The Influence of the Map on Uti Possidetis Juris and Territorial Integrity

William Thomas Worster*

Introduction

Maps operate to build our perceptions of reality and through that reality, impact our interpretation and
application of international law. Brownlie identified several ways in which maps act as evidence in
international disputes,1 yet maps also inform us about the existence of international law and the content of
that law. Yet maps are human-created, and thus fallible, documents, that select a represent differing
realities. Due to these choices, maps go beyond simply documenting reality and law, but can inform our
imagination of the world sufficient to influence our understanding of legal rules themselves. Sometimes
the term “map” or “road map” is used merely in a figurative sense, to articulate a plan for making
incremental progress towards a goal, usually a goal of the peaceful resolution of a dispute.2 But taken
literally, maps as objects also influence our thinking in far more sophisticated ways.

Consider, for example, the words of the Advocate General Sharpston in the AS v Slovenia case, where, in
assessing the migrant movements from Syria to the EU via Turkey, she paints a picture: “If one looks at a
map of Europe and superimposes upon it a map of the European Union, carefully marking in the EU’s
external frontiers, certain obvious truths emerge.”3 In this case, those obvious truths are that “[t]here is an
extended land frontier to the east bordering nine EU Member States… a ‘land bridge’ leads directly from
Turkey into the European Union … [and] the Mediterranean … [with] closest crossing points … in
Greece, Malta or Italy – or, at the extreme western end, in Spain.”4 In the view of the Advocate General,
this reality was not considered by the EU Member States in crafting EU refugee policy because that
policy did not contemplate that certain Member States would bear a greater burden in dealing with
refugees than others.5 Of course this view assumes that certain Member States, perhaps historically
bearing the burden of refugees, wanted other Member States to now take up that burden instead, making
the map the starting point. It also overlooks the fact that Cyprus, an EU Member State, sits far more
closely located to the refugee flow than other land, yet it does not appear to have the same “reality” of
significant refugee flow. The map exposes these questions. Perhaps the obvious truths exposed by the
map are less than obvious.

Using maps to imagine and prescribe international law

Despite emerging ideas that territoriality and statehood can be separated,6 territory remains a key element
of statehood, and the map can lead the conversation in settlement of territory. Initially, we can see how
the emergence of mapping lead to a cognizable and reliable way of depicting the geographic formations

*
Senior Lecturer, International Law, The Hague University of Applied Sciences, The Hague, The Netherlands; Ph.D. candidate
in International Law, University of Amsterdam, Amsterdam, The Netherlands; LL.M. (Adv.) in Public International Law, cum
laude, Leiden University, Leiden, The Netherlands; J.D., Chicago-Kent College of Law, Illinois Institute of Technology,
Chicago, Illinois; B.A., Modern European History, University of Kansas, Lawrence, Kansas.
1
See IAN BROWNLIE, THE RULE OF LAW IN INTERNATIONAL AFFAIRS 156-61 (1998).
2
See e.g. UNSC Res. 1515, para. 1 (2003) (“Endorses the Quartet Performance-based Roadmap to a Permanent Two-State
Solution to the Israeli-Palestinian Conflict (S/2003/529)”).
3
See Case C-490/16 & 646/16, AS v Sloven. & Jafari v Austr., Op., para. 1 (Adv. Gen. Sharpston, Ct Just. EU, June 8, 2017)
4
See id.
5
See id. at para. 3 (“The ‘Dublin system’ [EU common refugee and asylum system] does not take the map of Europe that I have
just described as its starting point. Rather, it tacitly assumes that all applicants for international protection will arrive by air.”)
(internal footnotes omitted)
6
See Sari Hanafi, The broken boundaries of statehood and citizenship, 2(3) BORDERLANDS (2003) (questioning the territoriality,
and inherent violence, of states in relation to the Israel/Palestine issue)

Electronic copy available at: https://ssrn.com/abstract=3089094

on the earth, which in turn lead to methods for designating territory and a vision of a mapped world. As
long ago as the papal donation bulls of 1493, distance and mapping techniques were used to allocate
territory, rather than purely through use of occupation and effective control.7 In contemporary times, the
map continues to be used for peace settlements, such as the use of the 38th parallel, a purely map-based
designation, for dividing hostiles in the Korean conflict.8

The impact of the map was the most profound where it pushed the re-imagination of territory, space,
sovereignty and the state. Initially hundreds of years ago, maps were produced by private parties in order
to facilitate financial gain, but the promulgation and widespread use of maps encouraged Europeans in the
exploration era to view places in the world no longer as unique, heterogeneous places, but all space as
homogenous, physical resources available for identification, qualification and exploitation.9 With all
territory being homogenous, states must simply be discrete units existing as peers.10 Relationships of
authority that were once personal and feudal evolved into a rigid, uniform hierarchy of sovereignty that
was defined by its territorial scope.11 With the new view of sovereignty as a territorially-based entity with
exclusivity in its mapped boundaries, came increased interest in territorial contiguity and centralization of
political authority,12 as well as the need for recognition from other, neighboring sovereigns.13
Territoriality thus came to serve as the basis for one of the elements of statehood.14 At this time, non-
territorial entities were phased out of relevance since they could not be mapped and given physical
expression in space.15 It is no wonder then that seventeenth and eighteen century actors saw cartography
as “the most important forms of reason”,16 and this legacy continues to today.17 Following the change
from states being assertions of military power in hierarchical relationships to peers under a rule of

7
See e.g. H. Vander Linden, Alexander VI and the Demarcation of the Maritime and Colonial Domains of Spain and Portugal,
1493-1494, 22(1) AMER. HIST. REV. 1-20 (Oct. 1916) (discussing the three papal “Bulls of Donation” of South American territory
between Portugal and Spain: Inter caetera (May 4, 1493), Eximiae devotionis (May 3, 1493) and Dudum siquidem (Sep. 26,
1493))
8
See William A. Taylor, The United Nations, in JAMES I. MATRAY & DONALD W. BOOSE, JR., EDS., THE ASHGATE RESEARCH
COMPANION TO THE KOREAN WAR 104-105 (2014)
9
See Branch, Mapping the Sovereign State, supra.
10
See id. (“this difference is a variation within the framework of exclusive territoriality constituted by the characteristics of early
modern cartography”)
11
See J Bartelson, The Social Construction of Globality, 4(3) INT’L POL. SOC. 219, 223-24 (2010).
12
See CHANDRA MUKERJI, TERRITORIAL AMBITIONS AND THE GARDENS OF VERSAILLES 21 (1997).
13
See Branch, Mapping the Sovereign State, supra.
14
See MALCOLM ANDERSON, FRONTIERS: TERRITORY AND STATE FORMATION IN THE MODERN WORLD 1-36 (1996) (describing
hegemonic aspects of historical and modern importance of frontiers); ANTONY ANGHIE, IMPERIALISM, SOVEREIGNTY AND THE
MAKING OF INTERNATIONAL GREAT POWERS AND OUTLAW STATES: UNEQUAL LAW (2005); John Agnew, The Territorial Trap:
The Geographical Assumptions of International Relations Theory, 1 REV. INT’L POL. ECON. 53, 53 (1994) (asserting that “the
International clear spatial demarcation of the territory,” within which sovereignty is exercised, provides an essential component
of political theory definitions of the state); Brian Taylor Sumner, Territorial Disputes at the International Court of Justice, 53
DUKE L.J. 1779 (2004); Upendra Baxi, Some Newly Emergent Geographies of Injustice: Boundaries and Borders in International
Law , 23 IND. J. GLOBAL LEGAL STUDIES 15, 19 (2016) (“Territoriality and jurisdiction are the very bases of international
organizations and institutions, and lived law, international life. Even in a post-Westphalian era, territorial international
boundaries and borders are often treated as constitutive facts in the formation of ‘national’ identities and cultures.”).
15
See generally HENDRIK SPRUYT, THE SOVEREIGN STATE AND ITS COMPETITORS (1994); JL Holzgrefe, The Origins of Modern
International Relations Theory, 15(1) REV. INT’L STUD. 11–26 (1989); John G Ruggie, Territoriality and Beyond: Problematizing
Modernity in International Relations, 47(1) INT’L ORG. 139–74 (1993). But an exception to this development would be the Holy
See as a non-territorial international legal person, see generally HYGINUS EUGENE CARDINALE. THE HOLY SEE AND THE
INTERNATIONAL ORDER (1976)
16
See generally JERRY BROTTON, TRADING TERRITORIES: MAPPING THE EARLY MODERN WORLD (1997); PICKLES, A HISTORY OF
SPACES, supra at 77 (“Cartographic reason seems to have been so powerful a force in the sixteenth and seventeenth centuries that
it came to signify the most important forms of reason. To map was to think.”); Chandra Mukerji, Printing, Cartography, and
Conceptions of Place in Renaissance Europe, 28 CULT. & SOC. 651-9 (2006).
17
See James Thuo Gathii, Geographical Hegelianism in Territorial Disputes Involving Non- European Land Relations: An
Analysis of the Case Concerning Kasikili/Sedudu Island (Botswana/Namibia), in ANTONY ANGHIE ET AL. EDS., THE THIRD WORLD
AND INTERNATIONAL ORDER: LAW, POLITICS, AND GLOBALIZATION 75 (2003) (arguing that the ICJ’s decision concerning
Kasikili/Sedudu Island exemplifies “geographical Hegelianism”).

