Drawing a Better Line: Uti Possidetis and New State Borders PDF

Drawing a Better Line: UTI Possidetis and the Borders of New States Steven R. Ratner The American Journal of International Law, Vol. 90, No. 4. (Oct., 1996), pp. 590-624. Stable URL: http://links.jstor.org/sici?sici=0002-9300%28199610%2990%3A4%3C590%3ADABLUP%3E2.0.CO%3B2-M The...

Drawing a Better Line: UTI Possidetis and the Borders of New States Steven R. Ratner The American Journal of International Law, Vol. 90, No. 4. (Oct., 1996), pp. 590-624. Stable URL: http://links.jstor.org/sici?sici=0002-9300%28199610%2990%3A4%3C590%3ADABLUP%3E2.0.CO%3B2-M The American Journal of International Law is currently published by American Society of International Law. Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/about/terms.html. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/journals/asil.html. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. The JSTOR Archive is a trusted digital repository providing for long-term preservation and access to leading academic journals and scholarly literature from around the world. The Archive is supported by libraries, scholarly societies, publishers, and foundations. It is an initiative of JSTOR, a not-for-profit organization with a mission to help the scholarly community take advantage of advances in technology. For more information regarding JSTOR, please contact [email protected]. http://www.jstor.org Tue Aug 7 18:27:19 2007  DRAWING A BETTER LINE: UTI POSSDETIS AND THE BORDERS O F NEW STATES By Steven R. Ratner* It is now conventional wisdom that the proliferation of ethnic-based violence consti- tutes the greatest threat to public order and human rights since the lifting of the Iron Curtain. The eruption of hatreds, whether suppressed or ignored for a half century or newly arisen, has unleashed centrifugal forces that are pulling states apart from Africa to Europe to South and Central Asia. To date, the response of the effective decision makers in the international community has been ambiguous and inconstant: the United Nations member states reiterate the importance of the unity of all states, but they accept accomplished breakups after the fact, all the while insisting on the protection of minori- ties within states. Political philosophers struggle with the circumstances under which secession and dissolution are desirable; international law declares the lack of either a blanket right to, or prohibition against, secession and seemingly relegates its achievement to a pure power calculus.' Secessions and breakups do not, however, solely concern ethnic groups seeking self- determination through political independence and statehood. They are fundamentally issues about control over land-what Georges Scelle called the "obsession du temtoire."' And the norms about the extent of that land when a new state emerges have traditionally been of less interest to international law than whether a new "subject" of international law has emerged."hould the map be drawn according to lines sketched out through processes now regarded as illegitimate and that may contribute to a worsening of human rights conditions in the new countries? Or must we resign ourselves to General Ratko MladiC's solution, where "borders are drawn with bloodu4and remain extralegally ordained? At the core of the legal debate over the territory of new states is the principle of uti possidetis. Stated simply, uti possidetis provides that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence. It largely governed the determination of the size and shape of the states of former Spanish Latin America beginning in the early 1800s, as well as former European Africa and Southeast Asia beginning in the 1950s. The relevance of utipossidetis today is evidenced by the practice of states during the dissolution of the former Soviet Union, Yugoslavia and Czechoslovakia, apparently sanctifying the former internal admin- istrative lines as interstate frontiers." *Assistant Professor, University of Texas School of Law. I greatly appreciate comments from Hans Baade, Lori Damrosch, Gregory Fox, Mark Gergen, Jeffrey Herbst, Samuel Issacharoff, Douglas Laycock, Alexander Murphy, Diane Orentlicher, Peter Spiro, Jay Westbrook, David Wippman, and two anonymous reviewers for this Jmrnal, as well as invaluable library assistance from David Cunn and Jonathan Pratter. ' See NXIC:ENQUOC DINE%, DROITINTERNATIONAI. PUBI.IC500 (Patrick Daillier & Alain Pellet eds., 5th ed. 1994) (noting 'disengagement' of international law"); JAMES(:RAMFORD,THE CRFATION " OF STATF.S IN INTERNATIONAL LAM'268 (1979) (secession outside colonial context not per se lawful or unlawful); LEE C. BUC:IIHEIT, SECESSION: THE LEGITIMA(:Y OF SELF-DETERMINA~ION 45 (1978) ("Despite its apparently alegal nature, the conviction that the legitimacy of a claim to self-determination can be tested by the degree of success that attends the claimants' undertaking is probably the prevailing view among most international jurists."). Georges Scelle, Obsession du Tm'toire, in SYMBOLAE VERZIJI.347 (1958). " RORERT Y. JENNINGS, THEACQUISITION OF TERRITORY I N INTERNATIONAI.LAW8 (1963) (law on new states "has looked to the sovereign, rather than the territorial, element of territorial sovereignty"). WarrenZimmermann, The Choice in the Balkans, N.Y. REV.BOOKS,Sept. 21, 1995, at 4, 4. See, e.g., Charter of the Commonwealth of Independent States, June 22, 1993, Art. 3, 34 ILM 1279, 1283 (1995); SC Res. 713, preambular para. 8, UN SCOR, 46th Sess., Res. & Dec., at 42, 42-43, UN Doc. S/INF/ 47 (1991).  19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 591 Reliance on uti possidetis during the post-Cold War breakups has stemmed from three arguments or assumptions. First, uti possidetis reduces the prospects of armed conflict by providing the only clear outcome in such situations. Absent such a policy, all borders would be open to dispute, and new states would fall prey to irredentist neighbors or internal secessionist claimants. Second, because a cosmopolitan democratic state can function within any borders, the conversion of administrative borders to international borders is as sensible as any other approach and far simpler. Third, and buttressing the other two, uti possidetis is asserted as a default rule of international law mandating the conversion of all administrative boundaries into international borders. This rule emerged during the decolonization of Latin America and Africa but would apply by logical exten- sion to the breakup of states today. The most significant elaboration of this extension came from the commission chaired by Judge Robert Badinter advising the European Community on legal questions associated with the breakup of Yug~slavia.~ These views seem compelling; yet the easy embrace by governments of uti possidetis and the suggestion that it is now a general rule of international law to govern the breakup of states lead to two distinct, yet opposite, spillover effects that endanger global order at this time of ethnic conflict. First, a policy or rule that transforms all administrative borders of modern states into international boundaries creates a significant hazard in the name of simplicity-namely, the temptation of ethnic separatists to divide the world further along administrative lines.' If the Republic of Georgia's new borders must coin- cide with those of the former Georgian Soviet Socialist Republic, are not the future Republic of Abhazia's just as clearly those of the former Abhaz Autonomous Soviet Socialist Republic? Would the Qukbecois consider secession so readily if the new state had different borders from those established by Canada and the United Kingdom for the purpose of integrating Quebec into the Dominion? Second, the extension of uti possidetis to modern breakups leads to genuine injustices and instability by leaving significant populations both unsatisfied with their status in new states and uncertain of political participation there. By hiding behind inflated notions of uti possidetis, state leaders avoid engaging the issue of territorial adjustments-even minor ones-which is central to the process of self-determination. In the case of Yugosla- via, for instance, although uti possidetis hardly caused the eruption of armed conflict, the assumption by states of its applicability from the outset prevented any debate over the adjustment of boundaries and limited the universe of possible borders to one-leaving those people on the "wrong" side of the border ripe for "ethnic cleansing."' Elsewhere, whether with regard to left bank Dniestrians in the Republic of Moldova or Armenians in Nagorno-Karabakh, uti possidetis may prove a recipe for continued denial of human dignity to minorities. It is thus time to reexamine this oft-invoked principle of international law and relations. For application of utipossidetis to the breakup of states today both ignores critical distinctions between internal lines and international boundaries and, more important, is profoundly at odds with current trends in international law and politics. Many internal borders do merit transformation into international boundaries based on historical and other character- istics; but the assumption that all such borders must be so transformed is unwarranted. VeeConference on Yugoslavia, Arbitration Commission Opinion No. 3 (Jan. 11, 1992), 31 ILM 1499 (1992) [hereinafter Opinion No. 31. ' C$ Hurst Hannum, SeYJ)eeteninution, Yugoslavia, and Europe: Old Wine in New Bottles?, 3 TRANSNAT'LL. & CONTEMP. PROBS.57, 69 (1993) (Badinter Coinmission's views may discourage constitutional options short of dissolution). For an account by a key negotiator highlighting this aspect of European policy toward Yugoslavia, see DAVIDOWEN,BALKAN ODBSEY33-34 (1995) ("The refusal to make [Yugoslavia's internal] borders negotiable greatly hampered the EC's attempt at crisis management... and subsequently put all peacemaking... within a straitjacket that greatly inhibited compromises..."). 