Uti Possidetis Research Articles

Cetatea Jdioara – sfârșit de drum (1693-1701) / The Fortress at Jdioara – End of a Story (1693-1701)

Built at the end of the 13th or the beginning of the 14th century, the royal fortress/castle at Jdioara, located on the road from Caransebeş to Lugoj, was part of the defensive chain in the Banatic highlands against the Turkish penetration, as well as a checkpoint on the road to Transylvania. During that time the fortress/castle at Jdioara changed several owners, from voyvods of Transylvania (John Pongrácz of Dindeleag), princes of Hungary (John Corvinus, natural son of king Mathias Corvinus) or leaders (ban) of the so-called banat of Caransebeş and Lugoj (Steven Tompa, Paul Keresztesi) to some members of local highranking noble families (Macskási/Măcicaş of Tincova, Fiat of Armeniş/Caransebeş, Jósika of Caransebeş/Brănişca). %e last known owner of Jdioara before the Turkish seize of the banat of Caransebş and Lugoj in 1658 was Sigismund Jósika, son of the former Transylvanian chancellor Steven Jósika. During the war between Austria and the Ottoman Empire the former banat, as well as the fortress/castle at Jdioara, passed in the years from 1688 to 1699, for longer or shorter periods of time, from one hand to the other. Gabriel Jósika, a descendent of Sigimund Jósika, along with many noble-fellows fleeing from Caransebeş in 1658, returned with the Austrian army, seizing the opportunity to request the restitution of the lost real estates, among them the fortress/castle of Jdioara. General Federico Veterani, the commander in chief of Transylvania, granted to Gabriel Jósika (a man having a consistent political career in the autonomous Principality of Transylvania and thereafter under Habsburg rule) the possession of Jdioara and the surrounding villages by a donation-deed from January 24th, 1693. At the suggestion of the Imperial Court-Chamber (kaiserliche Hofkammer), Emperor Leopold Ist has decided that Jósika, as well as his other fellow-nobles, is to be considered only as a user and in no case as a full owner of the acquired estates, on the principle of uti possidetis. A final decision on the real possession was postponed after the conclusion of a peace with the Porte. During a journey to Vienna in the spring of 1697, Gabriel Jósika tried to obtain, by means of a petition filed to the Emperor, the acknowledgment of his full possession on Jdioara, but with no chance to succeed. Meanwhile, the treaty of peace concluded at Karlowitz (January 26th, 1699) granted the whole province of Banat to the Ottoman Empire, compelling Austria to demolish all occupied fortresses/castles, including Jdioara, before leaving the territory. %e final Austro-Turkish convention from December 2nd, 1700 on the border-delimitation had put an end to all hopes of Gabriel Jósika. On January 19th, 1701, from his camp on the river Bistra, major general count Luigi Ferdinando Marsili, imperial commissioner in the region, ordered major Leopold Friedrich Ungar de Merana, commander in Caransebeş and of the military border in the Banatic highlands, to proceed without any delay to the demolition of the fortress/castle at Jdioara. %e demolition works were entrusted to lieutenant-colonel Giovanni Morando Visconti, an imperial military engineer. On March 17th, 1701 he wrote to general Marsili, that on the previous day, at 16:00 hours, the fortress/castle at Jdioara was completly destroyed by successive gunpowder explosions.

Territorio y nacionalidad en Iberoamérica tras las Independencias. El principio constitucional uti possidetis juris: razones y estrategias para contar su historia

Este artículo reflexiona sobre el valor constitucional del principio uti possidetis a los efectos de construcción de la historia constitucional iberoamericana. La monopolización de su estudio por juristas o historiadores del derecho internacional ha facilitado su no inclusión en las temáticas clásicas de la historiografía constitucional iberoamericana, a pesar de que constituye uno de los elementos más característicos de la historia de la suerte de la Constitución en Iberoamérica. Presente en Congresos y Tratados internacionales, pero ausente en numerosas ocasiones en los textos internacionales, este principio está en el origen de la determinación de las nacionalidades iberoamericanas, así como en los de la historia y geografía nacionales de las Repúblicas iberoamericanas.

Secession Revisited: General Framework and Lessons From the Referenda in Catalonia and Kurdistan

The recent referenda held in Catalonia and Kurdish Iraq have reignited the debate over referenda, self-determination and unilateral secession and over the role of international law as a legal framework capable of governing and channelling those dramatic changes towards desired ends. The debate has been ever present in the Post Cold War period, considering that the number of states has increased from just over 150 to 196, with many of the new states emerging from non-consensual processes of separation. The present article assesses the general international legal framework applicable to secession, including the scope and content of principles such as territorial integrity, self-determination and uti possidetis and tests whether and to what extent the two recent separatist claims in Catalonia and Kurdistan fit into that framework. The lessons drawn are that international law is increasingly relevant to the regulation of secession and yet the practice related to the referendum in Catalonia highlights international law’s subsidiary regulatory function and the fact that, indeed, even in the twenty-first century, international law may, in some cases, remain neutral in secession attempts.