Electronic copy available at: https://ssrn.com/abstract=3089094

equality, the state became not only a factual reality, but a juridical concept.18 The study of geography was
forced to add to its study the nature of the state as a political entity.19 Some have even argued that maps
created states out of a precarious political existence20 by depicting a territorial delimitation as a natural
existence, when it is, in fact, man-made.

As observed above, mapping also played a significant role in colonialism. A great number of borders in
the world are of colonial origin.21 On its face, mapping appears to be a scientific exercise, but it also
contains the exercise of power.22 Bounded and depicted territory has not been a universal, natural reaction
to land.23 The colonial project, including the mapping of territory, imposed a new imagination of the
territory on the peoples that inhabited it,24 even if the methods and tools were supposedly “objective”.25
The territory was being reimagined first as “territory”26 and, second, as a coherent unit.27 Maps were
presented from a particular view of history, Eurocentric and progressive.28 David Harvey coined the term,
the “geographies of difference,” to describe colonial and capitalist geographical knowledge production.29
Harvey furnished the insight that politics, democratic or otherwise, consist of control over and production
of “space,” requiring students of politics to study and understand how “places get erected into
permanencies within the flux and flow of capital circulation”30 and through the colonial encounter,
indigenous peoples may have adopted the imposed imagination.

If states are equal and territory is homogenous, then we need a rule justifying what would otherwise be
arbitrary divisions of territory into polities. Drawing on Benedict Anderson,31 maps select a reality to
depict and a national mapping project is partly an exercise in creating national unity and asserting
independence.32 Maps certainly have a role in forming public opinion,33 but also serving as myths,
imagined means to unify a state.34 There is a need to define peoples in order to find a coherent holder of
each state’s juridical rights, such as the collective right to self-determination.35 The pictorial

18
See Baxi, Some Newly Emergent Geographies of Injustice, supra note 14. Also see Robert H. Jackson & Carl G. Rosberg, Why
Africa’s Weak States Persist: The Empirical and the Juridical in Statehood, 35 W. POLS. 1, 4 (1982); Lee J.M. Seymour,
Sovereignty, Territory and Authority: Boundary Maintenance in Contemporary Africa, 5 CRIT. AFR. STUD. 17, 17- 21, 29 (2013).
19
See GORDON L. CLARK & MICHAEL DEAR, STATE APPARATUS: STRUCTURES AND LANGUAGE OF LEGITIMACY (1984); Alexander
B. Murphy, International Law and the Sovereign State System: Challenges to the Status Quo, in DEMKO & WOODS, REORDERING
THE WORLD, supra at 209.
20
See Wood & Fels, Designs on Signs, supra at 64 (“outside the world of maps, states carry on a precarious existence; little of
nature, they are much of maps, for to map a state is to assert its territorial expression, to leave it off to deny its existence”)
21
See Baxi, Some Newly Emergent Geographies of Injustice, supra note 14 at 19.
22
See generally FABIAN, LANGUAGE AND COLONIAL POWER, supra.
23
See Nesiah, Placing International Law, supra.
24
See W. Sahara, Adv. Op., 1975 ICJ Reps 12, 64 (“The migration routes of almost all the nomadic tribes of Western Sahara, the
Court was informed, crossed what were to become colonial frontiers.”) Clearly the people that inhabited the territory had a
different imagination of the place.
25
See id. at 145 (Oct. 16) (De Castro, J, sep. op.)
26
See id. at 125-6 (Dillard, J, sep. op.) (observing that the Court viewed sovereignty through the lens of “post-Reformation
Western-oriented societies”).
27
See generally FABIAN, LANGUAGE AND COLONIAL POWER, supra.
28
See generally GEORGE WILHELM FRIEDRICH HEGEL, THE PHILOSOPHY OF HISTORY (J. Sibree trans., 1956); ROBERT YOUNG,
WHITE MYTHOLOGIES: WRITING HISTORY AND THE WEST (2nd ed. 1990).
29
See DAVID HARVEY, JUSTICE, NATURE AND THE GEOGRAPHY OF DIFFERENCE 334-65 (1996).
30
See id. at 295; Baxi, Some Newly Emergent Geographies of Injustice, supra note 14.
31
See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES (rev. ed., 1991).
32
See Mark Monmonier, The Rise of the National Atlas, 31:1 CARTOGRAPHICA 1, 1 (1994) (“the national atlas has been a symbol
of national unity, scientific achievement, and political independence”)
33
See Wright, Map Makers are Human, supra (“Maps help to form public opinion and build public morale.”)
34
See Guntram H. Herb, National Identity and Territory, in GUNTRAM H. HERB & DAVID H. KAPLAN EDS., NESTED IDENTITIES:
NATIONALISM, TERRITORY, AND SCALE 16 (1999).
35
See Matthew Craven, Statehood, Self-determination and Recognition, in MALCOLM EVANS, ED., INTERNATIONAL LAW 203, 232
(3rd ed., 2005) (“but there did at least seem to be a need to determine who the people were before they were asked to decide upon
their political future.”)

3
representation of the state within its borders creates an image of the state, and a visualization of the state
as a natural occurrence in that territory, necessarily with rights to the space. We might wonder why
Kosovo would carry a map of the state on its flag as the symbol of the state.36

The map created a vision of what the territorial unit included, and importantly, what it excluded. We can
see the role of maps in, e.g., building the concept of “Europe” for purposes of EU and membership. So
far, the EU is not usually featured on world maps of general circulation, further emphasizing its non-state
nature. Although one might wonder whether the European Union project would enjoy greater enthusiasm
if maps of Europe over the past few decades chose an artistic approach that was more suggestive of a
federal entity. On the other hand, perhaps the non-membership of Switzerland and Norway might visually
interrupt the pictorial unity of Europe and remind EU citizens of the gaps in the EU as a satisfactory
political entity. In considering the possibility of Turkey joining the Council of Europe, the Parliamentary
Assembly considered that the definition of “Europe” should follow the “generally accepted geographical
limits of Europe”37 which the Assembly considered evidenced by the 1984 edition of the Encyclopaedia
Britannica.38 This definition blended geological and cultural criteria and demonstrates that the notion of
Europe cannot be purely described by scientific geographic techniques.39 The role of mapping in creating
or reflecting political choices may help explain the awkward exclusion of Turkey from the map of Europe
on the reverse of the Euro coin, contrasted with the inclusion of Cyprus.40 Also it is not without
significance that on the Euro coin, Cyprus was shifted geographically westward.41

There are two ways in particular that this phenomenon of mapping imagination happens in international
law: the notions of uti possidetis juris and territorial integrity. Both of these concepts largely arise from
the de-colonization movement, and yet exhibit a tendency for the map, and its vision of the territorial
boundary of the state, to influence the emergence of legal rules. In essence, the map helps to reimagine
the colonies as territorial self-determination units with a certain territorial scope.