592 THE AMERICAN JOURNAL OF INTERNATIONAL LAW 90:590 [VO~. My argument proceeds in four parts. Part I reviews the genealogy and legal contours of the doctrine. Part I1 examines the relationship between internal and international borders to evaluate the functional rationale and consequences of uti possidetis. Part I11 discusses whether the political and legal factors that underlay the application of uti possidetis to colonial breakups justify its invocation today. And part IV ponders possible alternatives to uti possidetis, including their obvious hazards but less evident potential. My purpose is thus to marry the literature on frontiers and political geography with that of international law as a means of responding to the various claims to territory. This article has a modest goal-to examine the propriety of uti possidetis to contempo- rary challenges related to state unity. It does not seek, or need, to posit a comprehensive theory of self-determination and secession, including the most vexing question of the appropriate unit of selfdetermination, which remains the goal of many legal scholars and political philosophers.g Rather, I make several policy assumptions consistent with many views of selfdetermination without trying to examine all their ramifications. First, I assume that the proliferation of states, each smaller and more ethnically based than that from which it emerged, is not desirable. A presumption in favor of such states accentuates arbitrary distinctions about human beings and undermines the cosmopolitan tenets on which all human rights law is based." Indeed, the proliferation of such states might make oppression of minorities within them particularly egregious. Smaller states may also prove economically handicapped or at least create economic inefficiencies as they replicate governmental functions on smaller scales and erect new barriers to trade. l 2 Second, and notwithstanding the above, I assume that, in the process of the formation of new states, the cosmopolitan, multiethnic solution-democracy combined with respect for minority rights-may either prove impossible to construct or otherwise not satisfy the claims of certain minorities inhabiting distinct territories. Thus, when a state is breaking up, forced cohabitation within unchangeable administrative borders will not always maximize either public order or human rights. This does not equate with the assumption that there is or ought to be any broad, ex ante right to secession; I take the position that the international community should sanction attempted secessions- particularly forcible ones-under the most limited circumstances, even if it may ulti- mately have to acknowledge a fait a c ~ o m ~ l iThe. ' ~ question here, however, is whether a set of internal borders ought to survive this process. From Roman Law to the Law of Nations Utipossidetis finds its origins in the Roman law of the republican era, as one of a series of edicts that the praetor, or administrator of justice, would issue upon application of See, e.g., BUCHHEIT, supra note 1;ALLENBUCHANAN, SECESSION: THEMORALITYOF POLITICAL DNORCEFROM FORTSUMTER TO LITHUANIA AND QUEBEC(1991); Avishai Margalit &Joseph Raz, National Self-Determination, 87 J. PHIL.439 (1990). For theories by legal scholars, see, e.g., Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L& COMP.L.Q. 857 (1994); Frederic L. Kirgis, Jr., The Degrees of Self-Determination i n the United Nations Era, 88 AJIL 304 (1994); Lea Brilmayer, Secession qnd Self-Determination:A Tm'torial Interpreta- tion, 16 YALEJ. INT'LL. 177 (1991); Eisuke Suzuki, Self-Determination and World Public Order: Community Response to Teniton'al Separation, 16 VA.J. INT'LL. 779 (1976); Rupert Emerson, Self-Determination, 65 AJIL 459 (1971). "' Cf:Louis B. Sohn, The Rights ofMinorities, i n THEINTERNATIONAL BILLOF HUMAN RIGHTS:THECOVENANT ON CML AND POLITICAL RIGHTS270, 270-76 (Louis Henkin e'd., 1981) (purpose of minority rights); MYR!?~ S. MCDOUGAL, HAROLD D. LASSWELL & LUNGCHU CHEN,HUMAN RIGHTS AND WORLDPUBLIC ORDER: THEBASIC POLICIES OF AN INTERNATIONAL LAWOF HUMAN DIGNITY561 -68 (1980) (general norm of nondiscrimination). " See BUCHHEIT, supra note 1, at 29-30. CJ: THEFEDERALIST, No. 10, at 127 (J. Madison) (Isaac Kramnick ed., 1987) ("Extend the sphere [of a republic and]... you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens..."). '"ee BUCHHEIT, supra note 1, at 29, 230-31. Exceptions are evident, notably Eritrea, and international economic integration can mitigate this factor. '" See ANTONIOCASSESE,SELF-DETERMINATION OF PEOPLES:A LEGAL REAPPRAISAL 123 (1995) (state practice "overwhelmingly" opposed to recognizing generalized right to secession). 19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 593 one party during the initial stage of litigation. When two parties claimed ownership of real property, the edict would grant provisional possession to the possessor during the litigation, unless he had obtained the land clandestinely (clam), by violence ( v i ) , or in a form revocable by the other party (pecan'o).14 Uti possidetis did not address the final disposition of the property but, rather, shifted the burden of proof during the proceed- ings to the party not holding the land. This represented an advantage for the possessor, who became the defendant in the case, even if he had wrongfully removed the plaintiff from the land. The edict came to be summarized in the phrase Uti possidetis, ita possideatis: "As you possess, so may you possess."15 According to Moore, the early scholars of international law adopted the notion of uti possidetis but altered the doctrine in two critical ways: by changing the scope of application from private land claims to the state's territorial sovereignty; and, most critically, by transforming the provisional status into a permanent one.16 This shift seems hardly surprising in an era when the use of force by states and any resulting acquisition of land were lawful: possession became ten-tenths of the law." This adaptation, of course, proved a complete reversal from the Roman law concept, which excluded even provisional possession to a party who accomplished it by violence, and which would have suggested a return to the status quo ante bellum.18 Uti possidetis and Latin American Independence The juxtaposition of uti possidetis and self-determination began in Latin America, where the Creoles who wrested independence from their Spanish brethren beginning in the early nineteenth century seized upon the idea as a way of setting boundaries of the new countries. Scorned by the peninsulares, the new Americans in the Latin American bureaucracy had formed political allegiances to the administrative units in which they were raised and assigned for their jobs, rather than to Spanish America writ large.lg As a result, the three large groupings of Spanish territories that declared independence beginning in 1810 proved short-lived, splitting along their own internal lines into new states.20 To the Creole leadership, adoption of a policy of uti possidetis served two purposes: to ensure that no land in South America remained tewa nullius upon independence, open to possible claim by Spain or other non-American powers; and to prevent conflicts among l 4 W. W. BUCKLAND, A TEXT-BOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN 734 (Peter Stein ed., 3d rev. ed. 1963);JOHN BASSETTMOORE,COSTARICA-PANAMA ARBITRATION: MEMORANDUM ON UTI POSSIDETIS 5-8 (1913). Thus, the praetor would address both parties, declaring, "I forbid force to be done by either of you whereby one of you is prevented from enjoying the land as he now does, not clam ui aut precario." BUCKLAND, supra, at 740. See also DIG.J. 43.17.1; LEOPOLD WENGER, INST~TUTES OF THE ROMANLAWOF CML PROCEDURE 251, 415 (Otis Harrison Fisk trans., Fred B. Rothman 1986) (1940). 'I MOORE,supra note 14, at 8. '"d. at 8-11 (citing works by Rivier, Bynkershoek, Oppenheim and Calvo); Eduardo JimCnez de Arkchaga, Boundaries in Latin America: Uti Possidetis Doctrine, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 449, 450 (Rudolf Bernhardt ed., 1992) [hereinafter ENCYCLOPEDIA]. l 7 I appreciate this insight from one of the Journal's anonymous reviewers. See also MOORE,supra note 14, at 9. PAULDE LA PRADELLE, LA FRONTI~RE: ETUDEDE DROIT INTERNATIONAL 86-87 (1928). BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGINAND SPREAD OF NATIONAL ISM 56-59 (rev. ed. 1991); MARK A. BURKHOLDER & D. S. CHANDLER, FROMIMPOTENCE TO AUTHORITY: THE SPANISHCROWNAND THE AMERICAN AUDIENCIAS, 1687- 1808, at 3-5 (1977). "' See generally HUBERTHERRING,A HISTORYOF LATINAMERICA260-91, 434-37 (1955); THETIMESATLAS OF WORLDHISTORY 223 (Geoffrey Parker ed., 4th ed. 1993) (dissolution of United Provinces of the Rio d e la Plata into Argentina, Uruguay, Paraguay and Bolivia; of Gran Colombia into Venezuela, Colombia and Ecuador; and of United Provinces of Central America into Guatemala, Honduras, El Salvador, Nicaragua and Costa Rica). 594 THE AMERICAN JOUILYyNAOF INTERNATIONAL LAW [VO~. 90:590 the new states of the former empire by adopting a set of extant boundaries." Consistent with the law at the time, it incidentally ensured that all lands occupied only by indigenous peoples would be part of the new state." The Latin American boundaries were derived from various sorts of Spanish govern- mental instruments setting up hierarchical and other units such as provinces, alcaldias mayores, intendencias, court (audiencia) districts, Captaincies-General, and Vice-Royalties. The meaning of these units changed over time, as did the frontiers of each through unilateral decisions of the Crown.""he leaders of the new republics quickly began to codify uti possidetis in both treaties and domestic law. For example, when Venezuela split from Gran Colombia to resume a separate existence in 1830, the Constitution specified that its territory would comprise "all that which, previously to the political changes of 1810, was denominated the Captain-Generalship of Vene~uela,"'~ an administrative unit within the larger former colonial division, the Vice-Royalty of New Granada. Despite this general acceptance of the principle, the precise contours and effects of uti possidetis remained unclear. First, Latin states accepted the possibility that their final border might differ from the uti Possidetis line, though they did not plan major revisions of the Spanish administrative borders." Second, and more important, the acceptance of utipossidetis in principle could not rectify confusions stemming from shifting territorial arrangements under the Crown, the absence of clearly demarcated boundaries due to ignorance of the local geography,2%r political tensions among the new Latin states. These factors led to warfare among them, as well as peaceful resolutions through bound- ary treaties or agreements to arbitrate.'7 Finally, states and scholars seemed to have different views on the meaning of uti possidetis as of a particular date, leading to the use of two new terms, uti possidetis juris and uti possidetis facto. The former view held that only the Spanish legal documents were dispositive for locating borders, effective possession being irrelevant; while the latter argued that the lands actually held by each state at independence would determine the b ~ r d e r. 'In ~ cases where the arbitration treaties did not specify an interpretation, arbitra- tors took different positions.'~evertheless, the juris addition became somewhat of a 21 See Beagle Channel (Arg./Chile), 52 ILR 93, 125 (1977) (five-person panel); Fronti&res Colombo- Venezueliennes (Colom./Venez.), 1 R.I.A.A. 225, 228 (1922) (Swiss Fed. Council); Frontier Dispute (Burk. Faso/Mali), 1986 ICJ REP. 554, 661-62 (Dec. 22) (Abi-Saab, J., sep. op.). " See ARTHURS. KELLER, OLILIRJ. LISSITZW & F. J. MANN,CREATION OF RIC.HTSOF SOVEREIC.NTYTHROUGH SYMBOLIC ACTS1400-1800, at 6 (.1938); see also W. Michael Reisman, Protecting Indigeuous Rights i n International Adjudication, 89 AJIL 350,352 (1995). But cf. CR;\MFORII, supranote 1, at 177-81 (lands occupied by indigenous peoples not terra nullius under traditional law of nations). " Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ REP. 351, 387- 88 (Sept. 11) [hereinafter Land, Island]. 24 CONST. Art. V (Venez. 1830), 18 BRIT.& FOREIGN ST. PAPERS1119 (1833). See also CONST.Art. IV (Hond. 1848), 36 id. at 1086 (1861) ("all the territory which, during the Spanish dominion, was known by the appellation of Province"); I,. D. M. Nelson, The Arbitration of Boundary Disputes i n Latin Ammica, 20 NETII.INT.L L. REV. 267, 268-71 (1973). 25 See, e.g., Definitive Treaty of Peace and Friendship, Nov. 8, 1831, Bol.-Peru, Art. XVI, 19 BRIT.& FOREIGN ST. PAPERS1383, 1387-88 (1834) ("such cessions may be reciprocally made, as may be necessary for an exact and natural demarkation [sic]"); Treaty of Peace, Sept. 22, 1829, Colom.-Peru, Art. V, 16 id. at 1242, 1243 (1831). 21, S. WH~ITEMOW BCXGS,INTERNAT~ONA~. BOUNIIARIES: A STL'IIYOF BOL'NI)ARY FL'NCTIONS AN11 PROBLEMS 17 (1940);Jean-Marc Sorel & Rostane Mehdi, L'Uti possidetis entre la consicration juridique et la pratique: essai de riactualisation, 40 ANNUAIRE FRANCAIS DE DROITINTERNATIONAL 11, 26-27 (1994). Y7 See Waldemar Hummer, Boundary Disputes i n Latin Ammica, i n 1 ENCYCLOPEDIA, supra note 16, at 464, 465- 72. But see Jimenez de Arechaga, supra note 16, at 451. See also Gabriel Escobar, Peru, Ecuador Sign Agreement to End Fighting, WASII.POST,Feb. 18, 1995, at A23. 