The principle of Uti possidetis juris and its relevance for the issue of secession. The case of Nagorno-Karabakh

The case of Nagorno-Karabakh

A
ccording to Boczek’s International Law Dictionary (see: Boleslaw Boczek, International Law: A Dictionary (Scarecrow Press, Inc. 2005), uti possidetis can be defined as the principle that refers to the transformation of former administrative borders of dissolved states or a colonial empire into international boundaries of newly independent states.

Oppenheim’s International Law highlights the role of uti possidetis as an important principle, which strengthens the stability of state boundaries (see: Robert Jennings and Arthur Watts (eds.) Oppenheim's International Law (9th edn, 1992) 972 et seq.), and Shaw adds that uti possidetis is a principle designed to reinforce the principle of territorial integrity (see: Malcolm Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 EJIL 478). As for settling the disputes about boundaries in international law uti possidetis prolongs the idea of state succession. Corten (see: Olivier Corten, ‘Droit des Peuples a Disposer D’eux-Memes et Uti Possidetis: Deux Faces D’une Meme Medaille?’ cited in Anne Peters, The Principles of Uti Possidetis Juris in Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds.), Self-Determination and Secession in International Law (OUP 2014) and Dinh, Daillier and Pellet (see: Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public (5th edn.1994) 397) both writing in French, further add that the principle of uti possidetis attempts to protect the boundaries of newly independent states, primarily to shield these against further defragmentation. All of these commentators argue that uti possidetis has been adopted in international law to protect the territorial integrity of former states, which are exercising their rights to self-determination. Thus, uti possidetis is considered to be one of the elements in the creation of statehood, pertaining to the creation process of newly independent states, such as Nagorno-Karabakh. (The application of this principle to the Nagorno-Karabakh case will be discussed in more detail later in this essay).

Uti possidetis has the potential to transform any kind of internal territorial demarcation, established in domestic law prior to secession, into an international one if secession succeeds. The debate is what this means in law for a territorial entity, such as Nagorno-Karabakh, which is claiming independence from its mother state, which is a former Soviet republic and a member state of the Commonwealth of Independent States (CIS). The question is whether the international legal principle of uti possidetis applies to Nagorno-Karabakh’s boundaries, and if so, what this principle would demand.

The term uti possidetis originates from Roman law and refers to the right of temporary ownership over things and preserving the status quo. The rule was “uti possidetis, ita possideatis”, meaning “as you possess, so may you possess” (see: Suzanne Lalonde, Determining Boundaries in a Conflicting World: The Role of Uti Possidetis (McGill-Queen’s University Press 2002). However, in the 19th century, the meaning of uti possidetis in international relations was changed in two aspects. The law no longer applied to private individuals and property but to state territory. Moreover, it denoted a definitive status (see: Johann Caspar Bluntschli, Das Moderne Volkerrecht der civilisierten Staaten als Rechtsbuch dargestellt (Beck’sche Buchhandlung 1868), para 715 cited in Anne Peters, The Principles of Uti Possidetis Juris in Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds.), Self-Determination and Secession in International Law (OUP 2014) but actually entered international law at a time when according to Moore, “its fundamental object, in private law, of preventing and invalidating the use of force, no longer existed” (see: John Basset Moore, Memorandum on Uti Possidetis: Costa-Rica Panama Arbitration (Bancroft Library 1911) 5-8).

In contemporary international law, uti possidetis has now the overall purpose of securing the international prohibition of forcible territorial transfers. The original Roman law principle has been extensively affected by its sui generis interpretation and application in Latin America, such as in the boundary dispute between Venezuela and Columbia (see: Enver Hasani, ‘Uti Possidetis Juris: From Rome to Kosovo’ (2003) 27 FLFWA). Uti possidetis became a principle of constitutional and South American international law. More recently in Africa, uti possidetis was applied in the Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), two former French colonies, in which the International Court of Justice (ICJ) stated that uti possidetis was intended to upgrade former colonial delineations into international boundaries (See: Case Concerning the Frontier Dispute (Burkina Faso v Mali) [1986] ICJ Rep 554 para 20). Shaw emphasises that the main aim of the court in this case was to make a special statement on such cases related to the process of obtaining independence (see: Shaw (n 30)). This supports the argument that uti possidetis as a principle of international law is not only applicable in all cases of decolonisation but also in all situations where there is a transfer from one sovereign power to another.

The Badinter Commission on Former Yugoslavia adhered to the ICJ’s position, arguing in favour of uti possidetis being recognised as an important international law principle (See: Steve Terrett, The Dissolution of Yugoslavia and the Badinter Arbitration Commission (Dartmouth: Ashgate 2000) ch 3). The principle’s application in the cases of the Socialist Federal Republic of Yugoslavia (SFRY), Czechoslovakia and the USSR supports the argument that uti possidetis has become a rule of customary international law. The dissolution of the former communist federations, including the USSR and SFRY became a re-emergence for uti possidetis in non-colonial format, which is becoming explicitly recognised by the legal community.

Uti possidetis juris and self-determination. The problem

The main goal of this section of the essay is to examine the correlation of uti possidetis juris and self-determination in the Post-Soviet era in Nagorno-Karabakh. The problem arising between the correlation of these two principles is one of the most complex issues in contemporary international law. After World War II, the people’s right to self-determination emerged as one of the fundamental principles of international law but the extensive use of this principle for political reasons led to a change in its initial original purpose, which was evident in the decolonisation process. As a result, this set the principle of self-determination against other principles of international law and led to a conflict with the principles of territorial integrity and uti possidetis.

