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Max Planck Encyclopedia of Public International Law [MPEPIL]


Victor Kattan

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 March 2019

Colonization / Decolonization — Self-determination — Occupation — Boundaries

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A. Etymology

The word ‘partition’ appears to have first been used in the modern period to describe various attempts to partition the Spanish Habsburg Empire during the dispute over the Spanish Succession in ‘partition treaties’ concluded in 1668, 1698 and 1700. The aim of these treaties, which were concluded in secret (Treaties, Secret), was to prevent a war over the Spanish Succession (1701–1714) by equitably subdividing the empire between competing sovereigns to maintain the peace of Europe (Balance of Power). In the nineteenth century, ‘partition’ was invoked by jurists to condemn the partitions of Poland by Austria, Prussia, and Russia in successive treaties of cession concluded in 1772, 1793 and 1795. The partition of Africa between European states and African chiefs following the Berlin West Africa Conference (1884–85) was also concluded by way of treaties of cession, and through the establishment of protectorates (Protectorates and Protected States) that established spheres of influence whose boundaries continue to shape the modern geography of Africa. The partition of Africa was later reinforced by the uti possidetis doctrine which was adopted by the Organization of African Unity, now the African Union (AU), in the Cairo Declaration of 1964. Similarly, the partition of the Middle East into mandates at the San Remo Conference (1920), following earlier discussions in London and Paris, found initial expression in the Treaty of Sèvres (1920), and after Turkey refused to ratify that treaty, in the Lausanne Peace Treaty (1923). The Lausanne treaty continues to shape the boundaries of the Levant. In Ireland, India, and Palestine, nationalists condemned British policy during decolonization (Decolonization: British Territories) when their countries were ‘partitioned’. The post-war divisions of Germany, Korea, and Vietnam (Divided States) that were exacerbated by the Cold War (Cold War, 1947–91) have also been described as partitions. Following the end of the Cold War, some political scientists have suggested partition as a solution to end the conflicts in Bosnia, Kosovo, Iraq, and Syria.

B. Definition

Partition is best understood as an imposed boundary (Boundaries) that results in the creation of distinct sovereign units. What distinguishes partition from other boundary arrangements is its involuntary nature. This is because partition often severs territory from a people (Peoples) claiming self-determination without its consent. Or where consent has been obtained, serious concerns remain as to how that consent was obtained, and whether it was the result of coercion or duress. While the political representatives of the peoples affected by partition may have consented to being divided, they may not agree on the manner or the shape that partition takes, which is left to the exclusive discretion of the partitioning power(s). Accordingly, partition is an inherently hegemonic act (Hegemony). This is because the interests of the partitioning powers are prioritized over the interests of the peoples directly affected by the partition. The hegemonic nature of partition may explain why it was more frequent during the Cold War (1947–91), and during the height of European imperialism and colonialism.

Partition is a unilateral act imposed by a colonial, neighbouring, regional, or superpower (Superpowers and Great Powers). Partition may also be imposed by an administering power with the consent of a group of states acting in concert or collectively through an international organization like the United Nations (UN). Partition must not be confused with boundary delimitation or even demarcation (Demarcation Line), which is a consensual arrangement between at least two states by way of treaty or some other agreement. This is because decisions to partition territory result from the policies of a third agency that is in a hegemonic, and therefore, unequal relationship with the representatives of the territory that is being divided as to the exact geographical arrangement that partition will take (Treaties, Unequal). Accordingly, partition is a triangular relationship, not in the sense that there must be a treaty between three states; usually partition treaties are bilateral. But the treaty, legislation, order, or proclamation giving effect to partition, must affect the interests of more than two parties.

The imposition of new boundaries by an external agency is necessary to distinguish partition from secession, which refers to the creation of a new state through the separation of part of the territory and population of an existing state, without the consent of that state. Without the role of an external agency and the establishment of a new boundary, partition would be indistinguishable from secession in which case every form of partition could be described as secession. While secession may be a consequence of partition, it is not necessarily equivalent, since the power imposing partition determines the line of partition. While the establishment of a new border is a hallmark of partition it may also be possible for a third party to transform an internal border delineating the subdivision of a state—such as a county, federation, or an autonomous region—into an international boundary dividing two states.