28 See, e.g., Honduras Borders Case (Guat./Hond.), 2 R.I.A.A. 1309,1323 (1933) (three-judge panel) (Hondu- ras arguing for juris and Guatemala for facto). 29 CompareFronti6res Colombo-Ven&zueliennes,1 R.I.A.A. 225, 228-29 (1922) (endorsing juris) with Hondu- ras Borders Case, 2 R.I.A.A. at 1324 (utipossidetis "makes possession the test" unless clearly usurping a definitive expression of royal will). See also MOORE,s upra note 14, at 40-41 (addition of juris both unnecessary and 19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 595 fixture alongside uti possidetis, signifying the primary importance of the legal instruments of the Spanish Crown, though not to the total exclusion of evidence of possession.g0Uti possidetis facto received its greatest acceptance in Brazil, which rejected the Spanish- American interpretation and thereby claimed, through possession alone, large stretches of land beyond the borders set in treaties by Spain and ~ o r t u ~ a l. " Decolonization in Africa Before the arrival of the Europeans, the notion of frontiers as defined lines was hardly known in Africa. Instead, frontiers were zones through which one clan or tribe passed from one region to another; and any borders depended solely on who would be paid tribute.?' The European colonialists who arrived in large numbers in the eighteenth century did not draw lines immediately. Rather, each state made claims, leading to the recognition of spheres of influence, followed by more defined allocations, specific delimitations, and eventual alterations based on experience.?? Drawing these borders with only slight knowledge of or regard for local inhabitants or geography, the European powers made territorial allocations to reduce armed conflict among themselves. In that sense alone were they rational.14 The choice for Africa as decolonization approached was clear: either a wholesale restructuring of borders to rectify past injustices or acceptance of existing lines as the basis for new states. Pan-Africanists urged the former;" but the European states and the indigenous elites opted for maintaining extant lines as the most feasible method for speedy decolonization. One year after the formation of the Organization of African Unity in 1963, with most of the continent decolonized but several territorial disputes already brewing, the OAU's heads of state and government pledged in the Cairo Declara- tion "to respect the frontiers existing on their achievement of independence."96 Such a policy would serve an external and an internal purpose: externally, it would seek to prevent irredentist tendencies by neighbors from turning into territorial claims and the possible use of force. Internally, it would give clear notice to ethnic minorities that secession or adjustment of borders was not an option.z7African and European elites had struck a bargain to the benefit of both, permitting replacement of European rulers misleading); C. H. M. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies, 25 BRIT.Y.B. INT'LL. 311, 325 (1948) (interpretive dispute renders uti possidetzs "so indefinite and ambiguous that it has become somewhat discredited"). "" See Land, Island, 1992 ICJ REP. at 386-87 ( n o t ~ n gthat both parties accept uti possidetis juris); Frontier Dispute, 1986 ICJ REP. at 565 (using uti posszdetis and uti possidetis juris interchangeably). "' See I)E LA PRADELLE, supra note 18, at 79-83; Jimenez de Arechaga, supra note 16, at 452-53 (Brazilian formula "is exactly contrary to what was intended"). Romain Yakemtchouk, h s Frontikres afncaines, 74 REVUEGPNERALF. IIE: DROITINTERNATIONAL PUBLIC [RGDIP] 27, 32-35 (1970). :'"S ~ r ) l iT\ o u v ~THE ~ , BOUNIIARY POLITICS OF INDEPENIIENT AFRICA16 (1972). See generally THOMAS PAKEN- HAM,THESCRAMBLE FOR AFRICA: WHITEWWS CONQUEST OFTHE DARKCONTINENT FROM 1876 TO 1912 (1991). "4Jeffrey Herbst, The creation and mazntenance of national boundaries in Africa, 43 INT.LORG. 673, 678-85 (1989); TOLVAI.,supra note 33, at 3-17. See also Ravi L. Kapil, On the Conflict Potential of Inherited Boundaries in Africa, 18 WORLI)POI.. 656, 660 (1966) (preponderance of straight lines in African borders). ?"ee Resolutions Adopted by the All-African People's Conference, Accra, December 5-13, 1958, in COLIN LEGUM,PAN-AFRICANISM: A SHORTPOLITICL~L. GUIIIE.228, 231 (1962) (denouncing "artificial frontiers drawn by Imperialist powers to divide the peoples of Africa" and calling for "the abolition or adjustment of such frontiers at an early date"). 'W.A.U. Resolution on Border Disputes, 1964, in BASICDOCUMENTS ON AFKI~:AN AFFAIRS360, 361 (Ian Brownlie ed., 1971). The resolution is often referred to by its OAU document number, AGH/RES.lG(I). See also Saadia Touval, The Organization of Afncan Unity and Afncan Borders, 21 INT.LORG.102 (1967). 97 See TOLVAI., supra note 33, at 90; Yakemtchouk, supra note 32, at 61; J. de Pinho Campinos, L'Actualitt de 1'"uti possidetis, in LA FRONTI~RE " 95, 107-09 (SocietC Fran~aisepour le Droit International ed., 1980). 596 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:590 by indigenous ones." Although the OAU's stance was not without its critics in A f r i ~ a , ~ ~ most leaders defended the policy. Border wars proved the exception, as African states either affirmatively settled their border disputes or simply did not push their claims.40 Internally, for a generation African leaders firmly rejected secession attempts on the ~ontinent.~' As for uti possidetis, while the tetm does not appear in the OAU resolution, its meaning had been transformed again.4' No longer focused on retention of administrative bound- aries of one colonial power as in Spanish America, the principle in common parlance now entailed notions of treaty succession to address boundaries between different colo- nial powers. Africa would inherit most of the internal and external lines of the European colonizers, yielding the most international frontiers of any continent relative to its area.43 Dissolutions in Eastern Europe and the Soviet Union The breakups of the former Yugoslavia, the Soviet Union and Czechoslovakia served as yet another opportunity to test the durability of uti possidetis. The internal structure of Yugoslavia, from its creation at Saint-Germain-en-Laye until its occupation during World War 11, consisted at first of twenty-two regions, later reallocated into nine provinces whose borders followed physical and historical lines.44After the war, Tito reorganized the polity into six republics that corresponded more closely to the pre-1918 political units-includ- ing units within Austria-Hungary (Slovenia, Bosnia-Herzegovina and Croatia) and the prewar Serbian state-and left significant ethnic minorities in each republic.45 When Yugoslavia's republics began to declare their independence in 1991, the interna- tional community quickly adhered to the idea that the internal frontiers of the Socialist Federal Republic of Yugoslavia could not be altered by the use of force. The statements and resolutions to this effect by the European Community, the Conference on Security and Co-operation in Europe, and the UN Security Council also evinced their conclusion that, if Yugoslavia were indeed to dissolve, the only predictable way would be along the lines of the republics.46In January 1992, the newly created Arbitration Commission of the EC Conference on Yugoslavia endorsed this post-Cold War incarnation of utiposside- ti^.^^ These positions fell on deaf ears, in that the border claims only dissipated in the one area where both parties had simply decided not to fight, namely, the border between Slovenia and Croatia. For the borders among Serbia, Croatia and Bosnia, uti possidetis remained a mirage. '18 See Herbst, supra note 34, at 687 (uti possidetis ensured that "if an African government is in control of the capital city, then it has the legitimate right to control the nation-state"). '" SeeFrancis Vallat, First report o n succession of States in respect of treaties, UN Doc. A/CN.4/278 &Adds. 1-6, reprinted in [I9741 2 Y.B. Int'l L. Comm'n, pt. 1, at 1, 77-80, UN Doc. A/CN.4/SER.A/1974/Add.l (Part 1) (Somali claims to Ogaden region of Ethiopia and Northern Frontier District of Kenya); Kapil, supra note 34, at 663-70 (Moroccan and Somali claims); Touval, supra note 36, at 103-19. 4" See Ian Brownlie, Boundaly Disputes in Afnca, in 1 ENCYCLOPEDIA, supra note 16, at 460, 462-64; TOWAL, supra note 33, at 279-90. 41 See, e.g., GA Res. 1474 (ESIV), UN GAOR, 4th Emer. Spec. Sess., Supp. No. 1, at 1, UN Doc. A/4510 (1960) (resolution originating in Afro-Asian draft on Katanga and Congo); O.A.U. Resolution on the Situation in Nigeria, 1967, in BASICDOCUMENTS ON AFRICANAFFAIRS, supra note 36, at 364 (Biafra). 4' SeeThomas M. Franck, Postmodem Tribalism and the Rzght to Secession, in PEOPLESAND MINORITIES IN INTERNA- TIONAL LAW3, 5 (Catherine Brolmann, Ren6e Lefeber & Marjoleine Zieck eds., 1993) [hereinafter PEOPLES AND MINORITIES]. SHAW,TITLETO TERRITORY 43 ~ ~ A L C O L M IN AFRICA: INTERNAT~ONAL LEGALISSUES229 (1986). 44 STEVEN L. BURG,CONFLICT AND COHESION IN SOCIALIST YUGOSLAVIA: POLITICAL DECISION h ' f. 4 ~SINCE ~~ 1966, at 16-17 (1983). 45 Id. at 24. 4 9 e e Marc Weller, The International Response to the Dissolution of the Socialist Federal l + u b l i c of Yugoslavia, 86 AJIL 569, 574-82 (1992). 47 See Opinion No. 3, supra note 6. 19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 597 The administrative boundaries of the Soviet Union were far more complex, reflecting a history of redrawing by many Soviet leaders. In the 1920s, Soviet Russia absorbed new territories, including states independent only since the end of the world war (Ukraine, White Russia, Georgia, Armenia and Azerbaijan), as well as areas in Central Asia. By 1926, the USSR consisted of eight Union Republics whose dividing lines (including lines within republics) took into consideration ethnic factors, although not to the satisfaction of many groups.48 Stalin adjusted frontiers between and within the republics before World War 11, dividing ethnic groups to strengthen his political hand and emasculate ethno-nationalism in the hinterland.49In 1939 and 1940,as contemplated in the Molotov- Ribbentrop Pact, the USSR invaded and annexed Estonia, Latvia, Lithuania and Roma- nian Bessarabia, creating four new Union Republics, and annexed parts of ~ o l a n d. By ~' the war's end, not only had the Soviet Union expanded externally through incorporation of areas of Eastern Europe, but its internal boundaries had been adjusted again, includ- ing through the transfer of parts of the former Baltic States to the older Union Repub- l i c ~.With ~ ' a few notable exceptions, border changes leveled off after the war.5" The Soviet Union's dismemberment proved far more peaceful, initially at least. While the Baltic States rejected the conversion of the USSR's internal borders into interstate frontiers in light of the territory they had lost after their incorporation,53the other states agreed to retain the administrative borders, a view codified in the 1993 Charter of the Commonwealth of Independent States.54Nevertheless, the former republics still main- tain claims against each other and do not appear to have yet achieved a consensus regarding the permissibility of secessions and territorial realignments.55 The internal border within Czechoslovakia had a far longer pedigree. When the Allies created Czechoslovakia after World War I, they combined former areas of the Austro- Hungarian Empire-Bohemia, Moravia, Slovakia, part of Silesia, and ~ u t h e n i aBohe-.