36
See Andrew Wander, With independence looming, Kosovo to pick a flag, CHR. SCI. MONITOR (Feb. 8, 2008) available at
http://www.csmonitor.com/World/Europe/2008/0208/p25s04-woeu.html (“The rules stipulated that the flag must not carry any
image associated with an ethnic group but should be politically neutral to avoid aggravating tensions between the Albanian
majority and Serb minority in Kosovo.”)
37
See Council Eur. Parl. Assembly Doc. 6975, 7103 (“As the boundaries of Europe have not yet been comprehensively defined
under international law, the Council of Europe should, in principle, base itself on the generally accepted geographical limits of
Europe … Only states whose territory lies wholly or partly in Europe, and whose culture is closely linked with European culture
should be able to request membership of the organisation.”)
38
See id. at Explanatory Memo 2.
39
See id.

As regards the geographical limits of Europe, the Rapporteur accepts those adopted by European geographers and set out in most of
European encyclopedias, such as the Encyclopaedia Britannica (1984 edition) which reads: ‘As to the territorial limits of Europe,
while these seem clear on its three seaward flanks, they have been uncertain and hence much debated on the east, where the continent
merges, without sundering physical limits, with parts of western Asia. Even to the north and west, many island groups — Svalbard
(Spitsbergen), the British Isles, the Faeroes, Iceland, and the Madeira and Canary islands — that are European by culture are included
in the continent, although Greenland is conventionally allocated to North America. Further, the Mediterranean coast lands of northern
Africa and southwest Asia also exhibit some European physical and cultural affinities, and Turkey and Cyprus, while geologically
Asian, possess elements of European culture and may, perhaps, be regarded as parts of Europe. Eastward limits, now adopted by
European (including Soviet) geographers, assign the Caucasus to Asia and are taken to run southward along the eastern foot of the
Urals …’
40
See Eur. Centr. Bank, The Euro, Coins, Common sides, available at
http://www.ecb.europa.eu/euro/coins/common/html/index.en.html; Elitsa Vucheva, Turkey cut out of new euro coins, EU OBS.
(Sep. 25, 2007) available at https://euobserver.com/economic/24840.
41
See id.

4
Uti possidetis juris

Uti possidetis, ita possidetis (“uti possidetis juris” or “uti possidetis”) is a well-established principle in
international law42 that is largely informed and imagined as a rule through the influence of the map. The
idea comes from the Roman law rule that “uti possidetis, ita possidetis,” or “as you possess, so may you
possess.”43 This rule was first applied in South America in the de-colonization movement, later migrating
to Africa and Asia, 44 before finally being applied to the European continent outside of a classic colonial
context.45

In essence, the rule states that a newly independent state that represents a former sub-state or federal
entity (or colonial territory), will continue to enjoy the same borders as international borders that it
enjoyed as sub-state or federal borders or administrative boundaries. 46 Stated another way, the territorial
unit remains intact within its established boundaries when it moves to independence and self-
governance.47 The principle is used in two major contexts: (1) It can operate as the inheritance of an
international boundary, where the boundary the new state acquires was previously settled between two
imperial sovereigns;48 (2) It can operate as the internationalization of an internal administrative boundary
within a single sovereign upon that territory’s independence.49 In the latter, the border was settled
unilaterally under domestic law by a single sovereign, whereas in the former it was settled under
international law between two or more sovereigns, and these two processes are quite different in terms of
their politics and flexibility. The relative ease by which the Crimea was transferred between states of the
USSR can be compared to the difficulty of the attempted transfer from Ukraine to Russia, long after the

42
See STEVEN RATNER, UTI POSSIDETIS AND THE BORDERS OF NEW STATES 44 (2002); MALCOLM N. SHAW: THE HERITAGE OF
STATES: THE PRINCIPLE OF UTI POSSIDETIS JURIS 97 (1997). Also see generally JAMES CRAWFORD, THE CREATION OF STATES IN
INTERNATIONAL LAW (2d ed., 2006).
43
See Joshua Castellino, Territorial Integrity and the “Right” to Self-Determination: An Examination of the Conceptual Tools,
33 BROOK. J. INT’L L. 503, 508 (2008) (“[T]he object of the interdict was to recognize the status quo in any given dispute
involving immovable property, and was therefore designed to protect existing arrangements of possession without regard to the
merits of the dispute.”)
44
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 554, para. 25(Dec. 22); GORDON IRELAND,
BOUNDARIES, POSSESSIONS AND CONFLICTS IN SOUTH AMERICA 321-328 (1938); SURYA P. SHARMA, TERRITORIAL ACQUISITION,
DISPUTES AND INTERNATIONAL LAW 120 (1997) (“The doctrine of uti possidetis [was] enunciated as early as 1810 …”); IAN
BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 132 (5th ed.1998); SUZANNA LALONDE, DETERMINING BOUNDARIES IN A
CONFLICTED WORLD: THE ROLE OF UTI POSSIDETIS 24-30 (2002); Weissberg, Maps as Evidence, supra; Steven R. Ratner,
Drawing a Better Line: Uti Possidetis and the Borders of New States, 90(4) AM. J. INT’L L. 590, 593-595 (1996) (“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.”); P. Mweti Munya, The International Court of Justice and Peaceful Settlement of African Disputes: Problems,
Challenges and Prospects, 7 J. INT’L L. & PRAC. 159, 215 (1998); Mark W. Zacher, The Territorial Integrity Norm: International
Boundaries and the Use of Force, 55 Int’l Org. 215, 229–31 (2001).
45
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 565 para. 20 (Dec. 22) (“[t]he principle (uti
possidetis juris) is not a special rule which pertains solely to one specific system of international law. It is a general principle,
which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs”); Land, Isl. & Marit.
Frontier Disp. (El Salv/Hond., Nic. Interv.), Judgment, 1992 ICJ Reps 351 (Sep. 11); Conf. on Yugoslav., Arb. Comm’n Op. No.
3 (Jan. 11, 1992), reprinted in 31 INT’L L. MATS. 1488, 1499-1500 (1992); Michla Pomerance, The Badinter Commission: The
Use and Misuse of the International Court of Justice’s Jurisprudence, 20 MICH. J. INT’L L. 31 (1998). Also see Charter
Establishing the Commonwealth of the Independent States, June 22, 1993.
46
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 554, para. 25 (Dec. 22) (“stability in order to
service, to develop and gradually to consolidate their independence in all fields”); JRV PRESCOTT, POLITICAL FRONTIERS AND
BOUNDARIES 105-106 (1987); PETER MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 162-163 (7th
rev. ed., 1997); BROWNLIE, PRINCIPLES, supra note 44 at 133; Ratner, Drawing a Better Line, supra note 44 at 593-5.
47
See NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 154-6 (1945); YEHUDA Z. BLUM, HISTORIC
TITLES IN INTERNATIONAL LAW 341–42 (1965); Burghardt, Bases of Territorial Claims, supra at 229.
48
See generally VICTOR PRESCOTT & GILLIAN D. TRIGGS, INTERNATIONAL FRONTIERS AND BOUNDARIES: LAW, POLITICS, AND
GEOGRAPHY (2008).
49
See Yash Ghai, Reflections on Self-Determination in the South Pacific, in DONALD CLARK & ROBERT WILLIAMSON, EDS., SELF-
DETERMINATION: INTERNATIONAL PERSPECTIVES 174, 182-3 (1996); Craven, Statehood, supra note 35 at 232.

