Reconceptualising 'Uti Possidetis' principle to hone its invocation in the context of twenty-first century's phase of state-creation : the case of Kurdistan and Iraq in perspective

• Main Author: Qader, Soran
• Other Authors: Smith, Tara
• Published: Bangor University 2018
• Subjects: 340; Law
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.760201

This PhD thesis is primarily concerned with the critical examination of a principle commonly, but inaccurately, called ‘Uti Possidetis’. This Latin American origin principle, has found a universal adoption over the years. The present study seeks to explore in depth, the merit and viability of this colonial formulation, with specific reference towards its application to contemporary issues of statehood in the 21st century. The thesis shows that the principle has been universally accepted and invoked. Across the globe, states and international judicial bodies warmly embraced this principle. This, in turn, has propelled the principle towards paramount significance within international law. It has contributed effectively to shaping the boundary lines of more than 80% of current sovereign states. However, on the jurisprudential level, the principle is one of the most criticised and controversial principles, dividing international lawyers and political scientists. There have always been recursive controversies concerning its viability and applicability in the modern age. Scholarly views of the principle present an extreme division, and no dominant opinion has yet emerged. The central argument of the thesis is that claiming the inapplicability of the principle in the modern time, is but a futile argument in contradiction with the spirit of international law and the prevalent practice on the ground. However, the principle in its current traditional form suffers from several theoretical complications and numerous of practical deficiencies, and that no aspect of it has been immune from diverse complexities. This has made the principle to provide an equitable solution for the territorial and boundary issues. Having reviewed a prodigious amount of literature, the thesis demonstrates that, despite the enormous amount of academic activity focused on the principle, its precise contours have remained ambiguous. Thus, the current literature has left a multiplicity of questions unanswered and dozen sets of gaps unfilled. The thesis expounds that neither frequent application nor a revival in academic interest have mitigated the fatal deficiencies from which the traditional version of the principle has long suffered. Despite its universally widespread invocation, the traditional formulation of the principle has remained somewhat tenuous, with extensive discourse over its proper derivation, identification and application. However, this traditional formulation cannot be deemed without merit. In the absence of palatable alternatives, it might still offer the viable solution, but only when it is reconceptualised, modernised, and purged of its anachronistic features. Thus, the provision of this reconceptualisation is the central task of the thesis, and its authentic contribution to knowledge. Deploying a modern methodology, and a deeper more holistic analysis, the thesis hones the old version of the principle, inherently down to its core, and ameliorates its increasing complexities. Ultimately, the thesis sets out to establish a totally fresh formulation out of it, to be dubbed as the modern Default Boundary Principle. The modernised formulation, which will be developed in this thesis, accommodates modern developments in the contemporary international law. It provides a sophisticated means of conflict prevention and management for the territorial and boundary aspects of statehood. It functions as a restorative, clear-cut, and equitable solution, which is capable of delivering wideset range of peace and stability. This pioneering academic enterprise will, therefore, provide a genuine contribution to current understanding of the principle and offer guidance to the relevant decision makers on how to apply the new formulation. Thus, to ensure the validity and unbiased progression of the novel approach, the thesis will examine the modernised formulation as applied to contemporary cases of statehood, namely the entangled and the grossly under-studied case of Kurdistan and Iraq. Finally, this in-depth study of modernising ‘Uti Possidetis is unique. This, can be attributed to the fact that such an approach has not previously been available, and no other work provides an equivalent understanding. Thus, the thesis claims to be among the first comprehensive academic research dealing with the international legal problems involved in the principle. The findings of this study challenge several prevalent views and settled opinions in the relevant current literature. The thesis, therefore, needs to be firmly established in intellectual discourse and in the lexicon of international law. This observation is highlighting a genuinely novel trend as far as we can tell, comes out as a direct and genuine contribution of the present thesis to knowledge.