Before 1945, in the colonial context, it was always considered as a possibility for a people or group to separate from a state in order to achieve independence by gaining secure control over its territory. If the situation demanded, this was to be achieved by a war of independence. However, since 1945, the international community has become increasingly unwilling to recognise unilateral secession of any part of independent states, provided that such a secession is rejected by the government of that state (See: Crawford (n 2)). The legal principle of territorial integrity has served as a significant barrier. In fact, since 1945, the UN has not admitted any state created by unilateral secession contrary to declared wishes of the government of the predecessor state. Conversely, there are numerous examples of attempts at unilateral secession, which have failed, such as Tibet, Biafra, Kashmir, the Turkish Federated State of Cyprus, Chechnya, Abkhazia and Nagorno-Karabakh. Such attempts at secession have won virtually no international support or recognition.

The recent events, which have occurred in Kosovo, the war and recognition of South Ossetia and Abkhazia, and the separation of South Sudan have all highlighted the importance of legal argumentation concerning the correlation between the self-determination principle and other international law principles including uti possidetis. According to the UN Security Council (UNSC) Resolution, it states “No territorial gains or changes within Yugoslavia brought about by violence are acceptable” (see: UNSC Res 713 (25 September 1991) UN Doc S/ RES/ 713). This is the evidence that the use of military force as an instrument to define state boundaries is outlawed by international law. For example, in the case of Yugoslavia in 1992, and the dissolution of the Soviet Union in 1991, in order to upgrade the boundaries of the former federal states into international boundaries of new states the principle of uti possidetis was applied. For example, in 2008, Kosovo did not respect the boundary of the former Yugoslavian Republic of Serbia.

Carrying this example forward it is crucial to examine what this event means in law for Nagorno-Karabakh, which was, and still is claiming independence from its mother state. In the current contentious debate over Nagorno-Karabakh, scholars and observers disagree about whether the principle of uti possidetis is actually applicable or not. In order to answer the question of the applicability of uti possidetis to secession, it is necessary to determine whether its past application to the territorial realignments in the course of the dissolution of the Soviet Union and Yugoslavia was valid in legal terms or whether it violated the international law of that time, the beginning of the 1990s. It is possible, that in today’s contemporary law there might hold a more refined answer to the question of applying uti possidetis to the current territorial problems in Nagorno-Karabakh.

The acceptance of uti possidetis as a principle, which can be generally applied beyond decolonisation has been challenged on two main points. Firstly, in law it may not be deemed correct and secondly it might offend other international law principles especially the right to self-determination and human rights.

In the Burkina Faso v. Mali case, there was an ambiguous obiter dicta by the Chamber of Arbitration Committee mentioning ‘fratricidal struggles provoked by the challenging of frontiers’ which is clearly applicable beyond the decolonisation situation. This would imply that in the Chamber’s view, the uti possidetis principle could be applied in any situation where there was a movement from one sovereign authority to another. Such a statement outside ratio decidendi of the Court can constitute an authoritative legal statement.

The second challenge to the implementation of uti possidetis as a principle of international law is related to the interaction between this principle itself and the right to self-determination. Self-determination cannot affect international territorial boundaries as such, but the succeeding units might be territorially defined in a fashion that reflects human rights considerations.

There would appear to be very little to oppose the acceptance of the principle of uti possidetis in international law in order for it to be applied in all situations of transition to independence. However, at present it is evidently not an absolute rule, which can be applied automatically.

The application of the principle of uti possidetis to the Nagorno-Karabakh case demonstrates quite clearly that Nagorno-Karabakh was an internal component of the Republic of Azerbaijan. Prior to the break-up of the Soviet Union Nagorno-Karabakh was situated within the administrative borders of the Azerbaijan SSR, which constituted a union republic and was therefore one of the top level unions of the USSR. The original Azerbaijan SSR administrative borders within the Soviet Union as defined in the Soviet Constitution had applied for decades. However, after the Azerbaijan SSR secession from the Soviet Union these borders were converted according to the uti possidetis principle into international borders of the Republic of Azerbaijan including Nagorno-Karabakh. All former union republics of the Soviet Union were subjected to this process of border transformation and therefore this should not have left any room for doubt in the Nagorno-Karabakh case.

Mammadov makes an interesting comparison between the breaking-up processes in the USSR and the former Yugoslavia by pointing out that in line with international law through the Alma-Ata Declaration of December 1991 the USSR union republics regulated the process. (see: Mushfig Mammadov, ‘Legal Aspects of the Nagorno-Garabagh Conflict’ (Winter 2006) Caucasian Review of International Affairs (CRIA) Vol. 1 (1) 14, 17). This declaration says “the states adopt the declaration by recognising and respecting territorial integrity as well as inviolability of existing borders of each of the signatory states”. This indicates that union republics have recognised existing borders even when the USSR collapsed. By not recognising the territorial integrity of Azerbaijan, the Republic of Armenia had violated this provision.

It would appear that this current intractable situation over the Nagorno-Karabakh conflict will only be possibly resolved by being referred to an impartial institution such as the ICJ since the danger of further outbreaks of violence are ever present. It can be clearly argued that if the Nagorno-Karabakh case were to be brought before the ICJ, under the uti possidetis principle the decision would be in favour of Azerbaijan. However, because the Republic of Armenia continues to deny any involvement in this conflict as a party, the chance of submitting this dispute to the ICJ is virtually non-existent.

Master of Laws (LLM), University College London (UCL)
Expert in International Law

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