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DRAWING A BETTER LINE: UTI POSSIDETISAND THE BORDERS OF NEW STATES

Summary by: Eins Balagtas

Uti possidetis principle which provides that states emerging from the decolonization shall presumptively

inherit the colonial administrative borders that they held at the time of their independence.

It became the preferred policy because it kept decolonization orderly.

Uti possidetis assumes that any benefits to internal self-determination from changes in borders are

ALWAYS outweighed by risk of conflict.

Old function of uti possidetis: to eliminate the possibility of appropriation of lands that some states might

regard as terrae nullius

Characteristics:

1) State practice during the decolonization of Latin America, Africa, and Asia lends support for

regarding uti possidetis as a customary norm requiring states to presume the inheritance of therir

colonial borders unless the colonial power(s) or another decision maker (such as UN) had

determined otherwise.

2) It does not prevent the emergence of different borders during decolonization. (territorialadjustments allowed)

3) It does not bar post-independence changes in the borders carried out by agreement.

4) It does not override other legal claims arguing for borders different from those of the prior

administrative units.

Why use this principle?

1) Reduces prospects of armed conflict by providing the only clear outcome in such situations.

Absent such policy, all borders would be open to dispute;

2) Conversion of admin orders to international borders is sensible and far simpler than any other

approach;

3) It is asserted as the default rule of international law mandating the conversion of all admin

boundaries into international boundaries.

4) It offers a presumption under Art 2(4) of the UN Charter that borders entitled to protection should

be those that correspond to colonial borders.

Downsides of this principle?

1) Creates a temptation of ethnic separatists to divide the world further along administrative lines.

2) Leads to genuine injustices and instability by leaving significant populations unsatisfied with their

new states and uncertain political participation there.

3) Ignores critical distinctions between internal lines and international boundaries.

4) The very forces that propelled the creation of the new state are likely to cause it to erect barriers

to people goods and even ideas against its neighbors.

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5) Conversion of administrative line to international lines disregards the interconnection between the

internal borders and the forging or maintenance of national unity. Politicians do not draw internal

lines with the possibility of secession in mind.

Practical impediments to applying uti possidetis:

1) The blurring of administrative lines during the governance of the administrative units, the effective

exercise of territorial jurisdiction by colonial authorities oreffectives has proved significant innumerous arbitration as evidence of the line of uti possidetis.

2) As to temporal clarity, states and arbitrators typically derive a set of boundaries through the use

of a critical date one that designates that point of time after which no acts of the parties can

validly affect the legal situation in an international dispute. The parties to a border dispute often

specify that date in a treaty or compromise. Usually corresponds with year of independence of the

states involved, or a time when the independence process was sufficiently advance that changes

by the colonial authorities would be irrelevant.

Assessing the relevance of existing international borders:

1) Weight must be given to the age of the line.

2) The process by which the line was drawn should be given consideration.

3) The viability of the entities that will emerge from secessions or breakups along existing lines.