Product Code Database
Uti possidetis is an expression that originated in Roman private law, where it was the name of a procedure about possession of land. Later, by a misleading analogy, it was transferred to international law, where it has had more than one meaning, all concerning sovereign right to territory.
In Rome, if two parties disputed possession of a house or parcel of land, the praetor preferred the one who was in actual occupation, unless he had got it from the other by force, stealth or as a temporary favour ( nec vi, nec clam, nec precario). The contest was initiated by an interdict called uti possidetis. The winner was confirmed or restored in possession, and the loser was ordered not to displace him by force. However, the winner had not proved he was the real owner, only that, for the moment, he had a better right to possession than his opponent. Hence the rights of third parties were not prejudiced. The phrase uti possidetis was a conventional abbreviation of the praetorial edict dealing with such matters.
In the early modern era, some European states, when dealing with other European states, used the phrase to justify the acquisition of territory by occupation. There was no universally agreed rule and, for example, Portugal applied it more ambitiously than Spain. Despite that, there is no doubt that important polities, such as Brazil, were established on that interpretation. It was also a generally accepted rule about the interpretation of peace treaties. A peace treaty was presumed to give each party a permanent right to the territory it occupied at the conclusion of hostilities, unless the contrary was expressly stipulated. Whether this rule has survived in the international regime following the creation of the United Nations must be doubtful. This usage is sometimes called uti possidetis de facto.
In recent times, uti possidetis refers to a doctrine for drawing international boundaries. When colonial territories achieve independence, or when a polity breaks up (e.g., Yugoslavia), then, in default of a better rule, the old administrative boundaries between the new states ought to be followed. This doctrine, which has its critics, is sometimes called uti possidetis juris.
Accordingly, in litigation about land each party tried to manoeuvre a situation where the burden of proof was cast on his opponent, and he merely had to defend."And as it is far more advantageous to possess than to claim the possession; there is generally, indeed, nearly always, a great effort made to obtain the possession. The advantage of possessing consists in this, that even though the thing be not his who possesses it, yet if the plaintiff cannot prove that it is his, the possession remains where it is. and, for this reason, when the rights of both parties are doubtful, it is usual to decide against the claimant." JUST. IV, xv, §5 (). To achieve this they went outside the traditional Roman actions and used a praetorial remedy.
An interdict was a praetorial order forbidding someone to do something. The one relevant for present purposes was the interdictum uti possidetis. It seems this interdict was available by about 169 B.C. because there is a joke about it in one of Terence's comedies, though we do not know the praetor's original wording. Probably it originated as a means of protecting occupants of public lands, since these people if expelled could not have sued as owners. Later, however, it was adapted as a procedural device to assign disputants to the role of plaintiff and defendant, respectively.
| + |
| Interdicts for retaining possession are regularly granted when two parties are disputing about the ownership of a thing, and the question which has to be determined in the first place is which of the litigants shall be plaintiff and which defendant in the vindication*; it is for this purpose that the interdicta Uti possidetis and Utrubi have been established. |
| The former interdict is granted in respect of the possession of land and houses, the latter in respect of the possession of movables. |
| When the interdict relates to land or houses, the praetor prefers the party who at the issuing of the interdict is in actual possession, such possession not having been obtained from the opposing party either by violence or clandestinely, or by his permission. When the interdict relates to a movable, he prefers the party who in respect of the adversary has possessed without violence, clandestinity, or permission, during the greater part of that year. The terms of the interdicts sufficiently show this distinction. |
A person could establish possession by occupying the property himself, or through another e.g. his inquilinus (house tenant) or colonus (agricultural tenant).
If any of those exceptions applied his possession was flawed (this was called possessio vitiosa) and did not count.
This was significant when early modern European powers sought to apply the uti possidetis concept to their colonial acquisitions (see below). Thus, that they had vanquished the indigenous inhabitants by force was of no present consequence if a dispute was between rival Europeans.