~~ mia and Moravia in the west had earlier been separate units within the Holy Roman Empire, and then part of the Austrian Empire, while Slovakia had been part of Hungary. The border between the Czech and Slovak parts of Czechoslovakiawas thus the historical Moravian-Hungarian border.57During World War 11, the Germans used this line as an 4X See ROBERT J. KAISER,THE GEOGRAPHY OF NATIONALISM IN RUSSIA AND THE USSR 107-08, 111 (1994); Margot Light, Russia and Transcaucmia, in TRANSCAU~XSLAN BOUNDAIUES 34,37-39 (John F. R. Wright, Suzanne Goldenberg & Richard Schofield eds., 1996). 4" See KAISER,supra note 48, at 111, 114; O w : &ROE, SOVIETEMPIRE: THETURKSOF CENTRAL ASIAAND ~TALIN~SM 143-49 (1953). 50 Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics, Secret Additional Protocol, Aug. 23, 1939, in DOCUMENTS ON GERMAN FOREIGN POLICY 1918-1945, ser. D, vol. 7, at 246 (1956). Bessarabia joined the Moldavian ASSR (the area on the east bank of the Dniester River within the Ukrainian SSR) to form the Moldavian SSR. Pi1 Kolsto & Andrei Edemsky, The Dniester ConJict: Between Irredentism and Separatism, 45 EuR.-ASIASTUD.973, 978-79 (1993). " See KAISER,supra note 48, at 370. 5' The most prominent were Nikita Khrushchev's so-called gift of Crimea from the RSFSR to the Ukrainian SSR in 1954 and the transfer of a large area in the Kazakh SSR to the Uzbek SSR in 1963. See Pi1 Kolstca, The New Russian Dimpma: Minmity Protection in the Soviet Successor States, 30 J. PEACEREs. 197, 204-05 (1993); Svetlana Svetova & Roman Solchanyk, Chronology ofEuents in Crima, RADIOFREEEuR.-RADIO LIBERTY REs. &P., May 13, 1994, at 27. " See, e.g., Yury Golotyuk, Establishment ofFirst Post-Soviet Border Begins, SEvonwA,June 23, 1994, at 2, rtpnnted and translated in CURRENT DIG.POST-SOVIET PRESS,July 20, 1994, at 21. 64 See Charter, supra note 5 ("recognition of existing frontiers and renouncement of illegal acquisition of territories"). Although only 7 of the former 12 non-Baltic republics signed the Charter, the other five acceded in 1993-1994. Sergei Khabarov, Introductq Note, 34 ILM 1298, 1299 & n.2 (1995). 5 '8 See, e.g., Kolstca & Edemsky, supra note 50, at 988-94; Svetova & Solchanyk, supra note 52. See also KAISER, supra note 48, at 358-73; Philip Chase, ConJict in the Crima: An Examination of Ethnic ConJict under the Contempora~yModel of Sovereignty, 34 COLUM. J. TRANSNAT'L L. 219, 222-39 (1995). "" S w , THEVERSAILLES SETTLEMENT: PEACEMAKING IN PARIS,1919, at 148 (1991). 57 C. A. MACXRTNEY, HUNGARYAND HER SUCCESSOR^: THETREATYOF TRIANONAND ITSCONSEQUENCES 1919- 1937, at 73, 76 (1937).  598 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:590 international frontier between the so-called protectorate of Bohemia and Moravia and. ~ ~ Czechoslovakia was dissolving in 1993, the the "independent" state of S l ~ v a k i aWhen two sides readily agreed that this border would function as the international border, and neither has claims against the other.'" Ascribing a Legal Valence The employment by states of uti possidetis to respond to several bursts of state creation. over the past two centuries appears to have endowed the principle with some normative status in the international legal order. Judging by the trends of decision over nearly two centuries, the contours of this principle in the decolonization context seem to evince four general characteristics. First, 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 their colonial borders unless, as occurred in some instances, the colonial power(s) or another decision maker (such as the United Nations) had determined otherwise. Most new states inherited their colonial borders without alteration. In cases of disputed boundaries, they have typically agreed to settle them through reference to uti possidetis." As noted, uti possidetis also appears in numerous constitutions in Latin America, and the 1964 Cairo resolution reflected the trends within Africa at that time. ina all^, the Declaration on the Granting of Independence to Colonial Countries and Peoples indicates a preference, though hardly explicit, for the inheritance of borders.'jl Nevertheless, expectations regarding lawfulness are not clear, with evidence lacking as to whether states regarded themselves as required to retain colonial borders absent other agreement. And the mere presence of utipossidetis in constitutions, bilateral treaties (including arbitration compromis) or Resolution 1514 does not demonstrate opinio juris. This gap suggests a less than rock-solid basis for a customary norm and at least the possibility that uti possidetis was no more than a policy decision adopted to avoid conflicts during decol~nization.~' The International Court of Justice has, of course, stated in dictum in Frontier Dispute (Burkina Faso/Mali) that uti possidetis is a "general principle" and a "rule of general ~ ~ tnever adjudicated whether uti possidetis is scope" in the case of d e c o l ~ n i z a t i o n ,has a norm of customary law, because, in these types of border disputes, both parties have stipulated by compromis or otherwise that their boundary would be determined according to the borders in effect at the time of independence.64Nevertheless, the repeated assump " Susan Greenberg, Borderline Case: Czechoslovakia's old internalfiontiers are being revived, GUARDIAN, Oct. 20, 1992, at 21. '" Jiri Malenovsky, ProbUmes jundiques l i b a la partition de la TcMcoshaquie, 39 ANNUAIREF R A N ~DESDROIT ~NTERNAT~ONAL 305, 328 (1993). 60 See, e.g., Treaty of Arbitration, July 16, 1930, Guat.-Hond., Art. V, in Honduras Borders Case (Gust./ Hond.), 2 R.I.A.A. 1309, 1322 (1933) ("the only juridical line which can be established... is that of the Uti Possidetis of 1821"); Treaty of Arbitration, Sept. 14, 1881, Co1om.-Venez., Art. I, in Frontitres Colombo- V6n&zuCliennes,1 R.I.A.A. 225, 290 (1922). " GA Res. 1514 (XV), para. 4, UN GAOR, 15th Sess., Supp. No. 16, at 66, 67, UN Doc. A/4684 (1960) (requiring states to respect the "integrity of [the] national territory [of dependent peoples]"); id., para. 6 (prohibiting the "partial or total disruption of the national unity and territorial integrity of a country"). See also ROSALYN HIGGINS, PROBLEMS AND PROCESS: ~NTERNATIONAL LAW AND HOWWE USEIT 122 (1994). " See Pinho Campinos, supra note 37, at 103 (legal status ambiguous); Daniel Bardonnet, LRs Frontikes tmestres et la rehtiuitL de h r tracL, 153 RECUEIL DES COURS9, 56 (1976 V). " 1986 ICJ REP. at 565. See also Territorial Dispute (Libya/Chad), 1994 ICJ REP. 6, 89 (Feb. 3) (Ajibola,J., sep. op.) ("principle of general application"). Cf: IANBROWNLIE, PRINCIPLES OF PUBLIC LAW INTERNATIONAL 19 (4th ed. 1990) (distinguishing between "general principles of international law" and custom). See, e.g., Frontier Dispute, 1986 ICJ REP. at 557 (quoting 1983 compromis); id. at 565 ("there is no need, for the purposes of the present case, to show that this is a firmly established principle of international law where decolonization is concerned"); Land, Island, 1992 ICJ REP. at 386. 19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 599 tion by the Court that uti possidetis is a norm of international law is probative.65Without definitively opining on the issue, one may thus assume some support for regarding uti possidetis as a norm of regional customary law in Latin America and Africa,66if not a general norm as well, in the context of decol~nization.~~ Second, uti possidetis does not prevent the emergence of different borders during decolonization. In a significant number of situations, states emerged from colonial rule with other than their preindependence borders.68In addition, single colonies were split at independence through various processes.6"ti possidetis was not, then, a uniform practice by or obligation upon colonial powers-although the General Assembly his sought to limit those states' ability to divide a colonial territory unilaterally during the independence process.70Some have cited these divergences to conclude that utipossidetis is devoid of legal ~ o n t e n t. ~ ' Moreover, in resolving border disputes lingering from decolonization, states have agreed to accept deviations from uti po~sidetis.~~ In the 1933 Honduras Borders case, the " Sore1 & Mehdi, supra note 26, at 12 (FrontierDispute marks "cons6cration" of uti possidetis in international law); W. Michael Reisman, The Constituticmal Crisis in the United Nations, 87 AJIL 83, 92 (1993) ("A statement of the law... by a court obliged to decide according to law, cannot help but say something authoritative about the law."). " See Fronti&res ColombeVt.n&zu~liennes,1 R.I.A.A. 225, 229 (1922) (dictum that uti possidetis of 1810 is law for parties under "une theone gCn6rale sud-arnericaine"); Beagle Channel (Arg./Chile), 52 ILR 93, 124- 25 (1977) (referring to it as "doctrine" and suggesting legal force); id. at 230 (Gros, arb., concuning); ALEJANDRO ~ V A R ELE Z , DROITINTERNATIONAL AMERICAIN 65 (1910); Marcelo G. Kohen, L'Uti possidetis reuisiti: L'arr2t du 11 septabre 1992 duns L'affaire El Saluador/Hcmduras, 97 RGDIP 939, 956 (1993). But see Gerard Cohen Jonathan, Les Iles Faeland (Malouines), 18 ANNUAIRE FRANWSDE DROIT INTERNATIONAL 235, 239 (1972) ("perhaps" an inter-American rule); IAN BROWNLIE, AFRICAN BOUNDARIES: A LEGALAND DIPLOMATIC ENCYCLOPAEDIA 11 (1979) (customary effect in Africa for "those states which have unilaterally declared their acceptance of the principle"); Jacqueline Dutheil de la Rochere, Les Proddures de r d g h t 02s dzffhendsfron- taliers, in LA FRONTI~RE, supra note 37, at 112, 125. R7 See Kohen, supra note 66, at 957 ("une regle dispositive que les Etats peuvent substituer par d'autres"); HIGGINS,supra note 61, at 123-24. C$ BROWNLIE, supra note 63, at 134 (emphasizing that principle is not mandatory). "To mention the most notable examples: Britain and France split the German colony of Togo after World War I, and the British area became part of Ghana, not Togo or a separate state. See A. RIG0 SUREDA, THE EVOLUTION OFTHE RIGHTOF SELF-DETERMINATION 151-63 (1973). These same powers split German Kamerun; the northern part of the British area voted for merger with Nigeria and the southern part for merger into the French area as Cameroun. See Northern Cameroons (Cameroon v. UK), 1963 ICJ REP. 15, 21-25 (Dec. 2). British and Italian Somalia became independent as one state and not two; Kuria Muria, an island in British- administered Aden (later South Yemen), became part of Muscat and Oman (now Oman) in 1967 after its people voted for separate status. See &GO SUREDA,supra, at 199-202. And various enclaves of one state in another were absorbed (through the euphemism of "retrocession") into the latter at independence or thereaf- ter, not made separate countries. See MICHLAPOMERANCE, SELF-DETERMINATION IN LAW AND PRACTICE: THE NEWDOCTRINE IN THE UNITEDNATIONS19-21 (1982). For a forcible incorporation of an enclave formally rejected by the international community, see SC Res. 389, UN SCOR, 31st Sess., Res. & Dec., at 18, UN Doc. S/INF/32 (1976), and GA Res. 32/34, UN GAOR, 32d Sess., Supp. No. 45, at 169, UN Doc. A/32/45 (1977) (East Timor). "See POMERANCE, supra note 68, at 19-20 (plebiscites on reversion of Belgian Rwanda-Urundi to two countries and divisions of British Gilbert and Ellice Islands and of U.S. Trust Territories). '" See Frontier Dispute, 1986 ICJ REP. at 653 (Luchaire, J., sep. op.); BROWNLIE, supra note 63, at 135. See also GA Res. 49/18, UN GAOR, 49th Sess., Supp. No. 49, vol. 1, at 17, UN Doc. A/49/49 (1994) (calling on France to return Mayotte to Comoros Islands and preserve "unity and territorial integrity of the Comoro Archipelago"); GA Res. 34/91, UN GAOR, 34th Sess., Supp. No. 46, at 82, UN Doc. A/34/46 (1979) (calling on France to return islands to Madagascar); RIGOSUREDA, supra note 68, at 199-202 (UKrejection ofAssembly stance on Kuria Muria); POMERANCE, supra note 68, at 18-19 & nn.99-100, 30-31 & n.178. 