceed to quote the Badinter Commission’s opening proviso and to reproduce in full the four principles of Opinion No. 3. But this reasoning is circular. As we have seen in our discussion of Opinion No. 3, the Badinter Committee’s sole basis for its conclusion as to the general applicability of uti possidetis was to refer to the Frontier Dispute case and to quote the same passage as the experts. Yet the Frontier Dispute case does not support the Arbitration Commission’s or the experts’ interpretation of the uti possidetis principle. The Badinter Commission’s conclusions rest on an arguably erroneous interpretation of the case, and the experts cannot therefore simply rely on Opinion No. 3 to validate their interpretation of the uti possidetis principle. However, according to the experts, the status of uti possidetis as a general principle of international law is no longer simply a matter of judicial interpretation: The affirmation of the applicability of the principle of uti possidetis to all cases of independence, even outside the context of decolonization, is founded on a practice which, owing to recent events, has become fairly common: whether it

chap_06.fm Page 216 Thursday, October 10, 2002 8:56 AM

216

Determining Boundaries

be the States of the Community of Independent States or those issuing from the dismemberment of Yugoslavia, all have attained independence within the configuration of their former administrative boundaries, recognized by thirdparty States as their new borders.196

The experts conclude that as a result of recent events, a general practice accepted as law has crystallized. The customary norm of uti possidetis would therefore govern any territorial disputes between Quebec and Canada in the event of secession. However, the state practice identified by the experts does not support the conclusion that uti possidetis has emerged as a customary rule of international law. Their analysis ignores important distinctions between the Soviet, Czechoslovak, and Yugoslav precedents, on the one hand, and the situation of Quebec in the event of a udi, on the other. The essence of custom, as discussed in chapter 4, is that it should constitute “evidence of a general practice accepted as law.” As noted, the basic rules regarding continuity and repetition were laid down by the icj in the Asylum case, wherein it declared that a customary rule must be “in accordance with a constant and uniform usage practised by the States in question.”197 The icj subsequently reaffirmed its view that some degree of uniformity was essential before a custom could come into existence in the Anglo-Norwegian Fisheries case.198 In the North Sea Continental Shelf cases, the icj remarked that state practice had to be “both extensive and virtually uniform in the sense of the provision invoked.”199 Provided the consistency and generality of a practice were proven, no particular duration was required: the passage of time would however be a part of the evidence of generality and consistency. It cannot be disputed that in the case of Yugoslavia a territorial settlement based on respect for federal administrative borders was imposed on the constituent republics by the international community, nor that, in the final outcome, the boundaries of the republics emerging from the ussr followed, for the most part, the Soviet internal borders. However, what is disputable is whether these two precedents can in fact meet the requirement of a “constant and uniform usage.” In Yugoslavia, particularly, extraordinary circumstances, more than any established practice, seem to account for the solution ultimately adopted. Crawford identifies three critical factors that strongly affected the international community’s response to the crisis: (1) four of the six republics, containing a substantial majority of the population, were attempting the break away; (2) the constitutional order, under which the constituent republics themselves “participated in the exercise of political power within the framework of institutions common to the Federation”

chap_06.fm Page 217 Thursday, October 10, 2002 8:56 AM

217

Yugoslavia and Quebec

had completely broken down; and (3) Yugoslavia was undergoing large-scale and unrelenting ethnic conflict which threatened to lead and did in fact lead to war crimes and crimes against humanity.”200

Furthermore, custom is of course not merely a generalized usage practised by states. According to Brierly, “what is sought for is a general recognition among States of a certain practice as obligatory.”201 Indeed the icj emphasized in the Nicaragua case that for a new customary rule to be formed not only must the acts concerned ‘amount to settled practice,’ but they must be accompanied by the opinio juris sive necessitatis.202 And as Shaw has pointed out, the court has adopted and maintained a high threshold with regard to the overt proving of the subjective constituent of customary law formation.203 The experts’ conclusion that the principle of uti possidetis applies to all cases of independence is founded on recent international practice regarding the former Yugoslavia and the ussr, which is held to reflect a generalized opinio juris. We have attempted, in section 6.2.4 above, to demonstrate that the positions adopted by the various actors involved in the Yugoslav crisis do not in fact reflect a belief that respect for the federal borders was mandated by an established rule of customary law. We must now, however, briefly consider whether state practice surrounding the dismemberment of the ussr does reveal a conviction that the solution ultimately adopted was dictated by the existence of a binding norm of international law. On 8 December 1991, the heads of state of Belarus, the Russian Federation, and Ukraine signed at Minsk an agreement establishing the Commonwealth of Independent States (cis). Article 5 of the Minsk Agreement provides that: “The High Contracting Parties acknowledge and respect each other’s territorial integrity and the inviolability of existing borders within the Commonwealth.”204 On 21 December 1991 at Alma Ata, eight more republics joined the founding three, concluding a protocol to the Minsk Agreement and issuing a declaration. The Alma Ata Declaration proclaims in its fifth preambular paragraph: “Recognizing and respecting each other’s territorial integrity and the inviolability of existing borders.”205 The definitive legal framework of the new commonwealth was subsequently established on 22 January 1993 with the adoption of a charter. Article 3 of the cis Charter provides for the “inviolability of state frontiers, recognition of existing frontiers and renouncement of illegal acquisition of territories.”206 Relying on these various provisions, a number of authors have endorsed the experts’ conclusion that the dissolution of the Soviet Union has contributed to the emergence of a norm of customary law mandating the automatic transformation of administrative borders

chap_06.fm Page 218 Thursday, October 10, 2002 8:56 AM

218

Determining Boundaries

into international boundaries. While it cannot be denied that, ultimately, the international boundaries of the new states followed the administrative limits of the former Soviet Union, this outcome is not, in of itself, sufficient to make of the dissolution of the ussr a clear and incontestable precedent. Not only do the three key instruments fail to consecrate the uti possidetis juris rule, but more importantly it is impossible to establish that the former Soviet republics felt compelled to adopt a particular solution in resolving the issue of boundaries. According to Weerts, the dissolution of the ussr must be divided into two distinct periods.207 In December 1991, the new states’ primary concern was to assert their independence vis-à-vis Soviet central authorities. For this reason, they deliberately postponed the resolution of any existing territorial disputes to a later date. They were content to proclaim general measures that froze all claims and committed themselves to the peaceful settlement of disputes. Indeed, neither the Minsk Agreement nor the Alma Ata Declaration contain a recognition of precise boundaries. The texts simply recall cardinal principles of the international legal order such as territorial integrity and the non-use of force. No mention is made of the uti possidetis juris principle, nor is there any reference to expressions such as ‘administrative line’ or ‘internal border.’ Furthermore, unlike the Cairo resolution, wherein the African states pledged to accept the boundaries existing at independence, the Soviet republics merely agreed to respect the territorial integrity and inviolability of frontiers existing within the commonwealth. However, to denounce the violation of existing boundaries through the use of force does not involve determining the location of those boundaries, which can remain the object of claims by the states bound by the prohibition. As Weerts concludes, at this stage, Soviet administrative lines did not enjoy any particular status.208 In January 1993, the new states reached the second stage by declaring the validity of the boundaries existing within the cis. However, this commitment concerned the future and did not refer retroactively to boundaries existing at the time of independence. Indeed, Article 3 of the cis Charter provides that the member states “shall build their relations in accordance with the following … principles,” among which is included respect for existing boundaries. Therefore, it is difficult to find in this two-stage process the consecration of the uti possidetis juris principle, for uti possidetis juris implies the automatic transformation of administrative lines into international boundaries, which is completely incompatible with the notion of an intermediary period during which no boundary line benefits from definite legal status.

chap_06.fm Page 219 Thursday, October 10, 2002 8:56 AM

219

Yugoslavia and Quebec

But can the recognition in 1993 of the former Soviet lines nevertheless be interpreted as evidence of an opinio juris in favour of the applicability of the uti possidetis juris principle irrespective of any difficulties regarding the Minsk and Alma Ata texts? We would argue that events and pronouncements clearly establish that no principle or rule was held, a priori, to resolve the question of the boundaries of the secessionist entities. In the context of initial attempts at reforming Soviet federalism, it is evident that the relevant actors interpreted their commitment to respect existing borders as linked to the preservation of the Soviet Union. In the event of secession, on the other hand, nothing was deemed to exclude a redefinition of the republican borders. In his detailed article entitled “Heurs et malheurs du principe de l’uti possidetis: le cas du démembrement de l’U.R.S.S.,” Weerts provides a very thorough analysis of the positions and pronouncements by the respective parties involved in the dissolution of the Soviet Union. For our purposes, it is sufficient to emphasize a few key statements. In 1990, confronted with the declarations of independence of the Baltic States, the Supreme Soviet of the ussr proclaimed a law setting the rules for secession. The provisions of this law envisaged three scenarios that might lead to the modification of the boundaries of the secessionist republics: (1) if the status of territories transferred after accession to the ussr had to be resolved; (2) if the oblast or okrug of the secessionist republics asked to remain within the Soviet Union; and (3) if minority groups asked to remain within the union. This policy was subsequently endorsed by both Soviet and Russian authorities. Speaking before the Supreme Soviet in 1991, Gorbachev briefly raised the issue of boundaries. The Soviet press gave the following account of his comments: As far as the Republics that will take part in an economic union but will refuse to sign the Union Treaty, the President believes that their secession should take place within the framework of the Constitution. At the same time, M. Gorbachev sought to bring some clarity to the very urgent question of interrepublic inviolability of borders. Consequently, there can be no territorial problems within the framework of the Union. However, the emergence of such problems when republics secede from the Union cannot be ruled out.209

The Russian position, as expressed by Eltsine in August 1991, mirrored that of the Soviet president: The Russian Federation does not question the constitutional right of every state and people to self-determination. However, there is the problem of borders,

chap_06.fm Page 220 Thursday, October 10, 2002 8:56 AM

220

Determining Boundaries

a problem that can and may remain unsettled only given the existence of relations of alliance codified in an appropriate treaty. In the event that these relations are broken off, the rsfsr reserves the right to raise the question of reviewing its borders. This applies to all adjacent republics with the exception of the three Baltic republics (Latvia, Lithuania and Estonia), whose state independence Russia has already recognized, thereby confirming that the territorial problem has been solved in bilateral relations with them.210

This declaration prompted reactions on the part of the heads of the other republics. Yet among these protests, no argument or position advocating the maintenance of the administrative borders in application of the uti possidetis juris principle can be found. Ukraine, the only republic that initially appeared to favour a uti possidetis-type solution, subsequently relied on an agreement signed with Russia in November 1990 in which both parties pledged to respect each other’s territorial integrity and existing boundaries. Ukraine therefore invoked an ad hoc agreement rather than a pre-existing rule of customary law. The debate surrounding the issue of boundaries that took place in 1991 reveals that for the great majority of the parties involved, only an agreement between the republics could guarantee the maintenance of the borders existing within the Soviet Union.211 Even those few republics that favoured the continuity of internal borders referred to the risk of instability, the threat to peace and security,212 and even common sense213 without invoking, explicitly or implicitly, any rule or principle of international law. Nor is support for the uti possidetis juris principle afforded by third party states. It will be recalled that following the Alma Ata Declaration, the European Community and its member states declared themselves willing to extend recognition to the new republics but warned that, “[r]ecognition shall not be taken to imply acceptance by the European Community and its member States of the position of any Republics concerning territory, which is the subject of a dispute between two or more Republics.”214 It is therefore difficult to detect in these official pronoucements evidence of a belief that respect for the Soviet internal borders was rendered obligatory by the existence of a rule of law requiring it. As for the Czechoslovakian precedent, Crawford has described the separation of the Czech Republic and Slovakia as “a straightforwardly consensual process at the level of the governments and parliaments concerned.”215 The two constituent republics became separate states after an agreement between them dissolving the Czechoslovak Federation. Dissolution was achieved by parliamentary action under the Constitutional Act of 1992, and by the date agreed upon for independence

chap_06.fm Page 221 Thursday, October 10, 2002 8:56 AM

221

Yugoslavia and Quebec

(1 January 1993), most of the arrangements for the dissolution of the federation had been worked out by agreement between the two governments. Certain other changes, including minor exchanges of territory, were subsequently agreed to. As all the issues arising out of the separation were resolved on the basis of the consent of the two parties, little support for a binding rule of uti possidetis juris can be garnered from this particular precedent. The experts’ conclusions at paragraph vi of their report therefore appear to be overstated.216 The recent international practice they rely upon actually leaves considerable doubt as to the existence of a ‘generalized opinio juris’ regarding the application of the uti possidetis juris principle, for the precedents relied upon by the experts do not appear to present the two essential elements of custom – namely, the material facts and the opinio juris sive necessitatis. Furthermore, in assessing the relevance of the Soviet, Czechoslovak, and Yugoslav precedents for the determination of an independent Quebec’s boundaries, the experts also gloss over a critical distinction: all three cases involved the dissolution of the predecessor state.217 It is true that in the early stages the Yugoslav crisis was characterized as an attempt on the part of two of the constituent republics to secede. At that juncture, the international community categorically refused to recognize the declarations of independence of the two break-away republics. However, the Arbitration Commission and the international community eventually came to the conclusion that Yugoslavia as a whole was dissolving, and this critical finding informed the entire subsequent handling of the crisis by the international community. The principal distinction between dissolution and secession lies in the fact that in a case of dissolution there is no ‘parent’ state entitled to insist on respect for its territorial integrity. Crawford explains: “The main difference is that in cases of dissolution, no one party is allowed to veto the process. By contrast where the government of the predecessor state maintains its status as such, its assent to secession is necessary, at least unless and until the seceding entity has firmly established control beyond hope of recall.”218 Hilling also insists that situations of dissolution and secession cannot be assimilated: “[I]t cannot be assumed that the secession of Quebec would lead to the dissolution of the Canadian federation. If sovereignty cannot be presumed, neither can its disappearance. Consequently, it can in no way be affirmed that rules developed to deal with dissolution apply, without any nuance whatsoever, to the separation of one part of the territory of a State.”219 The presumption in favour of the continuity of states and the stability of boundaries means that the question of the

chap_06.fm Page 222 Thursday, October 10, 2002 8:56 AM

222

Determining Boundaries

establishment of a secessionist state is weighed in favour of the parent state and against the secessionist endeavour. Yet, when an entity asserts its independence against a state that is itself in the process of dismemberment (through the effective and simultaneous dissassociation of the majority of its constituent territorial units), no such presumption will operate in favour of the sovereignty of the parent state, and the nascent entity will be able to achieve statehood with much greater ease.220 Unlike the constituent republics of the sfry, Quebec would have to successfully assert its independence against the Canadian state, which enjoys the protection of the territorial integrity principle and which would be entitled to resist any attempts at secession. 6.3.7

Conclusion

The five international experts concluded that the provincial borders of Quebec would automatically become frontiers protected by international law following a unilateral declaration of independence. This conclusion was justified in part by reference to the uti possidetis principle and recent international state practice, which according to the experts, reflects a generalized opinio juris. The analysis of the uti possidetis principle, however, is founded on a misinterpretation of the dictum in the Frontier Dispute case and on the Badinter Commission’s Opinion No. 3, which is also founded on an erroneous interpretation of the Frontier Dispute case. Furthermore, the state practice relied upon does not support the conclusion that an international customary norm now exists mandating respect for administrative boundaries. Neither the break-up of the Soviet Union nor the separation of Czechoslovakia provides any relevant precedent for the determination of boundaries in the event of unilateral secession. In both situations, the constituent units accepted the disintegration of the predecessor state. Boundary issues were resolved as a result of negotiations and agreement between independent states. Nor can the situation in the former Yugoslavia constitute a prescription or precedent for secession in the context of Quebec. Though a number of difficulties have been identified with respect to the application of the uti possidetis principle in resolving the Yugoslav crisis, at least there was no question of a predecessor state that enjoyed the benefit and protection of the territorial integrity principle. In the absence of a legal entitlement to secede, Quebec’s claim to statehood, as well as to its boundaries, would be determined according to the principle of effectiveness, which offers no guarantees.

chap_06.fm Page 223 Thursday, October 10, 2002 8:56 AM

223

6.3.8

Yugoslavia and Quebec

Supreme Court Reference on Secession

On 30 September 1996, the governor in council of Canada submitted three questions to the Supreme Court of Canada on the legality and consequences of unilateral secession by the Province of Quebec. The second question focused on the right of self-determination and the right to secession under international law: Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?221

The court’s unanimous judgment was handed down on 20 August 1998. Although the court acknowledged the importance of the submissions made with respect to the appropriate means of defining Quebec’s boundaries in the event of secession, the judgment in fact contains no discussion or analysis of the question of boundaries. Nor is there any mention of the uti possidetis principle. The court’s analysis focuses mainly on the right to effect secession and the impact of the principle of effectiveness. The Supreme Court accepted the argument advanced by the amicus curiae that, while international law may not grant Quebec a positive right to unilateral secession, international law equally does not prohibit secession. In fact, international recognition could be conferred on such a political reality if it emerged via effective control of the territory of what is now the Province of Quebec. However, the Supreme Court did not pursue the question of Quebec’s effective control of the provincial territory following a unilateral secession, concluding that the principle of effectiveness did not have any real applicability to the second question submitted. As the court had concluded that international law did not confer any positive right to secession, it had effectively dealt with the second question.222 The uti possidetis principle is however discussed by some of the experts retained by the parties. In his report, drafted at the request of the amicus curiae, Franck refers to the un’s Declaration on Friendly Relations and reproduces the following two paragraphs: [A]ll peoples have the right freely to determine, without external interference, their political status … and every State has the duty to respect this right in accordance with the provisions of the Charter.

chap_06.fm Page 224 Thursday, October 10, 2002 8:56 AM

224

Determining Boundaries

Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle [principle of equal rights and self-determination of peoples] of their right to selfdetermination and freedom.

Referring to Crawford’s report, submitted with the attorney-general’s materials, Franck writes: This [the two paragraphs quoted] as ill-accommodates in legal theory Professor Crawford’s statement that “International law has always favoured the territorial integrity of states” as does the actual practice. Nevertheless, Crawford would be correct if he confined his analysis of “territorial integrity” to the two instances where it does apply. The first is in regard to instances of actual secession, wherein the law presumes that the seceded state succeeds to the boundaries it had as a constituent province of the parent-state. This principle of uti possidetis has been approved by the International Court of Justice (Frontier Dispute (Burkina Faso/Mali)) … and by the (Badinter) Commission for the Former Yugoslavia.223

It is important first to situate the two paragraphs from the Declaration on Friendly Relations within their proper context. The legal significance of the Declaration lies in the fact that it provides evidence of the consensus among member states of the un as to the meaning to be ascribed to the Charter principles. As a result, the rights defined in the Declaration are conferred upon the member states and their populations. Thus the people referred to in the elaboration of the self-determination principle, and entitled to freedom and independence, are the population of a state taken as a whole and not particular groups within the state. The principle of equal rights and self-determination of peoples guarantees to all states the right to be free from foreign intervention or domination. This interpretation of the two paragraphs reproduced by Franck is confirmed by the now familiar warning at the end of the section on self-determination: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.224

Franck only briefly refers to the uti possidetis principle in his report. When discussing the ‘right’ of secession, Franck states that by virtue of

chap_06.fm Page 225 Thursday, October 10, 2002 8:56 AM

225

Yugoslavia and Quebec

the uti possidetis principle a presumption arises that the seceded state will succeed to its former administrative boundaries. The difficulty with this conclusion is the reference to the word ‘seceded.’ In the colonial context, uti possidetis did operate as a presumption in favour of the former colonial boundaries, but it was an after-the-fact presumption as to the boundaries of an entity that had exercised its legal entitlement to independence. With reference to Franck’s conclusion, it would therefore be more accurate to state that uti possidetis presumes that an independent state will succeed to its former administrative boundaries. Of course, this presumption rests on the consent of the parties involved and has been frequently set aside, particularly in Latin America. In the Canadian context, Quebec’s attempted secession would be judged according to the principle of effectiveness. The criterion for Quebec statehood and the test for its international recognition would be, “the maintenance of a stable and effective government over a reasonably well defined territory, to the exclusion of the metropolitan State, in such circumstances that independence is in fact undisputed, or manifestly indisputable.”225 As discussed in our analysis of the five experts’ opinion, a strategy based on the principle of effectiveness is fraught with risks and uncertainties, for if following a udi Quebec failed to exert effective control over the entire current provincial territory, its territorial sovereignty would be correspondingly impaired or reduced. Monahan reaches the same conclusion: “[I]nternational law does not confer upon Quebec the right to secede nor does it guarantee the continuity of its present boundaries in the case of a unilateral declaration of independence. The outcome of such a declaration would depend upon the capacity of Quebec to exercise de facto control over the entire territory and its population and to withdraw them from the authority of the Canadian government.”226 Far from enjoying a presumption in favour of its current provincial borders, international law provides that Quebec’s borders would be, in a practical sense, up for grabs.227 Shaw, also retained by the amicus curiae, devotes a considerable number of pages in his report to the uti possidetis principle. According to Shaw, “[t]he modern operation of the principle of uti possidetis juris will ensure that in the case of secessions by provinces or clear administrative units of non-unitary states, the process of transition to independence will take place (in the absence of agreement to the contrary) within the territorial framework of that province or unit.”228 Shaw’s analysis, like the Badinter Commission’s Opinion No. 1 and the experts’ sixth conclusion, targets a particular type of state. Indeed, it is “provinces” or “units of non-unitary states” that will benefit from the operation of the uti possidetis juris principle. Just as the commission’s conclusion that the federal structure of a state will influence whether or not that state

chap_06.fm Page 226 Thursday, October 10, 2002 8:56 AM

226

Determining Boundaries

exists, Shaw’s assertion that boundaries in federal-type states are automatically protected, but not administrative lines in unitary states, leaves federal states in a very vulnerable position.229 Indeed, as Wildhaber comments, “If one also claims – like the Arbitration Commission of the Conference for Peace in Yugoslavia – that the borderlines between federal member units must be inviolable, one would seem to be punishing federal states for their respect for minorities and, as institutions, treating them worse than unitary states are treated.”230 Hilling also rejects this singling out of federal-type states: One of the absurd consequences of this reasoning to say the least is to place federal States in a much more vulnerable position than unitary States when confronted by secessionist movements. The Government of Quebec understands this quite well since the recognition of native rights in the draft bill of the law on sovereignty, for instance, was conditional on the recognition, by native groups, of the territorial integrity of Quebec. A unitary State like France could deny the existence of peoples on its territory as well as their right to selfdetermination, but Canada would be compelled to renounce a part of its territory, international law giving it no other choice!231

Federalism, which may well offer the best guarantee of autonomy for minority groups within a state, would suddenly become a victim of its own flexibility. In addition, this targeting of federal states offends the fundamental principle of the sovereign equality of states enshrined in Article 2(1) of the United Nations Charter. Echoing the conclusions reached in the 1992 report, Shaw has also reversed the position with regard to the issue of consent. Uti possidetis will apply automatically to transform former provincial boundaries into international boundaries, unless both parties can agree to an alternative arrangement. However, all of the colonial precedents we have examined were based on the consent of the parties involved to adopt a uti possidetis solution. And in the single modern precedent – the former Yugoslavia – uti possidetis was not imposed automatically but served to justify the only solution the international community could envisage as a means of curbing the escalating violence. It is difficult to understand how this one precedent can have overturned centuries of state practice. In his report, Shaw also states that uti possidetis provides “the territorial delineation for the process of establishment of a new State by positing, absent special factors, the continuation of the pre-existing line, whatever the provenance of that line.”232 However, in the El Salvador/ Honduras case, a chamber of the icj concluded that uti possidetis was essentially “a retrospective principle, investing as international boundaries

chap_06.fm Page 227 Thursday, October 10, 2002 8:56 AM

227

Yugoslavia and Quebec

administrative limits intended originally for quite other purposes.”233 On this point, we would adopt Crawford’s analysis: Of course, if a province or other internal unit manages to secede, by effectively and securely excluding the previous administration from that territory as a whole, its boundaries will come to be protected by international law, including, as applicable, the notion of uti possidetis. But the principle of uti possidetis does not apply before the event or in an anticipatory way. It is, as a Chamber of the International Court pointed out, ‘a retrospective principle’, applying once statehood is achieved by the given entity.234

One final passage is noteworthy. When referring to the collapse of the Soviet Union, Shaw declares: “Although the Minsk and Alma Ata instruments refer essentially to the principle of territorial integrity protecting international boundaries, it is clear that the intention was to assert and reinforce a uti possidetis doctrine, not least to provide international, regional and national legitimation for the new borders.”235 This seems an extraordinary assertion. If the parties had wished to “assert and reinforce” the doctrine of uti possidetis, then surely they would have explicitly referred to the principle in the text of their agreements or have alluded to it in their official pronouncements. How can their explicit references and unambiguous reliance on the fundamental principles of territorial integrity and inviolability of borders236 be interpreted so as to represent, in fact, an application of the uti possidetis principle? On the contrary, it appears as if the parties meeting at Minsk and Alma Ata deliberately avoided the uncertain uti possidetis principle in favour of more firmly established and successful principles of international law. Quite simply, the uti possidetis principle was not needed to resolve the territorial issues confronting the new republics. 6.3.9

Conclusion

As the only two experts to discuss uti possidetis (Franck and Shaw) were also involved in drafting the 1992 report, their conclusions inevitably echoed the positions expounded in 1992. While it is true that the question of Quebec’s boundaries in the event of secession was not directly before the Supreme Court, once it had started upon a discussion of the principle of effectiveness, it ought to have considered all the potential ramifications of this principle, including the determination of boundaries. We agree with Shaw that “any court that is asked to consider the principle of self-determination and secession in international

chap_06.fm Page 228 Thursday, October 10, 2002 8:56 AM

228

Determining Boundaries

law is obliged to take into account the spatial dimension of such rights, otherwise a crucial part of the issue is ignored.”237 No doubt the court feared inflaming passions at a time when a peaceful resolution of Canada’s constitutional problems is still possible. And yet it is arguable that the ramifications of this one single issue, with its potential for confrontation and foreign intervention, could have the greatest bearing on the political and economic future of Quebec and Canada. A unique opportunity to air the arguments, constitutional and international, that would determine Quebec’s boundaries in the event of secession was passed up.

6.4

conclusion

The Badinter Commission’s Opinion No. 3 has sparked renewed interest in the uti possidetis doctrine and much academic debate. While some jurists criticize and others praise the Badinter Committee for its novel interpretation of the uti possidetis principle, nearly all commentators begin by referring to the colonial principle and invariably characterize it as a general principle in the law on decolonization or a customary norm in Latin America and Africa. It has been our aim to test these underlying assumptions with respect to the colonial uti possidetis, and we have discovered, much like Bardonnet, “that the chorus is less harmonious, the picture less uniformly luminous than one could have at first believed.”238 In Latin America, the declared principle was respect for the Spanish administrative divisions existing at the time of independence. As noted in chapter 2, this presumption in favour of continuity was often and easily displaced as a result of revolutionary activity, force of arms, or unequal bargaining power. Uti possidetis was adopted towards the end of the nineteenth century as a delimitation principle. It operated so as to determine the limits of a former administrative division that negotiations or the use of force had already assigned to a particular republic. However, even as a delimitation principle, uti possidetis played a limited role because of practical and theoretical difficulties. In most arbitrations between the republics, disputes were ultimately resolved according to principles of equity or by reference to effective occupation and natural, geographical features.239 The three case studies examined in chapter 3 revealed that the uti possidetis principle had little impact on the redrawing of boundaries following World War I. In chapter 4, we noted that in the decades leading up to independence, African leaders had called for the readjustment of their colonial boundaries. In tracing the evolution of African attitudes towards their inherited boundaries, it appeared quite clearly

chap_06.fm Page 229 Thursday, October 10, 2002 8:56 AM

229

Yugoslavia and Quebec

that African leaders did not feel compelled to adopt any one particular solution. The territorial status quo policy, adopted at Addis Ababa and Cairo as the best guarantee of peace, was described in the Frontier Dispute case as the application in Africa of the uti possidetis principle. Howsoever described, the African status quo policy was never intended to create new legal obligations and simply reflected the rights and duties of states as defined according to general principles of international law. The status quo or uti possidetis principle constituted an after-theevent presumption as to the boundaries of an entity once independence had been achieved. Whether reliance on the uti possidetis principle was the only or the best possible solution in order to stabilize the situation in Yugoslavia will remain open for debate. What is clear, however, is that the Badinter Commission was not obliged to adopt a solution based on the territorial status quo or uti possidetis principle. Our analysis of Latin American and African state practice in the period of independence, as well as of icj pronouncements, has confirmed the consensual nature of the uti possidetis principle. Though uti possidetis has been transformed over time and variously interpreted, the consent of the parties involved has always remained the sine qua non of its application: “[I]n no case has the International Community recognized, as an institution of international law, the principle of uti possidetis … It remains … derogatory to general international law … binding only on those … [who] have, by a convention, expressly agreed to it.”240 With respect to the future role of uti possidetis in the post-colonial context, it is perhaps worth remembering the comments made by Judge Abi Saab in his separate opinion in the Frontier Dispute case: “[T]his principle, like any other, is not to be conceived in the absolute; it has always to be interpreted in the light of its function within the international legal order.”241

conclu.fm Page 230 Thursday, October 10, 2002 8:56 AM

If the hallmark of an effective legal system is some degree of predictability of outcome, an assault on extending the decolonization form of uti possidetis to the break-up of states would appear at first to undermine the cause. For that formulation is clearly the easiest short-run method for determining the borders of a new state. But law, of course, is about justice and legitimacy as well. Steven Ratner

Conclusion Given the potential for turmoil and mayhem when states collapse and existing boundaries seem up for grabs, it is natural that specific rules and definite criteria which might govern such unprecedented situations should be so eagerly sought. In this context, many international experts have acclaimed the doctrine of uti possidetis as the best and only solution to resolve disputed boundaries. But such calls to extend and apply the principle of uti possidetis in non-colonial situations are based upon its purported success in the past in resolving conflicts over boundaries, especially in colonial Latin America and Africa. Therefore, before joining the debate on the merits of a modern uti possidetis principle, we felt it was essential to delve into the colonial past in order to properly assess the actual success and significance of the principle during the colonial period. As a result of our study of nineteenth-century Latin America, we were unable to conclude that the uti possidetis principle had played either a significant or a successful role in settling boundary issues between the new republics. Breaking with the general doctrinal trend, we argued that references to Spanish territorial units in early instruments represented the application of established rules on state succession and did not address the question of the precise location of boundaries. Only once their independence had been consolidated and international recognition had been extended did the new states turn to the question of the precise delimitation of their mutual frontiers. Of several options open to them, the Latin American republics chose as the guiding principle the rule of constructive possession.

conclu.fm Page 231 Thursday, October 10, 2002 8:56 AM

231

Conclusion

Irrespective of the actual situation on the ground, the republics agreed to take as their new boundaries the colonial administrative lines as defined in official Spanish legal instruments. However, this commitment concerned lines dividing units that the struggle for independence had already placed under the control of the new international actors and, in the event, was never allowed to displace boundary lines established as a result of the force of arms. Yet, even in this limited role, a number of obstacles prevented the uti possidetis juris principle from having much of an impact in Latin America: different interpretations of the principle, inconsistent state practice, and a lack of precise information regarding the location of the former Spanish administrative lines. For all these reasons, it was impossible to conclude that Latin American state practice in the nineteenth century had bequeathed to international law a clearly defined and consistently applied principle that could then serve as a precedent in other boundary disputes. To confirm our theory regarding the uncertain status of the uti possidetis juris principle in international law, we then considered precedents in other parts of the globe. Adopting the mainstream view, we attempted to answer the following question: if by the turn of the twentieth century uti possidetis juris had indeed become a general principle of international law, what impact did the principle have on the determination of boundaries in the inter-war period? Following an analysis of three relevant precedents, we concluded that the uti possidetis juris principle had in fact had no impact in resolving the Aaland Islands and Taba disputes or in defining the international border between Israel and Jordan. These findings did not seem consistent with claims elevating the uti possidetis juris principle to the status of a “rule of general scope.”1 However, state practice in the decolonization of Africa had still to be considered. And after Latin America, Africa was deemed by many contemporary jurists to be the most important theatre of application of the uti possidetis principle. Our analysis of the phenomenon of decolonization in Africa quickly highlighted critical differences compared to the process in nineteenthcentury Latin America. Independence in Africa was a right conferred by the un Charter and the Colonial Declaration. An international legal framework was therefore in place to oversee the accession to independence of the African colonies. The right of self-determination, which was territorially defined and was thus granted to each colonial people as a whole, together with the principle of territorial integrity, which then protected the new state from internal and external claims, largely accounted for the maintenance of colonial boundary lines into the period of independence. In addition, as independence had been

conclu.fm Page 232 Thursday, October 10, 2002 8:56 AM

232

Determining Boundaries

conferred through acts of devolution, the nemo dat principle – that a sovereign entity can only relinquish as much territory as it actually possesses – would also have contributed to maintaining the policy of territorial status quo in Africa. Nor could any trace of the uti possidetis juris principle be found in official instruments or pronouncements. Early calls to revise the arbitrary colonial lines cast considerable doubt on the existence of a binding rule of international law mandating the automatic transformation of administrative lines into international boundaries. And even once African leaders had agreed that the risks involved in redrawing the map of Africa were too great, the solution adopted, which international law already provided, was to accept the boundary lines existing at the date of independence. However, this pledge to respect existing borders concerned the de facto colonial lines on the ground and did not entail referring back to legal instruments of the former colonial power to determine the legitimacy of those lines. Therefore, if African state practice was evidence of a commitment to the uti possidetis principle, it did not support the uti possidetis juris version favoured by the Latin American republics. A final disturbing aspect concerned claims that uti possidetis guaranteed the sanctity of African borders established by treaty between two metropolitan powers. This interpretation appeared to signal a misplaced belief that uti possidetis had become the incarnation of every principle and rule of international law bearing on the question of territory, for such boundaries were already protected by long-established and undisputed rules concerning state succession to treaties and fundamental change of circumstances. In the final analysis, and despite later interpretations, it did not appear as if African state practice in the period of independence had consecrated uti possidetis juris as a rule of customary international law “connected with the phenomenon of the obtaining of independence wherever it occurred.”2 However, though many of the recent doctrinal commentaries on the uti possidetis principle seemed to rely upon an exaggerated assessment of the importance and usefulness of the principle in the colonial context, the claim that uti possidetis would be an invaluable tool in resolving modern boundary issues could not be ignored. We therefore analysed interpretations of the principle by many eminent jurists as it applied to the situation in Yugoslavia or the case of Quebec. Our analysis of the Badinter opinions and the five experts’ report revealed that the colonial uti possidetis juris principle posited therein had undergone a fundamental transformation. No longer an after-the-fact presumption as to the location of boundaries between newly independent

conclu.fm Page 233 Thursday, October 10, 2002 8:56 AM

233

Conclusion

states, the principle was deemed to apply in advance of formal independence and was used as the determining tool in identifying the presumptive units of statehood. Furthermore, and on the basis of recent events, this redefined uti possidetis principle was characterized as a rule of customary law whose application no longer rested on the consent of the parties involved. Yet, as we have argued, the dissolution of the Soviet Union and Czechoslovakia resulted from agreement and thus created no precedent for cases of contested secession. In the case of Yugoslavia, we noted that initial opposition to the Slovenian and Croatian declarations of independence was grounded in fears of political instability within and beyond the region and was consistent with restrictive formulations of the right of self-determination. The subsequent shift in favour of recognition of the break-away republics within existing borders was based upon the Badinter Commission’s critical conclusion that the process unfolding in Yugoslavia was one of dissolution. And an analysis of official pronouncements revealed that political rather than legal considerations accounted for the ultimate solution adopted in resolving the crisis. Certainly no evidence was found of a belief that international law dictated a particular outcome. One final aspect of the debate surrounding the uti possidetis principle remains however to be addressed. Irrespective of the fact that the Badinter Commission’s interpretation of the principle bears little resemblance to the colonial uti possidetis juris and that state practice does not appear to support the claim that it now enjoys the status of a customary rule of international law, should this newly defined principle of uti possidetis nevertheless be assigned a leading role in any future situations of contested dissolution or secession? Does the modern version of uti possidetis represent the best option for short- and long-term peace in such explosive situations? Will this latest version of the uti possidetis principle deliver the security and stability that the international community so craves? It is our contention that the automatic application of the uti possidetis principle to all situations, with no consideration of alternatives, will not in fact promote lasting peace. The indiscriminate application of uti possidetis to the break-up of sovereign independent states ignores critical distinctions between internal lines and international boundaries. One of the principal difficulties of applying the pre-independence uti possidetis in modern situations such as Yugoslavia is that it accords a higher status to internal boundaries in international law than they have in internal law but with respect to an entity that at the time has no international status. Indeed, situations of dissolution or secession involve territorial units, and therefore administrative lines, which initially have no juridical status whatsoever within

conclu.fm Page 234 Thursday, October 10, 2002 8:56 AM

234

Determining Boundaries

the international legal order. As Corten argues, it is therefore incorrect to invoke in such cases the principle of territorial stability, for it implies the prior existence of territories within internationally recognized juridical limits.3 In addition, uti possidetis in the colonial context did not involve the same type of internal borders as it would today. Boundaries between different parts of a colonial empire served a different purpose than typical modern interstate boundaries. While the border between Niger and Upper Volta (aof) was perhaps less of a dividing line than that between British Uganda and the Belgian Congo, in many ways it was more of a dividing line than current boundaries – for example, between French départements or Canadian provinces. Colonial governors enjoyed extensive authority and autonomy, and neighbouring colonies often had a different legal status vis-à-vis the metropolitan power. The application of the uti possidetis principle was therefore more legitimate in the context of decolonization, as the colonial borders it converted more closely resembled international boundaries. Furthermore, conflicts which surround the dismemberment of existing states generally present a very different profile from liberation struggles in the colonial context. The first case involves conflicts that set the emerging state and its population not against a distant colonial power, but against a neighbouring entity struggling to preserve its political and territorial integrity. As Klein explains, in such situations, territory and independence are both simultaneously at issue: “Much more than in the case of decolonization struggles, territory and independence are, simultaneously, at stake in the struggles in this context, and these elements explain to a not inconsiderable extent the intensity of the armed opposition on the ground. The specifics of this type of conflict inevitably render the pacifying effects of uti possidetis relative in these situations.”4 Corten also insists on this important distinction.5 Within the colonial context, the struggle for independence is initially waged by people A against distant state B (first stage). Territorial disputes following independence will subsequently pit state A against a neighbouring state C (second stage). However, in cases of secession, the struggle for independence as well as territorial disputes occur between the same two entities, A and B, and at the same time. To illustrate the significance of this distinction in concrete terms, Corten points out that while the independence of Burkina Faso was not detrimental to the people of Mali, the founding of the Croatian state could occur only at the price of the dismemberment of the Yugoslav Federation.6 For this reason, the pacifying role attributed to the uti possidetis juris principle must be viewed with caution.

