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Peoples, Territorialism and Boundaries
V. Uti Possidetis and Self-Determination - Conclusions
The primary justification of the principle of uti possidetis, first in Latin America and then in Africa, has been to seek to minimize threats to peace and security, whether they be internal, regional or international. This is achieved by entrenching territorial stability at the critical moment of the transition to independence. Precisely the same impulse lies behind the recognition of the principle outside the purely colonial context where the same dangers resulting from the break-up of existing states are evident. There is little to suggest that the hazards resulting from the creation of new states out of parts or all of existing states and the perils of widespread disruption and ethnic violence are restricted to the traditional colonial situation or to the continents of Latin America and Africa. The same broad reasons impelling the establishment of the principle of uti possidetis as a specific regional norm led to its establishment as a general principle in international law.
The legal basis of the doctrine is well established, its extent has recently been controverted. That uti possidetis governs colonial situations is evident, that it extends to all cases of transition to independence has, it is believed, become clear. This is based upon statements in the Burkina Faso/Mali case, which are legitimately generalizable and the explicit views of the Yugoslav Arbitration Commission. Neither of these assertions were per se legally determinative: the Chamber's comments were in strict terms obiter dicta, while the opinions of the Arbitration Commission need to be seen within the context of the fact that the Commission itself was constitutionally advisory only. Nevertheless, both sets of statements are authoritative, particularly bearing in mind that there was no prior rule of international law precluding the application of the uti possidetis principle to post-colonial situations. In addition, subsequent practice has been fully in conformity with the principle, while contradictory claims have met with international opposition. There would appear to be little lying in the way of an acceptance in international law of uti possidetis as applying to all situations of transition to independence.
But what does the principle actually prescribe? It is clearly not an absolute rule that applies automatically. It is a presumption.126 That is, unless there is evidence to the contrary, defined units within one sovereignty will come to independence within that territorially defined unit. It matters not what the provenance of such units may have been. They may have arisen on the basis of ethnic or historical ties, arbitrarily, or indeed as a result of the use of force subsequently accepted. This last occurred, for example, in the case of the Inter-Entity Boundary Line within the Republic of Bosnia and Herzegovina between the two entities of the Federation of Bosnia and Herzegovina and the Republika Srpska under the Dayton Peace Agreement of 1995.127 The applicable law with regard to the establishment of the relevant administrative borders is the domestic law of the original state in question, coupled with administrative factors and other official actions.128 The applicable time frame is the period of transition to independence, although particular factors in the case of existing international boundaries may lead to an earlier date. This means that the parties must deal with the actual situation as at the appropriate time, even if significant changes have taken place at other moments in history and in the light of the knowledge that such administrative lines were never intended to operate as international boundaries and might indeed have been differently drawn had this possibility been contemplated. The uti possidetis presumptive line can, of course, be modified by consent. The relevant parties may decide to rearrange the territorial situation so that the new state comes to independence within changed borders. Indeed, states after independence are free to consent, either expressly through a treaty or by virtue of an adjudicative award or other recognition or impliedly through acquiescence to alterations in their boundaries.
The weight of the presumption of uti possidetis is variable. It can indeed only operate where there is an internal border or administrative line. The more unitary the state, the weaker the presumption. On the other hand, the more entrenched a particular administrative line may be, the stronger the presumption. In the case of federal states where the component units have meaningful jurisdictional powers and indeed may even have the right of secession domestically proclaimed (as in the Former Yugoslavia129 and the Former USSR130), the presumption would be at its least assailable.
If neither self-determination outside the colonial context nor human rights generally possesses the competence to change sovereign territorial title, and it is believed that this is clearly the case, the question arises as to what role such rights may have within the sovereignty transitional process. It is felt that this role is in fact fourfold. In the first place, the original state, prior to dissolution or secession, is fully bound by applicable international human rights norms, including those relating to self-determination. The process which may ultimately lead to sovereignty rearrangement must be conducted in the light of such norms, as well as in accordance with pertinent domestic provisions, of course. Such international rules include individual human rights, the rights of groups and minorities131 and the public participatory rights contained within the concept of self-determination.132 Any attempt to alter the territorial definition of the state that would violate such rights would attract the opprobrium of the international community, as for example the institution of the Bantustans by South Africa motivated by the apartheid ideology. However, the essential point is that such rights, including the right to self-determination, must be exercised within the territorial framework of the state in question. In addition, human rights considerations would be of relevance where part of one state was being ceded to another. This would, of necessity, constitute a consensual transaction and boundary problems would thus be non-existent or minimal. Although it is unclear in traditional international law whether the consent of the population being transferred from one sovereignty to another in this fashion had to be obtained,133 it does seem that the evolution of self-determination in terms of rights of participation in government implies that the population of areas will not be transferred into other sovereign states by cession of territory without consent. The same situation obtains where the whole state merges into another state, as for example the disappearance of the German Democratic Republic by way of its constituent länder joining the Federal Republic of Germany in 1990.134
Secondly, the principle of self-determination may have a role to play with regard to the criteria of statehood in particular situations. It is arguable that the evolution of the principle has impacted upon the criterion of government so that a lower level of effectiveness may be required in decolonization episodes.135 In addition, self-determination may also be relevant as an additional criterion of statehood in certain circumstances, such as the Rhodesian unilateral declaration of independence which entrenched racial discrimination.136 It is also to be noted that the Guidelines on Recognition of New States in Eastern Europe and in the USSR adopted on 16 December 1991 by the European Community137 specifically referred to self-determination, underlining the need to respect the rule of law, democracy and human rights. Although the Guidelines deal with the issue of recognition and not as such the criteria of statehood, the two are interlinked and conditions required for recognition may in certain situations have an impact upon the criteria for statehood. Self-determination here is not a principle dictating particular boundaries, but one that refers to the internal constitution of the proposed new state, and is thus of relevance to the very issue of statehood.