7' SeeDutheil de la RochPre, supranote 66, at 125, 135; ~ ~ H U D Z.ABLUM,HISTORIC TITLESIN INTERNATIONAL LAW 342 (1965). %See, e.g., Gimez-Bonilla Treaty, Oct. 7, 1894, Hond.-Nicar., Art. II(6), in Arbitral Award made by the King of Spain on 23 December 1906 (Hond. v. Nicar.), 1960 ICJ REP. 192,199-200 (Nov. 18) (allowing commission and arbitrator to "grant compensations and even fix indemnities in order to establish, in so far as possible, a welldefined natural boundary line") [hereinafter King of Spain]; Beagle Channel (Arg./Chile), 52 ILR 93, 132-33 (1977) (1881 boundary treaty supersedes unsatisfactory uti possidetis used in 1856 treaty); IndePakistan Western Boundary (Rann of Kutch) (India/Pak.) , 50 ILR 2, 470 (1968) (three-person panel). 600 THE AMERICAN JOURNAL O F INTERNATIONAL LAW [VO~. 90:590 compromis authorized the tribunal to take account of "interests" of the parties that might go beyond the uti possidetis line of 1821, and indeed to modify that line as needed through an exchange of territory "which it may deem just."'" The panel determined a line different at points from the uti possidetis line, which often recognized territorial encroachments of each side on the other's territories.'%d the ICJ has refused to regard uti possidetis as a peremptory norm that would override a provision in compromis giving an arbitrator authority to take into account other historical and legal factors." Third, uti possidetis does not bar postindependence changes in borders carried out by agreement. It is not a norm of jus cogens, and precludes states neither from altering their borders nor even from creating new states by mutual consent.7~issolutionsmay be found in the practice of Latin ~merica,"as well as elsewhere after World War 11.'~More recently, the Helsinki Final Act did not rule out peaceful border adjustments in Europe (however unlikely they may be) but banned only changes through force.'" Fourth, uti possidetis does not override other legal claims arguing for borders different from those of the prior administrative units. Both the Vienna Convention on the Law of Treaties (1969) and the Vienna Convention on Succession of States in Respect of Treaties (1978) support this view with respect to boundaries originally determined by treaties-i.e., those separating colonies of different European powers-by specifically refraining from adopting the maintenance of such boundaries as a rule of conventional law. Although Article 62 of the 1969 Convention provides that a fundamental change of circumstances may not be invoked for terminating or withdrawing from "a treaty establish[ing] a b o ~ n d a r y , "the ~ ~International Law Commission states in its commentary that this provision eliminates only one ground for challenging those treaties and leaves self-determination as a possible bask8' The 1978 Vienna Convention states that "[a] succession of States does not as such affect... a boundary established by a treaty.... 982 Again, however, the term "as such" leaves open other bases for nonretention of a boundary, such as self-determination or the illegality of the earlier treaty.83Klabbers and Lefeber have built upon this limitation 7"reaty of Arbitration, supra note 60, Art. V, at 1322. 74 See, e.g., Honduras Borders Case (Guat./Hond.), 2 R.I.A.A. 1309, 1352, 1356-57 (1933) (refraining from "idealistic conception" of uti possidetis and recognizing line of de facto control along stretch of border). 75 King of Spain, 1960 ICJ REP. at 215. 76 See HIGGINS,supra note 61, at 123-24; Hurst Hannum, Rethinking Self-Determination, 34 VA.J. INT'LL. 1, 55-56 (1993). For one African leader who recognized that uti possidetis need not preclude boundary changes, see Jean-Pierre Langellier, @and le respect desf?onti&es n'estplus "sacresaint':.., LE MONDE,Oct. 19, 1977, at 11 (quoting OAU Secretary-General Mboumoua). 77 See supra note 20. 7' See SIWW,supra note 43, at 213-14 (dissolution of Mali federation after Senegal's departure); Frank N. Trager, The Federation of Malaysia: An Intermediate Failure?, in WHYFEDERATIONS FAIL.:AN INQUIRY INTO TFIE REQUISITES FOR SUCCF.SSFULFEDERALISM 125,143-50 (Thomas M. Franck ed., 1968) (dissolution of Federatior1 of Malaysia after separation of Singapore). See also the other essays in Why Federations Fail for discussions of federations that collapsed befoe formal independence. 7%onference on Security and Cooperation in Europe, Final Act, Aug. 1, 1975, Principle 111, 14 ILM 1292, 1294 (1975), 73 DEP~T ST. BULL.323, 324-25 (1975) (parties regard frontiers as "inviolable" and will refrain from "assaulting these frontiers") [hereinafter Helsinski Final Act]. '"Opened for signature May 23, 1969, Art. 62, 1155 UNTS 331, 347. " Reports of the Commission to the General Assembly, UN Doc. A/6309/Rev.l, rqhnted in [I9661 2 Y.B. Int'l L. Comm'n 169, 259, UN Doc. A/CN.4/SER.A/1966/Add.l ("present article would not exclude the operation of the principle of selfdetermination in any case where the conditions for its legitimate operation existed"). Opened for signature Aug. 23, 1978, Art. 11, 3 UNITEDNATIONS CONFERENCE O N SU(:CESSIONOF STATES I N RESPECT OF TREATIES, OFFI(:IALDO(:UMENTS 185, 189, UN Sales NO. E.79.V.10 (1979), 17 ILM 1488, 1494 (1978). '"See Report of the International Law Commission on the work of its twenty-sixth session, UN Doc. A/9610/ Rev.1, reprinted in [I9741 2 Y.B. Int'l L. Comm'n, supra note 39, pt. 1, at 157, 201 (succession of boundaries "would leave untouched any other ground of claiming the revision or setting aside of the boundaxy settlement, whether selfdetermination or the invalidity or termination of the treaty"); Bardonnet, supra note 62, at 102.  19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 601 to create a negative version of uti possidetis, providing simply that the norm in the 1978 Vienna Convention concerning boundary treaties- that the attainment of independence is not per se a ground to invalidate existing boundaries-also applies with respect to internal colonial lines that become international border^.'^ Thus, uti possidetis is agnostic on whether or not secessions or breakups should occur and is not simply the legal embodiment of a policy condemning them.85It would not purport to render unlawful the changes in the borders of Pakistan and Ethiopia as a result of the creation of Bangladesh in 1971 and Eritrea in 1993-although it would seem to suggest that, in the absence of agreement, the borders of the new states should coincide with those of East Pakistan and the former Ethiopian province, respectively.86 These traits of uti possidetis distinguish it from any idea of immutability and underline another important limitation of the principle: that it is not equivalent to the legal ban on the use of force-the norm of territorial integrity." That norm, clearly jus c ~ ~ e n s , ~ ~ prohibits changes in interstate borders through force, and is reflected in numerous treaties that do not forbid other types of changes in borders.89 Uti possidetis, on the other hand, offers a presumption that the borders entitled to protection under Article 2(4) of the UN Charter should be those that correspond to colonial border^.^' As for the extension of uti possidetis to today's situations, the actions of states in transforming existing borders in the cases of Yugoslavia, Czechoslovakia and the USSR may suggest some movement toward normative expectations, as endorsed by the Badinter Commission. But the history is brief and opinion remains divided.g1It is thus necessary to examine the propriety of this extension. 11. INTERNATIONALBOUNDARIES AND INTERNAL ADMINISTRATIVE LINES A full appraisal of the appropriateness of uti possidetis today requires a closer examina- tion of the true target of the doctrine-borders themselves. International and internal borders serve highly different functions, and the rote application of uti possidetis also raises practical problems in the determination of boundaries. H4 See Jan Klabbers & Ren6 Lefeber, Afica: Lost between Self-Determination and Uti Possidetis, in PEOPLES AND MINORITIES, supra note 42, at 37, 63. ""ee Gregory H. Fox, Self-Determinationin the Post-Cold War Era: A New Internal Focus?, 16 MICH.J. IWL L. 733,751-52 (1995) (reviewing b ' E S BEIGBEDER, INTERNAT~ONAL MONITORING OF PLEBISCITES, REFERENDA AND NATIONAL ELECTIONS: SELF-DETERMINATION AND TRANSITION TO DEMOCRACY (1994)). H6 For background, see generally Ved P. Nanda, Self-Determinationin International Law: The Tragic Tale of Two Cities-Islamabad (West Pakistan) and Dacca (East Pakistan), 66 AJIL 321 (1972); DANCONNELL, AGAINSTALL ODDS:A CHRONICLE OF THE ERITREAN REVOLUTION (1993). The United States and France advocated dividing Eritrea after World War 11, though they differed on the arrangements to govern each part of the territory. See Recommendations by the Deputies of the Foreign Ministers for the Former Italian Colonies of the Council of Ministers (Aug. 31, 1948), [I9481 3 FOREIGNRELATIONS OF THE UNITED STATES 942, 945-46 (1974). H7 See Rosalyn Higgins, Comments, in PEOPLES AND MINORITIES, supra note 42, at 29, 34-35; Sorel & Mehdi, supra note 26, at 22; Pinho Campinos, supra note 37, at 106. XH See Milikq and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 ICJ REP. 14, 100- 01 (June 27). HY See, e.g., ORGANIZATION OF AFRICAN UNITY,CHARTER Art. III(3), 479 UNTS 39, 74; Charter of Paris for a New Europe, Nov. 21, 1990, 30 ILM 190, 196 (1991) (repeating obligation under UN Charter Art. 2(4)). '"The OAU's Cairo Declaration has led to significant confusion on this question, for its commitment that states "respect the frontiers existing on their achievement of independence," see supra text at note 36, can be read as a mere duplication of Article 2(4) or as an equivalence between it and uti possidetis. In fact, the declaration more accurately identifies those borders deserving protection in the first place. See TOWAL,supra note 33, at 90. See also Sorel & Mehdi, supra note 26, at 22 (many states incorrectly view utipossidetis as rendering any claim for border changes a violation of frontiers). 'I Compare, e.g., Alain Pellet, Note sur la commission d 'arbitrage de la Cmfbence europdenne pour la paix en Yougosla- vie, 37 ANNUAIRE FRANWSDE DROITINTERNATIONAL 329, 342 (1991) with Hannum, supra note 76, at 55. 602 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:590 Functional Distinctions The core functional distinction between international borders and internal administra- tive boundaries lies in a critical antinomy: governments establish interstate boundaries to separate states and peoples, while they establish or recognize internal borders to unify and effectively govern a polity. The lines in each case promote control and efficiency, but for opposing purposes.g% described by the geographer S. Whitternore Boggs, international boundaries "are in general negative rather than positive."g3The historical basis for that separation was the physical preservation of the state. States used natural features, such as rivers, mountain- ranges and lakes, or artificial lines to set up defenses, or at least warning tracks, against the ambitions of their neighbor^.'