Uti possidetis
Encyclopedia
Uti possidetis is a principle in international law
that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty
; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war, then the principle of uti possidetis will prevail. Originating in Roman law
, the phrase is derived from the Latin expression uti possidetis, ita possideatis, meaning "as you possessed, you shall possess henceforth". This principle enables a belligerent party to claim territory that it has acquired by war.
In the early 17th century, the term was used by England
's James I
to state that while he recognized the existence of Spanish
authority in those regions of the Western Hemisphere
where Spain exercised effective control, he refused to recognize Spanish claims to exclusive possession of all territory west of longitude 46° 37' W under the Treaty of Tordesillas
.
More recently, the principle has been used in a modified form (see Uti possidetis juris
) to establish the frontiers of newly independent states following decolonization
, by ensuring that the frontiers followed the original boundaries of the old colonial territories from which they emerged. This use originated in South America
in the 19th century with the withdrawal of the Spanish Empire
. By declaring that uti possidetis applied, the new states sought to ensure that there was no terra nullius
in South America when the Spanish withdrew and to reduce the likelihood of border wars between the newly independent states and the establishment of new European colonies.
The same principle was applied to Africa
and Asia
following the withdrawal of European powers from those continents, and in locations such as the former Yugoslavia
and the Soviet Union
where former centralized governments fell, and constituent states gained independence. In 1964 the Organisation of African Unity passed a resolution stating that the principle of stability of borders—the key principle of uti possidetis—would be applied across Africa. Most of Africa was already independent by this time, so the resolution was principally a political directive to settle disputes by treaty based on pre-existing borders rather than by resorting to force. To date, adherence to this principle has allowed African countries to avoid border wars; the notable exception, the Eritrean–Ethiopian War of 1998–2000, had its roots in a secession from an independent African country rather than a conflict between two decolonized neighbours. On the other hand, the colonial boundaries often did not follow ethnic lines, and this has helped lead to violent and bloody civil wars among differing ethnic groups in many post-colonial (and post-Communist) countries, including Sudan
, the Democratic Republic of the Congo
, Angola
, Nigeria
, and the former Yugoslavia
.
The principle was affirmed by the International Court of Justice
in the 1986 Case Burkina-Faso v Mali:
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
that territory and other property remains with its possessor at the end of a conflict, unless otherwise provided for by treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
; if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war, then the principle of uti possidetis will prevail. Originating in Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, the phrase is derived from the Latin expression uti possidetis, ita possideatis, meaning "as you possessed, you shall possess henceforth". This principle enables a belligerent party to claim territory that it has acquired by war.
In the early 17th century, the term was used by England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
's James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
to state that while he recognized the existence of Spanish
Spain
Spain , officially the Kingdom of Spain languages]] under the European Charter for Regional or Minority Languages. In each of these, Spain's official name is as follows:;;;;;;), is a country and member state of the European Union located in southwestern Europe on the Iberian Peninsula...
authority in those regions of the Western Hemisphere
Western Hemisphere
The Western Hemisphere or western hemisphere is mainly used as a geographical term for the half of the Earth that lies west of the Prime Meridian and east of the Antimeridian , the other half being called the Eastern Hemisphere.In this sense, the western hemisphere consists of the western portions...
where Spain exercised effective control, he refused to recognize Spanish claims to exclusive possession of all territory west of longitude 46° 37' W under the Treaty of Tordesillas
Treaty of Tordesillas
The Treaty of Tordesillas , signed at Tordesillas , , divided the newly discovered lands outside Europe between Spain and Portugal along a meridian 370 leagueswest of the Cape Verde islands...
.
More recently, the principle has been used in a modified form (see Uti possidetis juris
Uti Possidetis Juris
Uti possidetis juris is a principle of international law that states that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.-History:...
) to establish the frontiers of newly independent states following decolonization
Decolonization
Decolonization refers to the undoing of colonialism, the unequal relation of polities whereby one people or nation establishes and maintains dependent Territory over another...
, by ensuring that the frontiers followed the original boundaries of the old colonial territories from which they emerged. This use originated in South America
South America
South America is a continent situated in the Western Hemisphere, mostly in the Southern Hemisphere, with a relatively small portion in the Northern Hemisphere. The continent is also considered a subcontinent of the Americas. It is bordered on the west by the Pacific Ocean and on the north and east...
in the 19th century with the withdrawal of the Spanish Empire
Spanish Empire
The Spanish Empire comprised territories and colonies administered directly by Spain in Europe, in America, Africa, Asia and Oceania. It originated during the Age of Exploration and was therefore one of the first global empires. At the time of Habsburgs, Spain reached the peak of its world power....
. By declaring that uti possidetis applied, the new states sought to ensure that there was no terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
in South America when the Spanish withdrew and to reduce the likelihood of border wars between the newly independent states and the establishment of new European colonies.