Thirdly, self-determination and human rights may well be relevant with regard to the process of independence of a new state in the context of international recognition. It could well be argued that one of the reasons why Bangladesh was recognized relatively speedily by the international community was because it had become established consequent upon massive violations of human rights by Pakistan within its former eastern region. States, individually or collectively, are quite entitled to set conditions for the grant of recognition and these may include provisions relating to human rights. The 1991 European Guidelines on Recognition of New States in Eastern Europe and in the USSR expressed a common position on the process of recognition of the new states. It was noted in particular that recognition would require inter alia respect for the provisions of the Charter of the United Nations and CSCE commitments, especially with regard to the rule of law, democracy and human rights, together with guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE. On the same day that the Guidelines were adopted, the European Community also adopted a Declaration on Yugoslavia,138 in which the Community and its Member States agreed to recognize the Yugoslav republics fulfilling certain conditions. These included the requirements that the commitments in the Guidelines were accepted and that provisions laid down in a draft convention under consideration by the Conference on Yugoslavia were accepted, particularly those dealing with human rights and the rights of national or ethnic groups. Such a concerted approach could also include calls for non-recognition of a particular new entity, where it was felt that human rights and other international law norms had been violated. Examples here would include Rhodesia,139 the South African Bantustans,140 and the `Turkish Republic of Northern Cyprus'.141
Finally, the relevant international law norms of self-determination and human rights would apply with regard to the new state once established. They may indeed apply automatically by virtue of state succession to the human rights treaties binding upon the former sovereign.142 In any event, the provisions of relevant treaty law would apply upon succession or accession and the rules of customary international law would apply upon independence. Of course, it is also true that violations of human rights could be dealt with by the United Nations or regionally through a variety of mechanisms,143 including where necessary by the creation of special war crimes tribunals or by virtue of the operation of a future international criminal court.
Accordingly, self-determination and human rights questions are not irrelevant to the creation of a new state in international law. However, such issues are distinct from the question of the territorial framework of the transitional process to independence. To treat the two questions as interwoven would cause more problems than it could resolve.
126 Note that Ratner, while opposed to the presumptive application of
uti possidetis, concludes by asserting that `perhaps the burden of proof
should lie on those who seek to challenge them [i.e. the boundaries of new
states on the basis of uti possidetis]', supra note 56, at 624.
One wonders therefore what the precise difference is between on the one hand
accepting the presumption of uti possidetis and on the other arguing
that the burden of proof lies upon those who challenge this approach.
127 See also the Brcko Arbitration Award, 36 ILM (1997) 396.
128 See e.g. Yugoslav Arbitration Commission, Opinion No. 3, 92
ILR 172.
129 See Yugoslav Constitution 1974, Basic Principles I, para. 1.
130 See article 17 of the Constitution of the USSR, in A.J. Peaslee,
Constitutions of Nations (3rd ed., 1965), at 992.
131 Whether one can go as far as the Yugoslav Arbitration Commission
in stating that the rights of minorities are part of jus cogens and
include the `right to recognition of their identity under international law' or
the `right to choose their nationality' is somewhat controversial, Opinion No.
2, 92 ILR 168-9.
132 It would thus be consistent with such principles for any
rearrangement of sovereignty to be conducted upon the basis of the consent of
the people as a whole of the area concerned. See e.g. the Anglo-Irish Agreement
1985 stating that `any change in the status of Northern Ireland would only come
about with the consent of a majority of the people of Northern Ireland'. This
was reaffirmed in the 1993 Downing Street Declaration between the UK and
Ireland.
133 See e.g. Brownlie, supra note 70, at 170.
134 See the Preamble to the Treaty on the Final Settlement with
respect to Germany, 1990, referring to German unity having been brought about
by the free exercise by the German people of their right to self-determination,
29 ILM (1990) 1186.
135 See Shaw 1997, supra note 2, at 144.
138 UK Materials on International Law, 62 BYbIL (1991), at
560-1.
140 GA Res. 31/6A and Security Council statements of 21 September
1979 and 15 December 1981.
142 See Shaw 1997, supra note 2, at 695 et seq. See
also the Human Rights Committee, CCPR/C/SR.1178/Add.1, at 2-3, 4 and 9; UN
Commission of Human Rights resolutions 1994/16 and 1995/18, and the Genocide
Convention (Bosnia v. Yugoslavia) case, ICJ Reports (1996), Separate
Opinions of Judge Shahabuddeen and Weeramantry at para. 23 and at 4-11
respectively.
143 See e.g. Shaw 1997, supra note 2, at Chs. 6-7.
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