conclu.fm Page 235 Thursday, October 10, 2002 8:56 AM

235

Conclusion

Transforming the internal lines of a polity into international boundaries also ignores their connection with the national pact. When the contract between the constituent units of a state is breached or collapses by reason of the disintegration of the state, why should it be assumed that the location of the internal borders will remain unchanged? Secession or dissolution calls into question the parties’ original bargain. This argument has been made in response to claims by Quebec separatists that the Canadian Constitution guarantees the integrity of provincial borders. It might also be directed to the Badinter Commission’s conclusion in Opinion No. 3 that uti possidetis applied “all the more readily to the Republics since the second and fourth paragraphs of Article 5 of the Constitution of the sfry stipulated that the republics territories and boundaries could not be altered without their consent.”7 On what basis is a constitutional guarantee deemed to have such international effect, particularly when this effect only becomes relevant following a breakdown in the constitutional order? Proponents of uti possidetis as a binding norm of international law acknowledge that its application in cases like that of Yugoslavia is not devoid of difficulties and admit that problems will also likely arise in the future. However, they insist that its merit lies in its ability to offer a clear, rapid, and indisputable solution in crisis situations. In the midst of conflict, to attempt to arrive at a just solution is to condemn the parties to prolonged violence.8 Such jurists are quick to add that in any event, uti possidetis juris does not preclude subsequent agreements between the relevant actors. Indeed, uti possidetis juris is held to be a valuable point of departure for any future territorial negotiations between the parties. However, this useful role can only be assigned to the uti possidetis principle if its application is founded on the consent of the parties involved (contracting-in theory) or if it is applied on a strictly temporary basis – for if, as commentators such as Nesi, Shaw, and Sanchez Rodriguez assert, the uti possidetis juris principle is applied automatically unless and until parties agree otherwise, the prospects for good faith negotiations appear fairly poor. Indeed, according to this scenario, an entity seeking to break-away from an existing state would automatically have resolved in its favour the single most important issue in its bid for independence: the determination of its new boundaries. Hilling comments: Supposing that an attempt at secession occurs, it would be enough for the Quebec authorities to control a part of the territory to claim independence and international recognition. According to this scenario, Quebec would accede to independence within the limits of the former Canadian province, including

conclu.fm Page 236 Thursday, October 10, 2002 8:56 AM

236

Determining Boundaries

the territories of native peoples. Why then would Quebec be interested in conducting negotiations with the Canadian party? Without even having to enter into talks, it would obtain the whole of its claims.9

Commentators advocating the general applicability of uti possidetis also inevitably argue that to reject the uti possidetis principle as a binding solution in cases of dissolution or secession is to pave the way for the unlimited use of force. However, the dismemberments of the Soviet Union and Czechoslovakia attest to the fact that politically charged situations can be resolved on the basis of a consensus among the parties. Mutual interests and motives of self-preservation will often lead to agreements that, as the expression of the will of the states involved, constitute a solid foundation for future relations. Certainly, in the Canadian context, the general expectation is that the issues arising from Quebec’s secession would be resolved on the basis of good faith negotiations between the federal and Québécois authorities. However, the spectre of another conflict like that in Yugoslavia looms large, and jurists argue that principles must be established to deal adequately with such crises in the future. It is in this type of situation that the uti possidetis principle is hailed as the only alternative to violence. Indeed, according to many commentators, to reject uti possidetis as the default solution is to legitimize the use of force. It must be emphasized, however, that the un Charter and other key international instruments impose on all states the obligation to peacefully resolve any outstanding disputes. Therefore, and to the extent that this argument is predicated on the inapplicability of this duty, the issue will arise only with respect to the period prior to independence, before the entities in question have achieved independent statehood. Yet, during this time, international law does not prohibit the use of force either by the secessionist or central authorities, provided military operations respect the laws of armed conflict, particularly the rights of civilians. Nearly all commentators acknowledge that the outcome in cases of secession or dissolution will be assessed according to the principle of effectiveness. It is therefore difficult to understand why the test of effectiveness regarding the success of the secessionist endeavour should be rejected when it comes to its principal consequence – namely, the determination of boundaries. In other words, international law no more encourages the use of force by determining the existence of a new state in light of the principle of effectiveness than it does by adopting this same criteria for the establishment of its international boundaries.10 Even if, as Christakis argues, the principle of effectiveness carries with it an inherent risk of armed conflict,11 it is not clear that the rigid appli-

conclu.fm Page 237 Thursday, October 10, 2002 8:56 AM

237

Conclusion

cation of the uti possidetis principle in all situations will be a better guarantor of peace. Indeed, Latin America and Africa, as well as recent events in Kosovo, confirm that in the process of state formation, unchangeable administrative borders will not always maximize stability and public order. Certainly the modern interpretation of the uti possidetis principle, which Hannum describes as a “neo-decolonization territorial approach,”12 will have troubling consequences if used to legitimize secession for groups possessing a particular political status while denying the right of secession to territorially based ethnic communities not formally organized into political units. Yet this appears to have been the position adopted by the Badinter Commission in Opinion No. 2. Having determined in its first opinion that the declarations of independence by Slovenia and Croatia did not amount to secession, but rather had triggered a process of dissolution in the sfry, the commission subsequently denied that the Serbian population in Croatia and Bosnia-Hercegovina benefited from a similar right to self-determination. Echoing our earlier conclusion, Hannum comments: “Regrettably, this approach will encourage states to resist granting precisely those political and economic rights which might constitute the most realistic and effective response to claims for self-determination. In effect, a state would be penalized if it addressed ethnic or regional concerns by devolving power to autonomous regions.”13 Such an approach, which discriminates between secessionist demands, does not rest on any identifiable legal criteria. This problematic aspect of the modern uti possidetis principle stood out in sharp relief in the claims to statehood made by the Republic of Srpska and the autonomous Province of Kosovo. If the Republic of Serbia’s new boundaries were held to coincide with those of the former Serbian republic of the sfry, it is difficult to understand why this presumption was not applied to the former autonomous Province of Kosovo, which in October 1991 had declared its independence. In cases of dissolution or disintegration, the uti possidetis principle, in of itself, does not identify which administrative divisions and lines are to be preserved. In the colonial context, a separate and distinct process – the principle of effectiveness in Latin America and the right of self-determination in Africa – had identified the new international actors. In the post-colonial context, and in light of the restrictive interpretation afforded the principle of self-determination, on what legal basis can the claims to independent statehood by the people of Slovenia and Croatia be legitimized while the aspirations of the Kosovar Albanians are rejected? Why should the Québécois people be entitled to accede to independence within guaranteed boundaries but not the Crees of Northern Quebec? Certainly

conclu.fm Page 238 Thursday, October 10, 2002 8:56 AM

238

Determining Boundaries

the uti possidetis juris principle does not account for this inconsistent treatment of rival claims. Should secessionist entities benefit from territorial guarantees while, by their very actions, they have violated the territorial integrity of the parent state? We can but agree with Hannum’s assessment: The principle that borders should not be altered except by mutual agreement has been elevated to a hypocritical immutability that is contradicted by the very act of recognizing secessionist states. The traditional international practice of non-intervention in civil wars has been replaced by a selective rule which prohibits some central governments (for example, Belgrade) from suppressing secession by force, accepts the use of force by others (for example, Colombo and New Delhi), and has yet to make up its mind about even more compelling cases (for example, Kurds and Tibetans).14

And, while the territorial approach may have the advantage of simplicity, it fails utterly to deal with new minorities trapped by the creation of the new states. Again, Hannum’s criticism appears uncontestable: New minorities are trapped in new ethnically based states not because of any international legal principle which such minorities can comprehend, but by the historical accident of finding themselves within administrative borders drawn decades ago for domestic purposes by an undemocratic government. As at Versailles in 1919, the ethnic factor is ignored on one side of a border, yet is cited as the primary justification for self-determination on the other side. Indeed, violence was much greater in Croatia and Bosnia-Hercegovina than in Slovenia precisely because Slovenia is a much more ethnically homogeneous state.15

Uti possidetis must rely on effective guarantees for the minorities included within the unchangeable borders of the new states. Yet, as Angelet warns, the definition of minority rights can be as great a source of conflict as the determination of boundaries. In fact, uti possidetis may ultimately undermine internal self-determination in the sense that a government, feeling secure in the sanctity of its borders, may ignore or stall over the question of minority guarantees. Thus uti possidetis would not have the effect of eliminating or reducing the risk of conflict; at most, it would modify its source by replacing territorial disputes with disputes over minority rights. Moreover, the elimination of territorial disputes might prove only theoretical since dissatisfied minority groups might try to resolve disagreements by seeking to modify existing boundaries. Recent events in Kosovo and Macedonia seem to support this conclusion.

conclu.fm Page 239 Thursday, October 10, 2002 8:56 AM

239

Conclusion

Perhaps, as Ratner believes, emerging trends on self-determination signal that the national unity of a State should be earned by its government, and should not be considered a fait accompli.16 The Declaration on Friendly Relations together with the International Covenant on Civil and Political Rights may suggest that new states ought to be delineated in such a way as to encourage governments that represent “the whole people belonging to the territory without distinctions as to race, creed, or colour”17 – for the automatic application of uti possidetis will lead to instability if significant populations are trapped in the new states, uncertain of political participation and, in some instances, vulnerable to the worst kind of human rights violations. If one of the primary functions of a state is to provide its inhabitants with the opportunity to promote common values through democratic processes, then the formation of a new state ought to take that goal into account. In the already-fluid situation of new state formation, as in the case of the disintegration of the sfry, principles and rules ought to be applied so as to promote the most democratic outcome. Changes in the law governing indigenous title to land may also have an impact on the application of uti possidetis in the post-colonial context. International law now accepts that by virtue of their unique relationship and historic claims to certain lands, indigenous inhabitants have special rights and a voice in relation to the pattern of internal self-determination. Although indigenous peoples do not possess a unique right to secede, new claimant states should perhaps no longer be entitled to automatically include indigenous communities merely on the basis of pre-existing internal borders. These developments would undoubtedly have repercussions in the event that Quebec unilaterally declared its independence.18 Reliance on the uti possidetis principle to preserve internal borders during the Yugoslav crisis was justified on the basis that it would reduce the prospect of armed conflict by providing the only clear outcome. What is perhaps needed is a return to the Roman law origins of the principle. Uti possidetis as a provisional solution would operate so as to preserve the status quo but only until the parties involved could resolve their competing claims. Withholding recognition until boundary issues had been peacefully resolved would constitute a powerful incentive for the arbitration of boundary disputes. A provisional status quo would help to avoid conflict by providing a clear solution during the critical period. Existing boundaries would necessarily deserve consideration and some deference, but decision-makers would have the opportunity to consider whether a significantly better line could be drawn. Existing boundaries could be evaluated as to their suitability as international frontiers in terms of the age of the line, the process by

conclu.fm Page 240 Thursday, October 10, 2002 8:56 AM

240

Determining Boundaries

which the line had been drawn, and the viability of the entities on either side of the line. Furthermore, a flexible uti possidetis principle would allow a consideration of alternatives to take into account minorities trapped within the new states and the respect of human rights. Condemnation of the use of force to change the status quo – clearly warranted in the context of Yugoslavia – need not necessarily coincide with the legal transformation of the status quo into a permanent solution by default. If the international community decides to intervene and to guarantee the boundaries of internal units in the context of the break-up of a state, then that decision – if agreed to or enforced – may have operative effect. This was essentially the outcome in Yugoslavia, where a decision initially made only at the European level was subsequently adopted and applied by the un and endorsed in the Dayton Peace Accords. The crux of the matter is not to confuse this political process with pre-existing requirements of international law with regard to internal boundaries. Application of the uti possidetis doctrine as a pre-independence guarantee of administrative boundaries involves just such a confusion. In short, the territorial solution adopted in Yugoslavia was the result of a policy decision that was quite possibly justified. It was not, however, required by international law. As Shaw concludes: [U]ti possidetis subsists within the framework of the principle of territorial stability and in the context of the traditional principles of the acquisition of territory. The doctrine performs an important function within the international community of States, but is not an absolute principle of invariable application which can of itself resolve all boundary disputes or provide an answer to all territorial conundrums.19

If the ‘colonial uti possidetis principle’ is to be a guiding principle in resolving current and future territorial disputes, then the basis for its application in such situations must be clarified. Uti possidetis represents a valid option, not a binding solution imposed under the mantle of custom.

appen.fm Page 241 Thursday, October 10, 2002 8:57 AM

APPENDIX ONE

Latin America: Constitutions and Treaties Consulted constitutions containing no reference to uti possidetis Federative Act of the United Provinces of New Granada, 27 November 1811, 1 bfsp 1068 Constitution of the Republic of Paraguay, 12 October 1813, 1 bfsp 1235 Constitution of the United Provinces of South America, 22 April 1819, 6 bfsp 1028 Fundamental Law of the Sovereign Congress of Venezuela, for the Union of the Republics of New Granada and Venezuela, Under the Title of the Republick of Colombia, 17 December 1819, 9 bfsp 407 Fundamental Law of the Union of the People of Colombia, 12 July 1821, 9 bfsp 696 Constitution of the Republic of Columbia, 30 August 1821, 9 bfsp 698 Political Constitution of the Peruvian Republick, 12 November 1823, 10 bfsp 701 Bases of the Federal Constitution of the United Provinces of Central America, 17 December 1823, 11 bfsp 867 Political Constitution of the State of Chili, 29 December 1823, 10 bfsp 1076 Constituent Act of the Mexican Confederation, 31 January 1824, 13 bfsp 695 Federal Constitution of the United Mexican States, 4 October 1824, 13 bfsp 701 Constitution of the Federal Republick of Central America, 22 November 1824, 13 bfsp 725

appen.fm Page 242 Thursday, October 10, 2002 8:57 AM

242

Appendices

Constitution of the State of Guatemala, 11 October 1825, The GuatemalaHonduras Arbitral Award, 2 riaa (1933) 1307 at 1326 Constitution of the State of Honduras, 11 December 1825, The GuatemalaHonduras Arbitral Award, 2 riaa (1933) 1307 at 1327 Project of Constitution for the Republick of Bolivia, 25 May 1826, 13 bfsp 875 Constitution of the Bolivian Republic, 6 November 1826, 23 bfsp 5 Constitution for the Republick of Peru, 8 December 1826, 14 bfsp 892 Constitution of the Argentine Republick, 24 December 1826, 14 bfsp 942 Political Constitution of the Peruvian Republic, 18 March 1828, 16 bfsp 966 Political Constitution of the Republic of Chili, 6 August 1828, 16 bfsp 1048 Constitution of the Eastern Republic of the Uruguay, 10 September 1829, 18 bfsp 1032 Political Constitution of the Republick of Colombia, 29 April 1830, 17 bfsp 1198 Constitution of the State of the Equator, in the Republic of Colombia, 11 September 1830, 18 bfsp 1065 Constitution of the State of Venezuela, 22 September 1830, 18 bfsp 1119 Political Constitution of the Bolivian Republic, 14 August 1831, 20 bfsp 817 Constitution of the State of New Granada, 29 February 1832, 19 bfsp 911 Constitution of the Republic of Chili, 22 May 1833, 20 bfsp 556 Political Constitution of the Peruvian Republic, 10 June 1834, 23 bfsp 297 Constitutional Law of the Mexican Republic, 15 December 1835, 23 bfsp 257 Treaty between the Republics of North and South Peru, and Bolivia, Serving as a Constitution for the Peru-Bolivian Confederation, 1 May 1837, 27 bfsp 1360 Political Constitution of the State of Honduras, 11 January 1839, 30 bfsp 1192 Political Constitution of the Republic of Peru, 10 November 1839, 28 bfsp 236 Political Constitution of the State of Salvador, 18 February 1841, 29 bfsp 206 Political Constitution of the State of Yucatan, 31 March 1841, 51 bfsp 1113. Political Constitution of the Republic of New Granada, 20 April 1843, 32 bfsp 1160 Political Constitution of the Bolivian Republic, 11 June 1843, 31 bfsp 990 Constitution Politique de la République Haïtienne, 30 December 1843, 31 bfsp 17 Law of Paraguay, which Establishes the Political Administration of the Republic, 16 March 1844, 33 bfsp 751 Constitution of the Republic of Hayti, 14 November 1846, 34 bfsp 1198 Political Constitution of the State of Costa Rica, 21 January 1847, 35 bfsp 44 Constitution of the Republic of Honduras, 8 February 1848, 36 bfsp 1086 Loi de la République d’Haïti, Modifiant la Constitution du 14 novembre 1846, 14 December 1848, 37 bfsp 735

appen.fm Page 243 Thursday, October 10, 2002 8:57 AM

243

Appendices

Political Constitution of the Bolivian Republic, 21 September 1851, 41 bfsp 1149 Constitution de la Confédération Argentine, 1 May 1853, 42 bfsp 781 Political Constitution of the Dominican Republic, 27 February 1854, 46 bfsp 1319 Constitution of the State of Buenos Ayres, 11 April 1854, 46 bfsp 843 Decree of the President of Mexico, Promulgating the Provisional Constitution of the Mexican Republic, 15 May 1856, 47 bfsp 1067 Political Constitution of the Republic of Peru, 13 October 1856, 47 bfsp 1141 Constitution of the Republic of Mexico, 12 February 1857, 78 bfsp 979 Constitution of the Republic of Dominica, 19 February 1858, 48 bfsp 1052 Political Constitution of New Granada, 22 May 1858, 48 bfsp 1250 Constitution of the Republic of Nicaragua, 19 August 1858, 72 bfsp 1045 Constitution of the Republic of Venezuela, 24 December 1858, 50 bfsp 1341 Constitution of the Argentine Republic, 25 September 1860, 52 bfsp 1006 Constitution of the Republic of Peru, 13 November 1860, 79 bfsp 721 Pact of Union between the Sovereign States of Bolivar, Boyacá, Cauca, Cundinamarca, Magdalena, Santander, and Tolima, 20 September 1861, 58 bfsp 408. Constitution of the United States of Columbia, 8 May 1863, 53 bfsp 286 Constitution of the United States of Venezuela, 28 March 1864, 57 bfsp 471 Constitution of the Republic of Honduras, 28 September 1865, 58 bfsp 287 Constitution of the Dominican Republic, 27 September 1866, 58 bfsp 333 Political Constitution of the Republic of Peru, 29 August 1867, 58 bfsp 509 Constitution of the Republic of the Equator, 9 June 1869, 59 bfsp 1229 Political Constitution of the Republic of Salvador, 16 October 1871, 61 bfsp (1870–71) 1166 Constitution of the Republic of Salvador, 9 November 1872, 63 bfsp 941 Constitution of the United States of Venezuela, 27 May 1874, 69 bfsp 1148 Constitution de la République d’Haïti, 6 August 1874, 65 bfsp 1260 Constitution of the Republic of Guatemala, 12 December 1879, 70 bfsp 866 Constitution of the Republic of Honduras, 1 November 1880, 71 bfsp 906 Constitution of the United States of Venezuela, 27 April 1881, 72 bfsp 977 Decree of the President of Costa Rica, Modifying the Constitution of 1871, 26 April 1882, 73 bfsp 608 Constitution of the Republic of Columbia, 5 August 1886, 77 bfsp 836. Constitution of the Republic of Salvador, 13 August 1886, 77 bfsp 1317 Constitution of the Republic of Guatemala, 5 November 1887, 78 bfsp 1007 Constitution of the Dominican Republic, 17 November 1887, 79 bfsp 755 Constitution de la République d’Haïti, 9 October 1889, 81 bfsp 64 Constitution of the United States of Venezuela, 21 June 1893, 85 bfsp 1203 Constitution of the Republic of Nicaragua, 10 December 1893, 86 bfsp 1090 Constitution of the Republic of Cuba, 21 February 1901, 94 bfsp 554

appen.fm Page 244 Thursday, October 10, 2002 8:57 AM

244

Appendices

constitutions containing reference to uti possidetis Political Constitution of the Republic of Costa Rica, 22 November 1848, 37 bfsp 777 Constitution of the Republic of Costa Rica, 26 December 1859, 50 bfsp 1092 Constitution of the Republic of Costa Rica, 15 April 1869, 59 bfsp 216 Constitution of the Republic of Costa Rica, 7 December 1871, 63 bfsp 294. t r eat i e s c o n ta i n i n g n o r ef er e n c e t o u t i p o ss i d e t i s Convention between Buenos Aires and Paraguay, 12 October 1811, 61 cts 363 Agreement between Chile and Rio De La Plata, 23 October 1812, 62 cts 103 Capitulation between Buenos Aires and Peru, 20 February 1813, 62 cts 133 Treaty of Friendship and Alliance between the Republick of Chile and the United Provinces of the Rio De La Plata, January 1819, 11 bfsp 811 Treaty of Alliance between the States of Buenos Ayres and Chile, 5 February 1819, 6 bfsp 1154 Convention of Peace and Federation between the Provinces of Buenos Ayres, Santa Fé, and Entre Rios, 23 February 1820, 7 bfsp 811 Convention for the Incorporation of the Eastern Province of the River Plate with the United Kingdom of Portugal, Brazil, and Algarve, 31 July 1821, 8 bfsp 1027 Treaty of Perpetual Union, League, and Confederation between Colombia and Peru, 6 July 1822, 11 bfsp 105 Treaty of Perpetual Union, League, and Confederation between Colombia and Chili, 21 October 1822, 11 bfsp 213 Convention between the Cisplatine State and the Province of Entre Rios, 11 December 1822, 10 bfsp 952 Treaty of Friendship, League, and Confederation between Chile and Peru, 23 December 1822, 11 bfsp 813 Treaty of Alliance between Peru and Chili, 26 April 1823, in Aranda, R., Coleccion de los Tratados, Convencioñes del Peru, vol. 4, Lima, 1892, 5. Treaty of Friendship and Alliance between the Republic of Columbia and the State of Buenos Ayres, 28 June 1823, 11 bfsp 310 Treaty of Perpetual Union, League, and Confederation between Colombia and Mexico, 3 October 1823, 11 bfsp 784 Treaty of Perpetual Union, League, and Confederation between Colombia and the United Provinces of Central America, 15 March 1825, 11 bfsp 802 Treaty of Federation between Peru and Bolivia, 15 November 1826, 14 bfsp 959 Treaty of Friendship, Alliance, Commerce, and Navigation between the United Provinces of the Rio De La Plata and Chili, 20 November 1826, 14 bfsp 968

appen.fm Page 245 Thursday, October 10, 2002 8:57 AM

245

Appendices

Treaty of Limits between the United States of America and the United Mexican States, 12 January 1828, 19 bfsp 235 Preliminary Treaty of Peace and Friendship between Bolivia and Peru, 6 July 1828, 15 bfsp 1221 Preliminary Convention of Peace between Colombia and Peru, 28 February 1829, 15 bfsp 1237 Treaty of Peace between Peru and Colombia (Guayaquil), 22 September 1829, 16 bfsp 1242 Treaty of Peace and Federation between the Provinces of Buenos Ayres, Entre Rios, and Santa Fé, 4 January 1831, 19 bfsp 1343 Treaty of Friendship, Commerce, and Navigation between Chili and Mexico, 7 March 1831, 20 bfsp 1316 Definitive Treaty of Peace and Friendship between Bolivia and Peru, 8 November 1831, 19 bfsp 1383 Treaty of Friendship, Alliance, and Commerce between Peru and Equator, 12 July 1832, 20 bfsp 1311 Treaty of Amity, Commerce, and Navigation between the United States of Mexico and the Republic of Peru, 16 November 1832, 23 bfsp 1245 Treaty of Peace between New Granada and Equator, 8 December 1832, 20 bfsp 1206 Additional Treaty to the Treaty of Peace of December 8, 1832 between Equator and New Granada, 8 December 1832, 61 bfsp 1151 Treaty of Union, Friendship, and Alliance between the Equator and New Granada, 8 December 1832, 60 bfsp 1089 Treaty of Friendship, Commerce, and Navigation between Chili and Peru, 20 January 1835, 23 bfsp 742 Additional Article of Limits between the United States of America and Mexico, 3 April 1835, 23 bfsp 656 Preliminary Convention of Peace between the Chilian and the Bolivian and the Peruvian Forces, 29 August 1836, 26 bfsp 1083 Treaty of Peace between Chile and Peru-Bolivia, 17 November 1837, 25 bfsp 637 Preliminary Convention of Peace and Commerce between Peru and Bolivia, 19 April 1840, 36 bfsp 1150 Treaty of Peace, Friendship, Commerce, Navigation, and Recognition between Spain and the Oriental Republic of the Uruguay, 9 October 1841, 30 bfsp 1366 Treaty of Friendship and Alliance between the Equator and Bolivia, 8 May 1842, 31 bfsp 1046 Preliminary Treaty of Peace and Friendship between Peru and Bolivia, 7 July 1842, 32 bfsp 1400 Treaty of Friendship, Commerce, and Navigation between New Granada and Venezuela, 23 July 1842, 33 bfsp 819

appen.fm Page 246 Thursday, October 10, 2002 8:57 AM

246

Appendices

Decree of the President of Mexico Promulgating the Agreement between Mexico and Yucatan of 14 December 1843 for the Re-Incorporation of Yucatan with the Mexican Republic, 14–15 December 1843, 51 bfsp 1271 Treaty of Peace, Friendship, Commerce, and Navigation between Chile and New Granada, 16 February 1844, 34 bfsp 1115 Treaty of Peace, Friendship, and Recognition between Spain and Chile, 25 April 1844, 34 bfsp 1108 Treaty of Peace, Friendship, and Recognition between Spain and Venezuela, 30 March 1845, 35 bfsp 301 Treaty of Offensive and Defensive Alliance between the Republic of Paraguay and the States of Corrientes, Against the Governor of Buenos Ayres (Gen. D. Juan Manual Rosas), 11 November 1845, 35 bfsp 293 Treaty of Friendship and Commerce between Peru and Bolivia, 3 November 1847, 36 bfsp 1137 Treaty of Peace, Friendship, Limits, and Settlement between the United States and Mexico, 2 February 1848, 37 bfsp 567 Treaty of Confederation Signed at the Congress of Lima by New Granada, Chili, Bolivia, and Peru, 8 February 1848, in Alvarez, Le droit international américain, 53. Treaty of Friendship and Commerce between Peru and Bolivia, 11 December 1848, 37 bfsp 794 Treaty of Recognition, Peace, and Friendship between Spain and Costa Rica, 10 May 1850, 39 bfsp 1340 Treaty of Recognition, Peace, and Friendship between Spain and Nicaragua, 25 July 1850, 39 bfsp 1331 Treaty of Limits, Commerce, and Navigation between the Argentine Confederation and Paraguay, 15 July 1852, 42 bfsp 1256 Treaty of Limits between the United States and Mexico, 30 December 1853, 42 bfsp 1298 Treaty of Peace, Friendship, Commerce, and Navigation between the Argentine Confederation and the Republic of Chile, 30 August 1855, 49 bfsp 1200 Treaty of Friendship, Commerce, and Navigation between New Granada and Equator, 9 July 1856, 47 bfsp 1270 Convention of League and Alliance between Guatemala, Honduras, and Salvador, 18 July 1856, 46 bfsp 1298 Convention of Peace Between Costa Rica and Nicaragua, 8 December 1857, 49 bfsp 1222 Treaty of Territorial Limits between Costa Rica and Nicaragua, 15 April 1858, 48 bfsp 1049 Treaty of Peace and Union between the Argentine Confederation and the Government of Buenos Ayres, 10 November 1859, 50 bfsp 690

appen.fm Page 247 Thursday, October 10, 2002 8:57 AM

247

Appendices

Treaty of Union between the Argentine Confederation and Buenos Ayres, 6 June 1860, 51 bfsp 904. Treaty of Peace and Friendship between Salvador and Honduras, 25 March 1862, 53 bfsp 949 Treaty of Recognition, Peace, and Friendship between the Argentine Republic and Spain, 21 September 1863, 53 bfsp 307 Treaty of Peace and Friendship between Peru and Bolivia, 5 November 1863, 55 bfsp 837 Treaty of Peace between the United States of Colombia and Ecuador, 30 December 1863, 63 bfsp 260 Additional Treaty to the Treaty of Alliance, Friendship, Commerce, and Navigation between the Republics of Colombia and Ecuador of 30 December 1863, 1 January 1864, 63 bfsp 261 Treaty of Union and Defensive Alliance between Bolivia, the United States of Columbia, Chile, Equator, Peru, Salvador, and Venezuela, 23 January 1865, 58 bfsp 420 Treaty of Territorial Limits between Chile and Bolivia, 10 August 1866, 56 bfsp 717 Treaty of Friendship and Commerce between Nicaragua and Salvador, 17 March 1868, 67 bfsp 1102 Treaty of Friendship between Costa Rica and Nicaragua, 30 July 1868, 70 bfsp 258 Protocol Cancelling Article XX of the Treaty of Peace, Friendship, Commerce, and Navigation between the Argentine Republic and Bolivia of 9 July 1868, 27 February 1869, 72 bfsp 608 Treaty of Friendship, Commerce, and Navigation between Colombia and Peru, 10 February 1870, 60 bfsp 349 Treaty of Friendship and Alliance between Costa Rica and Salvador, 19 October 1871, 61 bfsp 1284 Treaty of Friendship and Alliance between Guatemala and Salvador, 24 January 1872, 63 bfsp 230 Decree of the President of Chile Promulgating the Convention Concluded with Bolivia on the 5 December 1872, Relating to Boundaries and Neutral Territory, 8 January 1873, 65 bfsp 275 Treaty of Defensive Alliance between Bolivia and Peru, 6 February 1873, 70 bfsp 214 Treaty of Alliance between Guatemala, Salvador, and Nicaragua, 26 August 1873, 63 bfsp 849 Treaty of Peace, Friendship, Commerce, and Extradition between Guatemala and Nicaragua, 13 February 1874, 65 bfsp 481 Treaty of Friendship, Commerce, and Navigation between the Argentine Republic and Peru, 9 March 1874, 69 bfsp 701.

appen.fm Page 248 Thursday, October 10, 2002 8:57 AM

248

Appendices

Treaty between Bolivia and Chile Respecting Boundaries, 6 August 1874, 71 bfsp 897 Traité de Paix, d’Amitié, de Commerce, de Navigation, et d’Extradition entre la République d’Haïti et la République Dominicaine, 9 November 1874, 65 bfsp 235 Treaty of Limits between the Argentine Republic and Paraguay, 3 February 1876, 68 bfsp 97 Definitive Treaty of Peace and Friendship between Guatemala and Salvador, 8 May 1876, 67 bfsp 984 Treaty of Peace and Friendship between Costa Rica and Guatemala, 20 July 1876, 67 bfsp 1253 Preliminary Convention between Mexico and Guatemala Respecting Boundaries, 7 December 1877, 70 bfsp 1175 Treaty of Friendship, Commerce, and Extradition between Nicaragua and Honduras, 13 March 1878, 70 bfsp 40 General Treaty of Peace, Friendship, Commerce, and Extradition between the Republics of Salvador and Honduras, 31 December 1878, 72 bfsp 955 Treaty of Friendship, Commerce, and Extradition between Guatemala and Honduras, 17 July 1880, 72 bfsp 967 Provisional Conventions of Friendship between Hayti and the Dominican Republic, 14 October 1880, 78 bfsp 704 Convention between Colombia and Salvador for the Preservation of Peace and the Appointment of Representatives to an International Congress, 24 December 1880, 71 bfsp 712 Convention between Colombia and Costa Rica for Submitting to Arbitration the Question of the Boundary between the Two Countries, 25 December 1880, 71 bfsp 215 Treaty between the Argentine Republic and Chile Defining the Boundaries between the Two Countries, 23 July 1881, 72 bfsp 1103 Preliminary Agreement between Mexico and Guatemala Respecting Boundaries, 12 August 1882, 73 bfsp 272 Treaty between Mexico and Guatemala for Fixing the Boundaries between the Respective States, 27 September 1882, 73 bfsp 273 Protocol of the Semi-Official Conference of the Representatives of the Argentine Republic, Bolivia, Colombia, Dominican Republic, Equator, Mexico, Peru, Salvador, and Venezuela, 14 August 1883, 74 bfsp 894 Treaty of Peace and Friendship between Chile and Peru, 20 October 1883, 74 bfsp 849 Convention of Peace between Nicaragua and Salvador, 13 January 1886, 77 bfsp 475 Convention between Colombia and Costa Rica for the Settlement of the Question of the Boundary Between the Two Republics, 20 January 1886, 92 bfsp 1034

appen.fm Page 249 Thursday, October 10, 2002 8:57 AM

249

Appendices

Protocol between Colombia and Venezuela Respecting the Interpretation of Article I of the Treaty of September 14 1881 (Arbitration of the Spanish Government in the Question of Boundaries between the Two Republics), 15 February 1886, 77 bfsp 1012 Preliminary Delimitation Treaty between Bolivia and Peru, 20 April 1886, 167 cts 423 Convention between Honduras and Salvador, Providing for the Demarcation of the Frontier between the Two Republics, 28 September 1886, 81 bfsp 632 Treaty between Costa Rica and Nicaragua for Submitting to Arbitration the Question of the Validity of the Boundary Treaty between the Two Republics of April 15 1858, 24 December 1886, 77 bfsp 476 Convention between Equator and Peru for Submitting to Arbitration the Question of the Boundary between the Two Countries, 1 August 1887, 78 bfsp 47 Boundary Protocol between the Argentine Republic and Bolivia, 11 June 1888, 79 bfsp 832 Convention between the Argentine Republic and Chile Respecting the Demarcation of the Boundaries between the Two Countries, 20 August 1888, 82 bfsp 684 Boundary Convention between Mexico and the United States, 1 March 1889, 172 cts 21 Boundary Treaty between the Argentine Republic and Bolivia, 10 May 1889, 172 cts 103 Treaty of Friendship, Commerce, and Navigation between the United States of Mexico and the Dominican Republic, 29 March 1890, 82 bfsp 689 Treaty of Friendship, Commerce, and Navigation between Equator and Salvador, 29 March 1890, 82 bfsp 686 Treaty between Great Britain and Mexico Respecting the Boundary between Mexico and British Honduras, 8 July 1893, 85 bfsp 58 Convention for the Exchange of Literary and Scientific Periodicals and Border Demarcation between Honduras and Nicaragua, 4–7 October 1894, 180 cts 343 Boundary Convention between Guatemala and Honduras, 1 March 1895, 87 bfsp 530 Convention between Mexico and Guatemala for the Settlement of Certain Boundary Questions, 1 April 1895, 87 bfsp 528 Treaty between Chile and Bolivia for the Transfer of Certain Territories, 18 May 1895, 88 bfsp 1328 Treaty of Alliance between the Republics of Honduras, Nicaragua, and Salvador for the Establishment of “The Greater Republic of Central America,” 20 June 1895, 92 bfsp 227 Boundary Agreement between the Governments of Chile and the Argentine Republic, 17 April 1896, 88 bfsp 553

appen.fm Page 250 Thursday, October 10, 2002 8:57 AM

250

Appendices

Convention between Colombia and Costa Rica for Submitting the Question of the Boundary between the Two States to the Arbitration of the President of the French Republic, 4 November 1896, 92 bfsp 1036 Treaty between Great Britain and the United States of Venezuela Respecting the Settlement of the Boundary between the Colony of British Guinea and the United States of Venezuela, 2 February 1897, 89 bfsp 57 Treaty for the Union of Central America, 15 June 1897, 92 bfsp 234 Treaty of Peace between Costa Rica and the Greater Republic of Central America, 26 April 1898, 90 bfsp 558 Agreements between Chile and the Argentine Republic Relative to the Boundary-Line between the Two Countries (Arbitration of Great Britain), 15–22 September 1898, 90 bfsp 1027 Treaty of Arbitration between the Argentine Republic and the Republic of Uruguay, 8 June 1899, 94 bfsp 525 Treaty of Arbitration between the Argentine Republic and the Republic of Paraguay, 6 November 1899, 92 bfsp 485 Bolivia-Peru Treaty of Arbitration Respecting Limits, 30 December 1902, 3 ajil Suppl. (1909) 383 Boundary Convention between Guatemala and Honduras, 1 August 1914, 107 bfsp 902 Boundary Treaty between Colombia and Ecuador (Muñoz-Vernaza-Suarez Treaty) 15 July 1916, 110 bfsp 826 t r eat i e s c o n ta i n i n g r ef e r en c e to u ti p o s si d e t i s Treaty of Peace, Friendship, and Alliance between the Equator and Peru, 25 January 1860, 50 bfsp 1086 Treaty between Colombia and Venezuela for Submitting to Arbitration the Question of the Boundary between the Two Republics, 14 September 1881, 73 bfsp 1107 General Arbitration Treaty between Bolivia and Peru, 21 November 1901, 3 ajil Suppl. (1909) 378.

Source: Barros, J. The Aland Islands Question: Its Settlement by the League of Nations. New Haven: Yale University Press, 1968, at page 4.

