The Principle uti possidetis juris in the practice of international courts

Abstract

The principle uti possidetis juris first arose in Roman law providing legal protection for the effective possessions on estate. It reemerged in Latin America at the beginning of the XIX century, but with different function, content and aim. The principle started to operate as a governing principle for the delimitation of newly independent states. It is beyond the question that the principle of uti possidetis became established as a binding norm of international law with regard to Latin America. It is also beyond the question that the principle moved to Africa, governing the delimitation of the states emerging from the process of desalinization. But, what is questionable is whether the principle spread its domain of application on the whole international community, namely, is it the general principle of international law. The Chamber of the International Court of Justice in the Burkina Faso/Mali case stated, according to the great number of writers, precisely that. Starting from that decision and taking into account the mode of delimitation of the former USSR republics, the Arbitration Commission on Yugoslavia (so-called Badinter Commission) concluded that: '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, through initially applied in settling decolonization issues in America and Africa, is today recognized as a general principleà' The judicial practice coming after that, according to the author's opinion, hardly proves that simple and clear answer. In Case Concerning the Land Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) the Chamber of the ICJ noted that the unstable and uncertain frontiers - which, in fact, are the possible source of dispute 'are almost the invariably the ones in respect of which uti possidetis juris speaks for once with an uncertain voice' (para. 41, pp. 386 Judgment, ICJ Reports 1992). In author's opinion, the Chamber questions the sole function of the principle, the function to provide applicable law for the delimitation of the state emerged from the process of dissolution of former state. At least, it raises the doubt about uti possideti juris as the sole one and obligatory rule in deciding the dispute about the delimitation. The Chamber explores the effectivites principle as the alternative principle with equal legal relevance in the matter. The arbitral tribunal in the case Yemen/Eritrea goes even further. The relevant jurisprudence makes the author to conclude that the principle uti possidetis juris undergone substantial evolution during last two decades. It is clearly not an absolute rule that applies automatically, but a presumption. Presumption which will be applied unless there is some other applicable principle, effectivites, for example.