5
fall of the USSR. It has also been argued that uti possidetis should not apply outside of the colonial
context,50 however, this argument has not generally prevailed, and it was applied in cases where the
imperial power permitted considerable independence, local governance51 and even in situations that
would not qualify as “salt-water” colonialization.52

Whether it can truly be characterized as a legal rule has been challenged. Notwithstanding the views of
some, 53 the rule does not appear to be a peremptory norm.54 The International Court of Justice (ICJ) has
concluded that it is a rule of international law,55 but using the language that suggests that it is merely a
logical conclusion,56 not necessarily specifically prescribed through custom or general principles of law.
Some authors view it as a “principle of customary international law”57 whereas others see it as a general
principle of law.58 While the ICJ has never specifically determined that it is a default rule for all cases of
independence,59 it has suggested that it would apply as a default rule for de-colonialization issues.60

Others do not see the principle as a default, but as a specific rule that can be adopted by agreement.61
What is clear is that when states consent to the rule, it is applied,62 and that states have clearly deviated
from the rule in their specific relations.63 The ICJ has said that a boundary treaty could adopt the
principle,64 or it could be adopted by practice. 65 In such a case, de facto control would not govern the
situation, uti possidetis would. 66 Whereas in cases in which the treaty terms were unclear (or practice

50
See UNGA Res. 1514 (XV) Declaration on the granting of independence to colonial countries and peoples (Dec. 14, 1960);
Peter Radan, The Borders of a Future Independent Quebec: Does the Principle of Uti Possidetis Juris Apply?, 15 AUST’LIAN
INT’L L.J. 200–214 (1997). Also see BROWNLIE, PRINCIPLES, supra note 44 at 129-30 (7th ed.2008).
51
See Maritime Delimit. & Terr. Qs betw Qatar & Bahrain (Qatar v Bahr), Merits, Judgment, 2001 ICJ Reps. 40 (Mar. 16).
52
See MALCOLM D. EVANS, ED., INTERNATIONAL LAW 225–228, 244 (2d ed., 2006); Yugoslav. Arb. Comm’n Op. No. 3, supra
note 45.
53
See NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 155 (1945); Zacher, The Territorial
Integrity Norm, supra note 44 at 221.
54
See Case Concerning the Arb. Award Made by the King of Spain on 23 Dec. 1906 (Hond. v Nic.), Judgment, 1960 ICJ Reps.
192, 215 (Nov. 18); Beagle Channel case, supra at para. 23; Delimitation of the maritime boundary between Guinea and Guinea-
Bissau, Decision, XIX UNRIAA 149 (Arb., Feb. 14, 1985); ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW
AND HOW WE USE IT 123-4 (1994).
55
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, para. 20 (Dec. 22); W. Sahara, Adv. Op., 1975
ICJ Reps 12
56
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, para. 20 (Dec. 22) (“It [uti possidetis] is a
general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs.”);
SHAW, TITLE TO TERRITORY IN AFRICA, supra note 42; Craven, Statehood, supra note 35 at 232.
57
See generally DAVID RAIČ, STATEHOOD AND THE LAW OF SELF-DETERMINATION (2002).
58
See Certain Frontier Land case (Belg. v Neths.), supra.
59
See Honduras borders (Guatem., Hond.), II UNIRAA 1307, 1322 (Arb., Jan. 23, 1933) (citing the Treaty of Arbitration, July
16, 1930, Guat-Hond, Art. I “the only juridical line which can be established….is that of the Uti Possidetis of 1821”); Case
Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 557, 565 (Dec. 22) (“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, Isl. & Marit. Frontier Disp. case (El Salv/Hond.), supra note 317 at para. 40.
60
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, para. 25 (Dec. 22); Sumner, Territorial
Disputes, supra note 14.
61
See Honduras borders case, supra note 59 at 1322; Land, Isl. & Marit. Frontier Disp. case (El Salv/Hond.), supra note 317 at
para. 43.
62
See Honduras borders case, supra note 59 at 1322; Land, Isl. & Marit. Frontier Disp. case (El Salv/Hond.), supra note 317 at
para. 43; US Dep’t St., Cable No. 1973TEGUCI03171_b (Aug. 23, 1973).
63
See UNSC Res. 389 (1976) (re East Timor); UNGA Res. 32/34 (1977) (same); King of Spain Arb. Award case, supra note 54
at 215; N. Cameroons (Cam. v. UK), 1963 ICJ Rep. 15, 21-25 (Dec. 2) (discussing the division of Cameroon); Ratner, Drawing a
Better Line, supra note 44 at 599, n 68 (describing exception of a merged Somalia and integrated Aden); MICHLA POMERANCE,
SELF-DETERMINATION IN LAW AND PRACTICE: THE NEW DOCTRINE IN THE UNITED NATIONS 19-20 (1982) (discussing division of
Belgian Rwanda-Urundi, British Gilbert and Ellice Islands, and US Trust Territories).
64
See Certain Frontier Land case (Belg. v Neths.), supra; Temple case, supra; Land, Isl. & Marit. Frontier Disp. case (El
Salv/Hond.), supra note 317.
65
See Land, Isl. & Marit. Frontier Disp. case (El Salv/Hond.), supra note 317 at para. 62.
66
See Frontier Disp. case (Benin/Niger), supra at para. 27.

6
unclear), uti possidetis would not be applied. 67 Because of this jurisprudence, Shaw regards uti possidetis
as being a presumption, where has not been expressly adopted or excluded.68 Another view is that uti
possidetis is simply a pragmatic solution to prevent instability of borders, and thus social and
international instability.69

Whether consent is the critical factor in assessing the existence of the rule is difficult to identify, partly
because so many territories around the world were formed by colonial practice or agreement, without
consent of the local population.70 It certain appears on its face to have been a practice of the colonial
powers.71 Where the parties did not want the rule applied, they were clearly empowered to deviate from it
or disregard it,72 yet it was applied to de-colonialization in a way that conflicts with self-determination.73
The ICJ squares this circle by resisted the link between uti possidetis and self-determination, making the
link only with sovereignty disputes.74 It argues that the maintenance of international peace and stability
helps the peoples pursue their self-determination,75 and self-determination is not usually understood to
include the authority to alter borders of the self-determination unit.

We should not necessarily link consent to border delimitation to self-determination. At the time of
colonialism and regardless of our contemporary approval, the colonial powers were responsible under
international law for the international relations of the relevant colonized territories. Where non-Western
states were not colonized, their expression of consent to uti possidetis was crucial to establishing the
rule.76 In fact, uti possidetis was sometimes even applied by colonial authorities to colonial territories, for
example when the borders of some colonial territories were settled by reference to the pre-colonial
boundaries.77 A similar practice of needing consent was applied in the case of the Baltic republics
following the end of the USSR.78 Thus, the application of uti possidetis should be dependent on the
consent by the authority which has international responsibility for the territory, which will usually be the
government of the state.

However, if it is a rule that is based on consent of the territory, then we can wonder whether the newly
independent territory has consented to the continuation of the rule’s application. That is to say, whether
the legal principle is not only a rule of the colonizers, but also the colonized. Is it not possible that the
calls for independence from the peoples of the territories themselves were already expressed in a
colonialist framework? That is to say, that the peoples asked for the colonial bounded territory
specifically to be independent when they demanded the independence of the colonial entity. In demanding

67
See Delimit. maritime boundary case Guinea/Guinea-Bissau, supra note 54.
68
See Malcolm N. Shaw, Peoples, Territorialism, and Boundaries, 8(3) EUR. J. INT’L L. 478 (1997).
69
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 565, 661-2, para. 13 (Dec. 22) (Abi-Saab, J.,
sep. op.); NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 115, 155 (1945); AO CUKWURAH, THE
SETTLEMENT OF BOUNDARY DISPUTES IN INTERNATIONAL LAW 6 (1967); Ratner, Drawing a Better Line, supra note 44 at 593-5.
Although it is debatable whether the rule has actually reduced the number of border disputes in former colonies.
70
See generally PRESCOTT & TRIGGS, INTERNATIONAL FRONTIERS AND BOUNDARIES, supra note 48.
71
See e.g. Junwu Pan, Chinese Philosophy and International Law, 1(2) ASIAN J. INT’L L. 233 (2011) (arguing that uti possidetis
was tied to the concept of unequal treaties)
72
See King of Spain Arb. Award case, supra note 54 at 199-200, 215; Maritime Delimit. & Terr. Qs betw Qatar & Bahrain (Qatar
v Bahr), Merits, Judgment, 2001 ICJ Reps. 40 (Mar. 16).
73
See Weissberg, Maps as Evidence, supra; Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 567
(Dec. 22); Ratner, Drawing a Better Line, supra note 44 at 591 (“[A]pplication of uti possidetis to the breakup of states today …
ignores critical distinctions between internal lines and international boundaries …”); Nesiah, Placing International Law, supra.
74
See Temple case, supra.
75
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554 (Dec. 22); Nesiah, Placing International Law,
supra.
76
See generally PRESCOTT & TRIGGS, INTERNATIONAL FRONTIERS AND BOUNDARIES, supra note 48.
77
See The Indo-Pakistan Western Boundary (Rann of Kutch) (India, Pakistan), XVII UNRIAA 1, 407-521 (Arb. Trib., Feb. 19,
1968); Robert L Solomon, Boundary Concepts and Practices in Southeast Asia, 23(1) W. POLS. 1–23 (Oct. 1970).
78
See generally INETA ZIEMELE, STATE CONTINUITY AND NATIONALITY: THE BALTIC STATES AND RUSSIA (2005).