The Aland Islands

appendix two

appen2.fm Page 251 Thursday, October 10, 2002 8:57 AM

appen2.fm Page 252 Thursday, October 10, 2002 8:57 AM

appendix three Ottoman Administrative Divisions

Source: Wilson, M.C. King Abdullah, Britain and the Making of Jordan. Cambridge: The University Press, 1987, at page xix.

appen2.fm Page 253 Thursday, October 10, 2002 8:57 AM

appendix four The Semakh Triangle

Source: Gil-Har, Y. “British Commitments to the Arabs and Their Application to the Palestine – Trans-Jordan Boundary: The Issue of the Semakh Triangle” 29 Middle Eastern Studies (1993) 697.

appen2.fm Page 254 Thursday, October 10, 2002 8:57 AM

notes.fm Page 255 Thursday, October 10, 2002 8:58 AM

Notes introduction 1 Ancel, Les frontières. 2 See, for instance, Antonopoulos, “The Principle of Uti Possidetis Juris in Contemporary International Law,” 39, wherein he states: “The principle uti possidetis iuris is connected with issues of territory. Indeed, it covers the entire spectrum of such matters: succession of states to territory, the continuity and stability of boundaries, attribution of territorial sovereignty, territorial integrity.” 3 See chapter 1. 4 92 ilr 170. 5 Custom is defined in paragraph (b). The other sources of international law listed in article 38(1) are: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law. 6 icj Reports 1950, 266 at 276–7. 7 icj Reports 1986, 14 at 28. It must be emphasized that the material element raises a number of issues including the nature, duration, consistency, repetition, and generality of a particular practice by states. For a general analysis of these issues, see Shaw, International Law, 4th ed., 56–73, and Brownlie, Principles of Public International Law, 5th ed., 4–11. See also additional pronouncements by the icj in the Anglo-Norwegian Fisheries case, icj

notes.fm Page 256 Thursday, October 10, 2002 8:58 AM

256 Notes to pages 5–13

8 9 10

11 12 13 14 15 16

17

Reports 1951, 116; in the North Sea Continental Shelf cases, icj Reports 1969, 3; and by the Permanent Court of International Justice, the predecessor of the icj, in the Lotus case, pcij, Series A, No. 10, 1927, 18. The issue of uti possidetis as a rule of customary law is further discussed at pages 4–6, 55–6, 130–1, 194–202, and 215–21 herein. Shaw, International Law, 66–7, emphasis added. icj Reports 1986, 14 at 108–9. Nesi, “L’uti possidetis hors du contexte de la décolonisation,” 1. See also Nesi, L’Uti Possidetis Iuris nel Diritto Internazzionale. My translation from the original: “Nul ne conteste aujourd’hui le rôle crucial de l’uti possidetis iuris dans les rapports entre États nés de la décolonisation.” Antonopoulos, “The Principle of Uti Possidetis Juris,” 34–5. Socialist Federal Republic of Yugoslavia. Brownlie, African Boundaries, 3. Allot, “Boundaries and the Law in Africa,” 9. See Boggs, International Boundaries, and Jones, Boundary-Making. In the case of mandates and trust territories, the matter was complicated by the exercise of supervisory powers of the relevant League and un bodies. In general, mandated and trust-territory boundaries were not ‘internal’ in the same way as intracolonial boundaries. See our discussion of the Guinea-Bissau v. Senegal decision in chapter 4 and the piece by Nesi “Uti Possidetis Juris e Delimitazioni Marittime.” chapter one

1 2 3 4 5

6 7 8 9 10 11 12

Berger, Encyclopedic Dictionary of Roman Law, 541–2. Ibid., 474–5. Ibid., 394. prae-itor = one who goes in front of the people This proclamation was called Edictum Perpetuum and lasted throughout the praetor’s term of office. Until 67 bc, there was no guarantee, except constitutional usage, that a praetor would adhere during his term of office to the rules laid down in his own edict, but in 67 bc a statute, lex Cornelia de Edictis, was passed, declaring it illegal for a praetor to depart from his edict. Hunter, Introduction to Roman Law, 12. Ibid. Ibid., 13. Various interests of both a public and private nature were protected by the interdictal procedure. The classification and examples are borrowed from Campbell, A Compendium of Roman Law, 151. Buckland, A Text-book of Roman Law from Augustus to Justinian, 730. Berger, Dictionary of Roman Law, 508.

notes.fm Page 257 Thursday, October 10, 2002 8:58 AM

257 Notes to pages 13–17 13 Gaius, Gaii Institutionum Iuris Civilis, translation by Muirhead, 338. 14 Moore, “Memorandum on Uti Possidetis,” 328–9. 15 Uti possidetis and utrubi could therefore also operate, in certain circumstances, as interdicts recuperandae possessionis (for the recovery of possession). If a party could establish that the possession of the actual possessor was tainted by one of the three vices – that is, that possession had been wrested from him furtively or violently or was being held of him by his leave – then the wronged party could recover possession pending a final determination as to ownership. 16 Justinian, Imperatoris Iustiniani Institutionum, translation by Moyle, 201–4. 17 “Uti eas aedes, quibus de agitur, nec vi nec clam nec precario alter ab altero possidetis, quominus ita possideatis, vim fieri veto,” Moore, “Memorandum,” 329. 18 Muirhead, Historical Introduction to the Private Law of Rome, 336. 19 Gaius, Gai Institutiones, translation by Poste, 587. 20 Muirhead, Historical Introduction, 336. 21 Berger, Dictionary of Roman Law, 507. 22 Muirhead, Historical Introduction, 336. 23 Gaius, Gai Institutiones, 620. 24 Justinian’s Corpus Juris Civilis, completed in 534, includes the “Institutes,” the “Digest,” the “Code,” and the “Novels.” 25 Institutiones Iustiniani: a part of Justinian’s codification, compiled in 533 after the final draft of the “Digest” had been finished and published on 21 November 533. The work was intended as an elementary manual – hence its title Institutiones sive Elementa – for law students in their first year. 26 Justinian, Imperatoris Iustiniani Institutionum, translation by Abdy and Walker, 439. 27 Digesta Iustiniani: the main part of Justinian’s legislative work, published on 16 December 533. The Digest is a compilation of excerpts from the juristic literature of the classical epoch. More than 9,000 texts are distributed into fifty books. By a special instruction of the emperor, the compilers were authorised to omit all superfluous, imperfect, and obsolete material and to make alterations in the excerpted fragments. 28 Thorne, Bracton on the Laws and Customs of England, 121–2, emphasis added. 29 Ibid., 296. 30 Holdsworth, A History of English Law, vol. 3, 90–1; Maitland, The Forms of Action at Common Law, 27; Hall, “The Common Law: Its Debt to Rome,” 725; Plucknett, “The Relations Between Roman Law and English Common Law Down to the Sixteenth Century,” 33; Vinogradoff, Roman Law in Medieval Europe, 99. 31 Maitland, Forms of Action, 22. 32 Ibid., 22–3. 33 Grotius, De Iure Praedae Commentarius, translation by Williams and Leydel.

notes.fm Page 258 Thursday, October 10, 2002 8:58 AM

258 Notes to pages 17–22 34 Ibid., 234. 35 “Whene’er the deep doth feel the Wind God’s sway, Apollinaris’ table mocks the storm, Securely stocked with produce of his own” (ibid.). 36 Ibid. 37 Ibid. 38 Ibid., 235: “For … whatever has been subjected to occupancy and was properly susceptible of such subjection, no longer comes under the law of nations as the sea does.” 39 Ibid. 40 Moore, “Memorandum,” 328, 330. 41 Belli, De Re Militari et Bello Tractatus, 281. 42 Gentili, De Iure Belli Libri Tres, 381. 43 De Vattel, Le Droit des Gens ou Principes de la Loi Naturelle, bk 4, ch. 2, title §21, 351. 44 Wolff, Jus Gentium Methodo Scientifica Pertractatum, ch. 8, 503. 45 Phillipson, Termination of War and Treaties of Peace, 221–2. In Elements of International Law, published in 1866, Wheaton also describes the status quo post bellum as the general rule but recognizes that exceptions to its operation may be expressly stipulated. 46 1 cts 1. 47 10 cts 231. 48 11 cts 11. 49 Calvo, Recueil complet des traités, conventions, capitulations, armistices et autres actes diplomatiques de tous les États de l’Amérique latine, vol. 1, 148. 50 62 cts 435. 51 Grotius, De Jure Belli Ac Pacis Libris Tres, 809. 52 Bynkershoek, Quaestionum Juris Publici Libri Duo, 44. 53 Wheaton, Elements of International Law, 600. 54 Baker, Halleck’s International Law, 321. 55 Lawrence, Principles of International Law, 562. 56 For further examples of the uti possidetis principle as applied to treaties of peace, see De Martens, Précis du droit des gens moderne de l’Europe, 365; Bluntschli, Le Droit International Codifié, 363; Hall, A Treatise on International Law, 673; Oppenheim, International Law: A Treatise, 599, 611; Fox, Dictionary of International and Comparative Law, 466. 57 Bluntschli, Droit International, 363. 58 Dias Van Dunem, “Les frontières africaines,” 260–1. My translation from the original: “[E]n droit international public, le principe de l’uti possidetis repose sur deux conditions essentielles: la première est le fait de l’existence d’une guerre et la seconde la possession territoriale de fait qui en découle. Si ce dernier élément rejoint l’idée principale de son application en droit romain, le premier donne toutefois à ce principe une nouvelle dimension. On ne peut parler d’uti possidetis en droit des gens sans se rapporter, directement ou indirectement, à l’état de guerre.”

notes.fm Page 259 Thursday, October 10, 2002 8:58 AM

259 Notes to pages 22–7 59 Moore, “Memorandum,” 328, 330. 60 Ibid., 333. 61 Dias Van Dunem, “Les frontières africainess,” 261. chapter two 1 Sorel and Medhi, “L’uti possidetis entre la consécration juridique et la pratique,” 13. My translation from the original: “[c]’est en Amérique du Sud que l’uti possidetis a été porté sur les fonds baptismaux.” 2 De Pinho Campinos, “L’actualité de l’uti possidetis,” 95. My translation from the original: “le principe de l’uti possidetis est né en Amérique latine vers les années 1810.” Benmessaoud Tredano has criticized this narrow characterization of uti possidetis: “In doctrinal commentaries, every time that the principle of uti possidetis is invoked, it has become a tradition to refer to its application in the continent of Latin America. Even more, some writings would lead one to suppose that it was actually created there. Nothing is less certain” (my translation from the original: “En doctrine, chaque fois que le principe de l’uti possidetis est évoqué, il est une tradition de penser à son application dans le continent latino-américain. Bien plus, certains écrits laisseraient supposer qu’il en est sa création propre. Rien n’est moins sûr,” Intangibilité des frontières coloniales et espace étatique en Afrique, 61, footnote omitted). 3 Moore, “Memorandum on Uti Possidetis,” 334. 4 “If it were fixed at one place, Portugal must give up a part of Brazil; if it were fixed at another, Spain must give up the Phillipines” (ibid., 335). 5 Penultimate paragraph of the preamble, Treaty of Limits in the Americas between Portugal and Spain, signed at Madrid, 13 January 1750, 38 cts 457. 6 Articles 2 and 3. 7 Preliminary Treaty of Peace and Limits between Portugal and Spain, signed at San Ildefonso, 1 October 1777, 46 cts 321, 363. My translation from the original: “fleuves della Plata et de l’Uruguai, et le terrein ƒur les deux rives ƒeptentrionale et méridionale appartiennent excluƒivement à la Courrone d’Eƒpagne … le fort de St-Michel, la Colonie du St Sacrement avec ƒon territoire, l’isle de St Gabriel et les autres établiƒƒements que la Couronne de Portugal a prétendu poƒƒéder jusqu’ici.” 8 Ireland, Boundaries, Possessions and Conflicts in South America, 324. 9 The following summary of the territorial organization of Spanish America is borrowed from Dias Van Dunem, “Les frontières africaines,” 268. 10 The following account of the settlement of Brazil relies on information contained in Martin and Lovett, eds, Encyclopedia of Latin-American History, 55-6. 11 Towards the end of the seventeenth century, great quantities of gold had been discovered in Minas Gerais, and in 1727 diamonds were also found (ibid.).

notes.fm Page 260 Thursday, October 10, 2002 8:58 AM

260 Notes to pages 27–30 12 13 14 15

16 17 18

19 20

Treaties of Madrid, 1750, and San Ildefonso, 1777. Martin and Lovett, Latin-American History, 56. Alvarez, “Latin America and International Law,” 342. The Spanish American republics chose 1810 as the critical date even though they attained independence on different dates subsequent to that year. According to Kohen, the legal justification for the choice of the year 1810 was that it represented the time at which the South American provinces rebelled and no longer recognised the authority of the colonial power. Thus it would have been inconceivable to attribute any legal significance to decisions emanating from Spain from that point onwards until independence had been successfully established. With respect to Central America, the year 1821 marked the independence and the proclamation of the Constitution of the Federal Republic of Central America (Kohen, Possession contestée et souveraineté territoriale, 464–5). Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol. 1, 304. De Arechaga, “Boundaries in Latin America: Uti Possidetis Doctrine,” 46. Dias Van Dunem, “Les frontières africaines,” 252. My translation from the original: “Les États qui l’ont adopté pour des motifs d’opportunité peuvent être conscients de l’impossibilité de résoudre leurs problèmes de limites dans l’immédiat de leur accession à l’indépendance et l’adoption du statu quo ne recouvre en fait que l’acceptation tacite d’un rendez-vous à une époque ultérieure.” 17 December 1819, 9 bfsp 407, text reproduced as translated in bfsp. 22 November 1824, 13 bfsp 725. Other early examples include Article 5, Fundamental Law of the Union of the Republick of Colombia, 12 July 1821: “The Territory of the Republick of Colombia shall be that comprehended within the limits of the ancient Captain-Generalship of Venezuela and the Viceroyalty and Captain-Generalship of the new Kingdom of Granada. The settlement of the precise boundaries shall be reserved for a more suitable time” (9 bfsp 696); Article 2, Federal Constitution of the the United Mexican States, 4 October 1824: “Its Territory comprehends what was formerly called the Viceroyalty of New Spain, the Captain-Generalship of Yucatan, the Commanderies formerly called the Interior Provinces of the East and West … The limits of the Confederation shall be defined by a Constitutional Law, as soon as circumstances permit” (13 bfsp 701); Article 3, Constitution of the Republick of Peru, 8 December 1826: “The Territory of the Peruvian Republick, comprehends the Departments of La Libertad, Junin, Lima, Arequipa, Cuzco, Ayacucho and Puno” (14 bfsp 892); and Article 4, ibid.: “A Law shall render the division more convenient, and another shall determine its limits by agreement with the adjoining States.” See also Article 6, Constitution of the Republic of Colombia, 30 August 1821, 9 bfsp 698; Article 5, Project of Constitution for the Republick of Bolivia, 1824, 13 bfsp 875;

notes.fm Page 261 Thursday, October 10, 2002 8:58 AM

261 Notes to pages 30–2

21 22

23 24 25

26 27

Article 3, Constitution of the Bolivian Republic, 6 November 1826, 23 bfsp 5; Article 4, Political Constitution of the Republick of Colombia, 29 April 1830, 17 bfsp 1198; Article 5, Constitution of the State of Venezuela, 22 September 1830, 18 bfsp 1119; Article 3, Political Constitution of the Bolivian Republic, 14 August 1831, 20 bfsp 817; Article 2, Decree of Independence of the Republic of New Granada, 21 November 1831, 18 bfsp 1359; Article 2, Constitution of New Granada, 29 February 1832, 19 bfsp 911; Article 4, Constitution of Honduras, 11 January 1839, 30 bfsp 1192; Article 1, Constitution of Salvador, 18 February 1841, 29 bfsp 206; Article 7, Political Constitution of the Republic of New Granada, 20 April 1843, 32 bfsp 1160. 11 bfsp 784. 11 bfsp 802. Other examples include Article 3, Treaty of Friendship, Alliance, Commerce, and Navigation between the United Provinces of the Rio de la Plata and Chile, 20 November 1826: “The contracting Republicks bind themselves to guarantee the integrity of their Territories … as recognized before their Emancipation” (14 bfsp 968); Article 5, Treaty of Peace between Peru and Colombia, 22 September 1829: “Both Parties acknowledge as the limits of their respective Territories those belonging to the ancient Viceroyalties of New Granada and Peru prior to their independence” (16 bfsp 1242). See also Article 2, Preliminary Convention of Peace between Colombia and Peru, 28 February 1829, 16 bfsp 1237; Article 2, Treaty of Peace between New Granada and Equator, 8 December 1832, 20 bfsp 1206; Article 7, Treaty of Confederation signed at the Congress of Lima by New Granada, Chile, Bolivia, and Peru, 8 February 1848, in Alvarez, Le droit international américain, 53; Article 39, Treaty of Peace, Friendship, Commerce, and Navigation between the Argentine Confederation and the Republic of Chile, 30 August 1855, 49 bfsp 1200; and Article 26, Treaty of Friendship, Commerce, and Navigation between New Granada and Equator, 9 July 1856, 47 bfsp 1270. Fundamental Law of the Union of the Republic of Colombia, 12 July 1821, 9 bfsp 696. Guatemala-Honduras Arbitral Award, 2 riaa 1322, 1325. As Kohen notes: “Initially set up by the Latin American States as the basic criteria of the principle, the respect for the administrative divisions did not give rise to uncertainty … The uncertainty, in any case, concerned the determination of these administrative limits” (my translation from the original: “Érigé à l’origine par les États hispano-américains comme critère de base du principe, le respect des divisions administratives ne suscitait guère d’incertitude … Les incertitudes, en tout cas, portaient sur la détermination de ces limites administratives,” Possession, 438 at footnote 43). Fisher, “The Arbitration of the Guatemalan-Honduran Boundary Dispute,” 416, emphasis in the original. This explanation of the Brazilian formula is borrowed from Kohen, Possession, 447.

notes.fm Page 262 Thursday, October 10, 2002 8:58 AM

262 Notes to pages 32–3 28 Hyde, International Law, Chiefly as Interpreted and Applied by the United States, vol. 1, 502. 29 Nelson, “The Arbitration of Boundary Disputes in Latin America,” 270. The situation of fact invoked by Brazil was that resulting not only from military occupation of certain areas, but also from a peaceful penetration. “[T]he limits of the Portuguese and Spanish possessions in South America, which had been strictly laid down in the Treaty of Tordesillas, were exceeded by persons from Brazil in search of gold and emeralds and … they achieved the uti possidetis for Brazil and greatly increased her territory” (individual opinion of Judge Levi Carneiro, Minquier and Ecrehos Case, icj Reports 1935, 47 at 104–5). 30 Torres Bernárdez, “The ‘Uti Possidetis Juris Principle’ in Historical Perspective,” 421. 31 See Appendix 1 for a list of constitutions and treaties examined. 32 37 bfsp 777. The expression ‘uti possidetis of 1826’ may have referred to the transfer of the district of Nicoya from the Province of Nicaragua to the Province of Costa Rica by an act of the Federal Congress of Central America in 1825. The date 1826 may also have been a reference to the beginning of the Civil War in Central America, which lasted until 1829. 33 Article 4 of the Constitution of the Republic of Costa Rica, 26 December 1859, stipulated: “The territory of the Republic is comprised within the following boundaries: on the side next Nicaragua the same that were determined by the Treaty adjusted with that Republic on the 15th of April 1858; on the side next New Granada those of the uti possidetis of 1826, excepting what may be determined by ulterior Treaties with that nation; and on the other sides by the Atlantic and Pacific” (50 bfsp 1092). Article 3 of both the 1869 and 1871 constitutions declared: “The boundaries of the territory of the Republic are as follows: the Atlantic Ocean on the north; the Pacific on the south; on the side next the United States of Columbia, those of the uti possidetis of 1826, and on the side next Nicaragua, those fixed by the Treaty of 15 April 1858” (Constitution of the Republic of Costa Rica, 15 April 1869, 59 bfsp 216). See also Constitution of the Republic of Costa Rica, 7 December 1871, 63 bfsp 294. 34 Article 3 of the Constitution of the Republic of Colombia, 5 August 1886, provided in part: “The boundaries dividing Colombia from contiguous nations shall be definitely fixed by public Treaties, which may be negotiated without reference to the principle of uti possidetis recognized in 1810” (Gibson, The Constitutions of Colombia, 314, emphasis added). 35 The Brazilian authorities did make frequent use of the words uti possidetis in their treaties to accentuate the fact of possession and to literally describe the method being employed to establish Brazil’s new boundaries with its neighbours. Actual possession as opposed to the uti possidetis juris formula was the rule that guided Brazil. 36 50 bfsp 1086.

notes.fm Page 263 Thursday, October 10, 2002 8:58 AM

263 Notes to pages 33–4 37 73 bfsp 1107. 38 74 bfsp 894. 39 République Dominicaine, Haiti. Convention d’arbitrage, 3 July 1895, 23 nrg (2d) 79. 40 Bolivia-Peru: Treaty of General Arbitration, 3 Amer. J. Suppl. (1909) 378. 41 Bolivia, Chile, Ecuador, New Granada (Colombia), and Peru were represented. 42 Quoted in Moore, “Memorandum,” 347. 43 Ibid. 44 Treaty of Confederation signed at the Congress of Lima by New Granada, Chile, Bolivia, and Peru, 8 February 1848, in Alvarez, Le droit international, 53. Alvarez and De Lapradelle have argued that references to the uti possidetis principle in the negotiations leading up to the Treaty of Lima represented an official protest against the threat posed by British and Spanish activities. Certainly the Latin American republics believed their independence to be threatened by the British occupation of the Falkland Islands (1833) and had well-grounded motives for the belief that the real object of a proposed Spanish expedition (1846–47) headed by General Flores of Ecuador was to create in America a monarchy over which a Spanish prince would reign (De Lapradelle, La frontière: étude de droit international, 78, and Alvarez, “Latin America and International Law,” 280. 45 See discussion in section 2.3.3 above. 46 General Arbitration Treaty between Bolivia and Peru, 21 November 1901, 3 Amer. J. Suppl. (1909) 378. 47 Treaty between Guatemala and Honduras submitting to Arbitration their Boundary Dispute, 16 July 1930, 132 bfsp 823. 48 Treaty of Peace, Friendship, and Alliance between Equator and Peru, 25 January 1860, 50 bfsp 1086. 49 Political Constitution of the Republic of Costa Rica, 22 November 1848, 37 bfsp 777. 50 République Dominicaine, Haiti, 3 July 1895, 23 nrg (2d) 79. 51 Treaty between Colombia and Venezuela for submitting to Arbitration the Question of the Boundary between the two Republics, 14 September 1881, 73 bfsp 1107. 52 Article 7, Convention of Commerce and River Navigation between Brazil and Peru, 23 October 1851, 42 bfsp 1308; Article 2, Treaty of Friendship and Limits between Brazil and Venezuela, 25 November 1852, 49 bfsp 1213; Article 2, Treaty of Friendship, Commerce, Navigation, Boundaries, and Extradition between Brazil and Bolivia, 27 March 1867, 59 bfsp 1161. 53 Article 6, Treaty of Peace, Friendship, and Alliance between the Equator and Peru, 25 January 1860, 50 bfsp 1086. 54 Preamble, Treaty between Colombia and Venezuela for submitting to Arbitration the Question of the Boundary between the two Republics, 14 September 1881, 73 bfsp 1107.

notes.fm Page 264 Thursday, October 10, 2002 8:58 AM

264 Notes to pages 35–41 55 Article 8, General Arbitration Treaty between Bolivia and Peru, 21 November 1901, 3 Amer. J. Suppl. (1909) 378. 56 Kohen, Possession, 449–50, footnotes omitted. My translation from the original: “[L]a notion de l’uti possidetis de facto … fut invoquée par le Paraguay à propos du différend sur le Chaco boréal avec la Bolivie, par le Guatemala dans le différend frontalier avec le Honduras … et dans une certaine mesure, par le Salvador dans le Différend frontalier, terrestre, insulaire et maritime. Toutes ces thèses ont en commun le fait de privilégier la situation sur le terrain par rapport aux titres juridiques, autrement dit la possession par rapport au droit de posséder.” 57 Hyde, International Law, 504. 58 Ibid., 505. 59 Moore, “Memorandum,” 337. 60 Ibid. 61 Hyde, International Law, 505–6. 62 Ibid., 507. 63 For this reason, Article 8 of the Treaty of Union, League, and Confederation between Colombia and Mexico, 3 October 1823, declared: “Both parties mutually guarantee the integrity of their Territories on the footing on which they stood before the present war, also recognizing as integral parts of either Nation, every Province which, though formerly governed by an Authority entirely independent of the late Vice-Royalties of Mexico and New Granada, may have agreed or shall agree in a lawful manner to become incorporated with it” (11 bfsp 784). 64 Jones, Guatemala Past and Present, 76. 65 Article 5, Constitution of the Federal Republic of Central America, 22 November 1824, 13 bfsp 725, emphasis added. 66 Article 1, Treaty between Mexico and Guatemala for fixing the Boundaries between the respective States, 27 September 1882, 73 bfsp 273. 67 Alvarez, “Latin America,” 293. 68 Ibid. By the 1856 Treaty of Peace and Friendship between Brazil and Argentina, the declarations of the 1828 convention relative to the maintenance by those two countries of Uruguay’s independence had been confirmed. 69 Treaty of Peace between Peru and Colombia, signed at Guayaquil, 22 September 1829, 16 bfsp 1242. 70 Pedemonte-Mosquera Protocol between Peru and Colombia, 11 August 1830, in Davis, Historical Dictionary of Colombia, 337. 71 Downing, An Atlas of Territorial and Border Disputes, 90. 72 Ibid. 73 Martin and Lovett, Latin-American History, 256. A Brazilian army occupied Paraguay until 1876, and Paraguay was obliged to pay heavy indemnities. 74 Martin and Lovett, Latin-American History, 337. 75 See section 2.3.1 for examples.

notes.fm Page 265 Thursday, October 10, 2002 8:58 AM

265 Notes to pages 41–3 76 Moore, “Memorandum,” 344–5. 77 For instance, in their 1856 Treaty of Limits, Argentina and Chile had acknowledged “as boundaries of their respective territories, those they had possessed as such at the time of separating from the Spanish dominion in the year 1810” (Article 39, 49 bfsp 1200). However, in the Boundary Treaty signed 23 July 1881, the parties abandoned the colonial status quo principle altogether and resorted instead to a geographical feature to define their boundary: the Cordillera of the Andes (9 riaa 45). 78 65 bfsp 235. My translation from the original: “Les deux Parties contractantes s’engagent formellement à établir, de la manière la plus conforme à l’équité et aux intérêts réciproques des deux peuples, les lignes frontières qui séparent leurs possessions actuelles.” 79 23 nrg (2d) 79, dates alphabetically described in original. My translation from the original: “Vu l’interprétation opposée donnée audit article quatre par les deux Gouvernements; D’une part, le Gouvernement Haïtien soutenant que l’uti possidetis de [1874] est celui qui a été conventionnellement accepté et consacré pour le tracé de nos lignes frontières: qu’en effet, le terme de possessions actuelles veut dire les possessions occupées à l’époque de la signature du traité; D’autre part, le Gouvernement dominicain soutenant que l’uti possidetis de [1874] n’est pas conventionnellement accepté ni consacré dans ledit article quatre, parce que, par possessions actuelles, on ne peut entendre que ce qui, en droit, pourrait appartenir à chacun des deux Gouvernements, c’est-à-dire les possessions fixées par le statu quo post bellum en [1856], uniques que peut avoir en sa faveur l’uti possidetis auquel peut raisonnablement se référer la clause de l’article quatre … Ont résolu de soumettre à un arbitrage la difficulté en question.” 80 Quoted in De Lapradelle, La frontière, 85, emphasis added. My translation from the original: “Les … hautes parties contractantes décident que l’arbitre royal (le roi d’Espagne) prononcera la sentence sur les matières de la dispute, non seulement en se basant sur les titres et arguments de droit qui lui aient été ou lui seraient présentés, mais en égard aussi aux intérêts réciproques des P.C. en les concertant de telle sorte que la ligne de frontière soit fixée selon les principes de l’équité autant que selon ceux du droit pur.” 81 Ibid. My translation from the original: “[L]orsque le compromis ne visait pas de recours subsidiaire à un principe déterminé, l’arbitre même a prononcé la carence de l’uti possidetis juris et statué en équité.” 82 Compromis: Treaty of 7 October 1894; Arbitrator: King Alphonse III of Spain; Award: 23 December 1906 (11 riaa 101). 83 Also referred to as the Treaty of Tegucigalpa. 84 Article 4, 11 riaa 107. 85 The king of Spain specifically referred to Article 6 of the treaty as a justification for his award (11 riaa 117).

notes.fm Page 266 Thursday, October 10, 2002 8:58 AM

266 Notes to pages 43–7 86 87 88 89 90 91

92 93 94

95 96 97 98 99 100 101

102 103

104

Ibid., 115, emphasis added. Ibid., emphasis added. Ibid., 116, emphasis added. icj Factums, vol. 1, 199–200. icj Reports 1969, 215. Sanchez Rodriguez, “L’uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers,” 206, emphasis added. My translation from the original: “[l]a sentence arbitrale de 1906 peut être considérée comme un exemple parfait de l’application pratique de l’uti possidetis juris.” Bolivia-Peru: Arbitral Award in Boundary Dispute, rendered by the president of the Argentine Republic, 9 July 1909, 3 ajil (1909) 1029. Bolivia-Peru: Treaty of General Arbitration, 3 ajil Suppl. (1909) 378. Ibid., 379. It is interesting to note that according to this formulation, the uti possidetis principle is not included in the term “provisions of international law.” Article 1, Bolivia-Peru: Treaty of Arbitration Respecting Limits, 30 December 1902, 3 ajil Suppl. (1909) 383. Article 3. Article 4, emphasis added. 3 ajil (1909) 1029, 1032. Ibid., 1035, emphasis added. Affaires des frontières colombo-vénézuéliennes: award of 24 March 1922 by the Swiss Federal Council, 1 riaa 223. Ibid., 290. My translation from the original: “[E]t voulant arriver à une véritable délimitation territoriale de droit telle qu’elle existait par les ordonnances de l’ancien Souverain; et après avoir fait valoir … tous les titres, documents, preuves et autorités de leurs archives dans des négotiations répétées sans pouvoir aboutir à un accord au sujet des droits respectifs ou uti possidetis juris de 1810 … ont convenu … de conclure un traité d’arbitrage juris.” Article 1, ibid. Award of the Swiss Federal Council, 1 riaa 242, 292. My translation from the original: “[L]’arbitre … pourra fixer la ligne de la manière qu’il croira la plus approchée des documents existants, lorsque, dans l’un ou l’autre point de la dite ligne, ils ne présenteront pas toute la clarté voulue.” Ibid. My translation from the original: “L’arbitre a admis que la Cédule royale du 5 mai 1768 … paraissait attribuer à la Colombie toute la rive gauche de l’Orénoque, alors qu’entre l’Orénoque, le Cassiquiare et le Rio Negro, existaient de nombreux intérêts vénézuéliens, créés dans la loyale croyance de se trouver établis en territoire vénézuélien, et qu’ainsi il convenait de faire appel à l’Acte-Déclaration de Paris de 1886 … L’arbitre attribua en conséquence au Vénézuéla tous les territoires à l’Est

notes.fm Page 267 Thursday, October 10, 2002 8:58 AM

267 Notes to pages 48–51

105 106

107 108 109 110

111 112 113 114 115 116 117 118 119 120

de l’Atabapo et du Rio Negro, bien que ces territoires n’eussent pas fait partie de la Province espagnole de la Guyane d’après les cédules royales de 1768.” Ibid., 228. The eight constitutions cited by the council are: Fundamental Law of the Sovereign Congress of Venezuela, for the Union of the Republics of New Granada and Venezuela, Under the Title of the Republick of Colombia, 17 December 1819; Fundamental Law of the Union of the People of Colombia, 12 July 1821; Constitution of the State of Venezuela, 22 September 1830; Fundamental Law of New Granada, 30 November 1831; Constitution of the State of New Granada, 29 February 1832; Constitution, 18 June 1842; and Political Constitution of the Republic of Colombia, 6 August 1886. Before the Special Boundary Tribunal, Constituted by the Treaty of July 16, 1930, between the Republics of Guatemala and Honduras, 2 riaa 1322. Treaty between Guatemala and Honduras submitting to Arbitration their Boundary Dispute, signed at Washington, 16 July 1930, 132 bfsp 823. Article 5, 132 bfsp 826. 2 riaa 1322, 1323. Although the parties had sought to support their respective interpretations of the uti possidetis of 1821 by reference to earlier treaties between them, the Tribunal noted that none of the earlier treaties had used the expression uti possidetis. “The Treaty of 1930 is a new agreement which makes no mention of the earlier unsuccessful efforts at settlement and must stand on its own footing” (ibid., 1324). Ibid., 1324. 2 riaa 1322, 1352. Decision of 18 February 1977, 17 ilm (1978) 632. Ibid., 645. Ibid. Judgment of 11 September 1992, icj Reports 1992, 1. Ibid., 388. Ibid., 390. Ibid., 401. Sanchez Rodriguez, “L’uti possidetis,” 200–1, footnote omitted. My translation from the original: “En tant que principe à la fois de droit constitutionnel et international, il [le principe d’uti possidetis juris] se trouve dans la plupart des constitutions de l’Amérique centrale et de l’Amérique du Sud … De même, la pratique conventionnelle américaine témoigne largement de l’acceptation de ce principe.” See also Antonopoulos, who declares that the “principle was incorporated into the domestic constitutional law of the new states” and that the Latin American states “expressly included uti possidetis iuris in bilateral agreements as the basis for the settlement of boundary disputes among them” (Antonopoulos, “The Principle of Uti Possidetis Juris in Contemporary International Law,” 31).

notes.fm Page 268 Thursday, October 10, 2002 8:58 AM

268 Notes to pages 52–4 121 Kohen, Possession, 453, emphasis added. My translation from the original: “Enfin, pour ce qui est des précédents jurisprudentiels, on constate que, dans tous les arbitrages territoriaux en Amérique latine, il était question de l’uti possidetis, hormis évidemment les sentences arbitrales ayant trait à l’interprétation d’un traité ou d’une autre sentence arbitrale.” 122 Nesi, L’uti possidetis iuris nel diritto internazionale, 51–2. 123 O’Connell, International Law, 491. See also Waldock, “Disputed Sovereignty in the Falkland Island Dependencies,” 316: “The doctrine [uti possidetis] is in essence a claim by way of succession”; Nelson, “The Arbitration of Boundary Disputes in Latin America,” 274: “[T]he uti possidetis doctrine can be regarded as a principle of State succession in Latin America, as far as boundary controversies are concerned”; and Cukwurah, The Settlement of Boundary Disputes in International Law, 112: “[T]he principle of Uti Possidetis, Ita Possideatis … has much in common with the doctrine of State Succession.” 124 Brownlie, Principles of Public International Law, 654. 125 acdi 1968, vol. 2, 114, italics in the original. My translation from the original: “L’objet principal de la succession est donc la dévolution d’un territoire de l’État prédecesseur à l’État successeur. Tous les autres problèmes successoraux, opposabilité des traités, dévolution des biens, subrogation aux dettes, continuité de l’ordre juridique, sort des concessions, etc. ne sont en quelque sorte que des effets secondaires qui se greffent sur l’effet principal: le transfert du territoire et de la souveraineté de ce territoire.” 126 icj Reports 1975, 12 at 39. 127 Jennings, The Acquisition of Territory in International Law, 7–8. 128 Kohen, Possession, 440 at footnote 52. 129 “As reported by certain authors, the claim did not give rise to any protest on the part of the European powers” (my translation from the original: “Comme l’ont rapporté certains auteurs, la prétention n’a suscité aucune protestation de la part des puissances européennes,” Kohen, Possession, 440). The author in a footnote refers to Decencière Ferrandière, “Essai historique et critique sur l’occupation comme mode d’acquérir les territoires en droit international,” 64 rdilc (1937) 388–9. 130 Torres Bernárdez, “The ‘Uti Possidetis Juris Principle,› 425. 131 Kohen, Possession, 435, emphasis added. My translation from the original: “On invoquait la succession d’États parce qu’il y avait un changement de souveraineté territoriale mais l’étendue de celle-ci n’entrait pas dans l’analyse du problème.” 132 icj Reports 1992, 351 at 389. Kohen argues that as the uti possidetis juris principle served in some instances not only to fix a boundary line but to allocate certain parcels of land, the principle should be regarded as conferring title to territory. This interpretation echoes the icj Chamber’s

notes.fm Page 269 Thursday, October 10, 2002 8:58 AM

269 Notes to pages 54–7

133 134

135

136 137 138

139

statement in the Land, Island, Maritime Frontier Dispute case that “the principle of uti possidetis juris is concerned as much with title to territory as with the location of boundaries” (icj Reports 1992, 351 at 387). This characterization of the role of uti possidetis juris would be valid if any of the arbitral decisions examined had relied on the principle in granting tracts of land to a particular party or in denying the claims of another. Kohen cites in support of his position the Guatemala/Honduras case. However, as discussed under section 2.4.6, not only did the two parties hold diametrically opposed views on the meaning to be ascribed to the uti possidetis principle, but because of a lack of trustworthy information, the arbitrator was obliged to discard it and determine the boundary as justice required. Antonopoulos, “The Principle of Uti Possidetis Juris,” 40–1, footnotes omitted. Kohen, “L’Uti Possedetis revisité,” 944, footnotes omitted. My translation from the original: “Il est clair qu’aucune règle de droit international ne dispose que les frontières doivent être complètement délimitées et définies, et ceci est vrai … d’autant plus qu’il s’agissait des divisions administratives où l’intérêt pour les limites claires est moindre par rapport aux frontières internationales. Si les frontières ou les limites sont mal définies ou pas définies du tout, on hérite aussi de cette situation. C’est la raison pour laquelle on trouve dans certains compromis arbitraux la faculté donnée à l’arbitre d’appliquer – à côté de l’uti possidetis – d’autres règles ou critères pour parer à l’éventualité d’une frontière mal définie ou inexistante.” See, for example, Kohen, Possession, 453, and the International Court of Justice’s dictum in the Frontier Dispute Case (Burkina Faso/Mali), icj Reports 1986, 554 at 566. Hyde, International Law, 507. De Lapradelle, La frontière, 86. My translation from the original: “l’incorrection juridique de leur fondement.” Ayala, “Le Uti Possidetis et le règlement des questions territoriales en Amérique,” 251. My translation from the original: “On ne peut pourtant pas donner à la formule des interdits romains, une signification contraire à son essence. Un auteur de Droit romain écrit: ‘La protection des interdits n’est pas attaché à la propriété. Elle est attaché à la possession.’ Et j’ajouterai: Il n’y a pas de possession théorique, il ne peut pas y avoir de possession, dans notre cas, sans une occupation effective et matérielle.” “Presented by Columbia under the formula uti possidetis juris the American or colonial principle is tainted in its origin. It rests on a contradictory affirmation: uti possidetis juris refers to a title, not the fact of possession” (my translation from the original: “Présenté par la Colombie sous la formule uti possidetis juris le principe Américain ou colonial est vicié dans son origine. Il repose sur une affirmation contradictoire: l’uti possidetis juris

notes.fm Page 270 Thursday, October 10, 2002 8:58 AM

270 Notes to pages 57–8

140 141 142

143 144

145

renvoie à un titre, non au fait de la possession,” De Lapradelle, La frontière, 86–7). O’Connell, International Law, 492. He cites Michigan v. Wisconsin in support (270 us (1926) 295). See section 2.4.2. Antonopoulos, “The Principle of Uti Possidetis Juris,” 58 (in an accompanying footnote, Antonopoulos refers to the Minquiers and Ecrehos case, icj Reports 1953, 47, per Judge Carneiro, at 104–5); Waldock, “Disputed Sovereignty,” 326; and De Arechaga, “Boundaries in Latin America,” 48–9. 89 bfsp 57. 26 ajil (1932) 390–1. See, however, contra, Kohen, Possession, 456: “If King Victor-Emmanuel III decided the case in favour of France, it was not because Mexico could not invoke the Spanish titles on the island as being sufficient titles. On the contrary, what the arbitral decision found wanting in the Mexican case was that it had not demonstrated Spanish sovereignty” (my translation from the original: “[S]i le roi Victor-Emmanuel III trancha le contentieux en faveur de la France, ce ne fut pas parce que le Mexique ne pouvait pas invoquer les titres espagnols sur l’île comme étant des titres suffisants. Au contraire, ce que la décision arbitrale reprocha au Mexique, c’est de ne pas avoir démontré la souveraineté espagnole).” However, the extract from the case cited by Kohen in support does seem to emphasize the importance of effective possession: “Besides, even admitting that the discovery had been made by Spanish subjects, for the Mexican argument to succeed it would have to be proven that Spain, not only had the right, as a State, to incorporate the islands within its possessions, but further, had effectively exercised this right” (my translation from the original: “Du reste, même en admettant que la découverte ait été faite par des sujets espagnols, il faudrait, pour que la thèse du Mexique soit fondée, prouver que l’Espagne, non seulement avait le droit, en tant qu’État, d’incorporer l’île à ses possessions, mais encore l’avait effectivement exercé,” rsa, vol. 2, 1109 cited at footnote 118, emphasis added). The case concerning the Aves Island between Venezuela and the Netherlands appears to be the exception. As arbitrator, Queen Isabella II of Spain found in favour of the South American republic. Her decision was based on the fact that the island had been included in the Audiencia of Caracas and that upon achieving independent statehood, Venezuela had constituted itself on the territory of the captaincy-general bearing the same name. “The subsequent acts of public prerogative by Venezuela were considered to be the confirmation of the title previously acquired” (my translation from the original: “Les actes ultérieurs d’exercice de la puissance publique par le Vénézuela étaient considérés comme étant la

notes.fm Page 271 Thursday, October 10, 2002 8:58 AM

271 Notes to pages 58–62

146 147 148 149

150 151

152 153 154

155 156

confirmation du titre préalablement acquis,” De Lapradelle and Politis, Recueil des arbitrages internationaux, bk 2, 414). Of course, the arbitrator merely recognised that Venezuela had succeeded to Spain’s territorial sovereignty over the island. The case never refers to the uti possidetis juris principle. Kohen, Possession, 457–8. See section 2.4.6 above, 1 riaa 228. 10 rgdip (1903) 673. Ayala, “Le Uti Possidetis”, 249. My translation from the original: “Quant aux États hispaniques, ils ont réglé leurs frontières avec le Brésil et entre eux, par différents moyens, et d’accord avec les règles communes du droit des gens universel. La part de la règle spéciale américaine ne fut certes pas la plus importante, s’il est vrai qu’elle ait eu une influence quelconque.” McEwen, International Boundaries of East Africa, 28. De Lapradelle, La frontière, 86. My translation from the original: “En conclusion, partout et dans tous les cas où le principe de l’uti possidetis s’est trouvé admis sans discussion préliminaire, son application, posant l’interprétation de textes non seulement anciens, mais inexacts ou incomplets, a créé et prolongé des difficultés, qui devaient amener et justifier son abandon.” Fisher, “Arbitration,” 415. Hyde, International Law, 509. Opinion and Award of the Special Boundary Tribunal constituted by the Treaty of 16 July 1930, between the Republics of Guatemala and Honduras, 1 January 1933, 2 riaa 1322, 1323. Waldock, “Disputed Sovereignty,” 325. Moore, “Memorandum,” 344. chapter three