INVESTORS AT CONFLICT’S CROSSROADS: AN OVERVIEW OF AVAILABLE INTERNATIONAL COURTS AND TRIBUNALS IN THE CRIMEAN CONTEXT

The principle of uti possidetis, a Latin expression which stands for a principle in international law that territory and other property remains with its possessor at the end of a conflict has been greatly challenged in recent conflicts and territorial disputes. The annexation of the Crimean Peninsula, the conflicts in Georgia, Cyprus, Syria and Turkey pose questions, such as to what extent states can, may and should guarantee long-term investment protection in the contemporary dynamics of the international legal order. Leaving aside the bigger problem of territorial issues and those related to diplomacy and narrowing the problem down to economic interests and protection of property rights, this paper provides an overview and analysis of the international venues for protection of investors and investment from third states’ conduct outside its borders. This paper analyses the conflict in Crimea, a peninsula located in the south of Ukraine. This case study is used as a backdrop for the examination of investment treaties’ application (and applicability), as well as available protection mechanisms in international law in a context of disputed borders. For full text, please click here

BORDERS AS AN INTERDISCPLINARY PROBLEM: TERRITORIALITY AND IDENTITY – PAST AND PRESENT

This article deals with the concepts of space and territoriality in law and politics seen through reflexion on borders, which are understood primarily as forms of identification and the basis for nation-building. While in the classical antiquity, borders were seen as exclusionary defensive structures, in modern international law in the 18th and 19th centuries, they became spaces for the delimitation of states sovereign territories. The author attempts to enligthen the symbolic significance of borders in modern European history, which have been connected with imperial designs, nationalist discourses and political imaginaries. Border rhetoric often emphasised territorial inclusions and exclusions relied to the concepts such as sovereignty, security and natural living space (“natural borders”). The concept of borders is also related to the understanding of the division of Earth’s surface into areas defined as regions. Regions may construct and transcend natural and political borders. Although, borders have been through world history sites of conflict, they also build ways of interconnections between locals and neighbours. The struggle over cultural and political domination and attempts to integrate and assimilate border populations were mostly reflected into deliberate linguistic policies relating to the language of administration and the public sphere. After the Second world war, the perception of borders have changed and the new understanding of borders have prevailed, based upon the idea of cooperation and the recognition of local traditions and minority rights. The principle of uti possidetis iuris was applied in order to prevent redrawing of the borders of new states and to maintain the territorial stability of the regions. But the recent migration crisis and security concerns in Europe and America have re-actualised the perception of state borders as defensive structures. Moreover, introduction of new technologies, such as ICT and the bio-metric, have transformed classical, linear forms of territorial border surveillance into mechanisms of remote control and ruling at a distance.

Uti possidetis juris e o papel do direito colonial na solução de controvérsias territoriais internacionais

O presente trabalho discute a condição do direito colonial nas controvérsias territoriais internacionais decididas pela Corte Internacional de Justiça. Em particular, o artigo verifica tal condição nos casos em que o princípio uti possidetis juris é invocado para auxiliar na determinação dos limites e fronteiras territoriais. Se, por um lado, a jurisprudência tradicional da Corte tende a tratar o direito interno dos Estados como sendo um “mero fato”, por outro, os particulares casos de uti possidetis requerem determinados exercícios por parte do juiz internacional que parecem afastar esse tratamento. Através de um exame da jurisprudência e dos casos em que o princípio é invocado, bem como das técnicas empregadas pela Corte para determinar e interpretar o direito colonial, o artigo demonstra que a abordagem tradicional da Corte é mitigada quando o direito colonial aparece no contexto do contencioso internacional.

The Influence of the Map on Uti Possidetis Juris and Territorial Integrity

Maps operate to build our perceptions of reality and through that reality, impact our interpretation and application of international law. Maps are human-created, and thus fallible, documents, that select and represent differing realities. Due to these choices, maps go beyond simply documenting reality and law, and can sometimes inform our imagination of the world sufficiently to influence our understanding of legal rules themselves. There are two ways in particular that this phenomenon of mapping imagination happens in international law: the notions of uti possidetis juris and territorial integrity. Both of these concepts largely arise from the de-colonization movement, and yet exhibit a tendency for the map, and its vision of the territorial boundary of the state, to influence the emergence of legal rules. In essence, the map helps to reimagine the colonies as territorial self-determination units with a certain territorial scope.