The same principle was applied to Africa
Africa
Africa is the world's second largest and second most populous continent, after Asia. At about 30.2 million km² including adjacent islands, it covers 6% of the Earth's total surface area and 20.4% of the total land area...
and Asia
Asia
Asia is the world's largest and most populous continent, located primarily in the eastern and northern hemispheres. It covers 8.7% of the Earth's total surface area and with approximately 3.879 billion people, it hosts 60% of the world's current human population...
following the withdrawal of European powers from those continents, and in locations such as the former Yugoslavia
Yugoslavia
Yugoslavia refers to three political entities that existed successively on the western part of the Balkans during most of the 20th century....
and the Soviet Union
Soviet Union
The Soviet Union , officially the Union of Soviet Socialist Republics , was a constitutionally socialist state that existed in Eurasia between 1922 and 1991....
where former centralized governments fell, and constituent states gained independence. In 1964 the Organisation of African Unity passed a resolution stating that the principle of stability of borders—the key principle of uti possidetis—would be applied across Africa. Most of Africa was already independent by this time, so the resolution was principally a political directive to settle disputes by treaty based on pre-existing borders rather than by resorting to force. To date, adherence to this principle has allowed African countries to avoid border wars; the notable exception, the Eritrean–Ethiopian War of 1998–2000, had its roots in a secession from an independent African country rather than a conflict between two decolonized neighbours. On the other hand, the colonial boundaries often did not follow ethnic lines, and this has helped lead to violent and bloody civil wars among differing ethnic groups in many post-colonial (and post-Communist) countries, including Sudan
Sudan
Sudan , officially the Republic of the Sudan , is a country in North Africa, sometimes considered part of the Middle East politically. It is bordered by Egypt to the north, the Red Sea to the northeast, Eritrea and Ethiopia to the east, South Sudan to the south, the Central African Republic to the...
, the Democratic Republic of the Congo
Democratic Republic of the Congo
The Democratic Republic of the Congo is a state located in Central Africa. It is the second largest country in Africa by area and the eleventh largest in the world...
, Angola
Angola
Angola, officially the Republic of Angola , is a country in south-central Africa bordered by Namibia on the south, the Democratic Republic of the Congo on the north, and Zambia on the east; its west coast is on the Atlantic Ocean with Luanda as its capital city...
, Nigeria
Nigeria
Nigeria , officially the Federal Republic of Nigeria, is a federal constitutional republic comprising 36 states and its Federal Capital Territory, Abuja. The country is located in West Africa and shares land borders with the Republic of Benin in the west, Chad and Cameroon in the east, and Niger in...
, and the former Yugoslavia
Yugoslavia
Yugoslavia refers to three political entities that existed successively on the western part of the Balkans during most of the 20th century....
.
The principle was affirmed by the International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
in the 1986 Case Burkina-Faso v Mali:
- [Uti possidetis] is a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the changing of frontiers following the withdrawal of the administering power.
See also
- De factoDe factoDe facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
- Ex factis jus oriturEx factis jus oriturEx factis jus oritur is a principle of international law. The phrase is based on the simple notion that certain legal consequences attach to particular facts...
- Facts on the groundFacts on the groundFacts on the ground is a diplomatic term that means the situation in reality as opposed to in the abstract. It originated in discussions of the Israeli–Palestinian conflict, where it was used to refer to Israeli settlements built in the occupied West Bank, which were intended to establish permanent...
- Fait accompliFait AccompliFait accompli is a French phrase which means literally "an accomplished deed". It is commonly used to describe an action which is completed before those affected by it are in a position to query or reverse it...
- RevanchismRevanchismRevanchism is a term used since the 1870s to describe a political manifestation of the will to reverse territorial losses incurred by a country, often following a war or social movement. Revanchism draws its strength from patriotic and retributionist thought and is often motivated by economic or...
- Status quo ante bellumStatus quo ante bellumThe term status quo ante bellum is Latin, meaning literally "the state in which things were before the war".The term was originally used in treaties to refer to the withdrawal of enemy troops and the restoration of prewar leadership. When used as such, it means that no side gains or loses...
- Terra nulliusTerra nulliusTerra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
- Uti possidetis jurisUti Possidetis JurisUti possidetis juris is a principle of international law that states that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence.-History:...
Further reading
- Sebastian Anstis and Mark Zacher (June 2010). "The Normative Bases of the Global Territorial Order." Diplomacy and Statecraft 21: 306-323.
- Helen Ghebrewebet: "Identifying Units of Statehood and Determining International Boundaries: A Revised Look at the Doctrine of Uti Possidetis and the Principle of Self-Determination", Verlag Peter Lang 2006, ISBN 3631550928.