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Principle of Uti Possidetis Juris Farhad Sabir оglu Mirzayev TERRITORY IN INTERNATIONAL LAW TERRITORY IN INTERNATIONAL LAW DOI: 10.24833/0869-0049-2017-3-31-39 Farhad Sabir oglu MIRZAYEV BM Morrison Partners International Law Firm Devonshire House, Level 1, Office 65, One Mayfair Place. London, W1J 8AJ, United Kingdom [email protected] GENERAL PRINCIPLES OF INTERNATIONAL LAW: PRINCIPLE OF UTI POSSIDETIS JURIS INTRODUCTION. This paper considers the gen- international commissions that played a vital role in eral principles of international law and focusing affirming uti possidetis as one of the general prin- specifically on the principle of uti possidetis. The ciples of international law. author argues that uti possidetis originating from DISCUSSION AND CONCLUSIONS. The au- Roman jus civile was transformed into a principle thor argues that uti possidetis is not similar to the of interstate relations dealing with a transformation principle of territorial integrity, and in contrast the of former administrative borders into international former serves as auxiliary support to the latter one. boundaries of the newly independent states in Latin The analysis refers to the most recent precedents with America in XX century. The principle’s further effec- dissolution of the former communist federations that tive application in Africa and Asia contributed into simply reconfirmed the importance of uti possidetis uti possidetis’ formation as the principle of interna- as the general principle of international law. It is tional law. concluded that the evolution of uti possidetis as the MATERIALS AND METHODS. The materials general principle of international law took place un- for the article were the works of leading Russian der influence of the state practice and application by and foreign researchers in the field of international international judicial bodies. law dedicated to general principles of international law and international customary law. The author KEYWORDS: customary international law, new referred to historical, comparative and theoretical norms of international law, general principles of in- methods in his analysis. ternational law, territorial and boundary disputes RESEARCH RESULTS. It is argued that uti pos- and conflicts, uti possidetis, International Court of sidetis as the principle of international law has a Justice, state practice primary concern with the state or territorial sover- eignty. The paper analyses uti possidetis’ evolution FOR CITATION: Mirzayev F. General principles from the regional principle into the general principle of international law: principle of uti possidetis. – of international law. It also deals with the review of Moscow Journal of International Law. 2017. No 3. cases considered by the International Court of Jus- P. 31-39. tice and other international ad hoc tribunals as well DOI: 10.24833/0869-0049-2017-3-31-39 as specialised authoritative opinions of specialised 31 ТЕРРИТОРИЯ В МЕЖДУНАРОДНОМ ПРАВЕ Фархад Сабир оглы Мирзаев ТЕРРИТОРИЯ В МЕЖДУНАРОДНОМ ПРАВЕ DOI: 10.24833/0869-0049-2017-3-31-39 Фархад Сабир оглы МИРЗАЕВ Международная юридическая фирма BM Morrison Partners Devonshire House, Level 1, Office 65. One Mayfair Place. Лондон, W1J 8AJ, Великобритания [email protected] ОБЩИЕ ПРИНЦИПЫ МЕЖДУНАРОДНОГО ПРАВА: ПРИНЦИП UTI POSSIDETIS JURIS ВВЕДЕНИЕ. Данная статья рассматривает аргументы относительно того, что принцип общие принципы международного права, уделяя uti possidetis прошел путь эволюции от регио- особое внимание принципу uti possidetis. Автор нального принципа к общему принципу между- утверждает, что принцип uti possidetis, проис- народного права. Детально проводится анализ ходящий из римской гражданско-правовой кон- судебных дел, рассмотренных Международным цепции, трансформировался в принцип межго- судом ООН и прочими ad hoc международными сударственных отношений, подразумевающий судебными органами и специализированными преобразование бывших административных комиссиями, которые сыграли роль в формиро- границ в международные границы новых не- вании uti possidetis в качестве общего принципа зависимых государств в Латинской Америке международного права. в XX в. Дальнейшее эффективное применение ОБСУЖДЕНИЯ И ВЫВОДЫ. Автор утверж- этого принципа на африканском и азиатском дает, что принцип uti possidetis не аналогичен континентах способствовало формированию принципу территориальной целостности, а принципа uti possidetis в качестве общего прин- наоборот, призван служить в качестве его до- ципа международного права. полнительной поддержки. Автор также ссыла- МАТЕРИАЛЫ И МЕТОДЫ. Материалом ется на недавние прецеденты распада бывших для исследования послужили труды ведущих социалистических федераций, подтвердившие российских и зарубежных исследователей в об- значимость uti possidetis как общего