Civil Wars as Challenges to the Modern International System

The current international system is based on Westphalian principles in which authority is defined territorially. Within this territory, the state has sole jurisdiction. Adherence to these principles has contributed to the decline of interstate war. Conversely, applying these principles and correlated norms to states that gained their independence after 1945 has contributed to civil conflicts. These norms are opaque, as is the case with the principle of self-determination; or they lock in an unstable status quo, as with uti possidetis, the principle that borders inherited at the moment of independence should always be maintained; or they are inconsistently applied and often violated, as with the principle of noninterference. Consequently, they provide poor guidelines as to when, and on which grounds, external intervention in civil wars might be warranted. I argue that the degree to which the combatants challenge Westphalian principles should guide policy responses. Furthermore, the international legal regime should reconsider uti possidetis. In some instances, partition might be a reasonable solution to civil wars.

Introduction

Introduction

Legal and Evidential Implications of Emerging Satellite Imagery of Ancient African Relict Boundaries

This article refutes Eurocentric description of precolonial Africa as stateless, politically unsophisticated and essentially undemarcated. This is despite significant ethnographic and oral histories that suggest the opposite. This position has been challenged by the evidence emanating from recent satellite imagery and orthorectified imagery as well as archaeological studies. These findings, it is argued, provide overwhelming evidence of very precise boundary features and markers separating precolonial African cities, states and political groups. For instance, it has been discovered that between Lake Chad and the Atlantic Ocean, in West Africa, there are about 10,000 town and city walls at least 25% of which are on presently deserted sites. The author helpfully identifies specific aspects of the evidential value of the relict wall discoveries such as in dealing with on-going and future self-determination struggles; resolution of international and national boundary disputes; questions relating to the uti possidetis principle; as well as ongoing debates relating to the legal effects of colonial territorial titles and intertemporal law.

La sentence arbitrale rendue sur le fond le 29 juin 2017 en l’affaire du différend territorial et maritime entre la Croatie et la Slovénie

The Arbitral Award of 29 June 2017 was issued in the context of a land and maritime territorial dispute which has for a long time undermined the relations between two Member States of the European Union and been a source of instability in the Balkan region. On the merits of the case, the award confirmed, on the basis of the agreement of the Parties, the applicability of uti possidetis in the Balkans, in a non-colonial context, and proposes an original analysis in relation to bays with several riparian states and in relation to freedoms of communication and navigation in the sea, in the present case in a zone of ‘ Slovenian junction to the high seas’.

Ratner, Steven R. The Thin Justice of International Law: A Moral Reckoning of the Law of Nations.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

Ratner, Steven R. <i>The Thin Justice of International Law: A Moral Reckoning of the Law of Nations</i>.New York: Oxford University Press, 2015. Pp. 496. $85.00 (cloth).

A Case Ill Suited for Judgment: Constructing 'A Sovereign Access to the Sea' in the Atacama Desert

In 2015, the International Court of Justice ruled that Bolivia’s claim against Chile could proceed to the merit stage, setting up this Article’s discussion of perhaps the most intractable border dispute in South American history – Bolivia’s attempt to reclaim from Chile a ‘sovereign access to the Pacific Ocean’. This Article investigates the international law and deeply commingled regional history pertaining to the Atacama Desert region, the hyperarid yet resource-rich region through which Bolivia seeks to secure its long-lost access to the sea. Investigating the factual circumstances (effectivites), the post-colonial international legal principle of uti possidetis, territorial temptations arising from resource discoveries, and the duty to negotiate based on a pactum de contrahendo, a pactum de negotiando, or unilateral declarations, this Article concludes this case is less suited for adjudicative settlement than resolution by the principal three parties involved in the region – Bolivia, Chile, and Peru – primarily because the parties have, over the course of this protracted dispute, constructed intersubjective modalities for a shared sovereignty arrangement facilitated by sub-regional economic growth relations. A regional reconstruction of sovereignty in the northern Atacama region presents the better prospect for resolution than is possible through the limited outcomes presented by formal third party dispute settlement.

Palestine, Uti Possidetis Juris and the Borders of Israel

Israel’s borders and territorial scope are a source of seemingly endless debate. Remarkably, despite the intensity of the debates, little attention has been paid to relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights).

Ocean Resources’ Ascendancy over African States Friendship Relations: Can UNCLOS Help Resolve Current or Future Maritime Boundary Delimitation Dispute Issues

Despite African states massive support to the event of UNCLOS, their envy to possess ocean resources is gradually getting entangled in the implementation of UNCLOS provisions regarding the delimitation of maritime boundaries upon which they can enjoy sovereign rights or claim sovereignty. The complacency of these provisions is enraging African states on their attempts to appropriate maritime resources. These states do adopt divergent interpretations which entail conflicts that negotiations fail to resolve. Moreover, considering that inviolability principle, uti possidetis principle and even the principles of delimitation adopted by the Court to resolve maritime delimitation issues often result on biased outcomes, it is imperious to think about a concrete way to favor negotiation on a win-win basis. While this paper briefly highlights African states’ efforts on the realization of UNCLOS, it does find out some attitudes that encourage and complicate friendly neighborhood relations. It therefore suggests stepping forward on cooperating through joint development agreements to explore and exploit maritime resources found on the disputed zones.