7
the independence of “Kenya”, “India”, or “Brazil”, the local population was demanding the independence
of the colonially defined territory.79 Modern readers might be tempted to view the peoples of these
territories as maintaining their imagination of themselves distinct from the colonizers,80 but this view
assumes that they did not experience a colonialization of the mind when ideas of bounded territorial space
were imposed on them and then eventually accepted by them. While the colonizing power may have
imagined the territory as unified when it was previously not,81 the peoples participated in receiving that
imagined context when they sought the independence of the same unified and bounded territory that the
colonizer had created.82 If a people did not express an intention to claim any particular territories at
independence, we must assume that the people shared the same imagination as others did.83 After all, uti
possidetis as the governing rule was accepted by the peoples themselves in treaties,84 General Assembly
Resolutions85 Organization of African Unity resolutions, 86 and in cases at the ICJ.87

The acceptance and application of uti possidetis means that peoples are imagined by themselves within
the structure of contemporary statehood,88 and the colonial space, drawing on a visual notion of the extent
of the state. The authorities have mapped and divided up the indigenous peoples into different territories
according to ability to exercise control, not ethnic or cultural identities.89 Shaw observes that “the
principle of self-determination has operated in practice to safeguard the colonial delimitations and
overrule purely ethnic definitions of the ‘self,’ so that the ‘self’ must be determined within the colonial

79
Some initial movements for independence within the Kenya Crown Colony were focused on particular geographic and ethnic
groups such as the Kikuyu and Luo. However, the groups that initially concentrated on geographic independence for the ethnic
group transforming into a group advocating for the independence of the colonially determined territory because they needed to
accept the colonial territory as an entirety in order to access the mechanisms of the crown colony’s government. At the London
conference in 1960, some limited agreement was reached for moving towards independence, although by this point within the
context of the entire crown colony as a unit. In 1962, a coalition government was formed and assumed governance of Kenya
which became independent in 1963 as the Dominion of Kenya within the Commonwealth. The next year, it became a republic.
The history of this movement towards independence shows that this colony sought independence with the context of the colony
that had been created by the colonial power. See e.g. ROBIN HALLETT, AFRICA TO 1875: A MODERN HISTORY 35, 229 560-561
(1970); We Want Our Country, TIME (Nov. 5, 1965); M. Lonsdale, Some Origins of Nationalism in East Africa, 9(1) J. AFR. HIST.
119-146 (1968); David Goldsworthy, Ethnicity and Leadership in Africa: the ‘Untypical’ Case of Tom Mboya, 20(1) J. MODERN
AFR. STUD. 107-126 (1982); A. Fiona D. Mackenzie, Contested Ground: Colonial Narratives and the Kenyan Environment,
1920–1945, 26(4) J. S. AFR. STUD. 697-718 (2000). Also see generally KEITH KYLE, THE POLITICS OF THE INDEPENDENCE OF
KENYA (1999); R. MUGO GATHERU, KENYA: FROM COLONIZATION TO INDEPENDENCE, 1888–1970 (2005).
80
See Felix Driver, Geography’s Empire: Histories of Geographical Knowledge, in STEPHEN DANIELS & ROGER LEE, EDS.,
EXPLORING HUMAN GEOGRAPHY: A READER (1996).
81
See generally M.H. EDNEY, MAPPING AN EMPIRE: THE GEOGRAPHIC CONSTRUCTION OF BRITISH INDIA, 1765–1843 (1997); D.
Ludden, History Outside Civilisation and the Mobility of Southern Asia, 17(1) S. ASIA 1 (1994).
82
See generally P. CHATTERJEE, NATIONALIST THOUGHT IN THE COLONIAL WORLD: A DERIVATIVE DISCOURSE? (1986); Nesiah,
Placing International Law, supra.
83
See e.g. US Dep’t St., Cable No. 1978STATE049594_d (Feb. 25, 1978)

The Government of Israel had given assurances on June 5 [1967] in Prime Minister Eshkol’s letter to Preside;t [sic] Johnson: ‘We
seek nothing but peaceful life within our territory, in the exercise of our legitimate maritime rights.’ It did not alter or modify these
assurances when hostilities terminated. (Israel claimed no territory beyond the armistice lines at the time, thus, the reference to ‘our
territory’ meant the territory within those lines.)

84
See Honduras borders case, supra note 59 at 1322 (citing the Treaty of Arbitration, July 16, 1930, Guat-Hond, Art. I ).
85
See UNGA Res. 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples, para. 4 (1960).
86
See Organization of African Unity (OAU) Resolution AHG/Res.16(I) on Border Disputes between African States (July 1964);
OAU Resolution AHG/Res. 167. (XXIII); Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 565 (Dec.
22).
87
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 565 (Dec. 22); Land, Isl. & Marit. Frontier
Disp. case (El Salv/Hond.), supra note 317 at para. 40.
88
See Case Concerning the Land & Marit. Boundary betw Cameroon & Nigeria (Cam. v Nigeria: Eq. Guinea Interv.), Judgment,
2002 ICJ Reps. 303 (Oct. 10).
89
See Hans-Joachim Heintze, Self-Determination, Right of, in HELMUT VOLGER, ED., A CONCISE ENCYCLOPEDIA OF THE UNITED
NATIONS 505–510 (2002).

8
territorial context”,90 thus leading to what Mutua calls the “contrived state.”91 This view is that the natural
extent of a state should be the same as that of a nation or people,92 that the definition of the people should
be informed by the mapped borders of the territory, and that a foreign, external authority could define the
extent of the territory by creating a modern, statehood paradigm that becomes accepted by the local
population.

It is here that the role of map becomes relevant. To what degree did the existence of a map, or a clearly
identified, bounded and visually documented territory, with a name, influence the various holders of the
right to determination to view the bounded territory as a legitimate unit? We have always had difficulty
identifying which individuals are included in each self-determination unit,93 sometimes relying on
ethnicity or language.94 Duursma in her study on self-determination of the micro-states of Europe
attempts to determine how a state like Liechtenstein can be said to have a self-determination right based
on being a people distinct from the other Germanic peoples it neighbors, concluding that the existence as
a state, through whatever historical process (in Liechtenstein’s case, purchase of the territory by a noble
family over 300 years ago), leads to a right to self-determination.95