1 There is a vast array of literature on the peace settlement, but a good starting point and an invaluable source of information is Temperley, ed., A History of the Peace Conference of Paris. Other excellent sources include Papers Relating to the Foreign Relations of the United States: The Paris Peace Conference; La Documentation Internationale, La Paix de Versailles: Questions Territoriales; Nicolson, Peacemaking 1919; Lederer, ed., The Versailles Settlement; Dockrill and Goold, Peace without Promise; Henig, Versailles and After, 1919–1933; and Sharp, The Versailles Settlement, Peacemaking in Paris, 1919. 2 Comprising the prime ministers and foreign ministers of Britain, France, and Italy; the American president and secretary of state; and from Japan, Mr Matsui and Viscount Chinda.

notes.fm Page 272 Thursday, October 10, 2002 8:58 AM

272 Notes to pages 62–7 3 Among the territorial commissions created were: Commissions on Polish, Czecho-Slovak, Danish, Greek, Rumanian, Serbian, and Yugo-Slav Affairs and the Belgian Commission. 4 Volumes 4–6. 5 Emphasis added, “Report No. 2 of the Commission on Polish Affairs,” 20 March 1919, vol. 4. This report was received and discussed by the Council of Ten on 22 March 1919 and reserved for final examination in connection with subsequent boundary determinations affecting Germany. 6 1 April 1919, fm-3, vol. 4, 536. 7 Another modification to the administrative boundary was proposed near Reichenberg, where the commission recommended ceding a salient of territory surrounding Friedland to Germany. Further discussion on the commission’s report was deferred until its differences with the Commission on Polish Affairs had been resolved. 8 Secretary’s Notes of a Meeting of Foreign Ministers, 23 April 1919, fm-8, vol. 4, 607, emphasis added. 9 12 May 1919, bc-61, vol. 4, 504. 10 Boursot, La Question des Iles d’Aland, 7. My translation from the original: “Le petit archipel d’Aland, perdu dans les mers du Nord, a été, dans l’histoire un des grands perturbateurs de la paix du monde.” 11 The 4 December 1917 declaration of independence included the Aaland Islands as part of Finland’s territory. 12 Modeen, “Aaland Islands,” 1–3. 13 See map “The Aland Islands” in Appendix 2. 14 Barros, The Aland Islands Question: Its Settlement by the League of Nations, 1. 15 Treaty of Frederikshamn, 60 cts 457. 16 This commitment was expressed in Article 1 of the convention concluded between France, Great Britain, and Russia on 30 March 1856. See Barros, The Aland Islands Question, chapter 1, entitled “The Aaland Islands’ Servitude,” and also the “Report of the International Committee of Jurists,” lnoj, Spec. Suppl. No. 3 (1920) 16: “Sweden has put forward the theory that the Convention of 1856 definitely created a ‘real servitude’ attaching to the territory of the Aaland Islands. A similar opinion was expressed by several eminent jurists.” 17 Ibid., 7. 18 Ibid., 19. 19 Every adult man and woman domiciled in the Aaland Islands was allowed to take part. 20 “Report of the International Committee of Jurists,” 11. 21 “The Swedish Case,” lnoj, Spec. Suppl. No. 1 (1920) 15, 17. 22 Ibid., 18.

notes.fm Page 273 Thursday, October 10, 2002 8:58 AM

273 Notes to pages 67–74 23 “Report by the Commission of Rapporteurs,” ln Council Doc. B7: 21/68/ 106 (1921) 21. 24 Article 11, paragraph 2, of the Covenant of the League of Nations provided: “It is also declared to be the friendly right of each member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.” 25 Article 15, paragraph 8, provided: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement.” 26 “Report of the International Committee of Jurists,” 3. 27 Ibid., 5–6. 28 Ibid. On the struggle between the White Guard and the Red Guard following Finland’s declaration of independence, see “Report by the Commission of Rapporteurs,” 17–18. 29 Ibid., 9. 30 Ibid., 5. 31 Ibid., 10. 32 “Report by the Commission of Rapporteurs,” 10. 33 Ibid., 3. 34 Ibid. Part 1 of the report also examined issues relating to the population, agriculture, industry, navigation, emigration, commerce, and smuggling activities of the islands. 35 Ibid., 14. 36 Ibid. 37 Ibid. 38 Ibid., 23. 39 The rapporteurs return to this point in their analysis of the question of whether the right of sovereignty of the Finnish state also extended to the Aaland Islands. 40 “Report by the Commission of Rapporteurs,” 23. 41 Ibid., 24–5. 42 “When one knows General Mannerheim, it is impossible to question his wish to re-establish Finnish authority in Aaland by force, as he instructed the White Guards, in a telegram which the Swedish Government did not think they ought to transmit to them, to hold on until the arrival of a convoy of arms of which he announced the despatch” (Ibid.). 43 Ibid., 27. 44 Ibid., 28.

notes.fm Page 274 Thursday, October 10, 2002 8:58 AM

274 Notes to pages 74–82 45 46 47 48 49 50 51

52 53

54 55 56 57 58 59 60 61

62 63 64 65 66 67 68 69

Ibid. Ibid. “Report of the International Committee of Jurists,” 9. Barros, The Aland Islands Question, 281–2. Ibid., 310. Elkus to Hughes, 14 April 1921, quoted in Barros, The Aland Islands Question, 312. The following summary of the historical background to the dispute relies on information contained in Hurewitz, “Introduction: Bounding Mandated Palestine,” xiii–xvii. See map “Ottoman Administrative Divisions” in Appendix 3. These measures were enacted “ostensibly to safeguard the annual pilgrimage to Mecca from Egypt under its governor’s partronage” (Hurewitz, “Introduction: Bounding Mandated Palestine,” xiii). Ibid., xiv. Convention between Great Britain and Turkey relative to Egyptian Affairs, signed at Constantinople, 25 October 1885, 77 bfsp 442. Hurewitz, “Introduction,” xiv. Telegram, Grand Vizier to His Highness the Khedive, 8 April 1892, fo 881/ 9237. Telegram, Sir E. Baring, Consul General Cairo to Tigrane Pasha, Egyptian Minister of Foreign Affairs, 13 April 1892, fo 881/9237. Ibid. Ibid. Captain R. Owen, Acting Director of Intelligence, Egyptian War Office to Mr W.E. Jennings-Bramly, 2 January 1906, in Toye, ed., Palestine Boundaries 1833–1947, vol. 1, 222. Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area, 27 ilm (1988) 1421, 1437. Telegram from the Grand Vizier to His Highness the Khedive, 8 April 1906, fo 371/61. Award in Boundary Dispute Concerning the Taba Area, 1438. See ultimatum from Sir N. O’Connor to Tewfik Pasha, 3 May 1906, fo 371/61. Telegram dated 22 August 1906 from Sir N. O’Connor to Sir Edward Grey, fo 371/64. Reproduced in telegram dated 12 September 1906 from Sir N. O’Connor to Sir Edward Grey, fo 371/64. Agreement defining the Turco-Egyptian Boundary, 1 October 1906, fo 371/64, capital letters in the original. Hurewitz, “Introduction,” xvi. Repairs to the pillars were later undertaken by joint Egyptian and Ottoman authorities.

notes.fm Page 275 Thursday, October 10, 2002 8:58 AM

275 Notes to pages 82–5 70 Proclamation by the General Officer Commanding-in-chief the British Forces in Egypt announcing the Establishment of a British Protectorate over Egypt, Cairo, 18 December 1914, 109 bfsp 434 and British Notification that Egypt is placed under the Protection of His Majesty, and will henceforth constitute a British Protectorate, London, 18 December 1914, 108 bfsp 185. 71 Little evidence was submitted to the arbitration Tribunal regarding the boundary during the war period, except for a German map of the Sinai based on a road survey Germany had conducted for Turkey in 1915. 72 Article 101: “Turkey renounces all rights and title in or over Egypt. This renunciation shall take effect as from November 5, 1914. Turkey declares that in conformity with the action taken by the Allied Powers she recognizes the Protectorate proclaimed over Egypt by Great Britain on December 18, 1914” (in Martin, The Treaties of Peace 1919–1923, vol. 1, 818). 73 Treaty of Lausanne, in Martin, vol. 2, 966. 74 Circular Despatch to His Majesty’s Representatives stating the decision of His Majesty’s Government to terminate the Protectorate and to recognise Egypt as an independent sovereign State, London, 15 March 1922, 116 bfsp 84. 75 Mandate for the Administration of the former Turkish Territory of Palestine, conferred upon His Britannic Majesty, confirmed and defined by the Council of the League of Nations, London, 24 July 1922, 116 bfsp 842. 76 Quoted in Award in Boundary Dispute Concerning the Taba Area, 1447. 77 Ahmed Ziwar Pasha (Président du Conseil, Ministre des Affaires étrangères) to Lord Lloyd, 4 February 1926, fo 371/11605. 78 Quoted in Award in Boundary Dispute Concerning the Taba Area, 1448. 79 This was in response to a question raised in the League of Nations concerning the necessity of submitting the frontiers of mandated territories to the principal Allied powers or to the Council of the League for approval. 80 Quoted in Award in Boundary Dispute Concerning the Taba Area, 1448. 81 Ibid. 82 Mr D.M. Riches to Mr M.W. Low, 16 April 1947, fo 371/63080. 83 Article 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain and restore international peace and security.” 84 Award in Boundary Dispute Concerning the Taba Area, 1450. 85 A Framework for Peace in the Middle East, 17 September 1978, 17 ilm (1978) 1463. 86 Award in Boundary Dispute Concerning the Taba Area, 1453. 87 Article 1, Egypt-Israel: Treaty of Peace, 18 ilm (1979) 362, 363. 88 Ibid. 89 Article 4(3)(d) of the appendix to Annex 1 of the Treaty of Peace, ibid., 379.

notes.fm Page 276 Thursday, October 10, 2002 8:58 AM

276 Notes to pages 85–91 90 Article 7(2), ibid., 366. 91 The arbitration compromise of 11 September 1986 named the members of the Tribunal: Ruth Lapidoth, nominated by the Government of Israel; Hamed Sultan, nominated by the Government of Egypt; Pierre Bellet; Dietrich Schindler; and Gunnar Lagergren, nominated president of the Tribunal. Egypt-Israel: Agreement to Arbitrate the Boundary Dispute Concerning the Taba Beachfront, 26 ilm (1987) 1, 2–3. 92 Agreement to Arbitrate the Boundary Dispute Concerning the Taba Beachfront, 2. 93 McCorquodale, “International Boundary Decisions,” 352. 94 Award in Boundary Dispute Concerning the Taba Area, 1468–9. 95 icj Reports 1962, 34. 96 Ibid., 1490. The Tribunal decided 4–1 (Lapidoth dissenting) that the Egyptian position should be accepted as to the location of the southernmost pillar at Ras Taba on the Gulf of Aqaba, and with respect to the thirteen remaining pillars, Egypt’s position was to be accepted in nine instances and that of Israel in four. 97 The Nufenenpass case concerning the boundary between the cantons of Valais and Ticino. 98 Burkina Faso/Mali Frontier Dispute, icj Reports 1986, 554 at 556 (quoted at 1501). 99 Award in the Boundary Dispute Concerning the Taba Area, 1509. 100 See section 3.4.4 above. 101 Biger, “Geographical and other Arguments in Delimitation in the Boundaries of British Palestine,” 43. 102 Geopolitics and Boundaries Research Centre (grc), “Final Report on Jordan’s Western Boundary,” 53. 103 Baylson, Territorial Allocation by Imperial Rivalry: The Human Legacy in the Near East, 63. 104 Ibid., 64. 105 Ibid. 106 Ma’oz, Studies on Palestine during the Ottoman Period, xv. 107 Ibid. 108 grc, “Final Report,” 54. 109 Ibid. Opinion appears divided between historians and historical geographers as to whether after 1893 (the date of another Ottoman administrative restructuring) the Sanjaq of Karak replaced the geographical extent of the Sanjaq of Ma’an. 110 Hurewitz, “Introduction,” viii. 111 “The exchange resulted from the Damascus Protocol of April 1914, which was a statement of the conditions under which the Arab nationalist societies were prepared to cooperate with the British against the Ottomans” (Baylson, Territorial Allocation, 69). 112 Ibid.

notes.fm Page 277 Thursday, October 10, 2002 8:58 AM

277 Notes to pages 91–7 113 Quoted in grc, “Final Report,” 64. 114 Baylson, Territorial Allocation, 69. 115 Despatch dated 24 October 1915 from the High Commissioner, Cairo, to the Sherif of Mecca, quoted in grc, “Final Report,” 64. 116 Baylson, Territorial Allocation, 70. 117 Named after Sir Mark Sykes, Middle East advisor at the War Office, and François George-Picot, political counsellor at the French Embassy in London and former consul general in Beirut. 118 Biger, “Geographical,” 43. 119 The following summary of the agreement relies on information contained in grc, “Final Report,” 64. 120 Ibid., 66. 121 Ibid. 122 Ibid., 67. 123 Ibid. 124 Gil-Har, “British Commitments to the Arabs and their Application to the Palestine-Trans-Jordan Boundary,” 690–1. Note that Sea of Galilee is an alternative name for Lake Tiberias. 125 Bannerman, “Palestine and Transjordan: 1914–1923,” 27. 126 Balfour, “The Balfour Declaration,” in Documents Relating to the Palestine Problem, 7. The Balfour Declaration did not specify any geographic boundaries for Palestine. Its importance in a territorial sense was the emphasis placed on the term Palestine. 127 Lloyd George and Clemenceau were the leaders of the victorious powers, Britain and France, at the Paris Peace Conferences. 128 Quoted in Biger, “Geographical,” 47. Note that the Zionist proposal advocated a Palestine-Transjordan boundary east of the Aqaba-Dead Sea-Jordan line. 129 Biger, “Geographical,” 49–50. 130 Quoted in Bannerman, “Palestine and Transjordan,” 13. 131 Hurewitz, “Introduction,” xxix. 132 Biger, “Geographical,” 50. 133 grc, “Final Report”, 64. 134 “Routes for projected oil pipelines and railway schemes were already being planned. Virtually all departments of the British Government were particularly anxious to see a contiguous belt of British-controlled mandated territory from the Mediterranean to the Persian Gulf, so as to protect the overland route to British India” (grc, “Final Report,” 74). 135 Quoted in Bannerman, “Palestine and Transjordan,” 23. 136 Quoted in ibid. 137 See map “The Semakh Triangle” in Appendix 4. 138 Memorandum dated 29 November 1920 by H.W. Young, entitled “Possible negotiations with the Hedjaz” in fo 371/5066. See section “The

notes.fm Page 278 Thursday, October 10, 2002 8:58 AM

278 Notes to pages 98–104

139 140 141 142

143 144

145 146 147 148 149 150 151 152

McMahon-Hussein Correspondence” for the view that McMahon’s letter did not clearly establish whether Palestine was excluded from his pledge. Apprised of this definition early in 1921, the Hashemites were given the impression that Britain had reconciled its various commitments by opting for the Aqaba-Dead Sea-Jordan line. Gil-Har, “British Commitments,” 691. Refer to map “The Semakh Triangle” in Appendix 4. Quoted in Gil-Har, “British Commitments,” 693. Rutenberg, chairman of the Palestine Electric Corporation, felt that the efficient running of the corporation necessitated that the dam, the power house, and the transmission lines, designed to be erected east of the Jordan, should be placed under Palestine governmental authority. Gil-Har, “British Commitments,” 693. Telegram dated 15 August 1922 from the Secretary of State for the Colonies, Winston Churchill, to the High Commissioner for Palestine, Sir H. Samuel, fo 372/7791. Ibid. Ibid. Telegram dated 27 August 1922 from Sir H. Samuel to Mr Churchill, fo 371/7791. Gil-Har, “British Commitments,” 694. Telegram dated 28 August 1922 from Mr Churchill to Sir H. Samuel, fo 371/7791. Gil-Har, “British Commitments,” 694. Telegram dated 30 August 1922 from the Secretary of State for the Colonies to the High Commissioner for Palestine, fo 371/7791. 16 bfsp 842, 848. chapter four

1 On African boundaries generally, see Hertslet, Map of Africa by Treaty, and Brownlie, African Boundaries: A Legal and Diplomatic Encyclopedia. 2 “This was seen as a desirable prelude to the formation of regional groupings, based on cultural, linguistic, and religious affinity, that would eventually become an African Commonwealth” (McEwen, International Boundaries of East Africa, 23). For the text of the resolution, see Legum, Pan Africanism, 247. 3 Touval, “The Organization of African Unity and African Borders,” 102. 4 The Charter of the Organization of African Unity was adopted in Addis Ababa on 25 May 1963, 479 u.n.t.s. 39. 5 “oau Resolution on Border Disputes,” in Brownlie, ed., Basic Documents on African Affairs, 360. See sections 4.4.2 and 4.5.2 for a more detailed discussion of the resolution and the Somali and Moroccan objections.

notes.fm Page 279 Thursday, October 10, 2002 8:58 AM

279 Notes to pages 104–9 6 Bourjorl-Flécher, “Heurs et malheurs de l’uti possidetis,” 812; Brownlie, Basic Documents, 360; Cukwurah, “The Organization of African Unity and African Territorial and Boundary Problems: 1963–1973,” 181; BoutrosGhali, “The Addis Ababa Charter,” 29, among many others. 7 Quéneudec, “Remarques sur le règlement des conflits frontaliers en Afrique,” 70–1. My translation from the original: “On a pu, dès lors, considérer que les chefs d’État et de gouvernement réunis à Addis-Abéba en 1963 avaient défendu ‘le principe d’un uti possidetis africain.› 8 Hertslet, vol. 1, Map of Africa, vi. 9 Ibid. 10 These disputes were eventually settled by mutual agreement. 11 Dias Van Dunem, “Les frontières africaines,” 37. 12 Griffiths, The Atlas of African Affairs, 51. 13 Kwame Nkrumah, the leading advocate of the rearrangement, and eventual removal, of colonial boundaries in Africa, bitterly pointed out that the only interested parties not represented at the Berlin Conference of 1884–85 were the inhabitants of Africa. See McEwen, International Boundaries, 23. 14 The Berlin Act was ratified by all the powers assembled at the conference, except the United States. 15 Reproduced in Griffiths, Atlas of African Affairs, 51. 16 Quoted by Judge Ajibola, Territorial Dispute (Libyan Arab Jamahiriya/Chad), icj Reports 1994, 6 at 53. 17 Declaration completing the Convention of June 14, 1988 (Spheres of Influence in Central Africa), 91 bfsp 55. Note that the declaration did not provide a termination point for the boundary line, specifying only a frontier to be determined in the future. 18 Griffiths, Atlas of African Affairs, 51. 19 Touval, The Boundary Politics of Independent Africa, 4. Brownlie, in his work African Boundaries: A Legal and Diplomatic Encyclopedia, refers to the second category of boundaries as “intra-colonial” boundaries. 20 These doctrines will be discussed in chapter 5. 21 Griffiths, Atlas of African Affairs, 54. 22 Upper Volta was part of aof between 1919 and 1932 and from 1947 until independence. 23 “The territories which together constitute the Afrique occidentale française are grouped in a gouvernement général, created by a decree of 16 June 1895” (my translation from the original: “Les territoires dont l’ensemble constitue l’Afrique occidentale française sont groupés en un gouvernement général, créé par décret du 16 juin 1895,” Grandidier, Atlas des colonies françaises, 23). 24 Touval, Boundary Politics, 4. 25 Tran Van Minh, “Remarques sur le principe de l’intangibilité des frontières,” 86.

notes.fm Page 280 Thursday, October 10, 2002 8:58 AM

280 Notes to pages 109–10 26 Décret du Président de la République Française, portant Réorganisation du Gouvernement Général de l’Afrique Occidentale Française, 17 October 1899, 92 bfsp 376; Decree of the President of the French Republic, Reorganizing the Administration of the French West African Colonies, 1 October 1902, 96 bfsp 1270; Décret du Président de la République Française, portant Réorganisation du Gouvernement Général de l’Afrique Occidentale Française, 18 October 1904, 97 bfsp 967 (this decree was subsequently modified by the decrees of 4 December 1920, 30 March 1925, and 5 September 1932); Décret sur les limites entre la colonie du Sénégal et le territoire civil de la Mauritanie, 25 February 1905, in Brownlie, African Boundaries, 433; Arrêté promulguant en Afrique occidentale française le décret du 12 août 1909, fixant la délimitation entre le Dahomey et le Haut-Sénégal et Niger, 16 September 1909, ibid., 204; Arrêté promulguant en Afrique occidentale française le décret du 22 juillet 1914, modifiant les limites entre la colonie du Haut-Sénégal et Niger et celles du Dahomey, 14 September 1914, ibid., 207; Arrêté promulguant en Afrique occidentale française le décret du 27 février 1915, portant délimitation de la Guinée française et du Sénégal, 26 March 1915, ibid., 317; Décret du 28 décembre 1926, portant transfèrement du chef-lieu de la Colonie du Niger et modifications territoriales en Afrique occidentale française, 28 December 1926, ibid., 472; Arrêté portant modifications territoriales aux Colonies de la Haute-Volta et du Niger, 22 January 1927, ibid., 473; Arrêté portant réorganisations des divisions territoriales de la colonie du Dahomey, 27 October 1938, ibid., 208. 27 Touval, Boundary Politics, 14–15. These objections were found to be persuasive, and the proposal was abandoned. 28 In 1958 renamed Congo (Brazzaville). 29 In 1958 renamed Central African Empire. 30 Grandidier, Atlas des colonies françaisess, 19. My translation from the original: “Les limites de ces diverses colonies ont souvent varié et rien ne dit que les limites actuelles sont définitives, car ces limites doivent être fonction des moyens de transport et de questions ethnographiques, qui les unes sont variables, pendant que l’on n’a pas toujours suffisamment tenu compte des autres. Nous n’avons pas fait tracer les limites des circonscriptions et des subdivisions sur la carte … car ces limites sont encore moins assises que celles des colonies.” 31 Brownlie, African Boundaries, 641–7. Brownlie has also reproduced many of the relevant legislative instruments. 32 97 bfsp 949. 33 jorf (1906) 981. 34 104 bfsp 941. 35 joaef (1934) 802. 36 joaef (1936) 947. 37 joaef (1937) 1161. 38 joaef (1937) 45.

notes.fm Page 281 Thursday, October 10, 2002 8:58 AM

281 Notes to pages 111–16 39 joaef (1912) 437. These measures ultimately provided a basis for the boundary at independence in respect to the sector to the east of the junction of the Chari with the Bahr Aouk. 40 See Brownlie, African Boundaries, 645, for the text of the decree. 41 Decree of 28 December 1936, joaef (1937) 45. 42 Decree of 27 February 1941, joaef (1941) 167. 43 Decree of 16 October 1946, joaef (1946) 1535. 44 Bleckmann, “Decolonization: French Territories,” 91. 45 Griffiths, Atlas of African Affairs, 59. 46 Hertslet, vol. 3, Map of Africa, 882. 47 See Brownlie, African Boundaries, 940–55. 48 Hertslet, vol. 1, Map of Africa, 383. 49 See the notification of the protectorate on 18 June 1894, ibid., vol. 1, 395. 50 Ibid., 397. 51 Brownlie, African Boundaries, 941. 52 95 bfsp 616. 53 Touval, Boundary Politics, 13. 54 Ingham, “Uganda’s Old Eastern Province: The Transfer to East Africa Protectorate in 1902,” 41. 55 “Islands near Berkeley Bay were alloted to Uganda in spite of the fact that they were inhabited by Kavirondo” (Brownlie, African Boundaries, 942). 56 Bennett, “The Eastern Boundary of Uganda in 1902,” 69. 57 The East Africa Protectorate was annexed in 1920 and renamed Kenya. 58 123 bfsp 123. 59 It was recommended that this arrangement be given a trial period of two to three years, after which the problem would be reconsidered. 60 Brownlie, African Boundaries, 427. 61 Ibid., 588. 62 Ibid., 641. 63 Ibid., 940. 64 Shaw, Title to Territory in Africa, 182. 65 Paris 1919, London and Brussels 1921, London and Lisbon 1923, and New York 1927. 66 Legum, Pan Africanism, 135. 67 Shaw, Territory in Africa, 183. 68 Touval, “Africa’s Frontiers,” 642. 69 Tran Van Minh notes that in the period of independence, it was peoples conferences and not state conferences that called for the revision of colonial boundaries (“Remarques,” 90). 70 As reproduced in Touval, Boundary Politics, 56–7. 71 Shaw, Territory in Africa, 183. The forces contributing to Pan-Africanism and the forces tending towards economic, political, and social fragmentation have been discussed at some length by Professor Emerson and Mr Kleman

notes.fm Page 282 Thursday, October 10, 2002 8:58 AM

282 Notes to pages 116–17

72 73

74

75 76 77 78

79

in International Organization, vol. 16, 275–90 and 387–401. The leaders of Ghana and Guinea, in particular, led the way in calling for the creation of a close union of African states with a centralized executive, a consultative assembly, planning and development ministries, and an African high command and army capable of intervening in troubled situations. The thirteen countries of French West and Equatorial Africa, forming the Brazzaville Group, were disposed to move more slowly towards exclusive African measures. While not rejecting the idea of a loose association of states, they preferred to maintain their ties with France and the European Common Market and to develop the regional African and Malagasy Organization for Economic Cooperation with headquarters at Yaounde in Cameroon. The states forming the Monrovia Group, often operating under Nigerian leadership, strongly favoured a gradualist policy on unity and preferred functional cooperation to unification. Many members of the group emphasized pluralism and consultative rather than executive organs and stressed the importance of a development bank, a private investment guarantee fund, and increased activities in the field of labour and social welfare before political union. See Padelford, “The Organization of African Unity,” 522–3. Shaw, Territory in Africa, 183. Tredano, Intangibilité des frontières coloniales, 65. See, for example, the statements made by the Senegalese and Gabonese delegates. My translation from the original: “[L]es États de l’Afrique noire francophone, déjà indépendants, ont pris faits et cause pour cette nouvelle entité tout en s’opposant farouchement aux revendications du Maroc jugées expantionnistes. Ils l’ont fait tous au nom du principe du statu quo territorial colonial.” The Senegalese representative summarized the general African policy: “As for the integrity of the Algerian territory, Senegal, like most African States, has concluded that colonies which accede to independence must keep their territorial limits, as happened in Latin America” (my translation from the original: “En ce qui concerne l’intégrité du territoire algérien, le Sénégal, comme la plupart des États africains, estime que les colonies qui accèdent à l’indépendance doivent garder leurs limites territoriales, comme cela s’est produit en Amérique latine,” Doc. Off. a/c/sr 1162, p. 318, §11, cited in ibid., 67). See note 71 herein. Touval, Boundary Politics, 78. Touval, “Africa’s Frontiers,” 647. Thirty independent African states participated in the conference. Only two African states did not take part: Morocco because of the presence of Mauritania and Togo because of the reluctance of many states to recognize the new government following the assassination of President Olympio. Touval, Boundary Politics, 83.

notes.fm Page 283 Thursday, October 10, 2002 8:58 AM

283 Notes to pages 117–20 80 The Somali president’s address and the Ethiopian minister’s reply can be found in Proceedings of the Summit Conference of Independent African States, vol. 1, section 2, Documents cias/gen/inf/25 and cias/gen/inf/43. Kenya, not yet independent, was represented at the summit by a delegation of the Kenyan African National Union, which distributed a memorandum attacking Somalia’s support for the secession of the Somali-inhabited Northern Frontier District in Kenya (Touval, Boundary Politics, 84). 81 Proceedings, vol. 1, section 2, Document cias/gen/inf/36. 82 Ibid., cias/gen/inf/14. 83 Ibid., cias/gen/inf/33. The Ethiopian prime minister also stated: “It is in the interest of all Africans now to respect the frontiers drawn on the maps, whether they are good or bad, by the former colonizers” (Ibid., cias/gen/inf/43). 84 Touval, “Organization of African Unity,” 104. 85 Padelford, “Organization of African Unity,” 533. 86 479 u.n.t.s. 39. Although Morocco was not represented at the conference, a place was left for its signature, which was added shortly afterwards. Togo is also a signatory to the oau Charter. 87 Touval, Boundary Politics, 86. 88 The Tanzanian item was brought forward for the consideration of the assembly without having first gone to the Council of Ministers. Undoubtedly this approach was adopted by its sponsors in order to avoid the possibility that the proposal might be held up in committees. 89 Touval, “Organization of African Unity”, 122–3. 90 arb (1964) 122. 91 Touval, Boundary Politics, 88. “The Somalis commented bitterly that it had all taken only forty minutes.” 92 Reproduced in Brownlie, Basic Documents on African Affairs, 360–1. 93 It will be recalled that Article 3, paragraph 3, of the Charter bound member states to respect the sovereignty and territorial integrity of each state and its inalienable right to independent existence. 94 Reproduced in Brownlie, Basic Documents on African Affairs, 361. 95 Boutros-Ghali also declares that both President Modibo Keita of Mali and President Tsiranana of Madagascar “were expressing, in different ways, a principle worked out and adopted by Latin American lawyers nearly a century ago” (“Addis Ababa,” 29–30). See section 4.4.1 above for the speeches by Presidents Modibo Keita and Tsiranana. 96 Klabber and Lefeber, “Africa: Lost Between Self-determination and Uti Possidetis,” 57. 97 Members also agreed to respect the principles of non-interference in the internal affairs of states, committed themselves to the peaceful settlement of disputes, unreservedly condemned acts of political assassination and subversion, dedicated themselves to the total emancipation of the dependent African territories, and affirmed a policy of non-alignment.

notes.fm Page 284 Thursday, October 10, 2002 8:58 AM

284 Notes to pages 120–3 98 Boutros-Ghali, “Addis Ababa,” 29, emphasis added. 99 Quoted in Tredano, Intangibilité des Frontières, 85. My translation from the original: “le précédent américain n’a jamais été expressément invoqué lors des travaux préparatoires de la Conférence d’Addis Abéba, et encore moins par les chefs d’États dans leurs discours d’inauguration.” 100 Ibid. My translation from the original: “Très justement à la lecture de ces discours, on ne voit pas la moindre trace d’une évocation explicite du principe.” 101 g.a. Res. 1514, 15 u.n. gaor, Supp. (No. 16) 66, u.n. Doc. A/4684 (1960), emphasis added. 102 Shaw, Territory in Africa, 140. The tension between territorial integrity and self-determination will be further canvassed in chapter 5. 103 Ibid., 140–1. 104 Corten, “Droit des peuples à disposer d’eux-mêmes et uti possidetis,” 411. My translation from the original: “[L]’essence même de l’autodétermination est de conférer des droits à des peuples identifiables non à partir de facteurs ethniques, culturels, historiques ou autres, mais sur la base de leur appartenance à leur territoire.” See also Quane, “The un and the Evolving Right to Self-Determination,” 555–6: “State practice during the decolonisation period suggests that the term ‘peoples’ refers to the entire inhabitants of a colonial territory … On the question whether a territorial or personal criterion is used to define ‘peoples’ there is a consensus in the literature that the United Nations has adopted a territorial definition.” 105 Touval, “Africa’s Frontiers,” 644. 106 In the Guinea-Bissau v. Senegal dispute, Guinea-Bissau argued that by 1960 Portugal no longer had the authority to conclude agreements on behalf of the territory because of the existence at the time of an indigenous movement seeking independence from Portugal. The Tribunal emphasized that the relevant agreement had been signed thirteen years before the independence of Guinea-Bissau and at a time when the process of liberation of Portuguese Guinea had no effect at the international level and had not significantly affected Portuguese control of the territory. In these circumstances, the agreement did not have to fulfil any special condition of antecedence for it to be validly invoked against the successor state (31 July 1989, 83 ilr 1, 39). 107 Strauch, “L’O.U.A. et les conflits frontaliers.” 108 Tredano, Intangibilité des frontières, 90. My translation from the original: “La demande faite aux États africains de respecter les frontières coloniales est valable même avec l’existence de titres juridiques prouvant les prétentions de l’État demandeur. Car, il leur est exigé tout simplement d’accepter l’héritage territorial colonial et de ne formuler aucune revendication pouvant le compromettre et là réside la différence entre

notes.fm Page 285 Thursday, October 10, 2002 8:58 AM

285 Notes to pages 123–8

109 110 111 112 113 114 115 116 117

118

119

120 121 122 123 124 125 126 127

128 129 130 131 132

le principe de l’intangibilité des frontières et l’uti possidetis, du moins suivant la pratique latino-américaine.” Touval, “Africa’s Frontier,” 652. icj Reports 1986, 554 at 565. Ratner, “Drawing a Better Line: Uti Possidetis and the Borders of New States,” 598. Judgment of 19 October 1981, 91 ilr 543. Court of Arbitration: Cahier (president); Simpson and Simmonds (members). No maps accompanied these awards (ibid., 544). Ibid. Ibid., 578. Ibid., emphasis added. Ibid., 579. This important point will be addressed in our conclusion. The nature of internal administrative boundaries, particularly in the postcolonial context, may militate against their automatic acceptance as international boundaries. Pacta sunt servanda: One of the oldest principles of international law, stating that treaties properly concluded are to be observed. It guarantees to states the right to conclude treaties with binding effect. The Vienna Convention on the Law of Treaties, Article 26, provides that “Every treaty in force is binding upon the parties and must be performed by them in good faith” (Fox, Dictionary of International and Comparative Law, 2nd ed., 237). Res judicata: Rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action (Black, Black’s Law Dictionary, abridged 5th ed., 678). Ibid., 578. Ibid., 579. Award of 14 February 1985, 77 ilr 635. Court of Arbitration: Lachs, president; Mbaye and Bedjaoui, members. Award of 14 February 1985, 77 ilr 635. Ibid. Ibid., 657. Judgment of 22 December 1986, icj Reports 1986, 554. Judge Bedjaoui (president); Lachs and Ruda (judges); Luchaire and Abi-Saab (judges ad hoc); Torres Bernárdez (registrar). Ibid., 565. Ibid., 557. This principle is discussed in section 5.4.6 of chapter 5. icj Reports 1986, 554 at 565. As a discussion of uti possidetis was not necessary to the resolution of the case, the Chamber’s discussion is obiter. Ibid.