^ Today boundaries serve the more important function of limiting the territorial jurisdiction of states. A simple fine determines which state, subject to international law, can prescribe and apply laws and policies relating to the full range of attributes of persons and property, whether citizenship, taxation or educational opportunities.95 Inherent in the notion of jurisdictional separation is the state's authority, and exercise of it, to control movement across borders. Immigration standards, customs duties, export and import quotas, and other constraints on the movement of people, goods and intangi- bles all operate with respect to, and because of, international borders. States may facilitate free traffic through bilateral or multilateral arrangements, but the border enables the state to assert its own prerogative over transnational movements." If the state chose not to differentiate its policies from those of its neighbor or limit in some way transactions between them, it would presumably agree to a merger and disappearance of the border. Despite Oppenheim's depiction of boundaries as "imaginary lines,"" their reality is confronted every day. When those governing a state look internally, their concern is not with protection from abroad, but with binding together or managing separate areas as a whole." Because a border by definition divides territories, and therefore has some separating function, it might appear that the ideal policy for a nation-state would be the absence of internal b o u n d a r i e ~The. ~ ~ state without administrative divisions remains rare, however, because of the inability of most states to govern themselves without some sharing of authority with subnational levels. The pattern will range from a federal structure to greater concen- tration at the national level, but even the unitary state will likely have some administrative lines. These lines fragment the state in certain situations; e.g., in federal entities through different regimes of local laws, and actors within the state may push devolution at the expense of effective national governance. But the underlying assumption is that of a single state, with the goal of continued unity.''' Varieties and purposes of internal borders. The origins and logic of particular internal frontiers vary across states. Broadly speaking, states may either inherit such boundaries '' Cf:Land, Island, 1992 ICJ REP,at 388 (noting states' conversion into international borders of boundaries "intended originally for quite other purposes"). " B o w s , supra note 26, at 10. Y4 See C. B. FAWCETT, FRONTIERS: A STUDY IN POLITICAL GEOGRAPHY 25-29 (1918). " See Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ REP. 3, 35 (Dec. 19); Milan SahoviC & William W. Bishop, The Authon'ty of the State: Its Range with Respect to Persons and Places, in MANUAL OF PURLIC INTERNATIONAL LAW31 1, 316 (Max Serensen ed., 1968). " See FAWCETT, supra note 94, at 29-31 ("a state places its watch and ward for incomers of all kinds"); BOGGS, supra note 26, at 10. " 1 OPPENHEIM'S INTERNATIONAL LAW661 (RobertJennings &Arthur Watts eds., 1992). " Richard Hartshorne, TheFunctional Approach in Political Geography, 40 ANNALS ASS'NAM. GEOGRAPHERS 95, 104-10 (1950). " See RONAN PADDISON, THEFRAGMENTED STATE: THEPOLITICAL GEOGRAPHY OF POWER 19 (1983). '"" Id. at 29 (quoting Texas v. White, 74 U.S. (7 Wall.) 700,725 (1869) (Constitutionpromotes "an indestructi- ble Union, composed of indestructible States") ).  19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 603 or establish them. Thus, the first category encompasses, in the terminology of the geogra- phers Hartshorne and Boggs, antecedent boundaries, which predate the current cultural land~cape.'~' Examples include those corresponding to ancient lines of control, as with many English counties, or those traceable to old land grants of a colonial power, as with parts of the original thirteen U.S. states.''' They also include lines in empires or states defining administrative units that were formerly independent or quasi-independent states, such as some within Austria-Hungary and parts of modern Germany."" As for established boundaries, states expanding into territories without inhabitants of the governing nationality-the domestic equivalent, of sorts, of terra nullius-have d r a m pioneer boundaries, determined before the arrival of settlers, as in much of the American and Canadian West and Au~tralia."~ Like the borders in imperial Africa, these emphasize straight lines and usually pay little regard to demographic patterns of indigenous peoples. In the case of antecedent and pioneer boundaries, the state's policy toward unity tends to play a relatively small part in the location of administrative lines-they are either inherited or a product of a hasty decision undertaken for administrative convenience. Just as possible is the prospect that the central government has drawn the borders or portions of them as part of the process of preserving the state's unity, including in response to centrifugal forces.lo5Numerous states have created, abolished and redrawn internal boundaries in the course of the nation-building process. The drawing of such lines fosters unity in several ways based on the state's particular objectives. These goals are precisely those that drive the devolution of power to or its sharing with substate entities in the first place-political, administrative and e~onomic.''~ Politically, the central and peripheral elites seek to forge a national identity, whether through obliteration of territorial units with competing sources of loyalty, or through compromise with those units on borders and other issues to ensure their respect for the unity of the greater polity.'07Thus, both the British and Canadian Governments adjusted the frontiers of Quebec and other provinces to integrate them into Canada. Sometimes Quebec has gained territory, while at others it has been lost to other provinces.'08 The French revolutionary government eliminated the provinces of the ancien rCgime pre- cisely to ensure tight control from Paris, and created dipartements that remain, with relatively small changes, to this day.lO%d the Soviet Union determined the number and borders of the union and autonomous republics with the goal of national unification-at first, with some moderation and, under Stalin, in an extraordinarily cruel manner."' I01 BOGGS,supra note 26, at 28-30. Their typology applies to both internal and international borders. See also T. S. MURTY,FRONTIERS: A CHANGING CONCEPT 217-21 (1978). "" See ROYE. H. MELLOR, NATION,STATE,AND TERRITORY: A POLITICAL GEOGRAPHY 131 (1989) (England); FRANKLIN K VAN ZANDT,BOUNDARIES OF THE UNITEDSTATESAND THE SEVERAL STATES81-166 (1966) (eastern U.S.). 108 See, e.g., supra text at note 57. "I4 See, e.g., BOGGS,supra note 26, at 29 (quoting Hartshorne's description of pioneer lines as "[t]otally antecedent" boundaries); VANZANDT,supra note 102, at 228-58 (western U.S.). 105 See BOGGS,supra note 26, at 29-31 (categorizing these boundaries as either subsequent, i.e., drawn to reflect cultural development of the region; or superimposed, i.e., drawn to cross cultural landscape of the region). Cf: WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITYRIGHTS28-29 (1995) (U.S. state boundaries drawn in some cases to prevent any state with majority of indigenous peoples). "'"ee PADDISON, supra note 99, at 49-55; Ivo D. Duchacek, External and Internal Challenges to the Federal Bargain, PUBLIUS, Spring 1975, at 41, 49-50. "I7 See generally Alexander B. Murphy, Teniturial Policies in Multi-ethnic States, 79 GEOGRAPHICAL REV. 410 (1989). Ion Mary Janigan, The roots of the struggle: a turbulent past haunts Quebec, MACLEAN'S,Nov. 25, 1991, at 26. l o g See MELLOR, supra note 102, at 145-46. 110 See KAISER,supra note 48, at 109-12 (on Moscow's merger of Georgia with Armenia and Azerbaijan into one Union Republic until 1936 to prevent Georgia's secession; and reconstitution of Asian units during 1924- 1936). But see CAROE,supra note 49, at 149. See also KAISER,supra, at 159, 367-68, 409-11; Light, supra note 48, at 39 (on Stalin's wartime forcible transfer of ethnic groups and elimination of their autonomous republics). 604 THE AMERICAN JOURNAL O F INTERNATIONAL LAW 90:590 [VO~. Administrative concerns demand lines that permit governmental agencies, at various levels, to divide up national responsibilities efficiently. (Expanding the borders of a metropolitan area to allow for better sharing of police, public utilities and welfare services is one obvious example."') Economic needs call for lines to ensure the efficient move- ment of peoples and goods within the state. These motives have also justified numerous border changes, as well as unrealized proposals for realignment that proved politically infeasible."' The extent to which the central government is willing and able to adjust internal borders turns significantly on the degree to which the state's structure of governance relies on devolution of power to these units. The classic federal states, such as the United States and Switzerland, evince a tradition of generally stable territorial units.ll3 Devolution may be reflected in constitutional provisions that restrict the central govern- ment's ability to alter administrative boundaries. In the United States, Canada, Australia, Germany and Switzerland,the central government can change the borders of subnational units only with their consent.'14 Popu2ar conceptions. Not only for the elites in nation-states do administrative borders serve different purposes from international borders. For the ordinary resident, the administrative border itself-even in the case of federal systems-generally has contrasting implications for daily life compared to interstate borders. While school systems, sales taxes, much private and public law, and even the official language may differ on either side of the administrative line, it stands apart from the international border by the ease with which it may be crossed. Traversing provincial lines to commute, take a vacation, accept new employment or visit relatives is routine, involving no passports or customs checks. This facility may prevail at the interstate level for states with a history of neighborly relations, but they typically retain the right to prevent entry of various undesirable persons.115 Indeed, the integrative assumptions and purposes of internal borders can lead to their reification in terms of zones, more than particular lines. Zones straddling the line may develop their own distinct identity. In the United States, examples include the New York/New Jersey/Connecticut metropolitan area around New York City and the Mary- land/Virginia region surrounding the District of Columbia; in Switzerland, one finds the multicantonal areas around Zurich and Geneva. These zones between internal units hark back to the classic international law notion of the frontier zone.l16According to this conception, the boundary line is only one element of an entire regime governing the area where one state ends and the other begins. It recognizes the need for the law to take into account the concerns for good-neighborliness and cross-border flows of people and goods. States have routinely concluded arrangements for international bor- der areas.l17 "I See MELLOR, supra note 102, at 139-43. 112 See PADDISON, supra note 99, at 136-38; Julian Minghi, Bounda~yStudies in Political Geography, 53 ANNALS ASS'NAM. GEOGRAPHERS 407, 424-27 (1963). See also Eric Fischer, On Boundaries, 1 WORLDPOL. 196, 202-04 (1948) (persistence of some internal boundaries). 