Conceptualizing Causes and Consequences of Application of Uti Possidetis Juris in Europe

Conceptualizing Causes and Consequences of Application of Uti Possidetis Juris in Europe

Uti Possidetis Iuris in the Twenty-First Century: Consensual or Customary?

The doctrine of uti possidetis iuris provides that, in the succession of States arising from secession or disintegration, territorial title is delimited between successors according to internal borders at the time of succession. Although it is commonly accepted that the concept originated in the nineteenth-century successions in the Spanish Americas and was generally adopted by the twentieth-century decolonization successors in Africa, international law scholars have been divided on whether the doctrine has thereafter evolved into a universal rule of customary international law that presumptively binds successors but is rebuttable by common agreement. This article argues that the ‘presumption’ of binding application is not supported by precedent and is inconsistent with the principle of consent. Rather, the law of State succession is neutral on the delimitation of successors’ frontiers: uti possidetis iuris is one of several methods of territorial delimitation that may be adopted by their common consent.

II. ὅσα τις εἶχεν – ταῦτα ἔχειν: Eine rechtsvergleichende Studie zur Proklamation des Athener archon (eponymos)

Abstract ὅσα τις εἶχεν - ταῦτα ἔχειν: A comparative legal study of the proclamation of the Athenian archon (eponymos): According to Athenaion Politeia 56, 2, one of the first official acts of the archon (eponymos) was his proclamation that „whatever any one possessed before he entered into office, that he shall possess and hold (ἔχειν καὶ κρατεῖν) until the end of his term“. By comparing the wording of this kerygma with that of the uti possidetis-clause used in international treaties of the 5th/4th century BC, but also the wording of the Roman interdictum uti possidetis, it is this study’s intention to shown that the kerygma can be interpreted as the archon’s proclamation of protection of possession.

Scylla and charybdis 2.0: reconstructing colonial Spanish American territories between metropolitan dream and effective control, historical ambiguities and cybernetic determinism

This paper tries to outline the main methodological obstacles that have to be addressed and overcome at reconstructing late colonial Spanish American territories and their development by means of a historical Geographic Information System (HGIS). First we try to show how historians with a broad gamut of research interests could profit from such a territorial HGIS infrastructure for that time and space. In a second step we try to show how certain aspects complicate the task. These include: vernacular concepts of territory (definitions of what actually is a “province”); the quality, focus, and methods of data gathering in contemporary geographic descriptions, cartographies, and other sources; the lack of definition of interior borders; the sometimes contradictory divisions in military, civil, ecclesiastical, and financial districts; as well as the general discrepancy between administrative control and political claims. And as if these aspects were not enough, there are the competing claims on territories of sovereignty in Latin America, which —by applying the uti possidetis juris principle— are largely based on colonial territories. In the last part, we outline the basic concept of a spatial database which tries to respond to the raised issues and furthermore incorporates a chronological axis. The model is illustrated by giving the example of the Puno-region.

Persistent Objections to the Western Understanding of Territorial Integrity and Self-Determination: Russia's Reassessment Attempt

The uneven reaction of the international community to the Crimean crisis has highlighted once more the different understanding among States of the relationship between the principles of territorial integrity and self-determination (already evident with, e.g., Kosovo). On the one hand, challenges to territorial integrity are scholarly considered only on grounds of “remedial secession” (which requires the actual commission of systematic repression over the people of a self-determination unit), and even then firmly opposed by many States. On the other, the application of the uti possidetis juris principle to the dissolution of the SFRY is questionable, as of its theoretical approach, results produced, and precedent set. The paper argues for the application, in specific cases, of a standard both less gruesome and more attentive to the nature and context that brought to the creation of domestic boundaries. By relying on five cumulative conditions, it is argued that, when i) a “deficient” title to territorial sovereignty is challenged by ii) the clear will of the people to reunite with iii) the former Sovereign, by virtue of iv) strong cultural and historical links, in light of v) the failure of the current Sovereign to properly address internal self-determination instances, the transfer may be legitimate, the lack of consent of the current Sovereign notwithstanding. In this perspective, the legitimacy of Crimea's secession from Ukraine and integration into Russia would depend on the timing and propriety of the self-determinative instance of the Crimean people, the other conditions being met.