notes.fm Page 286 Thursday, October 10, 2002 8:58 AM

286 Notes to pages 128–34 133 134 135 136 137 138 139 140 141 142 143 144 145

146 147 148 149 150 151 152 153 154 155

156 157 158 159 160 161 162

Ibid. Ibid., 565–6. Ibid., 566. Ibid. Cukwurah, “Organization of African Unity,” 181. Brownlie, Basic Documents on African Affairs, 360. Boutros-Ghali, “Addis Ababa,” 29. Bourjorl-Flécher, 812. Brownlie, Basic Documents on African Affairs, 360. Higgins, “Comments: Postmodern Tribalism and the Right to Secession,” 34. icj Reports 1992, 351 at 388. icj Reports 1986, 554 at 568. However, all organs and agencies of a state can contribute to state practice in the process of creation and consolidation of customary law. Even acts of individuals or other private law entities can contribute to the formation of customary law, but only insofar as their conduct is supported or at least tolerated by states. Furthermore, silence and inactivity is also part of state practice and can evidence norms of customary law. See Berhnardt, “Customary International Law,” 63. icj Reports 1950, 266 at 276. icj Reports 1986, 14 at 98, emphasis added. Quoted in Brownlie, Principles of Public International Law, 4th ed., 7. icj Reports 1969, 4 at 44. icj Reports 1950, 266 at 276–7. icj Reports 1986, 554 at 567. Award of 31 July 1989, 83 ilr 1. Barberis (president); Bedjaoui and Gros (arbitrators). Ibid., 2. Ibid., 35. Ibid. It is not entirely clear what distinction is being established. The first situation described may perhaps be a reference to the uti possidetis de facto while the second may correspond to the uti possidetis juris. Ibid. Ibid. Ibid., 57–8. Ibid., 36. Ibid., 61–2 Ibid., 62. See further comments in the Introduction. In support of the application of uti possidetis to maritime boundaries, see Antonopoulos, “The Principle of Uti Possidetis Juris in Contemporary International Law,” 46–8, and Kohen, Possession contestée et souveraineté territoriale, 461–4.

notes.fm Page 287 Thursday, October 10, 2002 8:58 AM

287 Notes to pages 135–7 163 Torres Bernárdez, “The ‘Uti Possidetis Juris Principle’ in Historical Perspective,” 420–1. 164 91 ilr 543, 578, emphasis added. 165 83 ilr 1, 35, emphasis added. 166 Touval, Boundary Politics, 96, and Brownlie, Basic Documents on African Affairs, 360. 167 Perry, “State Succession, Boundaries and Territorial Regimes,” 111–12. 168 El Kadiri, La position des États du Tiers-Monde à la Conférence de Vienne sur le droit des traités, 256, declares: “The intangibility of boundaries [understood as the colonial status quo] has always been a controversial principle. It is far from constituting a customary rule for the opinio juris sive necessitatis, that is to say the conviction that a certain practice is obligatory as law is not yet established” (my translation from the original: “[L]’intangibilité des frontières [entendu pour le statu quo colonial] a été toujours un principe controversé. Il est loin de constituer une règle coutumière car l’opinio juris sive necessitatis, c’est-à-dire la conviction qu’une certaine pratique oblige comme étant le droit n’est pas encore établie”). 169 Cukwurah, “Organization of African Unity,” 182. 170 Bourjorl-Flécher, “Heurs et malheurs,” 816. My translation from the original: “un code de relation de voisinage.” 171 Shaw, “The Heritage of States: The Principle of Uti Possidetis Juris Today,” 103. 172 McEwen, International Boundaries, 27. 173 Quoted in Touval, “Organization of African Unity,” 124. 174 Quoted in Tredano, Intangibilité des frontières, 203–4. My translation from the original: “Le fait que la plupart des États membres de l’o.u.a. se fussent engagés à respecter les frontières existant au moment de leur accession à l’indépendance n’impliquait pas nécessairement que la mesure qu’ils avaient adoptée dans l’intérêt de la paix en Afrique fut à ériger en règle de droit international.” 175 Statement made on Radio France Internationale on 16 October 1977, quoted in ibid., 205. It should be noted that this statement was made in the midst of the Ogaden crisis and only a few weeks after the recommendations of the Good Offices Commission in the Somali Ethiopian dispute had been confirmed at the fifteenth oau summit conference in Khartoum. My translation from the original: “que le respect des frontières héritées de la colonisation n’est pas un principe sacro-saint. C’est certes une base de travail irremplaçable, mais devant être dépassée ou révisée dans le cadre d’un vaste consensus car il faut tenir compte à long terme du droit à l’autodétermination.” 176 On 19 January 1899, the British and Khedivial governments agreed that the “Soudan” would constitute all territories south of the 22nd parallel.

notes.fm Page 288 Thursday, October 10, 2002 8:58 AM

288 Notes to pages 137–9 However, on 25 July 1902, and in order to alleviate the plight of the pastoral nomads, a decree of the Egyptian Ministry of the Interior established a separate administrative boundary. The purpose of this series of straight lines north and south of the international boundary was to keep together specified traditional Bedouin areas and conserve the scant water resources on either side of the boundary. Although the administrative line does not enjoy the status of an international boundary, the Sudan effectively administers territory north of the 22nd parallel, while farther west, Cairo governs a smaller Sudanese area south of that latitude (Reyner, “Sudan-United Arab Republic (Egypt) Boundary,” 314–15). 177 Ratner, 599. 178 See also the result of plebiscites held in the Belgian trust territory of Rwanda-Urundi, which split the territory into two. 179 Corten, “Droit des peuples,” 416–17. My translation from the original: “La pratique des organes de l’O.N.U. est en effet moins univoque que ce qu’on pourrait penser à première vue … [L]’étendue du territoire d’un Etat nouvellement indépendant dépend directement de la position prise par l’o.n.u. dans le cadre de sa mission de supervision de l’exercice du droit à l’autodétermination. Des précédents comme … le Cameroun ou le Togo ne sont pas de véritables exceptions au principe de l’uti possidetis juris dans la mesure où parler d’exception suppose que le principe s’applique normalement de manière autonome, ce qui n’a pas été le cas. Ce que ces précédents démontrent, c’est précisément que la délimitation coloniale n’a acquis une valeur juridique que si et dans la mesure où l’o.n.u. l’a admise.” chapter five 1 Kaikobad, “Some Observations on the Doctrine of Continuity and Finality of Boundaries,” 119. 2 Ibid. 3 Scott, Hague Court Reports (1916) 122, 130. 4 pcij, Series A/B, No. 53, 46 at 54. See also Kaikobad, “Some Observations,” 120. 5 Lauterpacht, The Development of International Law by the International Court, 241. 6 icj Reports 1962, 4 at 34. The dispute originated in boundary settlements concluded in the period 1904–08 between France (until 1953 Cambodia was part of French Indo-China) and Siam (Thailand), in particular the boundary treaty dated 13 February 1904. The treaty established a boundary along a watershed line to be delimited by a mixed commission. Due to the uncertain character of the resulting delimitation, the Siamese government had requested that French topographical

notes.fm Page 289 Thursday, October 10, 2002 8:58 AM

289 Notes to pages 139–41

7 8 9 10 11

12 13 14 15 16 17 18 19 20

officers map the frontier region. Eleven maps were eventually communicated to the Siamese authorities, including one that showed the whole Preah Vihear promontory with the Temple area as being within Cambodia. The International Court concluded that while the maps were not binding at the moment of their production, Siamese officials had accepted the Preah Vihear map and the frontier line as depicted. Though it was later alleged that the map line did not correspond with the watershed line, subsequent conduct had confirmed the original acceptance and precluded denial of it. 50 ilr 2, 520. See section 5.3 below for a discussion of the influence of the stability principle on the final outcome in the Rann of Kutch case. 17 ilm (1977) 632, 648. icj Reports 1978, 2 at 35–6. icj Reports 1982, 18 at 65–6. icj Reports 1994, 2 at 38. The aim of achieving stability and finality is also clearly apparent in the preambles of various boundary treaties and arbitration conventions. See examples cited in Shaw, Title to Territory in Africa, 222. Jennings, The Acquisition of Territory in International Law, 70. Kaikobad, “Some Observations,” 120. Dworkin, Taking Rights Seriously, 22–45. See also Dworkin, A Matter of Principle, and Law’s Empire. Ibid., 24. Ibid., 35. Utz, “Rules, Principles, Algorithms and Legal Systems,” 32. Dworkin, Taking Rights Seriously, 26–7. Utz, “Rules,” 29. Ibid. The distinction established between legal rules and legal standards (principles) is obviously only one element in Dworkin’s general theory. Dworkin constructs his legal theory largely in response to legal positivism and utilitarianism, and the focal point is the phenomenon of judicial review. His theory investigates the cognitive process of legal reasoning that judges use to decide legal questions. The most important of Dworkin’s papers are collected in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law’s Empire (1986). To the extent that Principle and Law’s Empire cover judicial reasoning and jurisprudence, they generally reiterate and defend, although occasionally with some refinement, the positions taken in Taking Rights Seriously. For a critique of Dworkin’s distinction between rules and principles, see Christie, “The Model of Principles.” Refer also to the following works on legal positivism: Hart, The Concept of Law; Raz, The Concept of a Legal System; Practical Reason and Norms; and The Authority of Law; and MacCormick, Legal Reasoning and Legal Theory. For general and comparative critiques, see Levin, How Judges Reason: The Logic of Adjudication, 175; Burke, The Political Foundation of Law and the

notes.fm Page 290 Thursday, October 10, 2002 8:58 AM

290 Notes to pages 142–3

21 22

23 24 25 26 27

28

29

30

Need for Theory with Practical Value, 121; Van Doren, “Theories of Professors H.L.A. Hart and Ronald Dworkin: A Critique”; Bayles, “Hart vs. Dworkin”; and Davies and Holdcroft, Jurisprudence: Text and Commentary. 50 ilr 2, 4. Ibid., 493. The chairman’s finding that there did not exist a historically recognized boundary in the disputed region effectively took the case out of the area of application of uti possidetis. As the uti possidetis principle stipulates respect for pre-existing colonial administrative divisions, once the Tribunal had determined that no such boundary had in fact existed, uti possidetis lost any relevance. Ibid., 507. Ibid., 511. Ibid., 519. Ibid., 520, emphasis added. “Equity played however a certain role – undoubtedly beyond what had been agreed to by the parties … we can take as a clear example the arms of the Rann encircling Thar Parkar which were attributed to Pakistan” (my translation from the original: “L’équité a joué cependant un certain rôle – au-delà sans doute de ce qui avait été accepté par les parties … on en prendra comme example évident les bras du Rann enserrant Thar Parkar qui ont été attribués au Pakistan,” Salmon, “Affaire du Rann de Kutch,” 235). Hill, “The Doctrine of ‘Rebus Sic Stantibus’ in International Law”; Oppenheim, International Law: A Treatise, vol. 1, 234–43; McNair, The Law of Treaties, 681–91; Elias, The Modern Law of Treaties, 119–29; Rousseau, Principes généraux de droit international public, bk 1, 580–615, among many others. There is evidence of its recognition in customary international law. See, for example, the submissions by the French and British agents in the 1923 Nationality Decrees case, pcij, Series C, No. 2, 187–8 and 208, and the Court’s conclusions in the Case of the Free Zones of Upper Savoy and the District of Gex, pcij, Series A/B, No. 46, 95 at 158. In addition to differences in opinion as to the precise scope and application of the rule, international jurists have also widely differed as to its juridical basis. In Hill’s “The Doctrine of ‘Rebus Sic Stantibus’ in International Law,” no less than seven theories are expounded. Sir H. Waldock has stated that these seven theories may be reduced to three principal theories. The first views the principle rebus as a presumed implied term of the treaty arising from the supposed intention of the parties. According to the second, the principle is an objective rule of law, “a consequence following naturaliter.” A third theory, which is a mixture of the first two, considers the principle rebus to be an objective principle of law but one that operates by importing into the treaty itself an implied clause (clausula rebus sic stantibus) (Waldock, “Second Report on the Law of Treaties,” 38–9).

notes.fm Page 291 Thursday, October 10, 2002 8:58 AM

291 Notes to pages 144–5

31

32

33

34

35 36

37 38

39

40

41 42 43

Sir H. Waldock ultimately recommended, and the International Law Commission adopted, the second theory as a basis for the Vienna Convention on the Law of Treaties (see below). pcij, Series C, No. 58, 110. My translation from the original: “la règle selon laquelle le changement des circonstances entraîne la caducité des traités … ne saurait être contestée.” Ibid., 464–5. My translation from the original: “des règlements territoriaux ne peuvent pas être juridiquement affectés par des changements survenus dans les circonstances.” The Court concluded: “As the French argument fails on the facts, it becomes unnecessary for the Court to consider any of the questions of principle which arise in connection with the theory of the lapse of treaties by reason of change of circumstances” (pcij, Series A/B, No. 46, 95 at 158). Sir H. Lauterpacht concludes from this passage that the Court was “prepared to recognize the principle, although it refused to say to what extent.” (Lauterpacht, Development, 85). Article 62 is entitled “Fundamental change of circumstances,” The formula rebus sic stantibus was not used in order to emphasize the objective nature of the doctrine and to distance it from the old theory of an implied clausula rebus sic stantibus. 8 ilm (1969) 679. United Nations Conference on the Law of Treaties, Second Session, Vienna, 9–22 April 1969, Official Records, New York: United Nations Publications, 1970, 118. Waldock, “Fifth Report on the Law of Treaties,” 80–1. See, generally, Keith, Theory of State Succession; Hall, A Treatise on International Law; Cavalieri, “Règles générales du droit de la paix”; McNair, The Law of Treaties; O’Connell, The Law of State Succession; International Law; and State Succession in Municipal Law and International Law; and Brownlie, Principles of International Law. It is also beyond the scope of this chapter to tackle the much debated question of succession to territorial regimes and obligations or “international servitudes.” See, however, Perry, “State Succession, Boundaries and Territorial Regimes.” Three main schools of thought have contended: the universal succession theory, the clean-slate theory, and theories that have focused on the nature of political and territorial changes. Hegel, Grundlinien der Philosophie des Rechts, §§ 280. Oppenheim, International Law, vol. 1, 118. Wharton, A Digest of the International Law of the United States, vol. 1, 26–7; Hall, Treatise, 119–24; Oppenheim, International Law, vol. 1, 925–9; Verzijl, International Law in Historical Perspective, vol. 7, 303; McNair, The Law of Treatise, 656; and Brownlie, African Boundaries, 666–7.

notes.fm Page 292 Thursday, October 10, 2002 8:58 AM

292 Notes to pages 145–8 44 De Vattel, Le Droit des Gens ou Principes de la Loi Naturelle, bk 2, ch. 13, § 203 at 178. 45 O’Connell, The Law of State Succession, 49. 46 Ibid. 47 Cukwurah, The Settlement of Boundary Disputes in International Law, 108, emphasis in the original. See also Keith, Theory, 22: “The real fact is, of course, that a treaty of this sort is no longer a contract; the contract has passed into a conveyance, and the transaction cannot, therefore, be affected by the fact that one of the parties to the original conveyance has changed.” 48 The chairman of the committee was Professor Charles Rousseau, and the rapporteur, Professor D.P. O’Connell. 49 Eight of the nine resolutions drawn up by the committee related to succession in respect of treaties, and all eight were adopted by the ila without amendment. 50 ila publication, The Effect of Independence on Treaties, a Handbook, London: Stevens & Sons, 1965, 361–7. 51 Waldock, “First report on succession of States and Governments in respect of treaties,” 92. 52 Ibid., 92–3, footnotes omitted. 53 Ybk ilc (1968 i) 130–46. 54 See Ybk ilc (1972 i) 247–54. 55 Vallat, “First report on succession of States in respect of treaties,” 83. 56 Ibid. 57 17 ilm (1978) 1494. It should be noted that Article 11 does not deal with the situation in which a treaty merely confirms a boundary as opposed to establishes a boundary. See, for example, the 1955 Franco-Libyan Treaty in the Territorial Dispute between Libya and Chad, icj Reports 1994, 6. 58 See the statements by the delegations of Pakistan, Hungary, Ghana, India, Kenya, Algeria, Czechoslovakia, Kuwait, Sudan, Italy, Mexico, Nigeria, Australia, and Ethiopia, un Conference on State Succession to Treaties, First Session, Vienna, 4 April-6 May 1977, Official Records, vol. 1, New York: United Nations Publications, 1978, 118–33. Cf Afghanistan, id, 113; Somalia, id, 115; and Swaziland, id, 125. See also Australia, gaor, 27th Session, Sixth Committee, 45 (§7); New Zealand, id, 70 (§21); Guyana, id, 92 (§27); Bulgaria, id, 95 (§45); and the written comments of the us, Ybk ilc (1974 ii) 313, 330. 59 The two abstentions were France and Switzerland. 60 Shaw, “The Heritage of States,” 112. 61 pcij, Series B, No. 12, 20. 62 icj Reports 1959, 209 at 221–2. 63 icj Reports 1962, 4 at 34.

notes.fm Page 293 Thursday, October 10, 2002 8:58 AM

293 Notes to pages 148–51 64 icj Reports 1994, 6 at 37. 65 Crawford, “The General Assembly, the International Court and Selfdetermination,” 601. 66 Kaikobad adds that “a boundary regime can be regarded as being subject to this rule of finality only where either of the States can establish its legal credentials” (Kaikobad, “Some Observations,” 121). 67 Thirlway, “The Law and Procedure of the International Court of Justice 1960–1989,” 26. 68 Ibid. 69 “Where an agreement manifests an intention not to be complete or final or where the agreement itself does not establish or recognise an international boundary, [the presumption] cannot apply” Shaw, “The Heritage of States,” 92. 70 Ibid., 92–3. 71 icj Reports 1994, 6 at 45. 72 See the passage quoted above in the first paragraph of section 5.4.3, “Rules of Interpretation.” 73 icj Reports 1994, 6 at 47. 74 Ibid., 48. 75 De Vattel, Le Droit des Gens, 178, emphasis added. 76 McNair, The Law of Treaties, 656. The notion that a category of ‘dispositive’ or ‘real’ treaties concerning the incidents of enjoyment of a territory are transmissible is rejected by those commentators who ascribe to the state absolute sovereign jurisdiction over its territory. O’Connell describes the rationale: “The granting by a State of real rights, it is considered, is a concession dictated by its own interest, and sustained by its own will. When the territory in question comes within the competence of another State, the latter cannot be constrained by a régime which is exclusively a selflimitation of its predecessor’s sovereignties. As Caviglieri argues, ‘the personal character of the relationship is decisive› (State Succession in Municipal Law, 18). Brownlie for his part declares: “The present writer, in company with others, considers that there is insufficient evidence in either principle or practice for the existence of this exception to the general rule” (Principles, 669). Yet O’Connell declares: “Despite these theoretical objections, however, it is believed that State practice favours the view that equities can be indelibly stamped on a territory” (State Succession in Municipal Law, 18). For a list of those jurists for and against, see ibid., 18 at footnote 3. 77 Shaw, Title to Territory, 234. 78 O’Connell, The Law of State Succession, 50. 79 Brownlie, Principles, 125. 80 Shaw, Title to Territory, 234. 81 In particular, the territorial theory appears to underlie Article 12 of the Vienna Convention on Succession of States in Respect of Treaties of 1978, which

notes.fm Page 294 Thursday, October 10, 2002 8:58 AM

294 Notes to pages 151–3

82 83

84 85

86

87 88 89

90

91

92

93 94

provides that a succession of states shall not affect obligations, or rights, “relating to the use of territory” and “established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question.” Shaw, Title to Territory, 235. Lachaume, “La Frontière: Séparation,” 79. My translation from the original: “les grands drames internationaux de notre temps sont nés de la méconnaissance de l’inviolabilité de la frontière.” On the sources of the inviolability principle in international law, see ibid., 80–2. Ibid., 79. My translation from the original: “L’inviolabilité de la frontière signifie d’abord et surtout que la souveraineté d’un État ne peut de force franchir la frontière d’un autre État pour porter atteinte, sans son consentement, à la propre souveraineté de ce dernier. Un tel franchissement constitue un acte illicite, au regard du droit international, de l’État fautif … L’inviolabilité de la frontière préserve donc les États des irruptions des souverainetés d’autres États.” Charpentier, “Le problème des enclaves,”, 163. My translation from the original: “[L]a seule signification spécifique de l’intangibilité me paraît être … que les États ne doivent pas contester la validité du titre sur lequel est établie la frontière, même si ce titre apparaît un peu contestable, comme peut l’être l’uti possidetis. Je crois que c’est la seule signification. Autrement dit, alors que l’inviolabilité protège l’intégrité territoriale, l’intangibilité protège l’unité territoriale.” icj Reports 1986, 554 at 564. Covenant of the League of Nations, signed at Versailles, 28 June 1919, 1 International Legislation (1919–21) 1. Inter-American Convention on the Rights and Duties of States, 26 December 1933, 165. League of Nations Treaty Series (1933) 19 (entered into force 26 December 1934). Charter of the United Nations, 26 June 1945, Can. T.S., no. 7 (entered into force 24 October 1945), reproduced in Brownlie, Basic Documents in International Law, 3. Colonial Declaration g.a. Res. 1514, 15 u.n. gaor, Supp. (No. 16) at 66, u.n. Doc. A/4684 (1960), reproduced in Brownlie, Basic Documents in International Law, 309. Declaration on Friendly Relations, g.a. Res. 2625, u.n. gaor 6th Comm., 25th Sess., Supp. (No. 18), 1883rd plen. mtg, u.n. Doc. A/8018 (1970), reproduced in Brownlie, Basic Documents in International Law, 44. Ibid. Consensus Definition of Aggression, confirmed in un General Assembly Res. 3314/XX1X of 14 December 1974.

notes.fm Page 295 Thursday, October 10, 2002 8:58 AM

295 Notes to pages 153–7 95 Charter of the Organization of American States, 30 April 1948, 789–90 u.n.t.s. 287. 96 Charter of the Organization of African Unity, 25 May 1963, 479 u.n.t.s. 39. 97 See footnote 91, emphasis added. 98 See footnote 92, emphasis added. 99 Blay, “Self-Determination Versus Territorial Integrity in Decolonization,” 443. 100 See, generally, Blum, Historic Titles in International Law. 101 15 u.n. gaor (947th plen. mtg.) at 1284, u.n. Doc. A/P.V.947 (1960). 102 See Touval, Boundary Politics, 89-90. 103 The tension between the territorial integrity principle and the right to self-determination will be explored in section 5.5 below. 104 “Declaration Regarding Non-Self-Governing Territories.” 105 “International Trusteeship System.” 106 See note 90. 107 g.a. Res. 2066, 20 u.n. gaor Supp. (No. 14) at 57, u.n. Doc. A/6014 (1965). 108 g.a. Res. 2430, 23 u.n. gaor Supp. (No. 18) at 64, u.n. Doc. A/7218 (1968). 109 g.a. Res. 34/91, 34 u.n. gaor Supp. (No. 46), u.n. Doc. A/34/46 (1979). 110 The United Nations international trusteeship system applies, according to Article 77 of the Charter, to territories held under mandate of the League of Nations, territories detached from ‘enemy’ states following World War II, and territories voluntarily placed under the system by states responsible for their administration. 111 Oppenheim, International Law, vol. 1, 236. 112 Ibid., 236–7. 113 Reproduced in Huang, “Trust Territories and Customs and Administrative Unions,” 716. 114 As set out in Article 76 of the un Charter, the basic objectives of the trusteeship system are: (a) to further international peace and security; (b) to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories and their progressive development towards self-government or independence; (c) to encourage respect for human rights and for fundamental freedoms; and (d) to ensure equal treatment in social, economic, and commercial matters for all members of the United Nations. 115 Quoted in Huang, “Trust Territories,” 718. 116 Quoted in ibid., 721. 117 Case Concerning the Northern Cameroons, icj Reports 1963, 15. Crawford states:

notes.fm Page 296 Thursday, October 10, 2002 8:58 AM

296 Notes to pages 158–61

118

119 120 121

122 123 124 125 126 127 128 129 130 131

“The Court did not suggest that the Republic of Cameroon’s complaint as to the administrative union between the Northern Cameroons and Nigeria did not raise a justiciable legal issue under the Trusteeship Agreement. It was rather that the General Assembly’s resolution rejecting that complaint had definitive legal effect, notwithstanding that it was a decision of a political and not a legal body” (“The General Assembly,” 598. Verbatim Record, Wednesday 1 February 1995, icj cr 95/4. My translation from the original: “[u]n des principes majeurs du droit des peuples à disposer d’eux-mêmes … est celui selon lequel le territoire d’une colonie ou d’un autre territoire non autonome possède, en vertu de la Charte, un statut séparé et distinct de celui du territoire de l’État qui l’administre … Ce principe … qu’un auteur a appelé le ‘principe de l’altérité’ … n’est pas seulement un principe formel. Il est lié à d’autres principes, d’une part à celui de la prééminence des intérêts propres et spécifiques du peuple du territoire non autonome, devenu, en lui-même, une entité juridique, d’autre part à la souveraineté de ce peuple. Par ailleurs, l’affirmation de l’altérité présente une relation évidente … avec la règle établie à la résolution 1541 (xv) selon laquelle l’intégration du territoire non autonome à un État indépendant ne peut avoir lieu que par le biais d’un acte de libre choix de son peuple.” Simpson, “Judging the East Timor Dispute,” 340. See note 90. Leaving aside the whole question of whether or not an interpretative resolution by the assembly is to be regarded as possessing the character of law for member states, there appears to be little doubt that Resolution 1514(xv) is in the form of an authoritative interpretation of the Charter rather than a mere recommendation. See Brownlie, Basis Documents in International Law, 298. It is to be observed that in clauses 5 and 7, the General Assembly did not use the language of recommendation but the imperative word “shall.” Moreover, it seems to put the Colonial Declaration on the same footing as the Charter (Waldock, “The Constitutional Framework of International Law To-Day,” 33). See note 91. Ibid. See note 92. Ibid. See note 96. icj Reports 1971, 6 at 31. icj Reports 1975, 12 at 31–3. See also Crawford, The Creation of States, 96. icj Reports 1975, 12 at 121–2. Brownlie, Basic Documents in International Law, 2. Ibid., 3.

notes.fm Page 297 Thursday, October 10, 2002 8:58 AM

297 Notes to pages 161–5 132 Ibid., 23–4. 133 Ibid., 25. 134 Eighty-nine states voted for the resolution and none against. There were, however, nine abstentions: Portugal, Spain, Union of South Africa, United Kingdom, United States, Australia, Belgium, Dominican Republic, and France. 135 Brownlie, Basic Documents in International Law, 308–9. 136 Shaw, “Territory in International Law,” 71. 137 Crawford, The Creation of States, 101–2. 138 See Maguire, “The Decolonization of Belize,” 871, and Shaw,” The Western Sahara Case,” 149, wherein he states: “[T]he tenor of the Court’s opinion appeared to favour the supremacy of self-determination.” Blay also states: “[A]n examination of the judges’ individual opinions suggests that the Court’s members favored the primacy of self-determination over all other competing claims in cases of decolonization” (“Self-Determination,” 463). 139 icj Reports 1975, 12 at 81. 140 Ibid., 122. 141 Ibid., 120. 142 Maguire, “The Decolonization of Belize,” 871. 143 Ibid. He uses the examples of Ifni and Goa to support this proposition. 144 Ibid., 871–2. 145 Blay, “Self-Determination,” 450–63. 146 For a more detailed discussion of these exceptions, refer to Crawford, The Creation of States, 377–84, and Blay, “Self-Determination,” 463–5. 147 See Blay, “Self-Determination,” 441; Sureda, Evolution of the Right of SelfDetermination, 193–6; and Viejobueno, “Self-Determination v Territorial Integrity.” 148 See, generally, Perry, “State Succession,” 276. 149 “6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” (Brownlie, Basic Documents in International Law, 309). 150 “2. All peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development” (Ibid.). 151 For an analysis of this aspect of the case, see Crawford, The Creation of States, 378–80. 152 Blay, “Self-Determination,” 467. 153 Crawford, The Creation of States, 384. Refer to Blay, “Self-Determination,” 466–8, and Crawford, ibid., 377–84, for a discussion of the status of Goa, Ifni, and Walvis Bay. See also Greig, “Reflections on the Role of Consent,” 156, wherein he criticizes Crawford’s “essentially legalistic view of selfdetermination.”

notes.fm Page 298 Thursday, October 10, 2002 8:58 AM

298 Notes to pages 165–72 154 155 156 157 158

159 160 161 162 163 164 165 166 167

168 169 170 171

13 July 1713. Article 14, 1 bfsp 611. “United Kingdom Materials on International Law” [1990] byil 505. For a consideration of this position, see Perry, “State Succession,” 288. Hong Kong was leased to the United Kingdom in 1898 by China for a period of 99 years. The Panama Canal Zone was the subject of a lease between the lessor, Panama, and the lessee, the us The lease was part of a package of agreements known as the Panama Canal Treaties. Blay, “Self-Determination,” 467. See note 90. Brownlie, Basic Documents in International Law, 309. Ibid., 43. Ibid., 44. “Report of the International Committee of Jurists” lnoj, Spec. Suppl. No. 3 (1920) 5 “Report by the Commission of Rapporteurs” ln Council Doc. B7: 21/68/ 106 (1921) 28. Higgins, Problems and Process: International Law and How We Use It, 117. While it may accurately be said that international law does not as such confer a right, understood as a legal entitlement, to groups within existing states to secede, international law does not actually prohibit secession. According to Crawford, secession is “neither legal nor illegal in international law, but a legally neutral act the consequences of which are, or may be, regulated internationally” (The Creation of States, 268). However, though no prohibition exists, the absence of any legal positive entitlement is critical, for in the absence of any legal right, the secessionist endeavour will be judged according to the principle of effectiveness. For a further discussion of this issue, refer to section 6.3.6, conclusion v, in chapter 6. Hannum, “Rethinking Self-Determination,” 33. Franck, “The Emerging Right to Democratic Governance,” 58–9. Shaw, “Territory in International Law,” 71. 31 July 1989, 83 ilr 1, 62–3. Judge Bedjaoui included with his comments a footnote stating: “See, among the abundant writings of the subject [criticism of uti possidetis principle], the recent work of Marie-Christine Aquarone, Les frontières du refus. Six séparatismes africains, Paris, cnrs edition 1988.” chapter six

1 Shaw, “The Heritage of States,” 97, footnote omitted. 2 77 ilr (1988) 635. The tribunal stated that the 1886 boundary delimitation treaty “remained in force between France and Portugal and became

notes.fm Page 299 Thursday, October 10, 2002 8:58 AM

299 Notes to pages 173–6

3

4 5 6 7 8 9 10 11

12 13

14 15 16 17 18 19

20 21

binding between the successor states by virtue of the principle of uti possidetis” (ibid., 657). See, for example, Brownlie, who states: “It must be emphasized that the principle is by no means mandatory and the states concerned are free to adopt other principles as the basis for settlement” (Principles of Public International Law, 135, footnote omitted). See also Grand Council of the Crees of Quebec, Sovereign Injustice, 187. Higgins, “Comments: Postmodern Tribalism and the Right of Secession,” 34. Badinter Commission Opinion No. 3, 92 ilr 170, 171–2, referring to a passage in the Frontier Dispute case. Focus, Special Issue (Belgrade, 14 January 1992) 72. Cohen, Broken Bonds, 215. Focus (1992) 72. Cohen, Broken Bonds, 217. Ibid. Kre´ca, Badenterova Arbitra¿na Komisija, 18. The ministers also declared their belief that it was only for the peoples of Yugoslavia themselves to decide on the country’s future without recourse to the use of force and in conformity with legal and constitutional procedures. The European Report, No. 1688 (26 June 1991). For a calendar of events during the Yugoslavia crisis see Foreign Affairs Committee, Soviet Union / Developments in Central Europe, Minutes of Evidence, HC 1991–1992, 21–i, 6 Nov. 1991, 46–9 (fac Report). Radan, “Secessionist Self-Determination,” 188. The European Report, No. 5525 (1–2 July 1991) The European Report, No. 5528 (5 July 1991) This statement was issued in his role as president of the European Commission. The European Report, No. 1692 (10 July 1991). Joint Statement, 28 August 1991, 24 Bulletin of the ec (1991), no. 7/8, 115, s. 1.4.25. It was stated at page 116: “The Community and its member States cannot stand idly by as the bloodshed in Croatia increases day by day. An agreement on the monitoring of the cease-fire and its maintenance should allow the Community and its member States to convene a peace conference and establish an arbitration procedure.” Former British foreign secretary Lord Carrington was eventually appointed as the conference’s chairman. Joint Statement, 3 September 1991, 24 Bulletin of the ec (1991), no. 9, 63, s. 1.4.1. According to Radan, this was a significant statement in that it apparently accepted Croatia as a subject of international law (“Secessionist SelfDetermination,” 188–9).

notes.fm Page 300 Thursday, October 10, 2002 8:58 AM

300 Notes to pages 176–7 22 23 24 25

26

27

28 29

30

31

Focus (1992) 150. Focus (1992) 172–4, emphasis added. The European Report, No. 5592 (19 October 1991). Focus (1992) 226–8. An earlier statement by the chairman of European Political Cooperation on 4 October 1991 had also called for a “political solution on the basis of the perspective of recognition of the independence of those republics wishing it” (Focus (1992) 169–71). In the small town of Maastricht in the Netherlands, all 12 European Union countries would meet in December 1991 to negotiate a treaty that would provide a framework for a single European currency, a common foreign and security policy, a common labour policy and common citizenship, as well as a more effective European Parliament. According to Craven, the commission’s opinions also had a proactive dimension in that they provided a legal framework for the development of subsequent state practice (“The European Community Arbitration Commission on Yugoslavia,” 334–5). See also Crawford, “State Practice and International Law in Relation to Unilateral Secession: Report,” 27, wherein he states: “First, the Arbitration Commission, which provided the underlying legal rationale for the positions taken by the members of the European Community and eventually by most members of the United Nations ...” European Political Cooperation. The political system of the former Yugoslavia is briefly described by Ramet. The Yugoslav federal state was made up of two chambers: first, the Chamber of Republics and Provinces (crp) and, second, the Federal Chamber. Under the 1974 Constitution (which was in effect until the disintegration of the system in 1989–90), the crp was composed of up to twelve representatives of each republic and eight representatives of each independent province. The Federal Chamber consisted mainly of representatives of selfmanaging organizations and sociopolitical organizations, but the republics and autonomous provinces also had delegations that were obliged to hold to the positions of their respective federal units. Finally, the Titoist system created a collective state presidency. This body brought together delegates of the federal states (one per federal state) who rotated annually in the office of “president of the presidency” or the federal presidency. Each member was responsible to the assemblies of their respective federal unit, which in fact elected them (Nationalism and Federalism in Yugoslavia 1963–1983, 61–9). Throughout this chapter, the terms “Commission” and “Committee” will be used interchangeably to refer to the arbitration body created within the framework of the Peace Conference on Yugoslavia. Pellet, “Note sur la Commission d’arbitrage de la Conférence européenne pour la paix en Yougoslavie,” 331. My translation from the original: “La création de la Commission d’arbitrage a en effet été décidé par une

notes.fm Page 301 Thursday, October 10, 2002 8:58 AM

301 Notes to pages 177–9

32

33 34 35 36

37 38

‘réunion ministérielle extraordinaire’ des Douze dans le cadre de la coopération politique et la Déclaration n’est, à l’évidence, ni un traité, ni une décision communautaire. Il s’agit d’un gentleman’s agreement ou, mieux, d’un acte concerté non conventionnel sans valeur juridique obligatoire, ce qui ne peut manquer d’avoir des incidences considérables sur son interprétation et sur son application.” Craven has echoed Pellet’s conclusions: “Thus, although there was nothing to prevent the ec creating an Arbitration Commission pursuant to the Declaration, the ‘relevant parties’ were in no sense obliged to submit their differences to it. Indeed, it is likely that were they to do so, a further ‘implementing compromis’ would be necessary in order to lay down the details of the procedure to be followed, or at least the expression of ad hoc consent” (“The European Community,” 341, footnote omitted). Even though the Arbitration Commission was not precisely an ‘independent judicial body,’ it was at least independent of the disputing parties, it conducted its activities in a broadly judicial manner, and it sought to formulate its opinions according to general international law. Szasz, “The Fragmentation of Yugoslavia,” 34. Kre´ca, Badenterova, 7. 92 ilr (1993) 162 at 164. Ibid., 9. Kre´ca also argues that the question was rephrased in a very leading manner, with strong political overtones, and misrepresented the facts: Serbia was not alone in describing the declarations of “sovereignty and independence” as acts of secession, for Montenegro held an identical view. Warbrick and Lowe, eds, “Current Developments,” 475. The importance of characterizing the situation in Yugoslavia as one of dismemberment or dissolution cannot be overstated. As long as the process was interpreted as one of secession by Slovenia and Croatia, ec member states remained firmly committed to preserving the territorial integrity of the sfry. The ec’s rejection of any right to secession is evidenced by its official position and various pronouncements regarding other secessionist claims. These cases include, for example, the Serbian Autonomous Republic of Krajina (Croatia), the Republic Srpska (Bosnia-Hercegovina), Chechnya (Russian Federation), Abkhazia (Georgia), South Ossetia (Georgia), Transdinistra (Moldavia), and Nagorny-Kharabakh (Azerbaijan). For references to official ec statements, see Corten “Droit des peuples à disposer d’eux-mêmes et uti possidetis,” 425. With respect to claims to independence by Kosovar Albanians, members of the contact group explicitly affirmed that they were “firmly opposed to the independence of Kosovo” (Declaration of 29 April 1998, Documents d’actualité international (d.a.i.), No. 13, 1 July 1998, 494). And amidst the Kosovo conflict, the Belgian minister of foreign affairs declared: “The Member States of the c.s.c.e. have never had as their objective to grant independence as a State to each cultural

notes.fm Page 302 Thursday, October 10, 2002 8:58 AM

302 Notes to pages 180–2

39 40

41 42 43

44 45

46

47 48 49

group within a State entity. This would only lead to the creation of mini mono-ethnic States, in contradiction of all the efforts expended to create multicultural environments in total respect of cultural differences” (my translation from the original: “[L]es États membres de la c.s.c.e. n’ont jamais eu pour objectif d’octroyer l’indépendance en tant qu’État à chaque groupe culturel présent dans une entité étatique. Ceci n’aboutirait qu’à la naissance de mini-États mono-ethniques, en contradiction avec tous les efforts déployés pour créer des environnements multi-culturels dans le total respect des différentes culturelles,” [1995-II] rbdi 544, no. 2278). 92 ilr (1993) 162 at 164–5. See paragraph 2(a), Opinion No. 1, reproduced in 92 ilr (1993) 162 at 165, where in the Arbitration Commission takes note of the independence declarations in Slovenia and Croatia, the independence referendum in Macedonia, and the sovereignty resolution in Bosnia-Hercegovina. 92 ilr (1993) 162 at 165–6. See paragraph 1(b), Opinion No. 1, reproduced in 92 ilr (1993) 162 at 165. 165 League of Nations Treaty Series (1933) 19. The convention was signed at Montevideo on 26 December 1933 and entered into force on 26 December 1934. 37 Keesing’s (1991) 38513. In March 1991, the Kosovo representative to the presidency was replaced by an appointee of the Serbian Assembly. Magas comments: “Without a functioning assembly, Kosovo representatives in the Federal Assembly and on the Federal Presidency became illegitimate, and with them also the work of these bodies” (The Destruction of Yugoslavia, 295). 37 Keesing’s (1991) 38203–4: “The Federal Presidency had eight members, one from each of the six republics and the two autonomous provinces. Each of the representatives was to be elected by secret ballot in the appropriate provincial assembly. The President was elected by the Presidency according to a strict rota each year. In 1989 the post was held by Slovenia (Janez Drnovsek), in 1990 by Serbia (Borisav Jovic), and it was due to go to Croatia (Stipe Mesic) in 1991. The constitutional deadlock continued until June 30 when Mesic was eventually proclaimed President.” 37 Keesing’s (1991) 38421. 92 ilr (1993) 162 at 167. On this aspect of Opinion No. 1, Hannum states: “This brief opinion is particularly notable for its apparent assumption – heretofore unknown in international law – that the domestic constitutional structure of a state is relevant to the question of whether or not that state exists as a matter of fact in international law” (“Self-Determination, Yugoslavia, and Europe,” 64).