'I1 See MELLOR, supra note 102, at 130-31. ' I 4 See U.S. CONST. Art. lV,53; CAN. CONST.Art. 43; AUSTL.CONST.s5123-24; GRUNDGESETZ Art. 29 (Ger.); PADDISON, supra note 99, at 135-38. See also Stephen Kinzer, East Germans, in Slap at West, Rgect Joining State with Berlin, N.Y. TIMES,May 6, 1996, at A8. But see USSR CONST.Art. 72 (1977) (Novosti 1977) (providing "right freely to secede," but without practical meaning). I1Vee, e.g., Council Directive 64/221, 1963-1964 O.J. SPEC.ED. 117 (restrictions on persons within free trade area on limited grounds of public policy). ""or the classic work on the frontier as zone, see DE LA PRADELLE, supra note 18, especially at 14-17, 225- 64. For a view from political geography, see FAWCETT,supra note 94, at 17-24. For geographical and legal definitions, see BOGGS,supra note 26, at 22; Robert Y. Jennings, General Course on Principles of International Law, 121 RECUEIL DES COURS323, 428 (1967 11). 117 For examples, see DE LA PRADELLE, supra note 18, at 265-88; J. R. V. PRESCOTT, POLITICAL FRONTIERS AND BOUNDARIES 5-7 (1987).  19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 605 Nevertheless, at the international level, the linear aspects of the boundary seem to overwhelm its zonal aspects. As made clear in the Lac Lanouxarbitration, modern interna- tional law has rejected the separate juridical status of the international frontier zone as a matter of customary law."* It still treats the line as the only relevant legal construct for purposes of limiting the jurisdiction and activities of a state. It has done so, it seems, because the axiom that one state may not exercise its jurisdiction in the territory of another ~tate"%~eratesmost easily within the legal simplicity of the line, as compared to the intricate social construct of the zone. Moreover, the recognition of extraterritorial obligations has permitted the law to accept transboundary regimes without a formal' assault on the sanctity of boundaries per se.l2OAt the internal level, however, with qualita- tively different purposes and consequences for administrative units, the zonal characteris- tics of frontiers take on greater importance. International law seems to regard a state's choice of and regime for internal boundaries as well within the domaine rissero~~~' Of course, internal boundaries do matter, depending upon the degree of what Ronan Paddison calls national integration and nationalization prevailing in the state.lZ2At one extreme, such lines can seem irrelevant in terms of economic integration, outcomes of national political races and other indicia of national unity. At the other, units with the strongest aversion to a national identity (such as Quebec) could come to regard them almost as if they were international ones. In the middle, one finds states whose internal borders reflect distinct identities and patterns of behavior, in particular, borders inher- ited from long ago, such as those of Scotland and Bavaria.lZ3 Shortcomings of uti possidetis. The ipse dixit transformation of all administrative borders into international ones suffers from two flaws inherent in the distinctions between these sets of lines. First, it seems reasonable to posit that when states are breaking up, the process of forging new national identities in the successor states will give the borders special significance. 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. The international border between Croatia and Serbia, or the Czech Republic and Slovakia, is not merely legally distinct from the previous interrepublican border; the change in its status has clear consequences for the people and governments of those states.lZ4These boundaries impart what Michael Walzer has called a "dimension" of "physical space" to the rights and common life on each side.lZ5 When boundary lines assume this new significance, their location becomes even more critical.lZ6As noted, some internal lines, especially of the inherited variety, will function- ally make optimal international borders because they define a truly distinct community 'IX Affaire du Lac Lanoux (Fr./Spain), 12 R.I.A.A. 281, 307-08 (1957) (five-person tribunal). 'IY See S.S. "Lotus," 1927 PCIJ (ser. A) No. 10, at 18-19 (Sept. 7). See also MURTY,supfa note 101, at 236- 37 (zonal character relevant from anthropological view; linear character from legal view). 12" See Trail Smelter Case (U.S./Can.), 3 R.I.A.A. 1905 (1941) (three-person panel); Rio Declaration on Environment and Development, Principle 2, UN Doc. A/CONF.151/26 (1992), 31 ILM 874, 876 (1992); Alexander Murphy, Emergzng Regional Linkages within the European Community: Challenging the Dominance of the State, 84 TIJDSCHRIFT VOOR ECONOMISCHE EN SOCWE GEOGRAFIE 103, 108-11 (1993). The various peace plans for Bosnia challenge even this position. See General Framework for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosnia-Croatia-Serbia, Ann. 2, 35 ILM 75, 111 (1996) [hereinafter Bosnia Agreement]; Report of the Secretary-General o n the Activities of the International Conference on the Former Yugoslavia, UN Doc. S/25479, at 16 (1993). "'PADDISON,supra note 99, at 63-74, 108-15. I2%n the effect of U.S. state boundaries, see Arthur R. Stevens, State Boundaries and Political Cultures: An Exploration in the Tri-State Area of Michigan, Indiana and Ohio, PUBLIUS, Winter 1974, at 111. 124 See Philip Shewell, Neighbors on the borderline:New boundaries rekindle old fear, SUNDAY TELEGRAPH (London), Jan. 3, 1993, at 15. 1 2 % WALZER, ~ ~ JUST ~ ~AND~ UNJUST ~ WARS55, 57-58 (2d ed. 1992). "5 MICHAELWALZER,SPHERESOF JUSTICE:A DEFENSEOF PLURALISM AND EQUALITY 44 (1983) (noting that disputes over borders arise with end of imperial rule because critical issues are resolved within geographical units). 606 THE AMERICAN JOURNAL.OF INTERNATIONAL LAW [Vol. 90:590 whose unity and identity override other concerns. But other considerations and scenarios also abound. Groups separated by administrative lines within one state may well prove able to protect their interests through influence at the central level, but may not wish to tolerate separation into different states and the loss of that power.'27 Families and other communities separated by administrative borders face special hurdles if they find themselves in two states. Economic efficiencies or codependence taken for granted in areas separated only by internal lines may disappear when the border becomes an international frontier."' And military establishments integrated across administrative lines face constraints during - diss~lution.'~" In response to this functionalist critique, a defense of uti possidetis could assert that international borders now mean less than ever, and therefore that their precise location is increasingly irrelevant. No doubt in certain parts of the world-in particular, Europe- states are reducing the significance of international borders, with clear benefits.130 Yet for most of the world they remain one of the defining elements of the polity. Even in Europe, porosity does not equate with irrelevance.'" States breaking apart seem the least likely to regard the new border as irrelevant-even if secessionists claim that the new state will maintain close economic links with its neighbors.'" Such a defense could also posit that any administrative line can effectively function as a suitable interstate boundary, as both law and political geography have rejected the doctrine of the natural borders of ~tates.'~"orders themselves, wherever located, can indeed solid* differences between neighboring peoples and regions, and create new and separate national identities among similar groups on the opposite sides.'34It is thus unexceptionable that conversion of administrative borders to interstate boundaries is possible. But this proposition needs to be weighed against the competing concerns- particularly the evolving law of self-determination and human rights-which militate against forcing a people to live in a new state where they may face persecution, an issue explored in part 111. Second, conversion of administrative lines to international lines disregards the inter- connection 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.'35 (If they foresaw the emergence of separate states, they might hell draw the lines differ- ently.) Thus, when the contract among the territorial units or between those units and the center, or the center's master plan for unity, collapses through disintegration, why assume that one of its core elements-the location of the internal borders-must remain unchanged? Rather, this scenario calls into question the parties' original bargain or See BUCHHEIT, supra note 1, at 29-30. See, e.g., ALEXISHERACLIDES, THE SELF-DETERMINATION OF MINORITIES IN INTERNATIONAL POLITICS 61- 62 (1991) (describing large economic capacity of Katanga vis-i-vis the whole Congo); Me1 McMillan, Ken Norrie & Brad Reid, Canada and QuLbec in a New World: The PQ's Economic Proposals, CONST.FORUM, Fall 1994, at 11. 129, See, e.g., James Rupert, Yeltsin Cancels Trip to Ukrainef w Treaty Signing, WASH.POST,Apr. 3, 1996, at A15 (continuing disagreements over Black Sea fleet). "" See, e.g., Treaty on European Union, Feb. 7, 1992, Art. B, 1992 O.J. (C 224) 1, 5, 31 ILM 247, 255 (1992) (goal of European Union "the creation of an area without internal frontiers"). "I See, e.g., Emma Tucker, A pillar in need of support: EU members are stillfarfrom entrusting justice and policing to Brussels, FIN. TIMES(London), Mar. 18, 1996, at 14; Janet McEvoy, One-Year-0Zd Schengen Falls Short of Expectations, Reuter Eur. Comm. Rep., Mar. 25, 1996, available in LEXIS,Nexis Libra~y,Curnws File. "'See Draft bill on Quebec sovereignty, Art. 2, 35th Leg., Quebec, 1st Sess. (1994) (calling for agreement of economic association between future independent Quebec and Canada). I" See, e.g., Claude Blumann, Frontikes et limites, in LA FRONTIERE, supra note 37, at 3, 4-6; MELLOR,supra note 102, at 78-81; Boms, supra note 26, at 22-25. I" See SHAW,supra note 43, at 186. '""ee OWEN,supra note 8, at 34-35 (on Yugoslav interrepublican boundaries). 19961 UTI POSSIDETIS AND THE BORDERS OF NEW STATES 607 scheme premised on the continuity of the whole state.'" In the case of Quebec, secession- ists seemingly seek to have their cake and eat it, too-to secede and take with them land given to Quebec as part of its integration into canada.'" Practical Impediments to Uti possidetis Whether regarding the decolonization of empires or the dissolution of states, new governments or arbitrators attempting to rely on the location of administrative bound- aries to determine international lines must begin with a set of clearly defined borders. If, as the World Court said in the Frontier Dispute case, uti possidetis turns on a " 'photo- graph' of the territorial ~ i t u a t i o n , " 'then ~ ~ those analyzing the image and "plugging it into" the uti possidetis equation must know two core things-what the photograph shows and when it was taken. In fact, the number of border disputes even where postcolonial states have applied uti possidetis demonstrates the absence of spatial and temporal clarity in many boundarie~.'~'~ h e s etwo ambiguities remain in applying uti possidetis in the modern context. The first obstacle to applying uti possidetis is posed by the blurring of such lines during the governance of administrative units. The effective exercise of territorial jurisdiction by colonial authorities-or effectivitis-has proved significant in numerous arbitrations as evidence of-and even substitution for-the line of uti ~ o s s i d e t i s. 