Uti Possidetis Juris

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Uti Possidetis Juris Faculty of Law University of Helsinki FROM KOSOVO TO CRIMEA The Legal Legacies of the Socialist Federal Dissolutions Tero Lundstedt ACADEMIC DISSERTATION Doctoral dissertation to be presented for public examination, by due permission of the Faculty of Law at the University of Helsinki in Porthania Hall P674, on the 1st of August, 2020 at 12 o’clock Helsinki 2020 ISBN 978-951-51-6371-4 (paperback) ISBN 978-951-51-6372-1 (PDF) Unigrafia Helsinki 2020 ii Acknowledgements When it comes to speeches, I am a man of few words, so I will try to keep it short here as well. It has been a long journey to this place, and it would not have been possible without the contributions of many key people. First, I need to thank my supervisors Jan Klabbers and Jarna Petman. Throughout the years, their invaluable comments have made me a better legal and academic writer. They have always been ready to read my texts, listen to my ideas, and to write all those recommendation letters. My humblest of thanks to both of you, dear supervisors! Next in line is my ‘unofficial supervisor’ Lauri Hannikainen, with whom I shared an office at the Erik Castrén Institute (ECI) for most of the years I was working with the PhD. Lauri has contributed greatly to my work and his influence is certainly reflected in this dissertation. In addition, as we share many common research interests, it has been a great pleasure to cooperate with him on several common projects. Thank you for all these years, Lauri! I was honored to have James Summers to agree to act as an opponent in the public examination on 1 August. His work has been an inspiration to me, and when visiting him at Lancaster University in the spring of 2016 he made me reconsider some of my research angles. Looking forward to our discussion in August! I also want to thank my preliminary examiners Anne Peters and Jure Vidmar, whose comments have developed this manuscript further. Similarly, I am grateful to the members of the grading committee, Ida Koivisto and Mónica Garcia-Salmones, and Jan again for being both the non-voting member of the committee as well as acting as the custos. Then there is ECI. Starting from the elusive ‘Children’s Room’, my early close colleagues and academic contributors include Damarys Vigil Nolasco, Alice Neffe, Anna-Kaisa Tuovinen, Maria José Belmonte Sanchez, and Janis Grzybowski. Great times! Apart from my supervisors, the greatest single contributor to this dissertation is Ukri Soirila, with whom I have shared endless discussions and debates - often with football in the background - on academic topics. He read all my drafts before I dared to forward them to the supervisors, and his influence is detectable throughout this dissertation. Huge thanks to you, Ukri! Finally, ECI in general. There have been way too many people that have come and gone, but some of those who have affected my research and working environment, but have not been mentioned yet, include Elina Almila, Paolo Amorosa, Taru Auranne, Manuel Jimenez Fonseca, Samuli Haataja, Miikka Hiltunen, Laura Kirvesniemi, Tero Kivinen, Margareta Klabbers, Magdalena Kmak, Martti Koskenniemi, Vesa Kyyrönen, Ketino Minashvili, Sean Morris, Outi Penttilä, Walter Rech, Katariina Simonen, Sahib Singh, Pamela Slotte, Diliana Stoyanova, Immi Tallgren, Nadia Tapia, Tuomas Tiittala, Lauri Uusi-Hakala, Anna Van der Velde, Sanna Villikka, Sam iii Wrigley, and Kangle Zhang. Outside ECI, my other esteemed colleagues and inspirations include George Forji Amin, Jukka Kekkonen, Axel Marx, Tarja Pellinen, James Sweeney, and Jan Wouters. I also want to thank all my main funders (in chronological order): Foundation for Foreign Policy Research, Finnish Lawyer’s Association, Hame Students Foundation, and Ehrnrooth Foundation. This project would not have possible without your generous contributions. Lastly, my biggest thanks go to my family and loved ones, you know who you are. This work is dedicated to you. In Helsinki, June 2020 Tero Tapani Lundstedt iv Abstract This thesis is focused on the socialist federal dissolutions of the Union of Soviet Socialist Republics (USSR) and the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s, and on a legal rule related to state succession, uti possidetis (juris). Briefly, uti possidetis transforms former internal administrative borders into international borders at the moment of state dissolution, with all the legal ramifications this status change entails. The thesis reconstructs from the events an evolutionary process that led the international community to choose a specific version of uti possidetis regarding the socialist federal dissolutions. After demonstrating the mistakes made in this process, the thesis provides a proposal for an updated version of uti possidetis that can rebalance the legal principles of self-determination and territorial integrity in future state dissolution cases. Part I poses the research question of what are the legal legacies of the socialist federal dissolutions for international law in general and the post-federal successor states in particular? It claims that by a virtue of being a general legal principle, uti possidetis has to evolve alongside the shifting paradigm of the international legal order. After accounting for the evolution of uti possidetis with its application in the decolonization cases since the 1800s, the thesis concludes that this vital process was disrupted in the early 1990s. The chosen mode of application failed to take into account two legally crucial factors: the evolution of the right to self- determination and the unique socialist federal model. As uti possidetis was not updated to factor in these changed circumstances, it was misapplied, causing national fragmentation in the successor states. This has directly contributed to territorial conflicts, out of which Kosovo and Crimea are the most prominent. Part II introduces the two components of a proposed uti possidetis update. Chapter 3 exhibits the internal component, the last applicable legal order of the dissolving state. Chapter 4 presents the external component, the international legal rules regarding the dissolution. The combination of the two at the moment of dissolution generates an update of uti possidetis, titled ‘uti possidetis meritus’. It calls for expanded recognition of internal borders and draws legitimacy from its compatibility with the existing uti possidetis framework. Part III presents the legal aftermath of the socialist federal dissolutions and proposes the meritus formula as a remedy. Chapter 5 gives a comprehensive review of how the right to self-determination was realized in the socialist federal dissolutions and how this caused territorial conflicts. Chapter 6 concludes the argument by exhibiting two potential forms of application for meritus: it can be used to help settle already existing conflicts, as well as to minimize territorial fragmentation in the future state dissolution or independence cases. In sum, the vital evolution of uti possidetis was disrupted in its transformation into a non-colonial context. The legal legacies of the socialist federal dissolutions are the distortion of uti possidetis and the lack of balance between self-determination and territorial integrity in the successor states. Meritus aims to remedy both. v Contents PART I: UTI POSSIDETIS JURIS ................................................................................................................ 1 1. Introduction ................................................................................................................................................... 2 1.1 Research Question ................................................................................................................................... 2 1.2 Uti Possidetis Juris and Its Evolutionary Cycles .................................................................................... 3 1.3 The Two Components of the Third Cycle: Ethnofederalism and Internal Self-Determination .............. 6 1.4 Previous Research on Uti Possidetis and the Socialist Federal Dissolutions .......................................... 8 1.5 The Argument ....................................................................................................................................... 11 1.6 The Proposal for Uti Possidetis Meritus ............................................................................................... 12 1.7 The Structure of the Dissertation .......................................................................................................... 17 2. The Evolutionary Cycles of Uti Possidetis Juris ......................................................................................... 19 2.1 Original and Modern Versions of Uti Possidetis Juris ......................................................................... 20 2.2 The First Cycle: Decolonization of Spanish America ........................................................................... 22 2.3 The Second Cycle: Decolonization of Africa and South-Asia .............................................................. 25 2.4 The Legal Categorization of the Right to Self-Determination and Uti Possidetis ................................ 30 2.5 The Third Cycle: The Socialist Federal Dissolutions ........................................................................... 38 2.5.1 The Socialist Ethnofederal Model ................................................................................................ 38 2.5.2 The Breakdown of the Socialist Federal
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