notes.fm Page 303 Thursday, October 10, 2002 8:58 AM

303 Notes to pages 182–5 50 [1975] icj Reports 12, 43–4. 51 In his article “Security Council Resolutions on Rhodesia,” 112, Fawcett argues that in light of this particular case, “to the traditional criteria for the recognition of a regime as a new State must now be added the requirement that it shall not be based upon a systematic denial in its territory of certain civil and political rights, including in particular the right of every citizen to participate in the government of his country, directly or through representatives elected by regular, equal and secret suffrage” (emphasis added). For a different view, see Dugard, Recognition and the United Nations, 128–31, and Devine, “The Requirements of Statehood Re-examined,” 410. 52 Crawford, The Creation of States in International Law, 105, emphasis added. Even Fawcett speaks of the criteria for recognition of a new state. 53 Craven, “The European Community,” 367, emphasis added. 54 92 ilr (1993) 199, 201, emphasis added. 55 Even in the context of belligerent occupation, complete lack of government does not extinguish the sovereignty of the state. As Crawford notes: “Extinction is thus, within broad limits, not affected by more or less prolonged anarchy within the State” (The Creation of States, 417). 56 Craven, “The European Community,” 369. 57 Crawford, “State Practice and International Law in Relation to Unilateral Secession: Report,” 25, emphasis added. There is no doubt that subsequent events supported this interpretation and that by the time the commission was asked to consider whether the process of dissolution could be regarded as complete (July 1992), the situation amply justified the commission’s conclusion that the sfry no longer existed. See Opinion No. 8, 4 July 1992, 92 ilr (1993) 162, 202. 58 Kre´ca, Badenterova, 40. 59 92 ilr (1993) 167, 168. 60 Kre´ca argues that by “changing these questions off his own bat, Lord Carrington failed to respect the arbitration procedure, according to which the chairman of the Conference was simply to transmit issues for arbitration to the Arbitration Commission for its legal opinion” (Badenterova, 8). 61 Kosovo, like Vojvodina, had been until 1990 an autonomous region within the Republic of Serbia with a population of nearly 2 million inhabitants, 91 per cent of whom were ethnic Albanians. See Weller, “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia.” 62 92 ilr (1993) 167, 168–9, emphasis added in paragraph 1. 63 Of course, in early January 1992, it would have been difficult to identify the existing state or states able to benefit from this presumption in favour of territorial integrity. By 11 January 1992, Slovenia, Croatia, Bosnia-Hercegovina, and Macedonia had applied for recognition pursuant to ec guidelines, and Germany had already extended recognition on 18 December 1991 to

notes.fm Page 304 Thursday, October 10, 2002 8:58 AM

304 Notes to pages 186–90

64 65 66 67 68 69

70 71 72

73 74 75

Slovenia and Croatia. However, the violence of the conflict within Croatia and Bosnia-Hercegovina raised considerable doubts as to the effectiveness of their claims to statehood. At the same time, the independent Republic of Serbian Krajina seemed to fulfil all the classic criteria for statehood. Ratner, “Drawing a Better Line,” 601. 92 ilr (1993) 170. Ibid., 170–1, emphasis added. Ibid., 171, emphasis added. Ibid, emphasis added. Ibid., 172. However, on the basis of the same Constitution, all the constituent nations, not the republics of Yugoslavia, had the right of self-determination (see preamble) – a fact overlooked, it would seem, by the Arbitration Commission. The Constitution, therefore, did create legitimate aspirations on the part of the Serbs in Croatia and Bosnia-Hercegovina to unite with the Serbs of Serbia, which would necessarily have involved changes to existing boundaries. See Antonopoulos, “The Principle of Uti Possidetis Juris in Contemporary International Law,” 83. For a more in-depth discussion of the constitutional arguments involved, see Delcourt, “L’application de l’uti possidetis juris au démembrement de la Yougoslavie,” 38–41; Ramet, Nationalism and Federalism in Yugoslavia 1963–1983; Iglar, “The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination”; and Radan, “Constitutional Law and the Multinational State.” 92 ilr (1993) 170, 171. Antonopoulos, “The Principle,” 83–4, emphasis in the original. Nesi, “L’uti possidetis hors du contexte de la décolonisation,” 7, emphasis in the original. My translation from the original: “De notre côté, nous nous bornons à dire qu’il nous paraît inexact de parler d’application ‘pre-emptive’ de l’uti possidetis iuris par rapport à la reconnaissance de l’indépendance des Républiques sécessionnistes, étant donné que l’uti possidetis iuris n’établit aucun ‘droit de préemption’. Tant que l’État, dont il s’agit de définir les frontières, n’existe pas, le problème de l’applicabilité de l’uti possidetis iuris ne se pose même pas.” 91 ilr (1993) 162, 165. 31 ilm (1992) 1521, 1523. Levrat, “La prise en considération de l’ordre juridique étatique dans la définition des frontières internationales,” 336–7, emphasis added. My translation from the original: “il n’est pas possible de considérer que le droit international – dans sa composante interétatique – s’applique au tracé des frontières internes d’un État souverain, en vue de délimiter des territoires éventuellement appelés à constituer des entités souveraines … Pareille règle … impliquerait que des règles de droit international permettent de déterminer les conditions auxquelles un État souverain pourrait être dépecé.”

notes.fm Page 305 Thursday, October 10, 2002 8:58 AM

305 Notes to pages 190–4 76 Ibid., 347. My translation from the original: “[d]u rétroactif, on passe ainsi à l’anticipatif.” 77 92 ilr (1993) 170, 171–2. See also icj Reports 1986, 554 at 565. 78 icj Reports 1986, 554 at 565, emphasis added. 79 Ibid., emphasis added. 80 Ibid., emphasis added. 81 Ibid., 564, emphasis added. 82 Ibid., 566, emphasis added. 83 Hannum, “Self-Determination, Yugoslavia, and Europe,” 57. This interpretation is also supported by Judge Luchaire’s separate opinion, in which he warns that “[i]n legal discourse, the term ‘decolonization’ should be used only with great caution and must above all not be confused with accession to independence” (icj Reports 1986, 554 at 652). See also Torres Bernárdez, “The ‘Uti Possidetis Juris Principle’ in Historical Perspective”; Christakis, L’ONU, le chapitre VII et la crise yougoslave, 69–71; Craven, “The European Community,” 380; and Sanchez Rodriguez, “L’uti possidetis et les ‘effectivités’ dans les contentieux territoriaux et frontaliers,” 222–3. Contra, see Shaw, “Peoples, Territorialism and Boundaries,” 496–9. 84 Craven, “The European Community,” 388. 85 Ibid., 389. 86 Angelet, “Quelques observations sur le principe de l’uti possidetis à l’aune du cas hypothétique de la Belgique,” 219. My translation from the original: “Le principe de l’uti possidetis ne peut remplir sa fonction stabilisatrice qu’à condition que le bénéficiaire du principe soit préalablement désigné: à défaut de cette identification, l’uti possidetis pourrait généré une multitude de solutions selon que l’indépendance serait proclamée à tel ou tel échelon de l’organisation de l’État prédecesseur. Or, en dehors du contexte de la décolonisation, le droit international ne désigne pas ces bénéficiaires.” 87 Hannum, “Self-Determination, Yugoslavia, and Europe,” 52. 88 Corten et al., “Débats,” 443. 89 Nesi, “L’uti possidetis hors du contexte,” 9, emphasis added. Of course, the principle described in this quote – that is, the principle according to which newly independent states agree to respect the boundaries existing at the moment of their independence – is radically different from that which was applied during the Yugoslav crisis. As previously discussed, in advance of their independence and in the context of a fluid situation, the Badinter Commission declared that irrespective of the outcome of the independence struggle, the former federal republican borders would be preserved. My translation from the original: “Après un premier moment où les autorités centrales de l’ex-rsfy ont essayé de contester jusqu’à l’existence, ou l’importance d’un point de vue juridique, des délimitations territoriales même de caractère administratif opérées entre les différentes Républiques durant la période fédérale, toutes les négociations et les propositions formulées par

notes.fm Page 306 Thursday, October 10, 2002 8:58 AM

306 Notes to pages 194–6

90

91 92

93

94

95 96

97 98

99 100 101 102 103

les négociateurs internationaux qui visaient la pacification de ces zones ont pris comme point de départ, non contesté, la situation territoriale au moment de l’indépendance des nouveaux États.” Ibid., 13. My translation from the original: “Tous les éléments de la pratique exposés jusqu’ici suffiraient à démontrer l’acceptation, de la part des États nés de la dissolution de l’ex-rfsy, de l’uti possidetis iuris en tant que norme sur la délimitation territoriale.” Shaw, “Peoples, Territorialism and Boundaries,” 499. Delcourt, “L’application de l’uti possidetis juris,” 37. My translation from the original: “[L]’on peut défendre la thèse selon laquelle l’ambiguïté des positions, leur caractère fluctuant et la confusion qui a entouré le règlement du conflit rendent aléatoire la prise en compte du cas yougoslave comme précédent pouvant témoigner de l’extension de la règle de l’uti possidetis en dehors des situations de décolonisation.” Unlike some authors (Delcourt, Nesi), we would define the critical period as from January 1990 until the moment when international recognition was extended to the new states within their former federal borders (April 1992). It is our contention that at the time of independence the territorial issue was, to all extents and purposes, definitely settled. Subsequent agreements between the newly independent states merely reiterated their intention to adhere to the solution imposed by the international community. The debate surrounding uti possidetis should therefore focus on the transition period during which entities, not yet subjects of international law, were gifted predetermined international boundaries. Delcourt, “L’application de l’uti possidetis juris,” 38. My translation from the original: “La position des autorités fédérales, en ce qu’elle exprime celle de l’État yougoslave, est prépondérante pour ce qui concerne surtout le problème de l’opposabilité de la règle de l’uti possidetis et, partant, son effectivité dans le règlement de la crise yougoslave.” swb, EE/0882, 29 September 1990, B/7. swb, EE/1011, 4 March 1991, B/16. For its members, the principle of intangibility of internal borders applied only within the context of a unified Yugoslavia (swb, EE/1064, 6 May 1991, B/12). swb, EE/1090, 5 June 1991, A1/3 and swb, EE/1106, 24 June 1991, i. Although the preamble of the 1974 Constitution refers to the “peoples” of Yugoslavia, official pronouncements contain the phrase “right of selfdetermination of the nations” of Yugoslavia. swb, EE/1157, 22 August 1991, B/4. swb, EE/1202, 14 October 1991, B/14. swb, EE/1211, 24b October 1991, B/12. See the letter of protest sent to the commission, swb, bbc, EE/1252, 11 December 1991, C1/1–2. Delcourt, “L’application de l’uti possidetis juris,” 43–4.

notes.fm Page 307 Thursday, October 10, 2002 8:58 AM

307 Notes to pages 197–9 104 swb, bbc, II/0802, 28 June 1990, B/9-B/10. 105 swb, EE/1126, 16 July 1991, B/12. 106 swb, EE/1131, 23 July 1991, B/11. See also the interview by S. Milosevic, swb, EE/1266, 31 December 1991, C1/2, in which he rejects the use of force but declares that it is up to the different nations to determine the borders of Yugoslavia. 107 swb, EE/1172, 9 September 1991, B/7. 108 swb, EE/1116, 5 July 1991, B/15. 109 See the interview of B. Kostic (Montenegro’s representative to the federal presidency) and M. Bulatovic (president of Montenegro) with C. Vance, swb, EE/1205, 17 October 1991, B/8. 110 swb, EE/0982, 29 January 1991, B/10. 111 swb, EE/1244, 2 December 1991, C1/1. 112 swb, EE/1046, 15 April 1991, B/9. 113 swb, EE/1070, 13 May 1991, B/1. 114 swb, EE/1090, 5 June 1991, B/9. 115 swb, EE/1104, 21 June 1991, B/16. 116 swb, EE/1109, 27 June 1991, B/17. 117 swb, EE/1127, 18 July 1991, B/12. 118 swb, EE/1148, 12 August 1991, B/3. 119 As for Macedonia, a sovereignty resolution adopted by the State Assembly in September 1991 provided that problems arising from independence must be resolved in a peaceful and democratic manner (swb, EE/1182, 20 September 1991, B/9). This position was subsequently reiterated by President Glogorov following a meeting with un special envoy Vance: “Acceptable solutions can be found only on the basis of democracy and respect for the inalienable rights of republics as independent states” (swb, EE/1205, 17 October 1991, B/8). While no mention is made of the former federal borders, it can be deduced from the reference to “the rights of republics,” that Macedonian authorities adhered to the general position of the secessionist republics. However, it is once again difficult to perceive in these pronouncements any evidence of an opinio juris. 120 Delcourt, “L’application de l’uti possidetis juris,” 53. My translation from the original: “Les premières (Slovénie, Croatie, Bosnie-Herzégovine, Macédoine) ont finalement voulu exercer leur souveraineté … dans le cadre des limites administratives de la Yougoslavie. Leurs motivations reposaient principalement sur des considérations morales et/ou d’opportunité politique, à des appels à l’histoire et, plus rarement, sur le rappel de la règle du non-changement unilatéral des frontières internes (article 5 de la constitution yougoslave). Sur le plan du droit international, aucune référence explicite n’est faite à la règle de l’uti possidetis … Les secondes (État yougoslave, Serbie, Monténégro) se sont référées de manière constante à la nécessité d’aboutir à un règlement global de tous les

notes.fm Page 308 Thursday, October 10, 2002 8:58 AM

308 Notes to pages 200–2

121 122 123

124 125

126 127 128 129

130 131 132 133 134

différends (y compris ceux relatifs à une éventuelle délimitation) basé sur un consentement exprès de toutes les Parties concernées. Elles ont donc exclu l’application a priori d’une quelconque règle de droit international en matière de délimitation territoriale.” Shaw, “Peoples, Territorialism and Boundaries,” 499. 92 ilr (1993) 174, emphasis added. Delcourt, “L’application de l’uti possidetis juris,” 63. My translation from the original: “il [principe de l’inviolabilité des limites territoriales] signifie que la république, pour être reconnue, doit adhérer à cette solution qui n’a de valeur que dans le cadre d’une relation bilatérale où un futur État s’engage vis-à-vis d’un autre à respecter telle ou telle norme.” Klein, “Les glissements sémantiques et fonctionnels de l’uti possidetis,” 323. In July 1991, the Dutch presidency of the ec suggested to member states that the possibility of modifying the internal borders by way of an agreement between the parties should be explored. Recognition would be conditional on the conclusion of such an agreement. This solution was held to be motivated in part by the inequity of recognizing the right of self-determination for certain entities and not for others. However, the proposal was rejected by the member states on the basis of three considerations: (i) to reopen the question of boundaries would amount to opening Pandora’s box; (ii) to redraw maps on the basis of ethnic criteria was ‘out of date’; (iii) such an initiative would encounter insurmountable obstacles given the interweaving of populations. No legal argument was relied upon (Owen, Balkan Odyssey, 33). For a detailed analysis of various eu pronouncements, see Delcourt, “L’application de l’uti possidetis juris,” 62–9. Corten, “Droit des peuples,” 430. [1991] byil 561. Adopted at the eu’s initiative at Cologne on 10 June 1999. See www.stabilitypact.org. Klein, “Les glissements sémantiques,” 323. My translation from the original: “Les déclarations et prises de positions ultérieures des États européens, qu’elles soient intervenues dans le cadre communautaire ou dans celui de la c.s.c.e./o.s.c.e. ne peuvent pas … être interprétées comme consacrant la théorie de l’uti possidetis aux limites internes d’États démembrés.” Shaw, “Peoples, Territorialism and Boundaries,” 500. Resolution 713. For further details, refer to Delcourt, “L’application de l’uti possidetis juris,” 70–2. icj Reports 1986, 14 at 97. Corten, “Droit des peuples,” 406, quoting Combacau and Sur, Droit international public, Paris: Montchrestien, 1997, 431. My translation from the

notes.fm Page 309 Thursday, October 10, 2002 8:58 AM

309 Notes to pages 203–6

135

136 137

138 139

140 141 142 143

144 145 146

147 148 149 150

original: “Cette méthode, appliquée au sujet de règles aussi universelles et incontestée que celles du non-recours à la force, devrait a fortiori s’appliquer à des principes comme ceux de l’uti possidetis juris dont ‘[l]a valeur de règle de droit international général reste encore mal assurée.› Act to establish the Commission on the Political and Constitutional Future of Quebec, s.q. 1990, c. 34, and subsequent amendments, s.q. 1990, c. 45. The chairmen of the commission were Mr Michel Bélanger and Mr Jean Campeau, hence the frequent references to the Bélanger-Campeau Commission. Ibid. The preamble to the Act to Establish the Commission on the Political and Constitutional Future of Quebec highlights the circumstances surrounding its creation and its mandate. Article 3. During the course of its public consultation, 235 groups and individuals appeared before the commission. A Forum on Youth and the Future of Quebec was also held, bringing the number of presentations to a total of 267. From 6 November 1990 to 23 January 1991, the commission visited eleven administrative regions and held sittings in eleven Quebec cities. Some fifty-five specialists in various fields also contributed information at the request of the commission. They included political scientists, jurists, economists, sociologists, demographers, geographers, and members of the cultural, arts, and literary communities. Franck et al., “L’intégrité territoriale du Québec dans l’hypothèse de l’accession à la souveraineté,” 51–2. Evans-Pritchard, “Indian Ambush Awaits the Secessionists,” The Sunday Telegraph, 29 October 1995, 27. Franck et al., “Territorial Integrity,” 52. The panel of five international law experts will be referred to as the “five experts” or “five jurists,” and their final report as the “five experts’ opinion.” Parizeau, “Frontières d’un Québec souverain: la situation est ‘on ne peut plus claire,› La Presse (Montreal), 25 May 1994, B3. Franck et al., “Territorial Integrity,” 50. Parizeau, “Frontières d’un Québec souverain: la situation est ‘on ne peut plus claire,› La Presse (Montreal), 25 May 1994, B3. My translation from the original: “des attitudes qui tiennent d’une campagne de peur et qui foulent au pied l’intelligence des citoyens.” Monahan, “International law isn’t on Mr. Parizeau’s side,” The Globe and Mail (Toronto), 19 May 1994, A3. Ibid. Franck et al., “Territorial Integrity,” 52, emphasis added. Ibid., 10.

notes.fm Page 310 Thursday, October 10, 2002 8:58 AM

310 Notes to pages 206–8 151 Ibid. 152 Ibid. 153 For the jurists’ discussion of the right of self-determination of the Québécois people, refer to Franck et al., “Territorial Integrity,” 33–41. The majority of writers who have considered this issue support the jurists’ conclusion. They include Williams, International Legal Effects of Secession by Quebec; Burdeau, “Avis du Professeur Geneviève Burdeau,” 540–2; and Finkelstein, Vegh, and Joly, “Does Quebec Have a Right to Secede at International Law?”, 260. 154 For the experts’ analysis on this point, refer to Franck et al., “Territorial Integrity,” 41–3. 155 On this issue, refer to the analysis at pages 44–8 of the opinion. See, however, the discussion of the right of indigenous peoples to self-determination under international law in Grand Council of the Crees of Quebec, Status and Rights of the James Bay Crees, 6–58. 156 Emphasis added. See discussion below. 157 See discussion below. 158 See next section below. 159 For the experts’ conclusions on this issue, see Franck et al., “Territorial Integrity,” 21–4. But refer to Bercuson and Cooper, who maintain that Quebec gained legal title in 1898 and 1912 to the territory formally comprising a portion of Rupert’s land “only and solely because it was a Canadian province … Its administrative jurisdiction, therefore, is contingent upon its remaining a province of Canada. In other words, Quebec gained jurisdiction over these lands by virtue of its being part of Canada and on the assumption that the lands would remain Canadian territory … When Quebec leaves Canada it surrenders all territory it gained while it was part of Canada” (Deconfederation: Canada Without Quebec, 151–2). Along the same lines, see Shaw and Albert, Partition: The Price of Quebec’s Independence; Varty, Who Gets Ungava?, 23; Grand Council of the Crees of Quebec, Status and Rights, 83. 160 Franck et al., “Territorial Integrity,” 49–50. 161 Cassese, Self-determination of Peoples, 171–2; and Doehring, “Self-Determination,” 70. 162 Reference re Secession of Quebec, [1998] 2 s.c.r. 217, 282. 163 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, ga Res. 2625 (xxv), 24 October 1970. 164 Vienna Declaration and Programme of Action, A/Conf. 157/24, 25 June 1993. 165 Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, ga Res. 50/6, 9 November 1995. See, for example, Article 1: “Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms

notes.fm Page 311 Thursday, October 10, 2002 8:58 AM

311 Notes to pages 209–10

166

167

168

169

170 171 172 173 174

of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action – in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.” See Professor Franck’s discussion of the concept of a ‘right’ in his expert report submitted in the matter of the Reference re Secession of Quebec (“Supplément au dossier: Rapports d’experts de l’amicus curiae, tab 3). See, however, the Supreme Court’s conclusion that while international law does not permit or deny a right of unilateral secession, “such a denial is, to some extent, implicit in the exceptional circumstances required for secession to be permitted under the right of a people to self-determination … As will be seen, international law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part” (Reference re Secession of Quebec, [1998] 2 s.c.r. 217, 277–8). Franck, “Supplément au dossier: Rapports d’experts de l’amicus curiae,” tab 3, §2.11, in the matter of the Reference re Secession of Quebec, text underlined in the original. Christakis, Le droit à l’autodétermination en dehors des situations de décolonisation, 82–3, citing Crawford, “Response to Expert Reports of the Amicus Curiae,” §17, in the matter of the Reference re Secession of Quebec, emphasis in the original. My translation from the original: “[N]ous pensons qu’il est erroné de considérer que le droit international accorde un tel ‘droit indirect’, un tel ‘privilège’ aux groupes sécessionnistes. Le droit international ne ‘permet’ ni ‘n’autorise’ la sécession. Ce qu’il fait plutôt … c’est d’ériger contre elle des obstacles importants, en protégeant ainsi l’État contre les mouvements sécessionnistes. Le droit est hostile à la sécession et ne la ‘permet’ guère. Il ne fait que tenir compte de la réalité quand la sécession réussit contre vents et marées à s’imposer … Ainsi, comme l’a remarqué J. Crawford, ‘un groupe sécessionniste informé que le droit international lui permettrait de faire sécession ou lui conférait le privilège de le faire, pourrait être déçu des conséquences.› Cassese, Self-Determination of Peoples, 123. Quaye, Liberation Struggles in International Law, 240. Crawford, The Creation of States, 266, emphasis added. Monahan, “Cooler Heads Shall Prevail,” 14. Franck et al., “Territorial Integrity,” 49.

notes.fm Page 312 Thursday, October 10, 2002 8:58 AM

312 Notes to pages 210–14 175 Ibid. 176 This point is accepted by the Bélanger and Campeau, Commission, Report of the Commission on the Political and Constitutional Future of Québec, 52. 177 Monahan, “Cooler Heads Shall Prevail,” 15. 178 Reference re Secession of Quebec, [1998] 2 s.c.r. 217, 290. 179 Franck et al., “Territorial Integrity,” 25 at footnote 70. 180 Craven, “The European Community,” 375–6. 181 Statement by the Presidency on the Recognition of Yugoslav Republics (Brussels, 15 January 1992), epc Press Release 9/92. 182 Woerhling, Éléments d’analyse institutionnelle, juridique et démolinguistique pertinents à la révision du statut politique et constitutionnel du Québec, Commission sur l’avenir politique et constitutionnel du Québec, Document de travail no. 2, 58–9. The Crees in their well-documented study Sovereign Injustice have proposed a number of peaceful measures that would deny Quebec authorities effective control over their lands: constitutional challenges in Canadian courts; continued application of federal as well as Aboriginal laws; federal collection of income and other taxes; provision of federal programs and services to Aboriginal communities, etc. (Grand Council of the Crees, 146). 183 Franck et al., “Territorial Integrity,” 27, emphasis added. 184 Ibid., 49. 185 Corten, “Droit des peuples,” 407. My translation from the original: “Ce clivage, valable pour le mode d’accession à l’indépendance, doit l’être aussi pour ses conséquences, parmi lesquelles on peut indéniablement compter la délimitation frontalière.” 186 Understood in its external aspect – that is, as conferring a right to independence. 187 Corten, “Droit des peuples,” 408. 188 Ibid. My translation from the original: “[L]’argument de l’analogie ne peut pas fonctionner, c’est-à-dire qu’on ne peut en aucun cas passer d’une chaîne à l’autre en isolant un de ses éléments et, plus spécifiquement, en détachant la délimitation frontalière du mode d’accession à l’indépendance.” 189 Franck et al., “Territorial Integrity,” 28. 190 Ibid., 49, emphasis added. 191 Refer to earlier discussion of the nemo dat quod non habet principle at section 5.4.4 in chapter 5. 192 Franck et al., “Territorial Integrity,” 28–9, quoting Bettati, “Souveraineté et succession d’États,” in Dupuy et al., La souveraineté au XX e siècle, Paris: Colin, 1971, 66, emphasis added. 193 The experts maintain that the scope of the uti possidetis principle was extended in Africa, noting that it came to be applied to boundaries that had been established between colonies of different European powers. As discussed in chapter 4, colonial boundaries existing between two different

notes.fm Page 313 Thursday, October 10, 2002 8:58 AM

313 Notes to pages 215–20

194 195 196 197 198 199 200 201 202 203 204 205 206

207 208 209 210 211

212

213

metropolitan powers already constituted international boundaries and called into play different international legal principles – namely, the rules on state succession and the rebus sic stantibus rule. There is no need to credit the uti possidetis principle with the determination of this wholly separate and distinct category of boundaries. Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) icj Reports 1986, 554 at 565. Franck et al., “Territorial Integrity,” 29. Ibid. icj Reports 1950, 266 at 276–7. icj Reports 1951, 116 at 131. icj Reports 1969, 3 at 43. Crawford, “State Practice and International Law in Relation to Unilateral Secession: Report,” 28, footnote omitted. Brierley, The Law of Nations, 61. icj Reports 1986, 14 at 108–9, citing the North Sea Continental Shelf cases. Shaw, International Law, 74. 31 ilm (1992) 142. 31 ilm (1992) 148. 34 ilm (1995) 1283. The Charter was ratified by the twelve republics and came into force in 1994. See Khabarov, “Introductory Note,” 34 ilm (1995) 1299. Weerts, “Heurs et malheurs du principe de l’uti possidetis,” 107. Ibid. 43 cdsp (1991) 5, emphasis added. 43 cdsp (1991) 15, emphasis added. This conclusion is borne out, for example, by the position of Russia and Kazakstan, who concluded a bilateral agreement resolving, among other things, the question of their mutual boundaries. See Weerts, “Heurs et malheurs,” 119. Pronouncement by the president of Kirghyzstan on 29 August 1991: “An agreement on the frontiers between republics is no less important. It must be clear to everybody that attempts to redraw frontiers between republics attempts to violate the status quo in this question, can only have one consequence – the death of completely innocent people chaos and destruction” (swb, SU/1163, 29 August 1991, C1/3, emphasis added). Statement by the United Democratic Party of Bielorussia on 29 August 1991: “We believe that talks on reviewing existing borders will not lead to a change in those borders, but will only damage ethnic relations between the indigenous and Russian populations of the states that border on Russia. We will be showing good sense if we all agree on the existing borders” (43 cdsp (1991) 16, emphasis added).

notes.fm Page 314 Thursday, October 10, 2002 8:58 AM

314 Notes to pages 220–6 214 215 216 217

218 219

220 221 222 223 224 225 226

227 228 229

[1991] byil 561. Crawford, ”State Practice and International Law,” 29. See section “Conclusion vi” above. According to the experts, “the reactions of the international community reflect the generalized conviction that, in the case of the secession or dissolution of States, pre-existing administrative boundaries must be maintained to become the borders of the new States” (Franck et al., “Territorial Integrity,” 30, emphasis added). Crawford, “State Practice and International Law,”17. Hilling, “Les frontières du Québec dans l’hypothèse de son accession à l’indépendance,” 239. Hilling refers to the Palmas Island Arbitration, 2 RSA (1928) 828, 839, as support for the proposition that “la souveraineté ne se présume pas.” My translation from the original: “[O]n ne peut présumer que la sécession du Québec entraînera la dissolution de la fédération canadienne. Si la souveraineté ne se présume pas, sa disparition non plus. Par conséquent, on ne peut en aucun cas affirmer que des règles développées pour répondre à une dissolution s’appliquent, sans nuance aucune, à une séparation d’une partie du territoire d’un État.” Craven, “The European Community,” 380. Reference re Secession of Quebec, [1998] 2 s.c.r. 217, 218. Ibid., 288. Franck, “Supplément au dossier: Rapports d’experts de l’amicus curiae,” tab 1, 21, in the matter of the Reference re Secession of Quebec. Reproduced in Brownlie, Basic Documents in International Law, 44. Crawford, The Creation of States, 266, emphasis added. Monahan, “La sécession du Québec,” vol. 1, 5. My translation from the original: “[L]e droit international ne confère pas au Québec le droit de faire sécession ni ne garantit le maitien de ses frontières actuelles en cas de déclaration unilatérale d’indépendance. L’issue d’une telle déclaration dépendrait de la capacité du Québec d’exercer un contrôle de fait sur l’ensemble de son territoire et de sa population et de les soustraire à l’autorité du gouvernement canadien.” Monahan, “International Law Isn’t on Mr. Parizeau’s Side,” The Globe and Mail (Toronto), 19 May 1994, A21. Shaw, “Supplément au dossier: Rapports d’experts de l’amicus curiae,” tab 7, 4a, in the matter of the Reference re Secession of Quebec. It will be recalled that according to the experts, when secession occurs within the framework of a well-defined territorial district, by virtue of the uti possidetis juris principle, the former borders of this district become the boundaries of the new state. The experts further declare in their report that “[r]ecent international practice leaves no doubt as to this fact where the

notes.fm Page 315 Thursday, October 10, 2002 8:58 AM

315 Notes to pages 226–8

230 231

232 233 234 235 236 237

238

239

predecessor State is a federation, and reflects the existence of a generalized opinio juris along these lines” (emphasis added). Wildhaber, “Territorial Modifications and Breakups in Federal States,” [1995] Can. Ybk Int’l L. 41, 43. Hilling, “Les frontières du Québec,” 239. My translation from the original: “Une des conséquences pour le moins absurde du raisonnement est de placer les États fédéraux dans une position beaucoup plus vulnérable que les États unitaires face aux mouvements sécessionistes. Le gouvernement du Québec l’a fort bien compris d’ailleurs puisque la reconnaissance des droits des peuples autochtones dans l’avant-projet de loi sur la souveraineté, par exemple, était conditionnelle à la reconnaissance, par ces derniers, de l’intégrité du territoire du Québec. Un État unitaire comme la France pourrait nier l’existence de peuples sur son territoire ainsi que leur droit de disposer d’eux-mêmes, mais le Canada serait obligé de renoncer à une partie de son territoire, le droit international ne lui laissant d’autre choix!” See also Levrat, “La Prise,” 358–9. Shaw, “Supplément au dossier,” 33. icj Reports 1992, 351 at 388. Crawford, “Response to Expert Reports of the Amicus Curiae,” in the matter of the Reference re Secession of Quebec. Shaw, “Supplément au dossier,” 33. See relevant articles reproduced in section “Conclusion vi” above. Shaw, “Supplément à la duplique: Rapports additionnels des experts de l’amicus curiae,” tab 4, 11, in the matter of the Reference re Secession of Quebec. Bardonnet, “Les frontières terrestres,” 98. My translation from the original: “que le choeur est moins harmonieux, le tableau moins uniformément lumineux qu’on pourrait le croire de prime abord.” Even Kohen, a staunch defender of uti possidetis as a general rule of international law applicable in every situation of accession to independence, admits that “the latest jurisdictional decisions relative to or relating to territorial sovereignty, as well as the situation created at the end of the cold war by the emergence of new independent States, have resulted in uti possidetis, until then most often relegated to a secondary role with respect to Latin American and then African boundaries, acquiring a new lease on life” (my translation from the original: “les dernières décisions juridictionnelles relatives ou connexes à la souveraineté territoriale, ainsi que la situation créé à la fin de la guerre froide par l’émergence de nouveaux États indépendants, ont fait en sorte que l’uti possidetis, jusqu’alors rélégué le plus souvent à un rôle secondaire en matière de frontières latino-américaines, puis africaines, ait récemment pris un nouvel essor,” Possession contestée, 425, emphasis added).

notes.fm Page 316 Thursday, October 10, 2002 8:58 AM

316 Notes to pages 229–39 240 Bloomfield, The British Honduras/Guatemala Dispute, 94. 241 icj Reports 1986, 554 at 661. conclusion 1 Frontier Dispute (Burkina Faso/Republic of Mali), icj Reports 1986, 554 at 566. 2 Ibid., 565. 3 Corten, “Droit des peuples à disposer d’eux-mêmes et uti possidetis,” 433. 4 Klein, “Les glissements sémantiques et fonctionnels de l’uti possidetis,” 315–16, emphasis added. My translation from the original: “Bien plus que dans le cas des luttes de décolonisation, ce sont donc à la fois le territoire et l’indépendance qui constituent l’enjeu des combats dans un tel cadre, et ces éléments expliquent dans une mesure non négligeable l’intensité des oppositions armées sur le terrain. Les spécificités de ce type de conflit ne peuvent que conduire à relativiser les effets pacificateurs de l’uti possidetis dans ces situations.” 5 Corten, “Droit des peuples,” 445–6. 6 Ibid., 446. 7 92 ilr (1993) 172. 8 See, for instance, Angelet, “Quelques observations sur le principe de l’uti possidetis à l’aune du cas hypothétique de la Belgique,” 204. 9 Corten et al., “Débats,” 445. My translation from the original: “À supposer qu’une tentative de sécession survienne, il suffirait aux autorités québécoises de contrôler une partie de territoire … pour prétendre à l’indépendance et à la reconnaissance internationale. Dans cette hypothèse, le Québec accèderait à la souveraineté dans les limites de l’ancienne Province canadienne, en ce compris les territoires des populations autochtones. Quelle serait, alors, l’intérêt du Québec à mener des négociations avec la partie canadienne? Sans même devoir entamer les pourparlers, il obtiendrait la totalité de ses revendications.” 10 Corten, “Droit des peuples,” 431. 11 Christakis, Le droit à l’autodétermination en dehors des situations de décolonisation, 115. 12 Hannum, “Rethinking Self-Determination,” 38. 13 Ibid., 39. 14 Hannum, “Self-Determination, Yugoslavia, and Europe,” 68. 15 Ibid. 16 Ratner, “Drawing a Better Line,” 611. Lest this be thought a recent interpretation of the relationship between self-determination and territorial integrity, it appears to have formed the basis of the recommendations formulated by the Commission of Rapporteurs in the Aaland Islands dispute in 1921. See section 3.3.6 in chapter 3.

notes.fm Page 317 Thursday, October 10, 2002 8:58 AM

317 Notes to pages 239–40 17 Reproduced in Brownlie, Documents in International Law, 44. 18 For a discussion of the impact Native rights would have on the determination of the boundaries of an independent Quebec, refer to Hilling, “Les frontières du Québec dans l’hypothèse de son accession à l’indépendance.” 19 Shaw, “The Heritage of States,” 154.

