Uti possidetis ( lat. " Because you own ") is a principle that has developed in international practice , which means that the new states that gained independence have the same territory and the same borders that they had before, being colonies or dependent territories , the number of administrative units in other states. According to the rule, the old administrative border, which previously existed within the territory of the newly formed independent state, becomes an international border.
This principle is not an independent legal principle , since it acquires its legal character only within the framework of the broader international legal principle of inviolability of borders .
It can also be called the principle of maintaining the existing state of affairs. (Any use of the state of actual ownership of a thing as a legal criterion may fall under this doctrine).
The original full wording: “ uti possidetis, ita possideatis ” ( lat. “ Both you own and possess ”, “ what you own, you own ”). Sometimes the word “juris” ( lat. Uti possidetis juris ) is added to the wording, which means legal ownership, not actual, and accordingly this principle in this case applies to legal boundaries, and not to actual ones [1] .
History
Initially, the principle of uti possidetis comes from Roman private law , where it was used as a designation of the praetor 's order on the ownership of the disputed real estate to the former (actual) owner, that is, it was forbidden to violate the existing state of things between two persons until the final resolution of the dispute.
In international law, the principle of uti possidetis was first applied in the modern era in Latin America , when states - former colonies of the Spanish Empire sought independence . The main goal of the new Latin American states was the desire to consolidate their position in the territories that legally belonged to the Spanish Empire , in order to recognize themselves as its successors , inheriting all the colonial lands within the existing administrative borders. The main thing was that there should not be a single terra nullius region left on the continent (that is, territories that do not belong to any state), so the principle of uti possidetis was chosen in resolving border issues.
Well-known international lawyer Ian Brownley describes this situation as follows:
| After the common sovereign power ceased to exist, it was necessary to reach agreement on the general principle of demarcation , since everyone sought to avoid resorting to force. The principle of uti possidetis corresponding to the colonial period was adopted, i.e. the principle of preserving the demarcation that existed under the colonial regime in relation to each colonial unit that has become a state [2] |
Some Latin American states have decided to legitimize the application of the principle of uti possidetis and to reflect it in various regulatory documents adopted on the continent. For example, the provisions of this principle were included in the Constitution of Venezuela in 1830 and the Constitution of Honduras in 1839, as well as in the Border Treaty between Colombia and Peru of September 22, 1829. Although all the same, in the subsequent these states failed to avoid border disputes between themselves. Therefore, many lawyers are of the opinion that the importance of this principle should not be absolutized, since the application of the principle of uti possidetis has a number of shortcomings that do not contribute to the resolution of substantive disputes [2] [3] , in addition, the old Spanish administrative borders were often not clearly defined and hard to prove.
Current Application Practices
Africa
On July 21, 1964, in Cairo, as part of the Organization of African Unity , Resolution 16 (1) on border disputes was adopted, which stipulated that participating States commit themselves to respect the colonial borders that existed before they achieved national independence . The resolution is a political statement aimed at ensuring that in the future the states do not have a question about the revision of the borders established according to the principle of uti possidetis after decolonization , only by mutual agreement. Since the situation with the borders on the African continent was more complicated than on the Latin American one, first of all, the fact that the colonial borders were established by the mother countries without observing the interests of the local population, violating the long-established natural borders of various tribes. Therefore, the redistribution of these borders could become a threat to peace and result in many bloody wars between African states, which would be used by the former metropolis as a basis for restoring their lost colonial domination [3] .
Border dispute between Burkina Faso and Mali
In 1985, a border conflict broke out between Burkina Faso and Mali over the ownership of a territory rich in mineral resources, which was located on an unmarked section of the border between the states. The issue of the ownership of the border territory and the definition of the border strip was referred to the UN International Court of Justice , which divided the disputed territory into approximately half [4] . In its decision, the court indicated the essence of the principle of uti possidetis - “ensuring respect for territorial borders at the time of state independence; territorial borders can only be dividing lines between different administrative districts or colonies subject to the same sovereign , therefore the application of the principle of uti possidetis has led to the fact that former administrative borders were transformed into international borders in the full sense of this concept ” [4] . Moreover, the court stated that the principle of uti possidetis follows from the general rule of international law [4] , which means that it can be applied not only to the former colonial states , but also in any other situations when the sovereign state breaks up or separates from it any territorial part.