'The ~ ~ ICJ relied on effectivitks in particular in Land, Island and Maritime Frontier Dispute, examining which areas near the disputed border were under the actual control of various Spanish colonial authorities, and even giving weight to effectivitks exercised by the newly independent states after the departure of the Spaniards.14' On the one hand, effectivitis might raise few practical problems in extending uti posside- tis to secessions and dissolutions, as the lines between administrative units might be especially clear within a state.14"he central and local officials might also be far more cognizant of the scope of their territorial authority than were the governors of colonial provinces and their masters in a distant European capital. But today, even where those borders are clearly demarcated, the areas near them might just as possibly be under some type ofjoint legal control of the neighboring units, or conceivably under central control. Although the Frontier Dispute opinion suggests discounting de facto cross-border authority if it conflicts with a clear line of legal title,'43 it does not make clear how to handle such de jure cross-border shared authority. Beyond boundary areas, title to land serving a national purpose-such as military bases and national parks-could rest with the central government.'44Central government enclaves make perfect sense in the context of one state but raise profound problems in the event "I CJ Vienna Convention on the Law of Treaties, supra note 80, Art. 61 ( I ) , 1155 UNTS at 346 (withdrawal from treaty permissible owing to "permanent disappearance or destruction of an object indispensable" for treaty's execution); Duchacek, supra note 106, at 43-44 (federalism as "the partnership of territorial communi- ties"); KYMLICKA, supra note 105, at 117. See GRAND COUNCIL OF THE CREES, SOVEREIGN INJUSTICE: FORCIBLE INCLUSION OF THE JAMES BAYCREES AND CREETERRITORY INTO A SOVEREIGN QUEBEC 207-12 (1995). But see Thomas M. Franck, Rosalyn Higgins, Alain Pellet, Malcolm N. Shaw & Christian Tomuschat, L 'Intignte'tenitoriak du @kkc duns l'hypothise de l'accession a la svuveraineti, in 1 LESATTRIBUTS D'UNQUEBEC SOUVERAIN 377, 402-05 (Commission d'Ctude des questions afferentes P I'accession du Quebec 2 la souverainete ed., 1992). Frontier Dispute, 1986 ICJ REP. at 568. 13Y See, e.g., Sore1 &'Mehdi, supra note 26, at 21-33; DE LA PRADELLE, supra note 18, at 83-86. 1411 See, e.g., Honduras Borders Case (Guat./Hond.), 2 R.I.A.A. 1309, 1324 (1933); Frontier Dispute, 1986 ICJ REP. at 587. 1992 ICJ REP. at 395-401. See also Kohen, supra note 66, at 964-66. I4'See, e.g., VANZANDT,supra note 102, at 4-14 (well-defined lines of U.S. states). "'See Frontier Dispute, 1986 ICJ REP. at 587 ("[Wlhere the territoly... is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title."). 144 See supra note 129. 608 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:590 of dissolution or secession, the absorption of enclaves during decolonization hardly serving as model precedents.145 With regard to temporal clarity, states and arbitrators typically derive a set of bound- aries through the use of a critical date-one that "designate[s] that point of time after which no acts of the parties can validly affect the legal situation in an international dispute."'46 The parties to a border dispute often specify that date in a treaty or compre mis.I4' It usually corresponds to the year of independence of the states involved, or a time when the independence process was sufficiently advanced that changes by the colonial authorities would be deemed irrelevant.I4" Although the doctrine is meant to help exclude from the decision-making process self-serving evidence created by a party after the dispute arose,14"he apparent simplicity of the critical date is misleading. Where the parties have not agreed on a critical date, arbitral tribunals have shown few clear patterns-employing a smorgasbord of formulas to determine the date, making their decisions without recourse to a critical date, and admitting evidence created after the date if it shed light on the earlier ~ituation.''~ For states created from secessions and dissolutions, the critical date may also be difficult to determine, as parties may have strong incentives to adopt contrasting dates. The independence movement may have festered for many years, and the lines may have changed significantly over time, including during the process of dissolution. One could, of course, simply apply the rule stipulated in some arbitrations and assume that the date upon which secession or dissolution finally succeeds (possibly in terms of recognition of new entities) is the critical date, and that those administrative borders will prevail. But other positions are arguable. In the former Soviet Union, the Russian Federation could base a claim to Crimea upon the latter's long ties to Russia and seek a critical date before Khrushchev's 1956 "gift" to the Ukrainian SSR.I5I Canada could claim that the critical date for determining the borders of an independent Quebec is not when it secedes, but a date before Canada accorded it new lands.15' The functional distinction between internal and international boundaries that calls into question the simple conversion of one to the other does not suffice to demonstrate that utz posszdetzs should not become a rule of customary law for modern breakups and breakaways. For states indeed chose such a transformation during the decolonization of both Spanish America and European Africa. Does that trend of decision of the early nineteenth and middle twentieth centuries represent good law at the turn of the twenty- I4%e supra note 68. '&L.F. E. Goldie, The Critical Date, 12 INT'L& COMP.L.Q. 1251, 1267 (1963). See also zd. at 1254 ("Events occurring before the critical date... are right-creating facts."); Gerald Fitzmaurice, The Law and Procedure ofthe 1n&attonal Court ofJustice, 1951-4: ~ o y n t sof~ubsantiueLaw. Part 11, 32 BRIT.Y.B. INT'LL. 20, 37-44 (1955-56). 147 See supra note 60 (Latin American reference to "uti possidetis of 1821 "). I4'See Frontier Dispute, 1986 ICJ REP. at 570 (finding irrelevant discrepancy over critical date as parties agree pertinent period is end of French colonial rule); id. at 653 (Luchaire,J., sep. op.); Arbitral Award of 31 July 1989 (Guinea-Bissau/Sen.), 83 ILR 1, 26-27 (1989) (three-person panel), applicatzon to nullijj rgected, 1991 ICJ REP. 53 (Nov. 12) (acts by colonial power after commencement of self-determination process not relevant); SHAW,supra note 43, at 187-91. 14' BROWNLIE, supra note 63, at 130. 15" See BLUM,supra note 71, at 208-21 and cases discussed therein. See also Land, Island, 1992 ICJ REP. at 401 (possibility of more than one date if parties accept modifications of border after independence ); Sore1 & Mehdi, supra note 26, at 27-29; Kohen, supra note 66, at 962-64. I"' See supra note 52. "I See Neil Finkelstein, George Vegh & Camille Joly, Does @&ec Have a Right to Secede at Zntmational Law?, 74 CAN.BARREV. 225, 260 (1995). But see Franck et al., supra note 137, at 417.  19961 UTI POSSIDETIS AP;ID THE BORDERS OF NEW STATES 609 first? The answer demands scrutiny of the elements surrounding the prior use of uti possidetis and the circumstances in which it would operate today.15' One response to the decolonization precedent turns on a critical factual distinction between earlier episodes and today. Uti possidetis in the decolonization context did not engender changing the kind of internal borders that it would in a state's breakup today because the boundaries between different parts of a colonial empire did not serve the same functions as typical internal boundaries. While the border between, for example, one French colony and another in French Africa was less of a dividing line than that between a French colony and a British colony,'54 in several senses it was more of a ' dividing line than the border between one French department and another, or between American states. In a colonial empire, the governors and other authorities of each territory generally enjoyed extensive internal authority and independence, far more than officials of inter- nal units in the m e t r ~ ~ o l eIn. ' the ~ ~ French African colonies, the governors-general of the two largest groups of colonies were independent of Paris, and the governors beneath them were given wide latitude within the individual colonies.'56Native civil servants also developed loyalties to their immediate colony.'57Indeed, neighboring colonies often had different legal status vis-A-vis the metropole, suggesting that the lines dividing them had assumed what one might term semi-international status.158Uti possidetis, then, was less functionally illegitimate in the past than it would be today because the borders to be transformed more closely resembled international boundaries than do the administrative lines of states. More significant than the lack of a functional parallel between today's internal borders and those between colonies of the same metropole is the intervening evolution of the legal landscape regarding self-determination. This shift suggests that the factors in the colonial context that presumably made uti possidetis acceptable law no longer prevail. Self-Determination: From Decolonization toward Democracy Decolonization tout court. Despite the UN Charter's deliberately tepid mandate concern- ing decoloni~ation,'~~ by 1945 the emergence of the United States and the Soviet Union as superpowers (both of them states without colonial empires in the formal sense) and '" HIGGINS, supra note 61, at 3 ("To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed-and indeed when their content is often unclear-is to ensure that international law will not be able to contribute to [solving] today's problems..."); W. Michael Reisman, Some Reflections on International Law and Assassination under the Schmitt Fonnula, 17 YALEJ. INT'L L. 687, 689 (1992) (need to "identify the conditioning factors in the past that shaped normative expectations [and]... determine whether they continue to operate"). See also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ REP.16, 31 (Advisory Opinion of June 21). Cf:VIRGINIA THOMPSON & RICHARDADLOW,THEEMERGING STATES OF FRENCH EQUATORIAL AFRICA 28 (1960) (frequency of boundary alterations between French colonies). "'See William B. Cohen, The French Governors, in AFRICAN PROCONSULS: EUROPEAN GOVERNORS IN AFRICA 19,23-27 (L. H.Gann &Peter Duignan eds., 1978);Anthony H. M. KirkGreene, On Governorshipand Governors in British Afica, in id. at 209, 232 (quoting Churchill that "it would not be possible to govern the British Empire from Downing Street, and we do not try," but noting ability of colonial office to supervise if needed); JEANSURET-WALE, FRENCH COLONIALISM IN TROPICAL AFRICA 1900-1945, at 308-13 (Pica Press 1971) (1964). ""ee Cohen, supra note 155, at 23; SURET-CANALE, supra note 155, at 312. But cf: THOMPSON & ADLOW, supra note 154, at 26-30 (governorgeneral asserting strong control over governors, but later decentralization). '" see ANDERSON, supra note 19, at 123-31. '" s e e F ~ ~ ~LUCHAIRE, ~ o 1 s DROITD'OUTRE-MER 100-05 (1959) (categoriesof territories under 1946 Constitu- tion); KENNETH ROBERTSWRAY, COMMONWEALTH AND COLONIAL LAW 19-62 (1966) (categories of nations in I" " British Empire). CHARTER Arts. 73, 76(b) (obligating states to "develop selfgovernment" for colonies and "promote... progressive development towards selfgovernment or independence as may be appropriate" for the trust territories). See also HIGGINS, supra note 61, at 111-14; CASSESE, supra note 13, at 37-43. 610 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 90:590 the wartime humiliation of the leading colonial states had led to a growing sense that colonialism had run its course. The new organization s