notes.fm Page 318 Thursday, October 10, 2002 8:58 AM

biblio.fm Page 319 Thursday, October 10, 2002 8:58 AM

Bibliography books, articles, and theses Acollas, E. Le droit de la guerre. Paris: Librairie ch. Delagrave, 1888. Albrecht-Carrié, R. Italy at the Paris Peace Conference. Connecticut: Archon Books, 1966. Allot, A. “Boundaries and the Law in Africa.” In Widstrand, C.G., ed., African Boundary Problems. Uppsala: Almqvist, 1969. Alvarez, A. “Latin America and International Law.” ajil [1909 iii] 269. – Le droit international américain. Paris: Éditions A. Pedone, 1910. – The Monroe Doctrine: Its Importance in the International Life of the States of the New World. London: Oxford University Press, 1924. Anaya, J. “A Contemporary Definition of the International Norm of SelfDetermination.” 3 Transnat’l L & Contemp. Problems (1993) 131. Ancel, J. Les frontières. Paris: Delagrave, 1938. Angelet, N. “Quelques observations sur le principe de l’uti possidetis à l’aune du cas hypothétique de la Belgique.” In Corten, O., et al., eds, Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Antonopoulos, C. “The Principle of Uti Possidetis Juris in Contemporary International Law.” Revue hellénique de droit international [1996] 29. Aufricht, H. Guide to League of Nations Publications. New York: Columbia University Press, 1951. Ayala, M.E. “Le Uti Possidetis et le règlement des questions territoriales en Amérique.” jadi [1931] 249.

biblio.fm Page 320 Thursday, October 10, 2002 8:58 AM

320

Bibliography

Bagwell, B. “Yugoslavian Constitutional Questions: Self-Determination and Secession of Member Republics.” 21 Ga J Int’l & Comp. L. (1991) 489. Baker, S. Halleck’s International Law. London: Kegan, Paul, Trench, Trubner & Co. Ltd., 1893. Balfour, Lord A.J. “The Balfour Declaration.” In Documents Relating to the Palestine Problem. London: The Jewish Agency for Palestine, 1945. Bannerman, J.P. “Palestine and Transjordan: 1914–1923.” FO Research Department Note No. 23/1982. Barberis, J.A. “La regla del Uti Possidetis en las controversias limitrofes entre Estados Hispanoamericanos.” In Liber Amicorum: Colección de Estudios juridicos en Homenaje al Prof. Dr D. José Pérez Montero. Oviedo: Universidad, 1988. Bardonnet, D. “Les frontières terrestres et la relativité de leur tracé.” 153 Recueil des Cours (1976 V) 9. Barros, J. The Aland Islands Question: Its Settlement by the League of Nations. New Haven: Yale University Press, 1968. Barutciski, M. “Politics Overrides Legal Principles: Tragic Consequences of the Diplomatic Intervention in Bosnia-Herzegovina (1991–1992).” 11 The American University Journal of International Law and Policy (1996) 767. Bastid, S. “Les Problèmes territoriaux dans la jurisprudence de la cij.” 107 Hague Recueil (1962 iii) 360. Bayles, M. “Hart vs. Dworkin,” 10 Law and Philosophy (1991) 349. Baylson, J.C. Territorial Allocation by Imperial Rivalry: The Human Legacy in the Near East. Chicago: University of Chicago, Dept of Geography, 1987. Bélanger, M., and J. Campeau. Report of the Commission on the Political and Constitutional Future of Québec. Quebec: Bibliothèque nationale du Québec, 1991. Belli, P. De Re Militari et Bello Tractatus. Translation by Nutting, H.C. (A Treatise on Military Matters and Warfare in Eleven Parts). Oxford: Clarendon Press, 1936. Bennett, G. “The Eastern Boundary of Uganda in 1902.” 23 Uganda Journal (1959) 69. Bercuson, D.J., and B. Cooper. Deconfederation: Canada Without Quebec. Toronto: Key Porter, 1991. Bernhardt, R. “Customary International Law.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 1. Oxford: North Holland, 1984. – ed. Encyclopedia of Public International Law. Oxford: North Holland, 1984. Berger, A. Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953. Bethell, L. Spanish America After Independence. Cambridge: The University Press, 1987. Bieber, R. “European Community Recognition of Eastern Europe States: A New Perspective for International Law?” 86 asil Proceedings (1992) 374. Biger, G. “Geographical and Other Arguments in Delimitation in the Boundaries of British Palestine.” In Grundy-Warr, C., ed., International Boundaries and Boundary Conflict Resolution. Durham: Boundaries Research Press, 1989.

biblio.fm Page 321 Thursday, October 10, 2002 8:58 AM

321

Bibliography

Black, H.C. Black’s Law Dictionary. Abridged 5th ed. St Paul, Minnesota: West Publishing Co., 1983. Blay, S.K.N. “Self-Determination Versus Territorial Integrity in Decolonization.” 18 nyujilp (1985–86) 441. Bleckmann, A. “Decolonization: French Territories.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 10. Oxford: North-Holland, 1984. Bloomfield, H.J. The British Honduras/Guatemala Dispute. Toronto: The Carswell Company Limited, 1953. Blum, Y.Z. Historic Titles in International Law. The Hague: Martinus Nijhoff, 1965. Bluntschli, M. Le Droit International Codifié. Paris: Librairie de Guillaumin et Cie, 1870. Boggs, S.W. International Boundaries: A Study of Boundary Functions and Problems. New York: Columbia University Press, 1940. Bothe, M. “Boundaries.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 6. Oxford: North-Holland, 1984. Bourjorl-Flécher, D. “Heurs et malheurs de l’uti possidetis: l’intangibilité des frontières africaines.” 35 rjpic (1981) 811. Boursot, R. La Question des Iles d’Aland. Dijon: Imprimerie Bernigaud & Privat, 1923. Boutros-Ghali, B. L’Organisation de l’Unité africaine. Paris: A. Colin, 1968. – “The Addis Ababa Charter.” 546 International Conciliation (1964) 1. Brierley, J. The Law of Nations. 6th ed. by Waldock. Oxford: Clarendon Press, 1963. Brölmann, C., R. Lefeber, and M. Zieck, eds. Peoples and Minorities in International Law. London: Martinus Nijhoff Publishers, 1993. Brownlie, I. “Boundary Disputes in Africa.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 6. Oxford: North-Holland, 1984. – Principles of Public International Law. 5th ed. Oxford: Clarendon Press, 1998. – ed. African Boundaries: A Legal and Diplomatic Encyclopedia. London: C. Hurst & Company, 1979. – ed. Basic Documents in International Law. 4th ed. Oxford: Clarendon Press, 1995. – ed. Basic Documents on African Affairs. Oxford: Clarendon Press, 1971. Bryce, J. Studies in History and Jurisprudence. 2 vols. Oxford: Clarendon Press, 1901. Buckland, W.W. A Text-book of Roman Law from Augustus to Justinian. Cambridge: The University Press, 1963. – The Main Institutions of Roman Private Law. Cambridge: The University Press, 1931. – and A.D. McNair. Roman Law & Common Law: A Comparison in Outline. Cambridge: The University Press, 1952.

biblio.fm Page 322 Thursday, October 10, 2002 8:58 AM

322

Bibliography

Burdeau, G. “Avis du Professeur Geneviève Burdeau.” In Éléments d’analyse économique pertinents à la révision du statut politique et constitutionnel du Québec. Commission sur l’avenir politique et constitutionnel du Québec, document de travail n. 1, annexe B-4. Québec, 1991. Burke, J.J. The Political Foundation of Law and the Need for Theory with Practical Value. San Francisco: Austin & Winfield, 1993. Bynkershoek, C.V. Quaestionum Juris Publicis Libri Duo. Translation by Frank, T. (On Questions of Public Law). 2 bks. Oxford: Clarendon Press, 1930. Calvo, C. Recueil complet des traités, conventions, capitulations, armistices et autres actes diplomatiques de tous les États de l’Amérique latine. Bk 1. Paris: Librairie A. Durand, 1862. Campbell, G. A Compendium of Roman Law. London: Stevens and Haynes, 1878. Carrington, C.E. “Frontiers in Africa.” 36 International Affairs (1960) 424. Cassese, A. Self-Determination of Peoples: A Legal Reappraisal. Cambridge: University Press, 1995. – “The International Court of Justice and the Right of Peoples to SelfDetermination.” In Lowe, V., and M. Fitzmaurice, eds, Fifty years of the International Court of Justice. Cambridge: The University Press, 1996. Cavalieri, A. “Règles générales du droit de la paix.” 26 hr (1929) 315. Charpentier, J. “Le problème des enclaves.” In Société française pour le droit international, Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1980. Chepmell, H. Le M., and F.C.F. Demmler. Niebuhr’s Lectures on Roman History. London: Henry G. Bohn, 1852. Chime, S. “The Organization of African Unity and African Boundaries.” In Widstrand, C.G., ed., African Boundary Problems. Uppsala: Almqvist, 1969. Christakis, T. Le droit à l’autodétermination en dehors des situations de décolonisation. Paris: La documentation française, 1999. – l’onu, le chapitre vii et la crise yougoslave. Paris: Montchrestien, 1996. Christie, G. “The Model of Principles” 17 Duke Law Journal (1968) 649. Cohen, L.J. Broken Bonds: The Disintegration of Yugoslavia. Boulder: Westview Press, 1993. Colliard, C.A. Débats sous la Présidence de M. le Doyen C.A. Colliard. In Société française pour le droit international, Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1980. Commission sur l’avenir politique et constitutionnel du Québec. Éléments d’analyse institutionnelle, juridique et démolinguistique pertinents à la révision du statut politique et constitutionnel du Québec. Document de travail no. 2. Quebec, 1991. – Les avis des spécialistes invités à répondre aux huit questions posées par la Commission. Document de travail no. 4. Quebec, 1991. Corten, O. “Droit des peuples à disposer d’eux-mêmes et uti possidetis: deux faces d’une même médaille?” In Corten, O., et al., eds, Démembrements d’États

biblio.fm Page 323 Thursday, October 10, 2002 8:58 AM

323

Bibliography

et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. – et al., eds. Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. – et al., eds. “Débats.” In Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Côté, M, and D. Johnston. If Québec Goes … The Real Cost of Separation. Toronto: Stoddard Publishing Co. Limited, 1995. Craven, M. “The European Community Arbitration Commission on Yugoslavia.” 66 byil (1995) 333. Crawford, J. The Creation of States in International Law. Oxford: Clarendon Press, 1979. – “The General Assembly, the International Court and Self-determination.” In Lowe, V., and M. Fitzmaurice, eds, Fifty Years of the International Court of Justice. Cambridge: The University Press, 1996. Crawford, R., and P. Dayanidhi. “East Timor: A Study in De-Colonization.” 33 India Quarterly (1977) 419. Cukwurah, A.O. “The Organization of African Unity and African Territorial and Boundary Problems: 1963–1973.” 13 Indian jil (1973) 176. – The Settlement of Boundary Disputes in International Law. Manchester: The University Press, 1967. Curzon, The Right Honourable Lord Curzon of Kedleston. Frontiers. Oxford: Clarendon Press, 1970. Davies, H., and D. Holdcroft. Jurisprudence: Text and Commentary. London: Butterworths, 1991. Davis, R.H. Historical Dictionary of Colombia. London: Scarecrow Press Inc., 1993. Day, A.J., ed. Border and Territorial Disputes. London: Longman Group uk Limited, 1987. De Arechaga, E.J. “Boundaries in Latin America: Uti Possidetis Doctrine.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 6. Oxford: North-Holland, 1984. De Caviedes, A.P. “De la clause ‘Rebus Sic Stantibus’ à la clause de la révision dans les conventions internationales.” 118 hr (1966) 109. De Lapradelle, P. La frontière: étude de droit international. Paris: Les Éditions internationales, 1928. – and N. Politis. Recueil des arbitrages internationaux. Bk 2. Paris: Éditions internationales, 1905. Delcourt, B. “L’application de l’uti possidetis juris au démembrement de la Yougoslavie: règle coutumière ou impératif politique?” In Corten, O., et al., eds, Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. De Martens, G.F. Précis du Droit des Gens Moderne de l’Europe. Paris: Guillaumin et Cie, 1858.

biblio.fm Page 324 Thursday, October 10, 2002 8:58 AM

324

Bibliography

De Pinho Campinos, J. “L’actualité de l’uti possidetis.” In Société française pour le droit international, Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1979. Despagnet, F. “Les occupations de territoires et le procédé de l’hinterland.” 1 rgdip (1894) 103. De Vattel, E. Le Droit des Gens ou Principes de la Loi Naturelle. Translation by Fenwick, C.G. (The Law of Nations or the Principles of Natural Law). Washington: The Carnegie Institution of Washington, 1916. Devine, A. “The Requirements of Statehood Re-examined.” 34 Modern Law Review (1971) 410. De Visscher, C. Problèmes de confins en droit international public. Paris: Éditions A. Pedone, 1969. De Vitoria, F. De Indis Noviter Inventis and De Jure Belli. Translation by Brown Scott, J. (Francisco de Vitoria and his Law of Nations). Oxford: Clarendon Press, 1934. Dias Van Dunum, F. J. de F. “Les frontières africaines.” Unpublished Ph.D. dissertation. Université d’Aix-Marseille, 1969. Ding, H., and E.S. Koenig. “Boundary Dispute Concerning the Taba Area.” 83 ajil (1989) 590. Dockrill, M., and J.D. Goold. Peace without Promise: Britain and the Peace Conference 1919–23. London: Batsford Academic and Educational, 1981. Doehring, K. “Self-Determination.” In Simma, ed., The Charter of the United Nations: A Commentary. Oxford: University Press, 1994. Downing, D. An Atlas of Territorial and Border Disputes. London: New English Library Limited, 1980. Dugard, J. Recognition and the United Nations. Cambridge: University Press, 1987. – “Secession: Is the Case of Yugoslavia a Precedent for Africa?” 5 African Journal of International and Comparative Law (1993) 163. Dutheil de la Rochère, J. “Les procédures de règlement des différends frontaliers.” In Société française pour le droit international, Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1980. Dworkin, R. A Matter of Principle. London: Harvard University Press, 1985. – Law’s Empire. London: Fontana, 1986. – Taking Rights Seriously. London: Duckworth, 1977. Eastwood, L. “Secession: State Practice and International Law after the Dissolution of the Soviet Union and Yugoslavia.” 3 Duke Journal of Comparative and International Law (1993) 299. Elias, T.O. “The Charter of the Organization of African Unity.” 59 ajil (1965 ii) 243. – The Modern Law of Treaties. New York: Oceana Publications Inc., 1974. El Kadiri, A. La position des États du Tiers-Monde à la Conférence de Vienne sur le droit des traités. Rabat: ed. de la Faculté de droit, 1980.

biblio.fm Page 325 Thursday, October 10, 2002 8:58 AM

325

Bibliography

Elliot, P.D. “The East Timor Dispute.” 27 iclq (1978) 238. Englefield, G. “Yugoslavia, Croatia, Slovenia: Re-emerging Boundaries.” In Territory Briefing 3: International Boundaries Research Unit. Durham: ibru Press, 1992. Eyal, J. Europe and Yugoslavia: Lessons from a Failure. Whitehall Paper No. 19. London: Royal United Services Institute for Defence Studies, 1993. Fawcett, J.E.S. “Security Council Resolutions on Rhodesia,” 41 BYIL (1965-6) 102. Fenet, A., ed. Peuples et états du tiers monde face à l’ordre international. Paris: puf, 1978. Finch, J. The Natural Boundaries of Empires and a New View of Colonization. London: Longman, Brown, Etc., 1844. Finkelstein, N., G. Vegh, and C. Joly. “Does Québec Have a Right to Secede at International Law?” 74 The Canadian Bar Review (1995) 225. Fisher, F.C. “The Arbitration of the Guatemalan-Honduran Boundary Dispute.” 27 ajil (1933) 403. Foucher, M. Fronts et Frontières: Un tour du monde géopolitique. Paris: Fondation pour les Études de Défense Nationale, 1986. Fox, J.R. Dictionary of International and Comparative Law. 2nd ed. New York: Oceana Publications Inc., 1997. Franck, T.M. “Postmodern Tribalism and the Right to Secession.” In Brölmann, C., et al., eds, Peoples and Minorities in International Law. London: Martinus Nijhoff Publishers, 1993. – “The Emerging Right to Democratic Governance.” 86 ajil 46. – et al. “L’intégrité territoriale du Québec dans l’hypothèse de l’accession à la souveraineté.” In Commission d’étude des questions afférentes à l’accession du Québec à la souveraineté: Projet de Rapport. Annexe. Quebec, 1992. Freeman, A., and P. Grady. Dividing the House: Planning for a Canada Without Quebec. Toronto: Harper Collins Publishers Ltd, 1995. Friedman, L., ed. The Law of War: A Documentary History. Vol. 1. New York: Random House, 1972. Frowein, J.A. “Self-Determination as a Limit to Obligations under International Law.” In Tomuschat, C., ed., Modern Law of Self-Determination. Boston: Martinus Nijhoff Publishers, 1993. Gaius, J.C.O. Corpus Iuris Civilis. Edition by Krueger, P., and T. Mommsen. Berlin: Weid Mannos, 1928. – Gaii Institutionum Iuris Civilis. Translation and notes by Muirhead, J. (The Institutes of Gaius and Rules of Ulpian). Edinburgh: T & T Clark Law Publishers, 1904. – Gai Institutiones. Translation by Poste, E. (Institutes of Roman Law by Gaius). Oxford: Clarendon Press, 1904. Garner, J.W. “The Doctrine of Rebus Sic Stantibus and the Termination of Treaties.” 21 ajil (1927) 509.

biblio.fm Page 326 Thursday, October 10, 2002 8:58 AM

326

Bibliography

Gayim, E. The Eritrean Question: The Conflict between the Right of Self-Determination and the Interests of States. Uppsala: Iustus Förlag, 1993. Gentili, A. De Iure Belli Libri Tres. Translation by Rolfe, J.C. (The Law of War). 3 bks. Oxford: Clarendon Press, 1933. Geopolitics and Boundaries Research Centre (grc). “Final Report on Jordan’s Western Boundary.” Unpublished report. London: soas, University of London, 1993. Gil-Har, Y. “British Commitments to the Arabs and their Application to the Palestine-Trans-Jordan Boundary: The Issue of the Semakh Triangle.” 29 Middle Eastern Studies (1993) 690. – “The Southern-Eastern Limits of Palestine at the End of Ottoman Rule.” 28 Middle Eastern Studies (1992) 559. Glenny, M. The Fall of Yugoslavia: The Third Balkan War. 2nd ed. London: Penguin Books, 1993. Goertz, G., and P.F. Diehl. Territorial Changes and International Conflict. Vol. 5. London: Routledge, 1992. Gottman, J. The Significance of Territory. Charlottesville: The University Press of Virginia, 1973. Grand Council of the Crees of Quebec. Status and Rights of the James Bay Crees in the Context of Quebec’s Secession from Canada. Submission to the un Commission on Human Rights. Quebec, 1992. – Sovereign Injustice: Forcible Inclusion of the James Bay Cree Territory into a Sovereign Québec. Quebec, 1995. Grandidier, G. Atlas des colonies françaises. Paris: Sociétés géographiques, maritimes et coloniales, 1934. Grant, T.D. “Territorial Status, Recognition and Statehood: Some Aspects of the Genocide Case (Bosnia and Herzegovina v. Yugoslavia).” 33 Stanford Journal of International Law (1997) 305. Gray, C. “Bosnia and Herzegovina: Civil War or Inter-State Conflict?: Characterization and Consequences.” byil [1996] 154. Green, L.C. International Law: A Canadian Perspective. Toronto: The Carwell Company Limited, 1988. Greig, D.W. “Reflections on the Role of Consent.” 12 Australian Ybk il (1992) 125. Griffiths, I.L. Atlas of African Affairs. London: Routledge, 1994. Gromyko, A.A. “Colonialism and Territorial Conflicts in Africa: Some Comments.” In Widstrand, C.G., ed., African Boundary Problems. Uppsala: Almqvist, 1969. Grotius, H. De Iure Praedae Commentarius. Translation by Williams, G.L., and W.H. Leydel (Commentary on the Law of Prize and Booty). Oxford: Clarendon Press, 1950. – De Jure Belli Ac Pacis Libris Tres. Translation by Kelsey, F.W., and J.B. Scott (The Law of War and Peace). 3 bks. New York: Oceana Publications, 1964.

biblio.fm Page 327 Thursday, October 10, 2002 8:58 AM

327

Bibliography

Grundy-Warr, C., ed. International Boundaries and Boundary Conflict Resolution. Durham: Boundaries Research Press, 1989. Guani, A. “La solidarité internationale dans l’Amérique latine.” Recueil des Cours [1925 iii] 209. Guilhaudis, J.-F. “La Question de Timor.” 23 afdi (1977) 307. – “Remarques à propos des récents conflits territoriaux entre états africains.” 25 afdi (1979) 223. Hall, A.R. A Treatise on International Law. Oxford: Clarendon Press, 1924. – “The Common Law: Its Debt to Rome.” 5 The Canadian Bar Review (1927) 639. Hannum, H. “Rethinking Self-Determination.” 34 Virginia jil (1993) 1. – “Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?” 3 Transnat’l L & Contemp. Problems (1993) 57. Hart, H.L.A. The Concept of Law. Oxford: University Press, 1961. Hegel, G.W.F. Staatsphilosophie und das internationale Recht. Translation by Dyde, S.W. (Hegel’s Philosophy of Right). London: Bell, 1896. Henig, R. Versailles and After, 1919–1933. London: Methuen & Co. Ltd, 1984. Herschy, R. Disputed Frontiers: A Prelude to Conflict? Lewes Sussex: The Book Guild, 1993. Hertslet, E. Map of Africa by Treaty. London: Harrison & Sons, 1909. Higgins, R. “Comments: Postmodern Tribalism and the Right to Secession.” In Brölmann, C., et al., eds, Peoples and Minorities in International Law. London: Martinus Nijhoff Publishers, 1993. – Problems and Process: International Law and How We Use It. Oxford: Clarendon Press, 1994. Hill, C. “The Doctrine of ‘Rebus Sic Stantibus’ in International Law.” 9 The University of Missouri Studies (1934) 1. Hill, N. Claims to Territory in International Law and Relations. London: Oxford University Press, 1945. Hilling, C. “Les frontières du Québec dans l’hypothèse de son accession à l’indépendance: pour une interprétation contemporaine de l’uti possidetis juris.” In Corten, O., et al., eds, Démembrements d’Etats et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Holdsworth, W.S. A History of English Law. Vol. 3. Boston: Little, Brown and Company, 1923. Howse, R., and K. Knop. “Federalism, Secession, and the Limits of Ethnic Accommodation: A Canadian Perspective.” 1 New Europe Law Review 269. Huang, T.T.F. “Trust Territories and Customs and Administrative Unions.” 43 ajil (1949) 716. Hummer, W. “Boundary Disputes in Latin America.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 6. Oxford: North-Holland, 1984. Hunter, W.A. A Systematic and Historical Exposition of Roman Law. London: Sweet & Maxwell Limited, 1903.

biblio.fm Page 328 Thursday, October 10, 2002 8:58 AM

328

Bibliography

– Introduction to Roman Law. 9th ed. Revised by Lawson. London: Sweet & Maxwell Limited, 1934. Hurewitz, J.C. “Introduction: Bounding Mandated Palestine.” In Toye, P., ed., Palestine Boundaries 1833–1947. Vol. 1. London: Archive Editions, 1989. Huth, P.K. Standing Your Ground: Territorial Disputes and International Conflict. Ann Arbor: The University of Michigan Press, 1996. Hyamson, A.M. Palestine under the Mandate, 1920–1948. London: Methuen & Co. Ltd, 1950. Hyde, C.C. International Law, Chiefly as Interpreted and Applied by the United States. Vol. 1. Boston: Little, Brown and Company, 1945. Iglar, R.F. “The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia’s and Croatia’s Right to Secede.” 15 Boston College International and Comparative Law Review (1992) 213. Ingham, K. “Uganda’s Old Eastern Province: The Transfer to East Africa Protectorate in 1902.” 21 Uganda Journal (1957) 41. Ireland, G. Boundaries, Possessions and Conflicts in South America. Cambridge, Mass.: Harvard University Press, 1938. Janson, C. “The Autonomy of Åland: A Reflexion of International and Constitutional Law.” 51 nedtir (1982) 15. Jegou du Laz, R. La Question des Iles d’Aland. Carthaix: Imprimerie P. Le Troadec, 1923. Jennings, R.Y. The Acquisition of Territory in International Law. Manchester: Manchester University Press, 1963. Jolowicz, H.J. Historical Introduction to the Study of Roman Law. Cambridge: The University Press, 1952. Jones, S.B. Boundary-Making: A Handbook for Statesmen, Treaty Editors and Boundary Commissioners. Washington: Carnegie Endowment for International Peace, 1945. Jones, C. Guatemala Past and Present. New York: Russell & Russell: 1966. Justinian, F.P.S. Imperatoris Iustiniani Institutionum. Translation by Abdy, J.T., and B. Walker (The Institutes of Justinian). Cambridge: The University Press, 1876. – Imperatoris Justiniani Institutionum. Translation by Moyle, J.B. (The Institutes of Justinian). Oxford: Clarendon Press, 1889. Kaikobad, K.H. “Some Observations on the Doctrine of Continuity and Finality of Boundaries.” 54 byil (1983) 119. Kapil, R.L. “On the Conflict Potential of Inherited Boundaries in Africa.” 18 World Politics (1966) 656. Keith, A.B. Theory of State Succession. London: Waterlow and Sons Limited, 1907. Kitchen, H., ed. A Handbook of African Affairs. London: Pall Mall Press, 1964. Klabber, J., and R. Lefeber. “Africa: Lost between Self-Determination and Uti Possidetis.” In Brölmann, C., et al., eds, Peoples and Minorities in International Law. London: Martinus Nijhoff Publishers, 1993.

biblio.fm Page 329 Thursday, October 10, 2002 8:58 AM

329

Bibliography

Klein, P. “Les glissements sémantiques et fonctionnels de l’uti possidetis.” In Corten, O., et al., eds, Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Kluber, J.L. Droit des Gens Moderne de l’Europe. Paris: Librairie J.-P. Aillaud, 1831. Kohen, M.G. “L’Uti Possidetis revisité: L’arrêt du 11 septembre 1992 dans l’affaire El Salvador/Honduras.” 97 rgdip (1993) 939. – Possession contestée et souveraineté territoriale. Paris: puf, 1997. . Kre)a, M. Badenterova Arbitrazna Komisija: Kritièki Osvrt. Translated by Milosavljevi), K. (The Badinter Arbitration Commission: A Critical Commentary). Belgrade: Jugoslovenski Preleg, 1993. Lachaume, J.-F. “La Frontière: Séparation.” In Société française pour le droit international, Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1980. La Documentation Internationale. La Paix de Versailles: Questions Territoriales. 2 vols. Paris: Les Éditions Internationales, 1939. Lak, M. “The Involvement of the European Community in the Yugoslav Crisis during 1991.” 5 Yearbook of European Studies (1992) 175. Lameire, I. Théorie et Pratique de la Conquête dans l’Ancien Droit: Introduction. Paris: Librairie nouvelle de droit et de jurisprudence, 1902. Lauterpacht, Sir H. The Development of International Law by the International Court. London: Stevens & Sons, 1958. Lawrence, T.J. Principles of International Law. London: Macmillan & Co. Ltd, 1929. Lederer, I.J., ed. The Versailles Settlement. Boston: C.C. Heath and Company, 1960. Legum, C., ed. Pan-Africanism: A Short Political Guide. London: Pall Mall Press, 1962. Levin, J. How Judges Reason: The Logic of Adjudication. New York: Peter Land Publishing Inc., 1992. Levrat, N. “La prise en considération de l’ordre juridique étatique dans la définition des frontières internationales.” In Corten, O., et al., eds, Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Lissitzyn, O.J. “Treaties and Changed Circumstances (Rebus Sic Stantibus).” 61 ajil (1967) 895. Lowe, V., and M. Fitzmaurice, eds. Fifty Years of the International Court of Justice. Cambridge: The University Press, 1996. L’Union académique internationale. Dictionnaire de la terminologie du droit international. Paris: Librairie du Recueil Sirey, 1959. MacCormick, N. Legal Reasoning and Legal Theory. Oxford: University Press, 1979. Magas, B. The Destruction of Yugoslavia. London: Verso, 1993. Maguire, J.R., “The Decolonization of Belize: Self-Determination v. Territorial Integrity.” 22 Virginia jil (1981–82) 849.

biblio.fm Page 330 Thursday, October 10, 2002 8:58 AM

330

Bibliography

Maitland, F.W. The Forms of Action at Common Law. Cambridge: The University Press, 1954. Malenovsky, J. “Problèmes juridiques liés à la partition de la Tchéchoslovaquie.” 39 afdi (1993) 305. Ma’oz, M., ed. Studies on Palestine during the Ottoman Period. Jerusalem: Magnes, 1975. Martin, L. The Treaties of Peace 1919–1923. New York: Carnegie Endowment for International Peace, 1924. Martin, M.R., and G.H. Lovett. Encyclopedia of Latin-American History. Westport, Connecticut: Greenwood Press, 1968. McCarver, S.R. “Legal Principles for Determining Boundary Lines.” 42–3 Journal of the Missouri Bar (1986–87) 147. McCorquodale, R. “International Boundary Decisions: Pillars of Salt?” 48 Cambridge Law Journal (1988) 352. McEwen, A.C. International Boundaries of East Africa. Oxford: Clarendon Press, 1971. McGoldrick, D. “Yugoslavia: The Responses of the International Community and of International Law.” 49 Current Legal Problems (1996) 375. McMahon, M.M. Conquest and Modern International Law: The Legal Limitations on the Acquisition of Territory by Conquest. Washington: The Catholic University of America Press, 1940. McNair, A.D. The Law of Treaties. Oxford: Clarendon Press, 1961. Mead, W.R., and S.H. Jaatinen. The Åland Islands. Devon: David & Charles Limited, 1975. Modeen, T. “Aaland Islands.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 1. Oxford: North-Holland, 1984. Monahan, P. “Cooler Heads Shall Prevail: Assessing the Costs and Consequences of Quebec Separation.” 65 C.D. Howe Institute Commentary (1995) 1. – “La sécession du Québec: considérations juridique et politiques.” In Choix: Série Québec-Canada. Montreal: Institute for Research on Public Policy, 1995. Moore, J.B. “Memorandum on Uti Possidetis: Costa Rica-Panama Arbitration, 1911.” In The Collected Papers of John Bassett Moore in Seven Volumes. Vol. 3. New Haven: Yale University Press, 1944. Moses, B. South America on the Eve of Emancipation. London: The Knickerbocker Press, 1908. Muirhead, J. Historical Introduction to the Private Law of Rome. London: A & C Black Ltd, 1916. Müllerson, R. “New Developments in the Former ussr and Yugoslavia.” 33 Virginia jil (1993) 299. – “The Continuity and Succession of States, by Reference to the Former ussr and Yugoslavia.” 42 iclq (1993) 473.

biblio.fm Page 331 Thursday, October 10, 2002 8:58 AM

331

Bibliography

Munkman, A.L.W. “Adjudication and Adjustment: International Judicial Decision and the Settlement of Territorial and Boundary Disputes.” 46 byil (1972–73) 1. Munro, D.G. The Latin American Republics. New York: Appleton-Century-Crofts Inc., 1950. Nagan, W.P. “Yugoslavia: A Case Study of International Consequences of Independence Movements.” 87 asil Proceedings (1993) 473. Naldi, G.J. “The Case Concerning the Frontier Dispute (Burkina Faso/ Republic of Mali): Uti Possidetis in an African Perspective.” 36 iclq (1987) 893. Nawaz, M.K. “The Meaning and Range of the Principle of Self-Determination.” 15 Duke Law Journal (1965) 82. Nelson, L.D.M. “The Arbitration of Boundary Disputes in Latin America.” 20 nedtir (1973) 267. Nesi, G. “L’uti possidetis hors du contexte de la décolonisation: le cas de l’Europe.” 44 afdi (1998) 1. – L’Uti Possidetis Iuris nel Diritto Internazionale. Milan: Cedam, 1996. – “Uti Possidetis Juris e Delimitazioni Marittime.” 74 Rivista di Diritto internazionale (1991) 534. Nicolson, H. Peacemaking 1919. London: Constable & Co. Ltd, 1933. N’locka, M. “L’Afrique avant la Conférence d’Addis Abéba.” Année Africaine (1963) 91. Nussbaum, A. “The Significance of Roman Law in the History of International Law.” 100 University of Pennsylvania Law Review (1951–52) 678. O’Connell, D.P. “A Re-consideration of the Doctrine of International Servitude.” 30 Canadian Bar Review (1952) 807. – International Law. Vol. 1. London: Stevens & Sons Limited, 1965. – State Succession in Municipal Law and International Law. Vol. 2. Cambridge: The University Press, 1967. – The Law of State Succession. Cambridge: The University Press, 1956. Oppenheim, L. International Law: A Treatise. Vols 1 & 2. London: Longmans, Green and Co., 1955. Osiander, A. The States System of Europe, 1640–1990: Peacemaking and the Conditions of International Stability. Oxford: Clarendon Press, 1994. Owen, D. Balkan Odyssey. London: Indigo, 1996. Padelford, N.J. “The Organization of African Unity.” 18 International Organization (1964 ii) 525. Parry, C., ed. The Consolidated Treaties Series. New York: Oceana Publications Inc., 1969. – and J.P. Grant, eds. Encyclopedic Dictionary of International Law. London: Oceana Publications Inc., 1986. – and J.P. Grant, eds. “Aaland Islands Case.” In Encyclopaedic Dictionary of International Law. London: Oceana Publications Inc., 1986.

biblio.fm Page 332 Thursday, October 10, 2002 8:58 AM

332

Bibliography

Perry, M.A. “State Succession, Boundaries and Territorial Regimes.” Unpublished Ph.D. dissertation. University of Cambridge, 1995. Pellet, A. “L’activité de la Commission d’arbitrage de la Conférence européene pour la paix en Yougoslavie.” 38 afdi (1992) 220. – “L’activité de la Commission d’arbitrage de la Conférence internationale pour l’ancienne Yougoslavie.” 39 afdi (1993) 286. – “Note sur la Commission d’arbitrage de la Conférence européenne pour la paix en Yougoslavie.” 37 afdi (1991) 329. – “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-determination of Peoples.” 3 ejil (1992) 178. Petkovic, R. “Territorial Integrity and the Right to Self-Determination in Africa.” Revue de la politique internationale [1969] 21. Phillipson, C. Termination of War and Treaties of Peace. London: T. Fisher Unwin Ltd, 1916. Plucknett, T.F.T. “The Relations Between Roman Law and English Common Law Down to the Sixteenth Century: A General Survey.” 3 University of Toronto Law Journal (1940) 24. Pollock, Sir F., and F.W. Maitland. History of English Law Before the Time of Edward I. Cambridge: The University Press, 1923. Pomerance, M. Self-Determination in Law and Practice. The Hague: Martinus Nijhoff Publishers, 1982. Popivici, J. La Question des Iles d’Aland. Paris: Librairie Le François, 1923. Prescott, J.R.V. Political Frontiers and Boundaries. London: Allen & Unwin, 1987. Quane, H. “The UN and the Evolving Right to Self-Determination.” iclq [1998] 554. Quaye, C.O. Liberation Struggles in International Law. Philadelphia: Temple University Press, 1991. Quéneudec, J.-P. “Remarques sur le règlement des conflits frontaliers en Afrique.” 74 rgdip (1970) 69. Radan, P. “Constitutional Law and the Multinational State: The Failure of the Yugoslav Federation.” 21(1) unsw Law Journal (1998) 185. – “Secessionist Self-Determination: The Cases of Slovenia and Croatia.” 48(2) Australian Journal of International Affairs (1994) 183. – “The Badinter Arbitration Commission and the Partition of Yugoslavia.” 25(3) Nationalities Papers (1997) 537. – “The Secession of the Republic of Serbian Krajina.” 16(1) The South Slav Journal (1995) 14. – and A. Pavkoviæ, eds. The Serbs and their Leaders in the Twentieth Century. Sydney: Ashgate, 1997. Ragazzi, M. “Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising from the Dissolution of Yugoslavia.” 31 ilm (1992) 1488. Ramet, S.P. Nationalism and Federalism in Yugoslavia 1963–1983. Bloomington, Indiana: Indiana University Press, 1984.

biblio.fm Page 333 Thursday, October 10, 2002 8:58 AM

333

Bibliography

Ratner, S. “Drawing a Better Line: Uti Possidetis and the Borders of New States.” 90 ajil (1996) 590. Raz, J. The Concept of a Legal System. Oxford: Clarendon Press, 1970. – Practical Reason and Norms. London: Hutchinson & Co., 1975. – The Authority of Law. Oxford: University Press, 1979. Reeves, J. “International Boundaries.” 38 ajil (1944) 533. Research Unit of African Journal Limited. Africa Today. Bath: Pilman Press Ltd, 1981. Reyner, A.S. “Sudan-United Arab Republic (Egypt) Boundary: A Factual Background.” 17 Middle East Journal (1963) 312. Rich, R. “Recognition of States: The Collapse of Yugoslavia and the Soviet Union.” 4 ejil (1993) 36. Rotkirch, H. “The Demilitarization and Neutralization of the Åland Islands: A Regime in European Interests Withstanding Changing Circumstances.” 23 Journal of Peace Research (1986) 357. Rousseau, C. “Chronique des faits internationaux.” 79 rgdip (1975) 833. – Principes généraux de droit international public. Bk 1. Paris: 1944. Salmon, J.J.A. “Affaire du Rann de Kutch.” 14 afdi (1968) 217. Samarriba-Salazar, J. Les limites entre le Nicaragua et le Honduras. Leyden: A.W. Sijthoff’s Uitgeversmaatschappij, 1957. Sanchez Rodriguez, L.I. “L’uti possidetis et les ‘effectivités’ dans les contentieux territoriaux et frontaliers.” 263 rcadi (1997)151. Schofield, C.H., and R.N. Schofield, eds. The Middle East and North Africa. Vol. 2 of World Boundaries. London: Routledge, 1994. Schofield, R.N., ed. Territorial Foundations of the Gulf States. London: ucl Press, 1994. Schroeder, W.A. “Nationalism, Boundaries and the Bosnian War: Another Perpective.” 19 Southern Illinois University Law Journal (1994) 153. Schulz, F. Classical Roman Law. Oxford: Clarendon Press, 1951. Schwarzenberger, G. International Law as Applied by International Courts and Tribunals. Vol. 1. London: Steven & Sons Limited, 1957. Sharp, A. The Versailles Settlement, Peacemaking in Paris, 1919. London: Macmillan Education Ltd, 1991. Shaw, M. International Law. 4th ed. Cambridge: University Press, 1997. – “Peoples, Territorialism and Boundaries.” 3 ejil (1997) 478. – “Territory in International Law.” 13 Netherland Ybk il (1982) 61. – “The Heritage of States: The Principle of Uti Possidetis Juris Today.” 67 byil (1996) 75. – “The Western Sahara Case.” 49 byil (1978) 119. – Title to Territory in Africa: International Legal Issues. Oxford: Clarendon Press, 1986. Shaw, W.F., and L. Albert. Partition: The Price of Quebec’s Indepedence. Montreal: Thornhill Publishing, 1980.