Partition is often used to describe a division of land and sea where there is a politically active community in the territory that has a government (Governments) that wishes to maintain its territorial integrity and political independence. Their lack of consent to partition may explain why the word ‘partition’ only became an adjective to criticize the division of populated territory in the 18th century when nationalism began to affect international relations. This may be contrasted with the division of uninhabited land (terra nullius), for example, where no opposition could be expressed. Partition may also be used as a pejorative to describe the division of the territory of a colony to establish a new State because that division is incongruent with the unit established during colonization: the island of Ireland, the Indian subcontinent, Palestine, Cyprus, or Vietnam. In these cases, ‘partition’ was referenced in connection with a claim of illegality as it was argued by those opposing partition that the state which emerged from decolonization should inherit the borders that had been established during colonization under the doctrine of uti possidetis iuris. The existence of a popular movement opposing partition may exist in the territory at the time of partition or it may emerge as a consequence of the partition having provoked nationalist opposition. In these situations, an insurrectionary movement claiming self-determination (Irredentism) may arise in opposition to the partition.

During the Cold War (1947–91), partition represented a fissure, rupture, schism, or fault line separating the divergent approaches towards decolonization that had been adopted by the liberal democracies, the Soviet Union, and the Non-Aligned Movement (NAM), especially following the Bandung Conference (1955). The liberal democracies supported self-government in Trust Territories (United Nations Trusteeship System) and non-self-governing territories in an evolutionary and progressive manner in accordance with Chapters XI, XII, and XIII United Nations Charter (‘UN Charter’). In contrast, the Soviet Union and the NAM called for the immediate independence of the European colonies in Africa and Asia under the doctrine of self-determination. These differing approaches to decolonization were raised in the South West Africa Cases (1960–1966) but the International Court of Justice (ICJ) refused to consider the merits of the cases (South West Africa/Namibia [Advisory Opinions and Judgments]). The differing approaches to decolonization at the UN during the Cold War were also raised in the arbitration between the United Kingdom (‘UK’) and Mauritius established under Art. 287, Annex VII, and Art. 1 United Nations Convention on the Law of the Sea (1982) (‘UNCLOS’) (Law of the Sea, Settlement of Disputes), but was not resolved in the 2015 Award (Chagos Marine Protected Area Arbitration [Mauritius v United Kingdom]). However, two of the Arbitrators in their Dissenting Opinion opined that self-determination had developed into customary international law before the detachment of the islands from the Seychelles and Mauritius to form the British Indian Ocean Territory in 1965; and accordingly considered their detachment unlawful.

These divergent approaches to decolonization that were propagated by competing ideological powers during the Cold War resulted in new boundaries being established that did not previously exist in the territory or coastal waters of the state or self-determination unit that was divided, and which led, or purported to lead, to a change of sovereignty in a part of, or in all of, the territory concerned (Territorial Change, Effects of).

C. Typology

Partition can be categorized into different kinds. These include: (1) partition as a method of allocating spheres of influence between great powers to maintain a balance of power; (2) partition as a barrier to prevent the spread of subversive ideas or totalitarian doctrines; (3) partition as a technique of decolonization; and (4) partition as a form of conflict resolution.

Partitions may be due to a combination of factors. The partitions of Poland in the 18th century, for example, could be viewed as a way of preserving the balance of power in Europe, as a method of allocating spheres of influence between Austria, Prussia, and Russia, and as a barrier to prevent the spread of subversive ideas following the French Revolution. Similarly, the partition of British India in 1947 could be viewed as a technique of decolonization, and a form of conflict resolution, as well as an attempt to preserve order in South Asia to prevent a dangerous political vacuum emerging following Britain’s withdrawal.

1. Partition as a Method of Allocating Spheres of Influence

10 Historically, agreements allocating spheres of influence between great powers was a way of maintaining an equilibrium among the sovereigns of Europe. A policy of territorial compensation was practiced from the beginning of European colonialism in the late 15th century, when the Pope divided the world in two, until the early 20th century. In this historical period, conquest was recognized by the public law of Europe as a valid means to increase a sovereign’s power and prestige.