Following Benedict Anderson again, the existence of the border lines, albeit drawn by a colonizing
power, helped create a vision of the entirety of the spatially bounded territory as the legitimate entity, and
thus a framework for viewing the extent of the unified self-determination unit.96 We can see this
reasoning in the ICJ’s view that uti possidetis is a “photograph of the territory”.97 Of course taking
photographs of only the territory of the self-determination unit and omitting neighboring territory is not
possible, so we should understand the ICJ to be imaging the self-determination unit as a bordered and
contained territorial space, inspired by a visual representation, that can somehow be separated from the
larger area in which it sits. If the ICJ is correct in identifying the self-determination unit, then it may be
that the inhabitants of the artificially delimited colonial territory have taken on the identity of the new
territory,98 visualizing the bordered unit, and eventually viewing the “contrived state” as legitimate.99 In
essence, their imagination has also been colonized. When the local inhabitants demanded independence of
that territorial unit within the existing international legal system, they invoked the vision of that
90
See MALCOLM SHAW, TITLE TO TERRITORY IN AFRICA: INTERNATIONAL LEGAL ISSUES 93 (1986).
91
See Makau wa Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16(4) MICH. J. INT’L L. 1113-1176 (1995).
Also see Antony N. Allott, The Changing Legal Status of Boundaries in Africa: A Diachronic View, in KENNETH INGHAM, ED.,
FOREIGN RELATIONS OF AFRICAN STATES 111-128 (1974); ANDERSON, FRONTIERS, supra note 14 at 78 (states in Africa and Asia
“cannot be considered as entities for purposes other than the geographical and cartographical”)
92
See MICHAEL HECHTER, CONTAINING NATIONALISM 65 (2000); David Friedman, A Theory of the Size and Shape of Nations,
85(1) J. POL. ECON. 59, 72 (1977); Anthony D. Smith, Ethnic Identity and Territorial Nationalism in Comparative Perspective, in
ALEXANDER J. MOTYL, ED., THINKING THEORETICALLY ABOUT SOVIET NATIONALITIES: HISTORY AND COMPARISON IN THE STUDY
OF THE USSR 45, 47 (1992); James D. Fearon, Commitment Problems and the Spread of Ethnic Conflict, in DAVID A. LAKE &
DONALD S., THE INTERNATIONAL SPREAD OF ETHNIC CONflICT: FEAR, DIFFUSION, AND ESCALATION 107, 110 (1998).
93
See Joshua Castellino, Territory and Identity in International Law: The Struggle for Self-Determination in the Western Sahara,
28(3) MILLENNIUM: J. INT’L STUD. 525, 530 (1999); H.E. Goemans, Bounded Communities: Territoriality, Territorial
Attachment, and Conflict, in MILES KAHLER & BARBARA F. WALTER, EDS., TERRITORIALITY AND CONflICT IN AN ERA OF
GLOBALIZATION 25–61 (2006); David B. Carter & H.E. Goemans, The Making of the Territorial Order: New Borders and the
Emergence of Interstate Conflict, 65 INT’L ORG. 275 (2011). Also see generally EUGEN WEBER, PEASANTS INTO FRENCHMEN: THE
MODERNIZATION OF RURAL FRANCE 1870–1914 (1976); PETER SAHLINS, BOUNDARIES: THE MAKING OF FRANCE AND SPAIN IN THE
PYRENEES (1991).
94
See Oren Yiftachel, The Homeland and Nationalism, in 1 ALEXANDER J. MOTYL, ED., ENCYCLOPEDIA OF NATIONALISM 359–83
(2001); Carter & Goemans, The Making of the Territorial Order, supra note 93.
95
See generally JORRI C. DUURSMA, FRAGMENTATION AND THE INTERNATIONAL RELATIONS OF MICROSTATES (1996). The rejection
of the notion that the Liechtenstein people formed a people distinct from the other Germanic peoples likely underlies the outcome
in the Nottebohm case. See Nottebohm (Liecht. v. Guatem.), 2d phase, 1955 ICJ Reps. 4, 23 (Apr. 6).
96
See Nesiah, Placing International Law, supra.
97
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, 569 (Dec. 22).
98
See Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT’L L. 177 (1991).
99
See W. Sahara, Adv. Op., 1975 ICJ Reps 12, 64 (Morocco arguing that colonial territories granted its title to Western Sahara).
Also see Mutua, Why Redraw the Map of Africa, supra note 91.

9
territorially bounded entity imagined on the map. In the words of the ICJ, the “territorial status quo”,
determined by uti possidetis, is then defined as “what has been achieved by peoples who have struggled
for their independence.” 100

Territorial integrity

In the section above on uti possidetis, the author submitted that the act of creating and mapping borders
could change the imagination of colonial powers, international courts, and perhaps even colonized
peoples to limit the claim to territory to the mapped area. In this section, a slightly different argument is
made: that the map might inspire an imagination that the state has a more expansive natural extent, giving
rise to a valid claim over foreign territory under the notion of territorial integrity. Quite simply, does
looking at a map, and visualizing an image of the state, of a continent, a peninsula, or a geographic
expanse trigger an understanding that a people has a natural right to the entirety of the landscape?

Certainly, sometimes states are bounded by natural geographic features,101 yet states are not natural in the
sense that a mountain or river is natural.102 In some way a choice must be made to use a geographic
feature as a territorial delimitation. This choice has made be made for pragmatic reasons, but can also
form part of how the state’s extent is imagined. Geographic features are easily to see and understand as
limitations to the exercise of sovereignty. This may explain why Curzon agreed that rivers make
particularly good borders.103 But this reality is sometimes conflated with an argument that a state has a
natural right to territory because of geographic features.104

All states agree that they have an opposable right against all other states to maintain their territorial
integrity.105 It is the scope of integrity that is at issue. Sometimes it is controversial whether the state has a
claim to national unity or political unit, which might be different.106 Some states go so far as to claim that
their right to unity includes not only the unity of the present state against diminishment or interference,
but that the state may hold a claim to foreign territory based on their view of the natural frontiers of the
state.107 The UNSC has in fact also expressed this view at times.108 Even the 1659 Treaty of the Pyrenees,

100
See Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554, para. 25 (Dec. 22).
101
See W. Sahara, Adv. Op., 1975 ICJ Reps 12; Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554
(Dec. 22).
102
See Koskenniemi, National Self-determination Today, supra at 241.
103
See CURZON OF KEDLESTON, FRONTIERS 21 (2d ed., 1908).
104
See W. Sahara, Adv. Op., 1975 ICJ Reps 12; Case Concerning the Frontier Disp. (Burk. Faso/ Mali), 1986 ICJ Reps. 554
(Dec. 22) (Ammoun, VP, sep. op. at 85-6). Also see generally FREDERICK MERK, MANIFEST DESTINY AND THE MISSION IN
AMERICAN HISTORY (1963); ALBERT RUSSEL ASCOLI & KRYSTYNA VON HENNEBERG, EDS., MAKING AND REMAKING ITALY: THE
CULTIVATION OF NATIONAL IDENTITY AROUND THE RISORGIMENTO (2001).
105
See UNSC Res. 822 (Apr. 30, 1993) (“Reaffirming the respect for sovereignty and territorial integrity of all States in the
region,”); UNSC Res. 853 (July 29, 1993) (“Reaffirming the sovereignty and territorial integrity of the Azerbaijani Republic and
of all other States in the region,”); UNSC Res. 874 (Oct. 14, 1993) (“Reaffirming the sovereignty and territorial integrity of the
Azerbaijani Republic and of all other States in the region,”); UNSC Res. 887 (Nov. 12, 1993) (“Reaffirming the sovereignty and
territorial integrity of the Azerbaijani Republic and of all other States in the region,”); UNGA Res. 68/262, Territorial integrity of
Ukraine (Apr. 1, 2014); US Dep’t St., Cable No. 07BAKU499_a (Apr. 24, 2007) (“In an April 24 conversation with the
Ambassador, Deputy Foreign Minister Azimov repeated the GOAJ’s [Government of the Republic of Azerbaijan’s] request for a
‘very clear indication that the US recognizes Nagorno-Karabakh as part of the Republic of Azerbaijan.’”); Org. for Security &
Co-op. in Eur. (OSCE), Conference on Security and Co-operation in Europe (CSCE); Final Act of Helsinki (Aug. 1, 1975); US
Dep’t St., Cable No. 08BAKU279_a (Mar. 25, 2008) (same message sent to Embassies of Russia and France); PATRICIA CARLEY,
SELF-DETERMINATION, SOVEREIGNTY, TERRITORIAL INTEGRITY AND THE RIGHT TO SECESSION 8 (1996).
106
See US Dep’t St., Cable No. 1974GENEVA03295_b (May 27, 1974) (discussing whether integrity provides for “unity”,
“political unity” or “national unity”).
107
See DS PRINSLOO, WALVIS BAY AND THE PENGUIN ISLANDS: BACKGROUND AND STATUS 4 (1977)

It is true that geographically Walvis Bay forms part of SWA [South-West Africa, or Namibia]: but Alaska, surrounded by Canada,
remains part of the USA; Hong Kong, surrounded by the People’s Republic of China, is a British colony; Gibraltar, surrounded by
Spain, is British territory; and Northern Ireland, geographically part of Ireland and separated by sea from Britain, is part of the United

10
which officially introduced the principle of dividing France from Spain along the “natural frontier” of the
Pyrenees mountains,109 contained this notion. The idea behind some assertions of territorial integrity is
that there is a natural extent of the state’s territory, usually meaning that the state should encompass an
entire peninsula or geologic formation, and that enclaves, mini-states or colonies within the geographic
area infringe on the state’s natural area.110 Certainly a state might wish to hold certain territory for
military or economic advantage,111 but this view expresses a claim to title derived from a perception of
the natural extent of territory, a kind of “geographical predestination.”112 The perception of territory can
be modelled by the geography itself113 which is then expressed through language expressing the
perception.114

Kingdom. The argument of geographical contiguity is therefore irrelevant. In fact, South Africa’s claim to sovereignty over Walvis
Bay has never been disputed, and has been formally recognized by the League of Nations, the United Nations and the International
Court of Justice.