The next step was to bring matters to a head. Accordingly, on a prearranged day the parties would commit a symbolic act of violence ( vis ex conventu) e.g. pretending to expel each other from the land. That, for the one in the wrong, must have been a formal disobedience of the praetor's order. Each party now challenged the other to a wager by which he had to pay his adversary a sum of money if it was he who had disobeyed the interdict. (This way of settling disputes in Rome — by having a wager on the result — was called agere per sponsione). The agere per sponsonie was sent off to be tried by a iudex (akin to a one-man jury, usually a prominent citizen), who in due course delivered his decision. Meanwhile, the right to interim possession of the land was auctioned to whichever of the two contestants was the highest bidder, on his promise to pay his adversary the rent if he turned out to be in the wrong.
Roman litigation was not for the faint-hearted. Getting one's opponent into court at all could be difficult, and arguably praetors "were nothing more than politicians, frequently incompetent, open to bribery, and largely insulated against suits for malfeasance". A litigant could frustrate the interdict process by omitting to take part in its rituals. When that happened, however, it was possible to obtain a secondary interdict by which he lost the case at once.
First, he enjoyed peaceful possession of the land against his adversary for the time being. Secondly, although his opponent might yet get the land — by bringing a vindicatio — the case had to be proved. This was important since it assigned the burden of proof. Thirdly, and in practice, his opponent might not trouble to take it further. Then, the party left in possession looked very like the real owner. As time went by it must have become more and more difficult to prove he was not.
In sum, by peaceful, open and unlicensed possession of land a party did not acquire ownership, but he did acquire practical advantages.
The Roman doctrine about establishing possession (not ownership) may seem slightly elusive for those brought up in the Anglophone common law where it is trivially obvious that a good title to land can indeed be acquired by mere occupation (e.g. "squatters' rights"). However, it was not so in Roman law which drew a sharp line between ownership and possession. Except in special cases, mere occupation of land could not confer ownership.
which has been translated
Much later, when it came to be adopted in international law the abbreviation was represented as Uti possidetis, ita possideatis ("as you possess, so may you possess"), whereby "possession became ten-tenths of the law", said to be a perversion of the Roman doctrine.
European powers, when they sought to justify their acquisition of territory in America and elsewhere, based their claims on a variety of legal concepts. One argument was that the new lands were terra nullius (belonging to nobody) and so could be acquired by occupation. But some prominent European jurists and theologians, like Francisco de Vitoria, rejected this, arguing that the lands did have owners: the indigenous peoples. However, since the European powers were not seeking to justify themselves to the indigenous people, but to their European rivals, all they needed to show was a better claim, not an absolute one. Here they found the Roman law uti possidetis analogy valuable.
Apparently it was first devised by the Portuguese diplomat Luís da Cunha in order to justify his country's claims to territory in colonial South America, though some have attributed the idea to the Luso-Brazilian diplomat Alexandre de Gusmão.
While Spanish-American states may have been content to draw mutual boundaries by adopting the internal administrative divisions of the old Spanish Empire (see uti possidetis juris, below), this was not done as between Portuguese-America (Brazil) and the Spanish-American polities, and was not possible. Explained John Bassett Moore:
Despite that, for the next 400 years Portuguese America, and its successor Brazil, expanded relentlessly in a generally westwards direction, deep into the lands claimed by Spain and its successors. Summarised E. Bradford Burns:
Today Brazil comprises about half the continent.
The Portuguese got an early start owing to Spanish acquiescence. Although Portugal and Spain legally were separate kingdoms, the same Spanish dynasty sat Iberian Union from 1580 to 1640. Portuguese settlers ignored the Tordesillas limit, and the Spanish crown did not object to their incursions. Thus, by mid 17th century – see map (a) – the Portuguese had established incursive footholds around the mouth of the Amazon and along the south Atlantic coast.
There were too few Portuguese men to conquer the vast lands of Brazil by themselves and almost no Portuguese women went there at first. In effect, sectors of the indigenous people were co-opted. The country was opened up by bands of entrepreneurs. The most famous of these are the bandeirantes, who searched for wealth: Indians to enslave, gold or diamonds. Though generally loyal to the Portuguese king, most bandeirantes were (of mixed race) or perhaps Indians; illiterate; and extremely poor; speaking General Language rather than Portuguese amongst themselves. Some bandeira commanders were black. The wilderness – where they endured severe hardships, and where they hoped to find riches – gripped their imagination. Bandeirismo in one form or another was to persist into the 19th century.