biblio.fm Page 334 Thursday, October 10, 2002 8:58 AM

334

Bibliography

Shlaim, A. The Politics of Partition: King Abdullah, the Zionists and Palestine 1921–1951. Oxford: University Press, 1990. Simma, B., ed. The Charter of the United Nations: A Commentary. Oxford: University Press, 1994. Simpson, G.J. “Judging the East Timor Dispute: Self-Determination at the International Court of Justice.” 17 Hastings International and Comparative Law Review (1994) 323. Société française pour le droit international. Colloque de Poitiers, La frontière. Paris: Éditions A. Pedone, 1979. Sorel, J.-M., and R. Mehdi. “L’uti possidetis entre la consécration juridique et la pratique: essai de réactualisation.” 40 afdi (1994) 11. Stein, K.W. The Land Question in Palestine, 1917–1939. Chapel Hill: The University of North Carolina Press, 1984. Strauch, H.F. “L’O.U.A. et les conflits frontaliers.” 43 Journal of the Missouri Bar 147. Suontausta, T. “La situation juridique des îles d’Aland.” 13 ZaöRV (1950–51) 741. Sureda, R.A. Evolution of the Right of Self-Determination. Leyden: Sijthoff, 1973. Szasz, C. “The Fragmentation of Yugoslavia.” asil Proceedings [1994] 33. Temperley, H.W.V., ed. A History of the Peace Conference of Paris. 6 vols. London: Hodder & Stoughton, 1920. “The Mandate for Transjordan.” 10 byil (1929) 212. Thirlway, H. “The Law and Procedure of the International Court of Justice 1969–1989.” Part 3: “Points of Substantive Law.” 66 byil (1995) 1. Thompson, V., and R. Adloff. French West Africa. London: Allen & Unwin Ltd, 1958. Thornberry, P. “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism.” In Tomuschat, C., ed., Modern Law of SelfDetermination. Boston: Martinus Nijhoff Publishers, 1993. Thorne, S.E. Bracton on the Laws and Customs of England. Cambridge, Mass.: Harvard University Press, 1968. Tomuschat, C., ed. Modern Law of Self-Determination. Boston: Martinus Nijhoff Publishers, 1993. Torres Bernárdez, S. “The ‘Uti Possidetis Juris Principle’ in Historical Perspective.” In Zemanek, K., ed., Völkerrecht zwischen normativem Anspruch und politischer Realität. Berlin: Duncker & Humblot, 1994. Touval, S. “Africa’s Frontiers.” 42 International Affairs (1966) 641. – The Boundary Politics of Independent Africa. Cambridge, Mass.: Harvard University Press, 1972. – “The Organization of African Unity and African Borders.” 21 International Organization (1967) 102. – “The Sources of Status Quo and Irredentist Policies.” In Widstrand, C.G., ed., African Boundary Problems. Uppsala: Almqvist, 1969.

biblio.fm Page 335 Thursday, October 10, 2002 8:58 AM

335

Bibliography

– “Treaties, Borders and the Partition of Africa.” 7 The Journal of African History (1966) 279. Toye, P., ed. Palestine Boundaries 1833–1947. London: Archive Editions, 1989. Tran, V.M. “Remarques sur le principe de l’intangibilité des frontières.” In Fenet, A., Peuples et États du Tiers-Monde face à l’ordre international. Paris: puf, 1978. Tredano, A.B. Intangibilité des frontières coloniales et espace étatique en Afrique. Paris: Librairie générale de droit et de jurisprudence, 1989. – “Le principe de l’intangibilité des frontières comme obstacle au dépassement des conflits frontaliers en Afrique.” 9 Revue marocaine de droit et d’économie de développement (1985) 117. Türk, D. “Remarks Concerning the Breakup of the Former Yugoslavia.” 3 Transnat’l L & Contemp. Problems (1993) 49. Tyranowski, J. “Le droit à l’autodétermination face au principe de l’intégrité territoriale et de l’inviolabilité des frontières.” 12 panstwo 1 prawo (1978) 2. Utz, S. “Rules, Principles, Algorithms and the Description of Legal Systems.” 5 Ratio Juris (1992) 23. Van Doren, J.W. “Theories of Professors H.L.A. Hart and Ronald Dworkin: A Critique,” 29 Clev. St. L. Rev. (1980) 279. Varty, D.L. Who Gets Ungava? Vancouver: Varty and Co. Printers, 1991. Verzijl, J.H.W. International Law in Historical Perspective. Part 3: “State Territory.” Leyden: A.W. Sijthoff, 1970. Viejobueno, S. “Self-Determination v Territorial Integrity: The Falkland/Malvinas Dispute with Reference to Recent Cases in the United Nations.” 16 South African yil (1990–91) 1. Vinogradoff, P. Roman Law in Medieval Europe. London: Harper, 1909. Von Glahn, G. Law Among Nations: An Introduction to Public International Law. London: Collier Macmillan Publishers, 1981. Waldock, H. “Disputed Sovereignty in the Falkland Island Dependencies.” 25 byil (1948) 311. – “The Constitutional Framework of International Law To-Day.” 106 hr (1962 ii) 20. Walker, T.A. The Science of International Law. London: C.J. Clay and Sons, 1893. Warbrick, C. “Recognition of States.” 41 iclq (1992) 473. – “Recognition of States: Part 2.” 42 iclq (1993) 433. – and V. Lowe, eds. “Current Developments: Public International Law – Recognition of States.” 41 iclq (1992) 473. Weerts, L. “Heurs et malheurs du principe de l’uti possidetis: le cas du démembrement de l’u.r.s.s.” In Corten, O., et al., eds, Démembrements d’États et délimitations territoriales: l’uti possidetis en question(s). Bruxelles: Bruylant, 1999. Weller, M. “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia.” 86 ajil (1992) 569. Wharton, F. A Digest of the International Law of the United States. Vol. 1. Washington: US Government Printing Office, 1887.

biblio.fm Page 336 Thursday, October 10, 2002 8:58 AM

336

Bibliography

Wheaton, H. Elements of International law. Edition by Wilson, G.G. Oxford: Clarendon Press, 1936. Whiteman, M.M. Digest of International Law. Vols 2 & 5. Washington: Department of State Publication 7553, 1963. Widstrand, C.G., ed. African Boundary Problems. Uppsala: Almqvist, 1969. Williams, S.A. International Legal Effects of Secession by Quebec. North York, Ont.: York University Centre for Public Law and Public Policy, 1992. Wilson, M.C. King Abdullah, Britain and the Making of Jordan. Cambridge: The University Press, 1987. Wolff, C. Jus Gentium – Methodo Scientifica – Pertractatum. Translation by Drake, J.H. (The Law of Nations Treated According to a Scientific Method). Oxford: Clarendon Press, 1934. Wooldridge, F. “Uti Possidetis Doctrine.” In Bernhardt, R., ed., Encyclopedia of Public International Law. Vol. 10. Oxford: North-Holland, 1984. Yakemtchouk, R. “Les frontières africaines.” 74 rgdip (1970) 27. Yntema, H.E. “Roman Law and Its Influence on Western Civilization.” 35 Cornell Law Quarterly (1949–50) 77. Young, H. “Les frontières du Québec: comment délimiter le débat?” 4 National (1995) 20. Zartman, I.W. “The Politics of Boundaries in North and West Africa.” 3 Journal of Modern African Studies (1965) 155. Zemanek, K., ed. Völkerrecht zwischen normativem Anspruch und politischer Realität. Berlin: Duncker & Humblot, 1994. d ec i si o n s o f n at i o n a l a n d international tribunals Aegean Sea Continental Shelf, 19 December 1978. icj Reports 1978, 2. Affaire des frontières colombo-vénézuéliennes (Colombie v. Vénézuéla), 24 March 1922. 1 riaa 223. Argentina-Chile: Beagle Channel Arbitration, 18 February 1977. 17 ilm (1978) 632. Argentine-Chile Frontier Case, 9 December 1966. 38 ilr (1969) 10. Asylum Case (Colombia/Peru), 20 November 1950. ICJ Reports 1950, 266. Before the Special Boundary Tribunal, Constituted by the Treaty of July 16, 1930, between the Republics of Guatemala and Honduras. 2 riaa 1322. Bolivia-Peru: Arbitral Award in Boundary Dispute, 9 July 1909. 3 ajil (1909) 1029. Case Concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands), 20 June 1959. icj Reports 1959, 209. Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), 31 July 1989. 83 ilr 1. Case Concerning the Arbitral Award made by the King of Spain on December 23, 1906 (Honduras v. Nicaragua), 18 November 1960. icj Reports 1960, 192. Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali), 22 December 1986. icj Reports 1986, 554.

biblio.fm Page 337 Thursday, October 10, 2002 8:58 AM

337

Bibliography

Case Concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/ Honduras, Nicaragua intervening), Judgment of 11 September 1992. icj Reports 1992, 351. Case Concerning the Northern Cameroons (Cameroon v. United Kingdom). icj Pleadings 1963, ix. Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment of 2 December 1963. icj Reports 1963, 15. Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962. icj Reports 1962, 4. Case of the Free Zones of Upper Savoy and the District of Gex, 7 June 1932. pcij, Series A/B, No. 46, 95. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 24 February 1982. icj Reports 1982, 18. Dubai-Sharjah Border Arbitration, 19 October 1981. 91 ilr 543. Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area, 29 September 1988. 27 ilm (1988) 1421. Fisheries Case (United Kingdom v. Norway), 18 December 1951. ICJ Reports 1951, 116. Fisheries Jurisdiction (United Kingdom v. Iceland), 2 February 1973. icj Reports 1974, 3. Guinea/Guinea-Bissau Maritime Delimitation Case, 14 February 1985. 77 ilr 635. In the case concerning East Timor (Portugal v. Australia), Verbatim Record/Pleadings. icj cr 95/2, cr 95/3, cr 95/4, cr 95/9, cr 95/10. Legal Status of Eastern Greenland, 5 April 1933. PCIJ. Series A/B, No. 53, 46. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986. ICJ Reports 1986, 14. Nationality Decrees issued in Tunis and Morocco (Advisory Opinion), 7 February 1923. pcij, Series B, No. 4, 5. North Sea Continental Shelf, 20 February 1969. ICJ Reports 1969, 1. Reference re Secession of Quebec. 2 s.c.r. [1998] 217. Territorial Dispute (Libyan Arab Jamahiriya/Chad), 3 February 1994. icj Reports 1994, 6. Territorial Dispute (Libyan Arab Jamahiriya/Chad), Verbatim Record/Pleadings. icj cr 93/24, cr 93/25, cr 93/26, cr 93/29, cr 93/32. The Boundary Case between Honduras and Nicaragua, 23 December 1906. 11 riaa 101. The Cordillera of the Andes Boundary Case, 20 November 1902. 9 riaa 29. The Guatemala/Honduras Arbitral Award, 23 January 1933. 2 riaa 1307. The Indo-Pakistan Western Boundary (Rann of Kutch) Case (India v. Pakistan), 19 February 1968. 50 ilr 2. Western Sahara (Advisory Opinion), 3 January 1975. icj Reports 1975, 12.

biblio.fm Page 338 Thursday, October 10, 2002 8:58 AM

338

Bibliography

official documents Agreements establishing the Commonwealth of Independent States, Minsk, 8 December 1991, Alma Ata, 21 December 1991. 31 ilm (1992) 138. Agreement signed and exchanged at Rafah on October 1, 1906, between the Commissioners of the Turkish Sultanate and the Commissioners of the Egyptian Khediviate, concerning the fixing of a Separating Administrative Line between the Vilayet of Hejaz and Governorate of Jerusalem and the Sinai Peninsula. 99 bfsp 482. Bélanger and Campeau. Report of the Commission on the Political and Constitutional Future of Quebec. Quebec, 1991. British Notification that Egypt is placed under the Protection of His Majesty, and will henceforth constitute a British Protectorate, London, 18 December 1914. 108 bfsp 185. Circular Despatch to His Majesty’s Representatives … stating the decision of His Majesty’s Government to terminate the Protectorate and to recognise Egypt as an independent sovereign State, London, 15 March 1922. 116 bfsp 84. Convention between Great Britain and Turkey, relative to Egyptian Affairs, Constantinople, 24 October 1885. 77 bfsp 442. Correspondence Relating to the Question of the Aaland Islands: The Finnish Case & The Swedish Case. Spec. Suppl. No. 1 lnoj (August 1920) 3. Crawford, J. “State Practice and International Law in Relation to Unilateral Secession: Report.” Report prepared for the Canadian Federal Government, 19 February 1997. Documents Relating to the Palestine Problem. London: Jewish Agency for Palestine, 1945. Egypt-Israel: Agreement to Arbitrate the Boundary Dispute Concerning the Taba Beachfront. 26 ilm (1987) 1. Egypt-Israel: Treaty of Peace, Washington, 26 March 1979. 18 ilm (1979) 362. Fitzmaurice, M. “Second Report on the Law of Treaties.” A/CN.4/107 Ybk ilc (1957 ii) 16. International Boundaries Research Unit, Territory Briefing. “Yugoslavia, Croatia, Slovenia: Re-emerging Boundaries.” University of Durham: ibru Press, 1992. Mandate for the Administration of the former Turkish Territory of Palestine, conferred upon His Britannic Majesty, confirmed and defined by the Council of the League of Nations, London, 24 July 1922. 16 bfsp 842. Opinions of the Badinter Arbitration Committee: Opinion Nos. 1–10. 31 ilm (1992) 1494–1525. – Opinion Nos. 11–15. 32 ilm (1993) 1586–95. Papers Relating to the Foreign Relations of the United States: The Paris Peace Conference. 13 vols. Washington: us Government Printing Office, 1943. “Political Questions: The Aaland Islands Question.” 1–3 Monthly Summary of the League of Nations (1921–24) 18.

biblio.fm Page 339 Thursday, October 10, 2002 8:58 AM

339

Bibliography

Preliminary Treaty of Peace and Limits between Portugal and Spain, signed at San Ildefonso, 1 October 1777. 46 cts 321. Proclamation by the General Officer Commanding-in-chief the British Forces in Egypt announcing the Establishment of a British Protectorate over Egypt, Cairo, 18 December 1914. 109 bfsp 436. Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion Upon the Legal Aspects of the Aaland Islands Question. Spec. Suppl. No. 3 lnoj (1920) 2. Report of the International Law Commission on the work of its eighteenth session. Ybk ilc (1966 ii) 172. Report submitted to the Council of the League of Nations by the Commission of Rapporteurs: The Aaland Islands Question. Council Doc. B7: 21/68/106 ln (1921). Revised Draft Articles on the Law of Treaties. A/CN.4/L.117 and Add. 1 Ybk ilc (1966 ii) 112. “The Political Activities of the Council: The Aaland Islands.” League of Nations Records, Second Assembly 1921, Plenary Meetings, 84. Vallat, Sir F. “First report on succession of States in respect of treaties.” A/ CN.4/278 Ybk ilc (1974 ii) 1. Vienna Convention on Succession of States in Respect of Treaties. 17 ilm (1978) 1488. Waldock, H. “First report on the Law of Treaties.” A/CN.4/144 Ybk ilc (1962 ii) 27. – “First report on succession of States and Governments in respect of treaties.” A/CN.4/202 Ybk ilc (1968 ii) 87. – “Second report on succession in respect of treaties.” A/CN.4/214 Ybk ilc (1969 ii) 45. – “Second report on the Law of Treaties.” A/CN.4/156 Ybk ilc (1963 ii) 36. – “Third report on succession in respect of treaties.” A/CN.4/224 Ybk ilc (1970 ii) 25. – “Third report on the Law of Treaties.” A/CN.4/167 Ybk ilc (1964 ii) 5. – “Fourth report on succession in respect of treaties.” A/CN.4/249 Ybk ilc (1971 ii) 143. – “Fifth report on succession in respect of treaties.” A/CN.4/256 Ybk ilc (1972 ii) 1. – “Fifth report on the Law of Treaties.” A/CN.4.183 Ybk ilc (1964 ii) 1.

biblio.fm Page 340 Thursday, October 10, 2002 8:58 AM

index.fm Page 341 Thursday, October 10, 2002 11:10 AM

Index Aaland Islands Dispute (Finland v. Sweden), commission of jurists, 68–70, 74, 77; commission of rapporteurs, 70–7, 101; historical background, 65–7; League of Nations competence, Finish challenge, 67–8; self-determination, relevance of, 69–70, 74–5, 76; uti possidetis, relevance of, 76–8, 101, 231 actio spolii, and link with interdictum uti possidetis, 16 administrative unions, 155–7 Aegean Sea Continental Shelf case, 139–40 Africa, African revisionist movement, 103, 115–16; Charter of the Inter-African and Malagasy Organization, 116; Egypt-Sudan boundary, 137, 287n176, French Equatorial Africa, boundaries of, 110–11, 114; French overseas territories, independence of, 111–12; French West

Africa, boundaries of, 107–10, 114; Katanga, attempted secession by, 116; Kenya-Uganda boundary, 112–14; Monrovia Group, 116, 282n71; Morocco, territorial claims, 116, 117, 154; Organization of African Unity, 4, 103, 117–18; pan-Africanism, 103, 115–16, 282n71; partition of, 105–7; Somalia, territorial claims, 117; uti possidetis, relevance of, 104, 119, 120, 122–3, 125, 130–2, 137, 232; see also Cairo Resolution, Charter of the Organization of African Unity, and Colonial Declaration Alma Ata Declaration, 217, 218, 219, 220, 227 Anglo-Norwegian Fisheries case, see Fisheries case (United Kingdom v. Norway) Argentina-Chile: Beagle Channel Arbitration, 50, 139

Assize of Novel Disseisin, and link with interdictum uti possidetis, 16–7 Asylum case (Colombia/Peru), material element of custom, 5, 130, 131, 216 Aves Island Dispute (Venezuela v. The Netherlands), 58, 270n145 Badajos Peace Treaty, 32 Badinter Arbitration Commission, see Yugoslavia Arbitration Commission Badinter, Robert, 177 Baltic states, 219, 220 Beagle Channel Arbitration, see Argentina-Chile: Beagle Channel Arbitration Berlin Conference, 105–6, 138 Bolivia-Peru Arbitration, 44–6, 51 Bosnia-Hercegovina, boundaries of, 187–8; position adopted by authorities, 199; recognition of, 185, 304n63; sovereignty-resolution, 179, 183, 186

index.fm Page 342 Thursday, October 10, 2002 11:10 AM

342

Index

boundaries, administrative boundaries: definition of, 8; delimitation of, 9; demarcation of, 9; determination of, 9, 235, 239–40; expert opinion on Quebec, discussion of, 210; internal, 9, 104, 107, 108, 217–18, 225–6, 256n16; international, 9, 104, 107; international and internal, distinction between, 233–4 Bracton, interdicts, discussion of, 16; Laws and Customs of England, 16 Burkina Faso/Mali Frontier Dispute case, see Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) Cairo Resolution, 104, 118–22, 128–9, 136–8, 155, 218; legal effect of, 136, 170; and principle of intangibility of frontiers, 152; territorial integrity principle, commitment to, 119 Case Concerning East Timor (Portugal v. Australia), 157–8 Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), 132–5, 170–1 Case Concerning Sovereignty over Certain Frontier Land (Belgium/Netherlands), 147–8 Case Concerning the Frontier Dispute (Burkina Faso/ Republic of Mali), 87, 123, 127–32, 152, 188, 190–2, 203, 214–15, 222, 224, 229 Case Concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/ Honduras, Nicaragua inter-

vening), 50–1, 53–4, 120, 226–7 Case Concerning the Northern Cameroons, 157 Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), 87, 139, 143, 147–9 Case of the Free Zones of Upper Savoy and the District of Gex, 143–4 Central American Republic, 37–8 Charter of the Organization of African Unity, 103, 118–19, 279n97, 128, 160, 170; state sovereignty, respect for, 118, 120; territorial integrity principle, commitment to, 118, 120, 144 Charter of the Organization of American States, 153 Charter of the United Nations, 153, 155, 158–61, 166, 187, 190, 226, 231, 236 Chiapas, province of, 37–8 Cisplatine Wars, 38–9 Clipperton Island Case (France v. Mexico) 58 Colombia-Venzuela Arbitral Award, 46–8 Colonial Declaration, 121, 153–5, 158, 159, 161–2, 165, 166, 169, 231 colonial enclaves, 165, 169 Commission on the Future of Quebec, 203–4 Commonwealth of Independent States, 217; charter of, 217, 218 Conference on Security and Cooperation in Europe, 174–6, 201 Congress at Lima, 33–4 Consensus Definition on Aggression, 153 constructive possession, concept of, 53, 57, 230–1 Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) case, 140, 143

continuity of states, presumption in favour of, 182–3, 221 Covenant of the League of Nations, 153 Croatia, boundaries of, 175, 187–8; declaration of independence, 174, 179, 183, 186, 195–6, 198, 233, 234, 237; fighting in, 174, 175; position adopted by authorities, 198–9; recognition of, 174–6, 185, 212, 304n63 custom, definition of, 4–6, 216; judicial approach to, 202, 216; material element, 5, 130, 202, 216, 255n7; opinio juris, 5, 130–1, 136, 202, 208, 214, 216, 217, 219, 222; subjective element, see under opinio juris; uti possidetis, as rule of, 52, 55–6, 131, 134, 194–5, 200–2, 214, 216–21, 222, 232–3, 240 Czechoslovakia, dissolution of, 220–2, 233, 236 Declaration on Friendly Relations, 153, 154, 159, 167, 179, 185, 187, 223–4, 239 devolution, 122, 135, 186, 192, 211, 212, 214, 232 disintegration, See dissolution dismemberment, See dissolution dissolution, 29, 202, 203, 235–7; of Czechoslovakia, 220–1, 233, 236; liberation struggles, distinction between, 234; secession, distinction between, 221–2; of Socialist Federal Republic of Yugoslavia, 173, 178, 179, 181–4, 189–90, 200, 237, 239, 301n38; of Soviet Union, 201,

index.fm Page 343 Thursday, October 10, 2002 11:10 AM

343

Index

216–20, 222, 227, 233, 236; of Spanish American Empire, 24, 192 Dominican Republic-Haiti Arbitration, 41–2 Dubai-Sharjah Border Arbitration, 124–6, 135 Dworkin, Ronald, 141, 289n20 East Timor, See Case concerning East Timor (Portugal v. Australia) Eastern Greenland case, See Legal Status of Eastern Greenland effective occupation, 32, 57, 58, 228 effectiveness, principle of, 139, 192, 193, 207, 209–13, 222, 223, 225, 227, 236, 237, 298n167 Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area, administrative separating line, definition of, 81–2; award, 85–8; critical date, doctrine of, 86; Lapidoth, dissenting opinion, 87; mandate period, 83–4; Ottoman period, 78–80; post-mandate period, 84–5; stability of boundaries, principle of, 87; Taba crisis of 1906, 80–1; Treaty of Lausanne, 82; Treaty of Peace between Egypt and Israel, 85; uti possidetis juris, role of, 87, 88–9, 101–2, 231; World War I, 82–3; El Salvador/Honduras case, See Case Concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras, Nicaragua intervening) European Guidelines on Recognition, 185, 200, 304n63

European political cooperation, 176 expert opinion on Quebec, authors of, 204; impact of, 204–6; international precedents, discussion of, 215–16, 221–2; issues dealt with, 204, 206, 207; principal conclusions of, 207–8, 225; territorial integrity principle, discussion of, 210–14; uti possidetis, analysis of, 214–16, 221, 222, 232 Falkland Islands, 164 Fisheries Case (United Kingdom v. Norway) and custom, 251n7, 216 frontier, 8; See also boundaries Frontier Dispute (Burkina Faso/Mali), See Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) fundamental change of circumstances rule, 143–5, 232 Gaius, Corpus Iuris Civilis, 12; retinendae possessionis interdicts, description of, 13 Gamez-Bonilla Treaty, 43–4 Gibraltar, 164–6 Grisbadarna case, 139 Grotius, Commentary on the Law of Prize and Booty, 17; interdict uti possidetis, discussion of, 17–8; The Law of War and Peace, 20 Guatemala/Honduras Arbitral Award, See The Guatemala/Honduras Arbitral Award Guayaquil Treaty, 39 Guinea-Bissau v. Senegal Arbitral Award, See Case Concerning the Arbitral Award of 31 July 1989 (GuineaBissau v. Senegal)

Guinea/Guinea-Bissau Maritime Delimitation case, 126–7, 172 Helsinki Final Act, 185, 187 historical claims, 164 Honduras-Nicaragua Boundary Dispute, See The Boundary Case between Honduras and Nicaragua Hong Kong lease, 166 indigenous peoples, 207, 208, 239 Indo-Pakistan Western Boundary (Rann of Kutch) case (India v. Pakistan), 139, 141–3 intangibility of frontiers, principle of, 128, 152, 185, 188, 196, 213 interdicts, and common law, 16–17; definition, 12–13; exceptio vitiosae possessionis, 14; exhibitory interdicts, 12; merger with ordinary litigation, 15; possessory interdicts including uti possidetis, 12–5; procedure, 12, 14–5; prohibitory interdicts, 12; restitutory interdicts, 12 internal boundaries, see boundaries International Conference for Peace in Yugoslavia, 172, 175–6 International Covenant on Civil and Political Rights, 239 International Law Association, 146 International Law Commission, 52, 144, 146, 147 intracolonial boundaries, see boundaries, internal inviolability of frontiers, principle of, 151–2, 173, 185, 188, 200, 201, 206, 211, 217, 218, 219, 227

index.fm Page 344 Thursday, October 10, 2002 11:10 AM

344

Index

Justinian, codification, 3, 15, 257n24; Institutiones Iustiniani, 15, 257n25; interdicts uti possidetis and utrubi, historical account of, 14; Digesta Iustiniani, 16, 257n27

Montevideo Convention of the Rights and Duties of States, 153, 181 moratorium, on Slovenia’s and Croatia’s declarations of independence, 175, 179

Kosovo, 184, 185, 193, 237, 238, 303n61 Krajina, See Republic of Serbian Krajina

Namibia Advisory Opinion, 160 nemo dat principle, 150–1, 213, 214, 232 Nicaragua case, See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Nicoya, district of, 37 non-intervention, principle of, 190, 212 non-self-governing territories, 121, 161, 162, 166, 169, 186 non-use of force, principle of, 218 North Sea Continental Shelf , and custom, 5, 130–1, 216 Northern Cameroons, See Case Concerning the Northern Cameroons

Leased territories, 165, 169 Legal Status of Eastern Greenland, 139 Libya/Chad Territorial Dispute, See Territorial Dispute (Libyan Arab Jamahiriya/ Chad) Lord Carrington, 178–9, 180, 184, 198, 295n19, 303n60 Maastricht, 176, 300n26 Macedonia, Republic of, 238; federal institutions, refusal to participate in, 181; position adopted by authorities, 199, 307n119; proclamation of independence, 179, 183; recognition of, 185, 304n63 Maranon River basin dispute, 39 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), and custom in general, 202; material element of custom, 5, 130, 217; subjective element of custom, 5, 217 Minsk Agreement, 217–19, 227 Montenegro, Republic of, position adopted by authorities, 197, 199; ‘rump presidency,’ participation in, 181, 183

Organization of African Unity, 4, 103, 117–18 pacta sunt servanda, principle of, 125, 285n118 Panama Canal Zone, 166 Parizeau, Jacques, 205 Pedemonte-Mosquera Protocol, 39 Paris Peace Conference, Central Territorial Commission, 62; Council of Foreign Ministers, 62–3; Council of Ten, 62, 64, 271n2; Czechoslovakia-Austria frontier, 63–4; CzechoslovakiaGermany frontier, 63; Czechoslovakia-Poland

frontier, 63; East Prussia western frontier, 62–3 ‘plantations,’ 164, 169 Portuguese American territories, rivalry with Spain, 24–5; settlement of, 27–8 possessory interdicts, exceptio vitiosae possessionis, 14; interdicta adispiscendae possessionis, 13; interdicta recuperandae possessionis, 13; interdicta retinendae possessionis, 13; interdictum uti possidetis, 13–15, 257n15; interdictum utrubi, 13–14, 257n15; nature of, 12–13; procedure, 14–15 praetor, edict, 11, 256n5; influence on Roman law, 12; Roman institution, 11–12, 256n4 preemptive rights, 165, 169 Rann of Kutch case, See IndoPakistan Western Boundary case rebus sic stantibus rule, 143–5 recognition, of independence and/or statehood, 175, 176, 179, 185, 202, 211, 212, 220, 223, 230, 233, 235, 239 Reference re Secession of Quebec, 173, 203, 205–6, 223–8 Republic of Serbian Krajina, 184, 197, 198, 304n63 Republic Srpska, 184, 185, 193, 237 res judicata, principle of, 125, 285n119 Roman civil procedure, history, 10; legis actiones, 10; per extraordinaria cognitio, 11; per formulam, 10–11; per interdictum, 11; See also interdicts

index.fm Page 345 Thursday, October 10, 2002 11:10 AM

345

Index

Resolution 16(I), See Cairo Resolution secession, ‘right’ of, commission of jurists, analysis, 167; commission of rapporteurs, analysis, 168; dissolution, distinction between, 221–2; in dissolution of Soviet Union, 219; impact on boundary determination, 211–14; in general, 179, 208, 212, 222, 227, 233, 235–7, 298n167; liberation struggles, distinction between, 234; Quebec, unilateral secession of, 209–10, 212, 216; in Yugoslavia crisis, 173, 174, 176, 178–9, 195–6, 199–200, 221, 233, 301n38 Security Council, resolutions, 194, 201–2 self-determination, principle of, 121, 135, 175, 193, 195, 204, 219, 223; colonial context, interpretation in, 121, 160–2, 192, 231, 237; and Declaration on Friendly Relations, 224; exceptions to primacy of, 163–6; experts’ report on Quebec, interpretation in, 207, 306n153; post-colonial context, interpretation in, 166–8, 179, 182, 185, 208–9, 227, 233; status of, 121, 208; Supreme Court of Canada, analysis by, 223, 224, 226, 227; territorial integrity principle, relationship with, 158, 162–3, 166–9, 208, 238–9; uti possidetis, relationship with, 169–70; Yugoslavia Arbitration Commission, interpretation by, 184–6, 237

Semakh Triangle Boundary case, Ajlun autonomous administration, territorial claim, 98; Balfour Declaration, 94–5; definition of boundary, political process, 94–100; McMahon-Hussein correspondence, 91–2, 96, 98; Occupied Enemy Territory Administration, 93–4; Ottoman administrative divisions, 90–1; Sykes-Picot Agreement, 92–3, 96; uti possidetis, role of, 100, 102, 231 Serbia, Republic of, boundaries of, 187–8, 237; Croatian president, rejection of, 181; position adopted by authorities, 196–7, 199; ‘rump presidency,’ participation in, 181, 183; and Yugoslav federal army, 179, 181; and Yugoslavia Arbitration Commission, 186–7 Slovenia, Republic of, declaration of independence, 174, 179, 183, 195–6, 233, 237; federal institutions, refusal to participate in, 181; position adopted by authorities, 197–8, 199; recognition of, 174–6, 185, 212, 304n63 sovereign equality of states, principle of, 226 Soviet Union, dissolution of, 201, 216–20, 222, 227, 233, 236 Spanish American territories, rivalry with Portugal, 24–5; territorial organization, 26, 192 stability of boundaries, doctrine, 211, 221, 234; definition of, 138–9; and fundamental change of circumstances rule, 143–5; impact on Afri-

can boundaries, 144–5, 147, 149–50, 151, 152, 158, 163, 169; and intangibility of frontiers principle, 152; and interpretation of boundary treaties, 147–50; and inviolability of frontiers principle, 151–2; judicial commitment to, 139–40; nature of, 141–3; and nemo dat principle, 150–1; and self-determination principle, 162–3, 167–8; and state succession to treaties, 145–7; and territorial integrity principle, 153–8 Stability Pact for Eastern Europe, 201 state sovereignty, respect for, 118, 119, 120, 138, 190, 221 state succession, rules of, and boundary treaties, 127, 132, 134, 145–7, 172, 232, and status quo policy, 52–4, 231; and treaties, 145, 214 status quo ante bellum, definition, 18; Grotius, discussion of, 20; status quo de facto, 18; status quo de jure, 18 status quo policy, African states, adoption by, 116–17, 118–19, 121–3, 127, 129, 131, 135–6, 169, 186, 192, 229, 232; in general, 188, 198, 239–40; Latin American republics, adoption by, 28–31; succession of states, relationship with, 52–4; uti possidetis juris, relationship with, 30–1, 51–3 status quo post bellum, definition, 18; Grotius, discussion of, 20; presumption in favour of, 18–19; uti

index.fm Page 346 Thursday, October 10, 2002 11:10 AM

346

Index

possidetis, link with, 3, 20–2 Statute of the International Court of Justice, 4, 130, 255n5 Taba Boundary Dispute, See Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area Temple of Preah Vihear, See Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) terra nullius, in Eastern Greenland case, 139; Latin America, inapplicability in, 29, 53 Territorial Dispute (Libyan Arab Jamahiriya/Chad), 140, 148, 149 territorial integrity, principle of, 135, 138, 169, 175, 185, 188, 190, 212, 213; African states, commitment to, 118, 120, 132, 186; in Alma Ata Declaration, 217, 218, 227; in Cairo Resolution, 119; in Charter of the Organization of African Unity, 118, 120, 154; in Charter of the Organization of American States, 153; in Colonial Declaration, 121, 153, 154, 155; Commonwealth of Independent States, commitment to, 218, 220; in Consensus Definition on Agression, 153; in Declaration on Friendly Relations, 153, 154, 208; in Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, 208; experts’ opinion on Quebec, interpretation in, 206, 207, 210, 211; formulation in Colonial Declaration, conse-

quences of, 154–8; in Minsk Agreement, 217, 218, 227; primacy of in post-colonial context, 174, 179, 186, 195, 200, 208, 221, 222, 234, 238; self-determination principle, relationship with, 158, 162–3, 166–9, 231; in Vienna Declaration, 208 The Boundary Case between Honduras and Nicaragua, 43–4 The Guatemala/Honduras Arbitral Award, 48–50, 51, 59 Treaty of An´con, 41 Treaty of Lausanne case (Frontier between Turkey and Iraq), 147, 149 Treaty of Madrid, 25, 32 Treaty of San Ildefonso, 25, 32 Treaty of Tordesillas, 25 Treaty of Utrecht, 165 trust territories, 155–7, 161, 162, 295n114 uti possidetis, Africa, influence in, 104, 119, 120, 122–3, 125, 130–2, 137; common law, influence on, 16–17; consent, issue of, 50, 51, 125, 134–6, 173, 202–3, 225, 226, 229, 233, 235; as customary norm, 52, 55–6, 130–1, 134, 194–5, 200–2, 208, 214, 216–20, 232–3, 240; de facto, 31–2, 56–7, 129, 232; experts’ opinion on Quebec, analysis in, 206, 208, 214; judicial interpretation of, 47–8, 49, 50, 51–2, 123–9, 132–3, 223–7; juris, 31–2, 56, 130, 170; Latin American state practice, 30–1, 33–8, 192, 228, 230–1; and maritime boundaries, 9, 133, 134; modern version, assessment

of, 233–40; pacifying role of, 234–7, 239; Reference re Secession of Quebec, discussion in, 223–7; in Roman law, 3, 13–15; selfdetermination principle, relationship with, 169– 70, 213; status quo post bellum, link with, 20–2; versions of, 31–2, 34; Yugoslavia Arbitration Tribunal, interpretation by, 184–6, 188–94 unilateral declaration of independence, 210, 222, 225 use of force, 22, 152, 153, 158, 159, 163, 179, 195, 196, 201, 202, 218, 228, 236, 299n11, 307n106 Vienna Convention on the Law of Treaties, 144, 145 Vienna Convention on the Succession of States in Respect of Treaties, 127, 134, 147, 187 War of the Pacific, 40–1 War of the Triple Alliance, 39–40 Western Sahara (Advisory Opinion), 155, 160, 163– 5, 182 Yugoslavia Arbitration Commission, 176–7, 212, 229; boundaries, determination of, 4, 186–8; criteria for statehood, interpretation of, 180–2, 225–6; opinions, nature of, 177; process of dissolution, critical finding, 4, 181–4, 200, 221, 233, 237; self-determination principle, interpretation of, 184–6; uti possidetis, interpretation of, 4, 172, 184–6, 188–94, 215, 222, 224, 228, 232, 235

index.fm Page 347 Thursday, October 10, 2002 11:10 AM

347

Index

Yugoslav federal government, 195, 196, 199, 300n29 Yugoslav federal presidency, 177, 195, 196, 198, 300n29 Yugoslavia Peace Conference, See International Conference for Peace in Yugoslavia

index.fm Page 348 Thursday, October 10, 2002 11:10 AM