Of course, the author does not admit that Gibraltar and even Northern Ireland, remain controversial and Hong Kong was
eventually returned to China. Also see US Dep’t St., Cable No. 1974USUNN04083_b (Oct. 21, 1974)

During last day of UNGA general debate October 10, Guatemalan PermRep Maldonado exercised his right of reply ... to set forth once
again its position in relation to Belize, which constitutes an integral part of the territory of the Republic [of Guatemala] by virtue
hostory [sic], law and international justice … The position of Guatemala has always been in solidarity with that of the countries of
Latin America and other continents in the struggle attain the liberation of all peoples subjected to colonial regimes and particularly to
eliminate that system from American territory … The obsolete, anachronistic system of colonialism still persists in the Americas and
in some enclaves occupied by extrahemispheric powers, despite the fact that sovereignty over them legally belongs to American states.
Such is the case of the Guatemalan territory of Belize, the restitution of which from the possession of the United Kingdom of Great
Britain and Northern Ireland has been demanded by my country for more than a century. This claim has been maintained
uninterruptedly, based as it is on unimpeachable legal principles and all kinds of efforts have been made, within the canons of
international law, in the search for a solution.

108
See UNSC Res 432, para. 1 (July 27, 1978) (“Declares that the territorial integrity and unity of Namibia must be reassured
through the reintegration of Walvis Bay within its territory”). But see Letter from RSA PM Vorster, paras. 1, 4, 9, 10 (July 23,
1978) reproduced at Dep’t St., Cable No. 1978STATE187844_d (July 25, 1978)

1 … I was heartened to receive your letter, which more accurately reflects the understanding at which the South African Government
and the Governments of the Five had arrived ... 4 ... They acknowledged that Walvis Bay was not part and parcel of South West
Africa, alluding merely to the possibility that a controversy might arise about the issue at some future stage. They acknowledged that
they were not arguing at all about the political and legal situation in respect of Walvis Bay. Your representatives acknowledged that
they not deny the rights of South Africa from a legal point of view ... 9 ... Furthermore, most Afro-Asian and Latin American countries
have accepted that colonial boundaries must, under international law continue to be the boundaries after independence ... No entity can
claim the right to add to or to diminish the area of the former mandated territory of South West Africa. Under international law South
Africa has sovereignty over Walvis Bay ... 10 ... It was, therefore, with a profound sense of shock and amazement that I learnt of the
intention to introduce a resolution in the Security Council supported by the Five which completely negates this understanding ... If,
therefore, this is the intention, and the responsible powers are willing to submit to a new arrangement the cases, for example,
Gibraltar, Cabinda, Hong Kong, Northern Ireland, Berlin, Belize, Panama Canal, Guantanamo Bay and Macao, to mention only some,
then we for our part would also be prepared to have the case of Walvis Bay examined on the same basis.

109
See Branch, Mapping the Sovereign State, supra..
110
See Ratner, Drawing a Better Line, supra note 44 at 614, n.192.
111
See NORMAN J.G. POUNDS, POLITICAL GEOGRAPHY 254-6 (2d ed. 1972); Herb, National Identity and Territory, supra note 34
at 9, 20; Zacher, The Territorial Integrity Norm, supra note 44 at 244.
112
See NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 74 (1945); POUNDS, POLITICAL
GEOGRAPHY, supra note 111 at 257; Burghardt, Bases of Territorial Claims, supra at 236; Peter Sahlins, Natural Frontiers
Revisited: France’s Boundaries Since the Seventeenth Century, 95 AM. HIST. REV. 1423 (1990).
113
See NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL LAW AND RELATIONS 141-2 (1945); Burghardt, Bases of
Territorial Claims, supra at 236.
114
See David Simon, Strategic Territory and Territorial Strategy: The Geopolitics of Walvis Bay’s Reintegration Into Namibia,
15(2) POL. GEO. 193 (1996) (“Differences in perspective between the Namibian and former South Africa governments are
encapsulated in the terminology used to decide that transfer of Walvis Bay … Thus, for example, the Namibians always refer to
the ‘reintegration’, implying the restoration of a former and legitimate status. On the other hand, the South Africans talked of
‘incorporation’ or ‘transfer’, reflecting their belief that this represents a new departure in what amounts to a gesture of goodwill
on their part.”) Also see e.g. UNSC Res 432, para. 1 (July 27, 1978) (using the term “reintegration” in relation to the transfer of
Walvis Bay).

11
Often this claim is based on a colonial deprivation of the territory at issue and the state is seeking return
of its former territory. Certainly, former colonies who acquire their borders through uti possidetis have a
right to territorial integrity,115 though some states may claim that their integrity was infringed prior to
independence, by not respecting their naturally occurring borders. Once again, however, we have the
challenge of conceiving of the territory whose unity is insured, especially in a de-colonialization context
where it is difficult to identify the coherent collective unit that holds the right against dismemberment by
the colonial power. This difficulty is most recently expressed in the pending request for an advisory
opinion from the ICJ on the issue of the Chagos Archipelago.116 Two difficulties are that, outside of a
colonial context, it is near impossible to derive a natural frontier, with legal consequences, from
geographic formations. The second is that in a colonial context, the state emerging from foreign
domination did not usually have distinct personality or title to territory prior to the colonialization. It is
difficult to understand how the creation of a new state from disparate sovereign entities, that legally
dispossess themselves of the territory, grants a title to the territory in the new state.117 This paper
considers the map, as a visualization of territory, may play a role in forming this imagined, natural
territory, as the map is an attempt to depict natural geographic formations.

In the interesting case of Goa, the map’s existence is perhaps implicit in notions of natural boundaries
being the entirety of the subcontinent asserted by India during its annexation of the Portuguese colony. Of
course, Goa was separated by Portugal from previously existing political entities in the subcontinent with
very different borders.118 The territory of Goa had been conquered and re-conquered by those various
political entities throughout history in the region.119 India, as a unified political entity, only came into
existence many centuries after the establishment of the Portuguese colony. It is difficult then to imagine
what the “natural” boundaries of India, as a young political entity, could be, unless we can maintain in our
minds eye an image of the entire subcontinent as a unified political entity with a pre-existing coherent
right to unity. This picture of what India is meant to include is given physical expression in a map of the
sub-continent, showing the Portuguese colony as an interruption of the normal extent of the state. Thus,
the map might inform our notion of the full (natural) scope of the people and state.

115
See US Dep’t St., Cable No. 1976NAIROB01556_b (Feb. 18, 1976) (“The Government of Kenya views with great concern
the radio and newspaper reports on the pronouncements attributed to the President of the Republic of Uganda [Idi Amin Dada],
purporting to claim some parts of Kenya based on colonial history.”); US Dep’t St., Cable No. 1977NAIROB13684_c (Oct. 21,
1977) (“President Kenyatta took advantage of Annual Kenyatta Day (October 20) speech to express resolve to defend national
integrity at any cost.”); US Dep’t St., Cable No. 1978STATE070413_d (Mar. 18, 1978) (Somalia’s respect for neighbor’s
territorial integrity).
116
UNGA Res. 71/292 (June 22, 2017) (requesting advisory opinion from the ICJ on the question of the division of a British
colony prior to its independence)

(a) “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following
the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in
General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966
and 2357 (XXII) of 19 December 1967?”;
(b) “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising
from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including
with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in
particular those of Chagossian origin?”.

117
Also see R on the appl. of Bashir & others v Sec’y St. Home Dep’t & Sov. Base Area Auth., Case No: CO/879/2015, [2016]
EWHC 954 (Admin) (High Ct. Just., QB., Admin. Ct., UK, April 28, 2016) (holding that the creation of a new political unit
severs continuity for purposes of treaty adherence).
118
Tom Ruys, The Indian Intervention in Goa – 1961, in T. RUYS & O. CORTEN, EDS., THE USE OF FORCE IN INTERNATIONAL LAW:
A CASE-BASED APPROACH (forthcoming 2017) .
119
See Pratima P. Kamat, Historical Geography and Natural Resources, in 2 TEOTONIO R. DESOUZA, ED., GOA THROUGH THE
AGES: AN ECONOMIC HISTORY 8-17 (1990) (documenting the historical series of conquests and loses of Goa including the
Portuguese conquest).