After the restoration of an independent Portuguese monarchy, the Portuguese interpreted the Tordesillas treaty creatively. Their version would have given them not only Patagonia, the River Plate and Paraguay, but even silver-rich Potosí in Upper Peru. Modern research has revealed that their cartographers deliberately distorted maps to convince the Spanish they occupied more land to the east than was the case.
By 1750, the Luso-Brazilians, employing their "indirect method of conquest", had tripled the extension of Portuguese America beyond that allowed by the Treaty of Tordesillas. This method was to occupy the land with people and apply their version of the Roman doctrine of uti possidetis. In the Portuguese view this trumped Spanish paper claims – such as, under the Treaty of Tordesillas – because, as time went by, they became obsolete and no longer reflected reality. Today it might be called facts on the ground.
Portugal articulated its uti possidetis principle in the negotiations leading up to the Treaty of Madrid (1750), and this treaty broadly accepted that lands possessed by Portugal should continue to be so. The Treaty of Tordesillas was annulled.
This new treaty did not stop continuing Luso-Brazilian expansion. The Marquis of Pombal, who virtually ruled the Portuguese Empire, instructed:
Since there were not enough native Portuguese to populate the frontiers (he wrote), it was essential to abolish "all differences between Indians and Portuguese", to attract the Indians from the Uruguay missions, and encourage their marriage with Europeans. The Jesuit missions among the Guaraní Indians stood in the way of this plan, and Pombal had the expelled from the Portuguese empire in 1759. In The Undrawn Line: Three Centuries of Strife on the Paraguayan-Mato Grosso Frontier, John Hoyt Williams wrote:
There were subsequent treaties between Portugal and Spain but for various reasons they never succeeded in defining a frontier between their American possessions.The Treaty of Madrid 1750 was annulled and replaced by the Treaty of San Idelfonso 1777. But the 1777 Treaty did not define the boundaries between the Spanish and Portuguese empires; it merely provided for boundary commissioners to survey the disputed areas and resolve them. Portugal delayed sending commissioners to the disputed areas and, before anything could happen, Spain attacked Portugal during the Napoleonic wars – the so-called War of the Oranges, which was extended to the South American colonies. By the Peace of Badajoz (1801) no provision was made for the restoration of the status quo ante bellum. The 1777 Treaty was admittedly annulled. () Boundary disputes between their respective successor states had to be resolved by recourse to the factual uti possidetis.
Brazil after it achieved its independence continued with the same principles, demanding that all territorial questions be decided on the principle of uti possidetis de facto. In treaties between Brazil and (respectively) Uruguay (1851), Peru (1852), Venezuela (1852), Paraguay (1856), the Argentine Confederation (1857), and Bolivia (1867), the uti possidetis de facto principle was adopted.
This was only a default rule, however, for usually states were careful to specify explicitly in the peace treaty.
Sometimes a war would cease without a peace treaty. (For example, in the Spanish American wars of independence the fighting stopped in 1825, but Spain did not formally recognise the new republics' independence for a generation.) In such cases it was doubtful whether the losing side was deemed (1) to assert the status quo ante bellum or (2) to concede the uti possidetis, but most authors favoured the latter alternative.
although Article 51 does allow self-defence.
A corollary is said to be that international law does not recognise forcible territorial acquisitions, and a treaty procured by force or the threat of force is void; in other words, the uti possidetis interpretation of peace treaties is now obsolete. However, the position of a state which fights in self-defence and recovers territory previously lost to the aggressor does not appear to have been discussed.
Originating after the breakup of the Spanish empire in America, it was there assumed to be possible "by a careful study of Spanish decrees, to trace a definite line of division between the colonial administrative units as of the period of independence". Hence the new states, when settling their mutual boundaries, quite often instructed arbitrators to use the uti possidetis at the date of independence. In reality, it turned out that a definite historical line could rarely be found. Later, the principle was extended to the newly independent African states, and it has been applied to the dissolution of Yugoslavia and the Soviet Union.
The doctrine of uti possidetis juris has been criticised as colliding with the principle of self-determination. It has been argued that instead of promoting definite international frontiers it makes matters worse. Castellino and Allen have argued that many of the modern separatist conflicts or tribal conflicts, such as Biafra, East Timor, Katanga, Kosovo War, and Rwanda, can be traced to blind insistence on such artificial borders.
|
|