(a) The Pope Divides the World

11 Following the discovery of the ‘New World’, Pope Alexander VI in The Bull Inter Caetera (3 May 1493) divided the earth—as it was then known—into amity lines in which he drew a distinction between Christian and non-Christian lands. To avoid conflict between the Catholic kingdoms of Portugal and Spain, a further agreement was concluded in the Treaty of Tordesillas (1494) when a line was drawn from the Arctic to the Antarctic separating Portugal’s possessions in the Cape Verde Islands and on the western coast of Africa from Spain’s possessions in the Indies. The aim of the treaty was to avoid the outbreak of a general war in Europe between the kingdom of Portugal and the Crown of Castile.

(b) The Anglo-Dutch Partition Treaties

12 The partition treaties concluded between Britain and the United Provinces in 1698 and 1700 sought to prevent the establishment of a universal monarchy through the unification of the French and Spanish empires—although they failed in their aim when the treaties were exposed. The idea behind the partition treaties was to equitably redistribute Spanish territory amongst Britain, the United Provinces, and France, in the event Charles II of Spain died without issue. Otherwise, it was feared this inheritance—which in addition to Spain, central Europe, and southern Italy, included the Americas, the Caribbean, and the Spanish East Indies—would render Louis XIV omnipotent. If France did not agree to ‘the said Partition’, Britain and Holland were required by Art. X First Treaty of Partition (1698) to hinder his pretensions ‘with all their might’. The failure of Louis XIV to agree to the treaties led to the War of the Spanish Succession that only ended following the Peace of Utrecht (1714).

(c) The Partition of Africa

13 The 1884–85 Berlin West Africa Conference sought to further a dialogue between the European Powers with a view to fixing approximate borders in Africa that had yet to be mapped in advance of occupying them to reduce the potential for conflict in Africa (as opposed to Europe). Art. 35 General Act provided that the powers that took possession of tracts of African land had to notify all the other signatory powers so that they could object if the need arose. The purpose of this provision to avoid conflicting claims and to prevent states from advancing claims to territory based on the most tenuous of connections. Significantly, there was no African representation at Berlin. It was thought that African tribes were too primitive to understand the concept of sovereignty to cede it by treaty, despite the views of Kasson, the American delegate, who expressed the view that to acquire African land modern international law required the ‘voluntary consent of the natives’. Despite doctrinal objections, the states that partitioned Africa did so through the conclusion of protectorates and treaties of cession.

(d) The Partition of Papua and the Solomons

14 Britain divided the southern and south-eastern half of the island of Papua and the Southern Solomon Islands on 18 September 1888 when the Protectorate of British New Guinea was declared over the southern coast declaring it part of the Queen’s Dominion. The annexation was provoked by the Colony of Queensland’s attempt to annex Guinea. The Colony wanted Britain to protect its sphere of influence from Germany, which had annexed the northern coast of the island. The western half of the island remained administered as part of the Dutch East Indies and was divided by the German and British spheres by the 141st meridian longitude east. No effort was made to obtain the agreement of the Papuan people to the annexation. As in Africa, it was thought that numerous tribes in Papua and New Guinea were too primitive to understand the concept of sovereignty to cede it by treaty.

(e) The Partition of the Middle East

15 The partition of the ‘Middle East’—otherwise known as the ‘Levant’ or ‘West Asia’—into spheres of influence in League of Nations Mandates as initially envisaged in the secret Sykes-Picot agreement (19 May 1916) sought to allocate units for European colonization in advance of actual possession and establish a customs union to prevent post-war competition in West Asia when it came to allocating territory at the Peace Conference following the First World War. With conquest having fallen into disrepute in Europe in the 19th century, Mandates, instead of colonies, were established over the former possessions of the Ottoman Empire, where self-government as opposed to self-determination, was applicable. An Inter-Allied Commission on Mandates in Turkey was sent to the Levant (Fact-Finding) to ascertain the wishes of the inhabitants on a range of matters, including whether the United States (‘US’) should be Mandatory Power. The findings of the report were suppressed by the European powers and set aside following the failure of the US Congress to ratify the Versailles Peace Treaty (1919).