Former Yugoslavia
The Arbitration Commission for Yugoslavia Created by the European Community to resolve disputed legal issues in connection with the collapse of the Yugoslav federation , it came to the conclusion that since the dissolution of the federation and the newly formed states gained independence, internal inter-republic borders have become international borders in accordance with the principle of uti possidetis . In Conclusion No. 2, the Arbitration Commission, considering the issue of internal borders between Serbia and Croatia and Serbia and Bosnia and Herzegovina , indicated that, regardless of any circumstances, the right to self-determination cannot and should not entail a change in existing borders when the state gains independence ( uti possidetis juris ), except in cases where the states themselves have agreed to change their borders [5] . In Conclusion No. 3, the Arbitration Commission, applying the principle of uti possidetis to the borders of the former Yugoslav republics, referred to the Decision of the International Court of Justice of the United Nations of December 22, 1986 in the case of Burkina Faso and Mali (border dispute), where uti possidetis is recognized as a general principle of international law applicable to absolutely any state [5] .
Many states and international organizations also supported the inviolability of the republican borders of the SFRY . The Declaration on Yugoslavia of the Heads of State and Government of the North Atlantic Council , held on November 7–8, 1991 in Rome , said that all attempts to change existing borders through the use of force or fait accompli policies (to confront a fait accompli) are unacceptable and therefore any unilateral change action existing borders will not be recognized [6] .
Former Soviet Union
During the collapse of the USSR, the principle of uti possidetis was implied in the conclusion of agreements between the former republics, declaring the internal administrative borders of the union as interstate. Article 5 of the Agreement on the Establishment of the Commonwealth of Independent States , signed in Belovezhskaya Pushcha on December 8, 1991 , stipulated that states recognize and respect the territorial integrity of each other and the inviolability of existing borders within the CIS . They guarantee open borders, freedom of movement of citizens and the transfer of information within the framework of the community. In addition, Article 6 of the Treaty between the Russian Federation and Ukraine of November 19, 1990 stipulates specifically that both parties recognize and respect the territorial integrity of the former Russian and Ukrainian republics of the USSR within the borders existing within the USSR .
Czechoslovakia
The agreement on the general delimitation of common state borders of October 29, 1992 between the Czech Republic and Slovakia confirmed that the interstate border between the two new states, upon gaining independence on January 1, 1993, will be the previous administrative border existing between the Czech and Slovak parts of the former Czechoslovakia .
See also
- Territorial integrity
- State border
- Terra nullius
- Status quo
Notes
- ↑ Glossary: Encyclopedic Dictionary of Economics and Law (Inaccessible link) . Date of treatment March 20, 2012. Archived June 2, 2015.
- ↑ 1 2 Brownley J. International Law: Two Books = Principles of public international law / Per. from English S. N. Andrianova; Ed. G.I. Tunkina . - The first book. - M .: Progress, 1977 .-- 213 p.
- ↑ 1 2 Keita Mamadou. Settlement of international disputes in modern international law: the example of a territorial dispute between the Republic of Mali and the Republic of Burkina Faso . Abstract of dissertation legal sciences. - M., 2011 .-- 25 p . Date of treatment July 3, 2012. Archived on September 15, 2012.
- ↑ 1 2 3 Case concerning the frontier dispute (Burkina Faso v. Mali ) . ICJ - Reports, 1986, pp. 554, 565-566, 568 .. Date of treatment July 3, 2012. Archived September 15, 2012.
- ↑ 1 2 Allain Pellet. The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples . European Journal of International Law . - 1992. - No. 3 (1), P. 184, 185 .. Date of treatment July 3, 2012. Archived on September 15, 2012.
- ↑ Firdovsi Gasimov. The emergence of new subjects of international law as a result of the collapse of the USSR and Yugoslavia . Azerbaijan Legal Information Portal. Date of treatment July 3, 2012. Archived on September 15, 2012.
Literature
- Kartashkin V.A. Territorial problems of developing countries (Asia and Africa). - M .: Publishing House "International Relations", 1965. - 146 p. ( book review , author Tuzmukhamedov R. A.)
- Poymanova Yu.A. Territorial conflicts, border disputes and problems in Latin America, history and modernity // Moscow Journal of International Law. - 2001. - No. 3 . - S. 38-57 .
- Mirzoev F.S. The principle of uti possidetis juris: Meaning and modern relevance // Law and politics. - 2004. - No. 6 . - S. 43-52 .
Links
- Report by Professor Marcelo G. KOHEN Uti Possidetis and Maritime Delimitations Geneva Institute of International Relations
- Azerbaijan became a member of the UN based on the principle of uti possidetis juris
- Dispute Resolution Practices in Africa