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Republic of Mali) the International Court of Justice noted that, given the acceptance of the principle of uti possidetis juris (reliance upon former colonial administrative boundaries) in the case by both par- ties it was not necessary to show that the principle was firmly estab- lished in international law where decolonization was involved. Nevertheless, the Court insisted that uti possidetis juris is a general principle of international law which exists to prevent the stability of new states being endangered by fratricidal struggles, themselves pro- voked by the challenging of frontiers following the withdrawal of the administering, colonial power. This is not just an administrative pro- cedure in Africa but a rule of general scope.1 One might note the oblique way the issue of self-determination of peoples is side-stepped by such turns of phrases as that African states have been induced judiciously to consent to the respecting of colonial frontiers and to take account of it in the interpretation of the principle of self- determination of peoples . . . 2 This is a euphemism for the suppres- sion of secessionist movements in African states. This African decision has been applied by Europe s international lawyers in the context of the break-up of Yugoslavia. The Conference on Yugoslavia s Arbitration Commission, in its Opinion No. 3 (January 11, 1992), had to answer the question whether the internal boundaries between Croatia and Serbia and between Bosnia- Herzegovina and Serbia should be regarded as frontiers in terms of public international law a question put by the Republic of Serbia. The Opinion of the Commission was that once the break-up of Yugoslavia led to the creation of one or more independent states, except where otherwise agreed, the former boundaries between the Yugoslav republics should become frontiers protected by inter- national law. The principle of respect for the territorial status quo and M637 CARTY TEXT M/UP.qxd 16/1/07 9:46 AM Page 80 Gary Gary's G4:Users:Gary:Public:Gar 80 Philosophy of International Law the principle of uti possidetis juris meant that these boundaries were not to be altered, except by agreements freely concluded. The alter- ation of existing frontiers or boundaries was not capable of produc- ing any legal effect.3 Another intimately related question was put by the Republic of Serbia. Does the Serbian population of Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self- determination? The answer of the Commission, in its Opinion No. 2, was negative. It held: (1) Not all the implications of self-determination were clear under contemporary international law. Nevertheless, the right of self-determination must not involve changes to frontiers at the time of independence, except by agreement between the states con- cerned the principle of uti possidetis juris. (2) Ethnic religious and language communities within a state had the right to recognition of their identity under international law. One possible consequence of this principle might be for the members of the Serbian population in the two republics to be recognized under agreements between all the republics as having the nationality of their choice.4 So it appears that the system of international law offers the general admonition that no claim to self-determination must be allowed to infringe the principle of territorial integrity of existing states. However, international law also accepts the imperative that there are limits to an insistence upon the status quo. Beyond a certain measure of endurance, people may revolt against discrimination and human rights and ethnic abuse.5 International law attempts, as well, to insist on a right of democratic governance as a ground of legitimacy which states are supposed to accept.6 While all of these considerations amount to interesting grounds for intellectual reflection and debate, there is no consistent and reliable institutional theoretical or practical framework for accommodating these different elements of a possible legal system. The subject is made that much more difficult because of the unwill- ingness of the profession to consider theoretical questions in this case, what minimum set of principles and institutions must an inter- national legal order have to qualify legitimately for the title of legal order or system? For instance, it is particularly difficult within the dis- cipline of analytical jurisprudence, which takes its inspiration from Hart s Concept of Law, to pose effectively the question whether inter- national law makes up a legal system. It supposes the priority of what- ever happens to be the dominant (i.e. general or community) perspective of the chief officials of a legal order as against recalcitrant M637 CARTY TEXT M/UP.qxd 16/1/07 9:46 AM Page 81 Gary Gary's G4:Users:Gary:Public:Gar International Legal Personality 81 minorities or dissident members. This community priority is inevitable given the value skepticism which underlies the analytical approach. One can only understand obligation from the internal per- spective of those submitting themselves to it. One can only take lan- guage at face value, asking how it is actually used in society.7 So, by way of typical illustration, the present editors of Oppenheim s ninth edition of International Law define international law, as any other law, in social terms as rules of conduct accepted in a community by common consent and enforced by an external power (para. 3). They rely upon the classical distinction between law and morality (para. 17) in terms of the latter applying to conscience and the former being enforced by external authority. A clear weakness of international law, recognized by the editors, is that the enforcement mechanisms of international law continue to be unsatisfactory and [ Pobierz całość w formacie PDF ] |