принципа ласти международного права, посвященные международного права. В своем анализе автор общим принципам международного права и ссылался на исторические, сравнительные и международному обычаю. В своем анализе ав- теоретические методы исследования. Авто- тор ссылался на исторические, сравнительные ром делается вывод о том, что эволюция uti и теоретические методы исследования. possidetis как общего принципа международного РЕЗУЛЬТАТЫ ИССЛЕДОВАНИЯ. Анализ, права проходила под влиянием практики госу- приведенный в данной статье, утверждает, дарств и его применения международными су- что принцип uti possidetis преобразовался в дебными органами. принцип международного права, регулирую- щий вопросы государственного и территори- КЛЮЧЕВЫЕ СЛОВА: международное обычное ального суверенитета. В статье приводятся право, создание новых норм в международном 32 Farhad Sabir оglu Mirzayev TERRITORY IN INTERNATIONAL LAW праве, общие принципы права, территориаль- щие принципы международного права: прин- ные и пограничные споры, uti possidetis. Между- цип uti possidetis juris. – Московский журнал народный суд ООН, практика государств международного права. № 3. С. 31–39. DOI: 10.24833/0869-0049-2017-3-31-39 ДЛЯ ЦИТИРОВАНИЯ: Мирзаев Ф. 2017. Об- he principle of uti possidetis is one of the prin- grounds of their previous administrative borders ciples of international law which provides for which they inherited from the former parent state the delimitation of state territories. This prin- [Mirzayev 2014: 56-72]. Therefore, the principle of Tciple is regarded within the context of territorial issues uti possidetis pertains to the process of the creation of related to the process of obtaining independence. The newly independent states, i.e. is one of the elements of principle also provides for the process of statehood the creation of statehood. formation [Crawford 2007: 107;] Dinh, Daillier, Pelle The position of the international tribunals and 2009: 573-637]. The principle ofuti possidetis is not an organisations in various territorial and boundary dis- ordinary for the legal doctrine [Sorel, Mehdi 1994: 11; putes and conflicts played a huge role in the formation Moore 1911:349-367]. However it should be observed of uti possidetis as a principle of international law. Uti that uti possidetis has been recognised as a general possidetis was acknowledged as a principle of interna- principle of international law1. tional law in a number of decisions made by interna- According to most legal dictionaries, uti possidetis tional tribunals, universal and regional organisations3. is the international law principle which refers to the If in the 19th century the Latin American principle transformation of former administrative borders of a (which was a customary rule of regional nature) ap- colonial empire or state under dissolution into inter- plied basically between and among the former Spanish national boundaries of newly independent states2. colonies, at the later stage it became a general principle Professor Shaw clearly stresses that the principle of international law applied to newly established states of uti possidetis is a principle designated to strengthen beyond the decolonisation process. Application of uti the principle of territorial integrity [Shaw 2008:527- possidetis in Latin America in the process of decoloni- 528]. Oppenheim pointed out the role of uti pos- sation was the key issue for the new interpretation of sidetis juris as being a doctrine of great importance the principle within the context of settlement of ter- which strengthens the principle of the stability of state ritorial disputes in international law which served as a boundaries [Jennings, Watts 1996:669-690]. ground for transformation of the Roman law doctrine It is agreed with some commentators who argue into the principle of international law. that the principle uti possidetis has been adopted in If starting from the beginning of the principle’s ap- international law for the purposes of protecting the plication in contemporary history, it may be argued territorial integrity of the constitutional units of for- that the position of the international community to- mer states which have exercised their right to external wards uti possidetis was initially expressed in the Aa- self-determination [Hannum 1993b: 57-73]. In other lands Islands dispute4. Obviously, the use of the con- words, this principle has been applied as a legal tool cepts and legal arguments constituting the core nature not only for the delimitation of the boundaries of new and designation of uti possidetis juris by the League of units possessing all attributes of the statehood, but Nations and its specialised commissions in the course also for the forming of the international legal person- of the settlement of the
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