12
This imagination was given voice in the discussion about Goa in the UN Security Council. The
representative of India argued that Goa was a “part of our country”120 and that “the people of Goa are as
much Indians as the people of any other part of India”,121 using expressions such as “we” and “ourselves”
when referring to the Goan and Indian people.122 This argument stands in stark contrast to Portugal’s
practice considering its territories in India as “overseas provinces” of the metropolitan state, not
colonies.123 However, the only reason for the separation of Goa from the other indigenous entities in the
subcontinent hundreds of years ago was colonialism, 124 and, but for colonialism, the people of Goa would
already be reunited with the remainder of India. The Indian representative did acknowledge that the
situation had been in place of 450 years, but rejected that as irrelevant because the territory was
continually under colonial domination during that time. 125 Although he initially argued that there is “no
legal frontier … between India and Goa”,126 he quickly backed off that argument to acknowledge that
Portugal’s position might be a legally correct, though formalistic.127 For these reasons, India submitted
that the use of force to take Goa from the Portuguese was not an unlawful use of force against a foreign
state. 128

This idea is of course a modern invention and a re-imagination of the historical processes in the region. In
forming the new state of India, we must develop an image of what its territorial extent will be. Is it simply
the independence of the British Raj? Or does it also include the integration of the Princely States? Or does
it also include the French and Portuguese territories on the subcontinent? And perhaps it even includes the
majority Muslim regions that later became independent Pakistan and alter Bangladesh? One view of the
submissions regarding Goa would be that the inhabitants of Goa were Indian nationals, which the state of
India would have a right to liberate and protect, based on those inhabitants natural ethnicity or cultural
resemblance.129 If this natural nationality argument could be sustained, then indeed there might be an
argument for self-determination.130 This view is difficult to sustain because the people of India are
remarkably diverse, which undermines a natural ethnicity nationality argument.131 It also sits awkwardly
with the well-known strategy of descendants of inhabitants of Goa claiming Portuguese nationality, and
thus European Union citizenship, and relocating to the UK,132 being a pragmatic strategy or perhaps

120
See UNSC Verbatim Record, UNSCOR 16th yr, 987th mtg, UN Doc. S/PV.987 (Dec. 18, 1961), para. 46 (Jha (India)).
121
See id.; UNSC Verbatim Record, UNSCOR 16th yr, 988th mtg, UN Doc. S/PV.988 (Dec. 18, 1961), para. 77 (Jha (India)).
122
See UNSC Verbatim Record, 987th mtg, supra note 120 at para. 46 (Jha (India)).
123
See UNSC Verbatim Record, 988th mtg, supra note 121.
124
See UNSC Verbatim Record, 987th mtg, supra note 120 at para. 46 (Jha (India)).
125
See id. (“The fact that they have occupied it [Goa] for 450 years is of no consequence”).
126
See id.
127
See id. at para. 47 (Jha (India)) (“narrow-minded, legalistic considerations .. brought up on the atmosphere of colonialism.”)
128
But see id. at para. 72 (Stevenson (US)) (comparing the use of force by India to the “use of armed force by one State against
another - Korea in 1950, in Suez and in Hungary in 1956 and in the Congo in 1960.”).
129
See DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 219-24 (1985) (discussing self-determination in the context of
language); Juan J. Linz, From Primordialism to Nationalism, in EDWARD A. TIRYAKIAN & RONALD ROGOWSKI, EDS., NEW
NATIONALISMS OF THE DEVELOPED WEST: TOWARD EXPLANATION 203, 204 (1985) (commenting that many nationalist movements
referred to primordial ties “based on a common language, culture, distinctive religion, or kinship”); Herb, National Identity and
Territory, supra note 34 at 12 (discussing ethnic identity based on “the commonality of language and culture”); David B. Knight,
People Together, Yet Apart: Rethinking Territory, Sovereignty, and Identities, in DEMKO & WOODS, REORDERING THE WORLD,
supra at 71, 74–75 (noting the “religious, political, cultural, historical, and psychological bases” of group territorial identities).
130
See UN Charter, art. 1, para. 2 (“To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples …”); International Covenant on Civil and Political Rights, Dec. 16, 1966, art. 1, para. 1, 999
UNTS 171, 173 (“All peoples have the right of self-determination.”); NORMAN HILL, CLAIMS TO TERRITORY IN INTERNATIONAL
LAW AND RELATIONS 115 (1945); Herb, National Identity and Territory, supra note 34 at 11-13 (discussing the application of
self-determination principles in the post-World War I and post-World War II periods).
131
See Malcolm N. Shaw, Territory in International Law, 13 NETHS. YB INT’L L. 61, 63 (1982) (noting that territory contributes
to “a sense of group identity”); Lea Brilmayer & Natalie Klein, Land and Sea: Two Sovereignty Regimes in Search of a Common
Denominator, 33 NYU J. Int’l L. & Pol. 703, 731 (2001) (people “develop strong attachments to the places where they settle into
communities”).
132
See Prasun Sonwalker, Brexit to hit Goans using Portuguese route to UK, HINDUSTAN TIMES (Mar 02, 2016) available at
http://www.hindustantimes.com/world/brexit-to-hit-goans-using-portuguese-route-to-uk/story-oUdtSNgkgZplrqQ1eEMPIN.html.

13
implicitly affirming an identity more aligned with Europe than with India. Another view is that the
territory was legally part of the (future) Indian state during its years of occupation, but then this view
clashes with the Indian argument submitted in the Rann of Kutch arbitration that affirmed that the Indian
Princely states were sovereign states under international law,133 and not part of the state of India.134 In any
event, in the Right of Passage case, the ICJ found it clear that Portugal had sovereignty over those
territories at issue on the subcontinent. The Court held that the sovereign that ceded the territories to the
Portuguese was the Maratha Empire, not “India”.135 A third understanding could be that the new state
formed an imagination of what the state “looked like”, and any imagination of the territorial extent of the
state would resemble and be informed by a birds-eye map.

Conclusion

This paper has argued that maps have a largely overlooked role in prescribing rules and positions under
international law. By choosing to depict geographic features, the visual representation of reality may
feedback and influence that reality. This process then contributes to an imagination of what the law or
position is, which in turn justifies and motivates interpretation and prescription of law. Yet maps
themselves are not naturally occurring; they are political documents that can suffer from failings of
method, approach and choice of representation. So while they can provide evidence of geographic
features and conditions, or identify human activity in the world, and are subject to evidentiary limitations
to proving these facts, they also operate in the background of international law, influencing international
legislation and settlement.

133
See The Indo-Pakistan Western Boundary (Rann of Kutch) (India, Pakistan), XVII UNRIAA 1, 7, 20-21, 37, 51-62 (Arb.
Trib., Feb. 19, 1968) (observing the argument of India that the Indian states were independent political entities subject to
international law prior to, during and following the British Raj, e.g. arguing that the maharaja of a princely state was the
“competent and authorised person” to dispose of the sovereignty of that state)
134
See The Indo-Pakistan Western Boundary (Rann of Kutch) (India, Pakistan), XVII UNRIAA 1, 65 (Arb. Trib., Feb. 19, 1968)
(India arguing that a Princely State prior to accession to India was not “part of India”).
135
See Case Concerning the Right of Passage over Indian Territory (Port. v. Ind.), Merits, Judgment, 1960 ICJ Reps. 6, 39 (Apr.
12)

It is clear from a study of the material placed before the Court that the situation underwent a change with the advent of the British as
sovereign of that part of the country in place of the Marathas. The British found the Portuguese in occupation of the villages and
exercising full and exclusive administrative authority over them. They accepted the situation as they found it and left the Portuguese in
occupation of, and in exercise of exclusive authority over, the villages. The Portuguese held themselves out as sovereign over the
villages. The British did not, as successors of the Marathas, themselves claim sovereignty, nor did they accord express recognition of
Portuguese sovereignty, over them. The exclusive authority of the Portuguese over the villages was never brought in question. Thus
Portuguese sovereignty over the villages was recognized by the British in fact and by implication and was subsequently tacitly
recognized by India. As a consequence the villages comprised in the Maratha grant acquired the character of Portuguese enclaves
within Indian territory.

14