(f) The Molotov-Ribbentrop Pact

16 The ‘Molotov-Ribbentrop Pact’, concluded on 23 August 1939, was another secret treaty modelled on earlier Soviet non-aggression pacts with Poland, Latvia, and Estonia. The treaty contained a protocol outlining German and Soviet spheres of influence in Poland and the Baltic States. It was signed in Moscow, in the presence of Stalin, by Ribbentrop, the Foreign Minister of Germany, and Molotov, the Foreign Minister of the Soviet Union. By Art. 1 of the protocol, the northern boundary of Lithuania was to represent the sphere of influence between Germany and the Soviet Union, as Stalin wanted to secure the Latvian ports of Libau (Liepāja) and Windau (Ventspils). In Poland, it was agreed by Art. 2, that ‘the spheres of influence of Germany and the USSR shall be bounded by the line of the rivers of Narew, Vistula, and San’. The agreement entered into force upon signature. One week after the agreement was signed, Germany invaded Poland, and on 17 September the Soviet Union invaded Poland. Due to the rapid advance of the German forces, German-Soviet negotiations continued, and on 28 September Molotov and Ribbentrop signed the German-Soviet Boundary and Friendship Treaty in Moscow. According to the secret supplementary protocol to that treaty, it was decided that the ‘former Polish state’ no longer existed as it had ‘collapsed’ during the war. The 23 August protocol was amended ‘to the effect that the territory of the Lithuanian state falls to the sphere of influence of the USSR, while, on the other hand, the province of Lublin and parts of the province of Warsaw fall to the sphere of influence of Germany’. Art. 7 of the nonaggression pact stipulated that it was to last for a period of ten years, but on 22 June 1941, Germany invaded the Soviet Union, in a flagrant violation of the nonaggression treaty.

2. Partition to Prevent the Spread of Subversive Ideas or Totalitarian Doctrines

17 The establishment of buffer states, in which territory is used as a barrier to prevent the spread of subversive or totalitarian doctrines, has been practised throughout modern political history. The 1715 Barrier Treaty was perhaps one of the earliest examples. More recent examples include the division of Germany, Korea, and Vietnam during the Cold War that was justified to prevent the spread of Communism to Western Europe and South East Asia.

(a) The Barrier Treaty

18 The Barrier Treaty of 1715 concluded between Charles VI, Emperor of Germany, Prince George, King of Great Britain, and the High and Mighty Lords the States General of the United Netherlands, established a buffer state to protect England and Holland from the Catholic Kingdoms of France and Spain. What was formerly known as the Spanish Low Countries, were ‘to serve for a barrier to Great Britain, and to the United Provinces … and his Imperial and Catholic Majesty Charles VI to whom the said Netherlands shall be delivered by this treaty’.

(b) The Partitions of Poland

19 The Austrian, Prussian, and Russian treaties that partitioned Poland in 1792 and 1795 sought to establish a ‘cordon sanitaire’ to forestall and prevent the spread of subversive ideas associated with the French Revolution (1789–1799) that was threatening the stability of Europe. The preamble to the Polish-Russian treaty (1793) referred to ‘the revolution which took place on 3 May 1791’ when the Great Sejm (parliament) of the Polish–Lithuanian Commonwealth adopted a democratic constitutional monarchy that had been influenced by the American and French Revolutions. The treaty claimed that the Polish ‘revolution’ on 3 May had taken place ‘in an arbitrary and violent manner’ and ‘continued to foment and spread to the point that despite all efforts that Her Majesty the Empress of all the Russias has taken to calm and stifle it, a manifest danger has resulted for the peace and safety of the bordering states’.

(c) Germany

20 Following its defeat in World War II, Germany was occupied by the US, the UK, France, and the Soviet Union in four zones of occupation (Germany, Occupation after World War II). In 1948, the US, the UK, and France fused—over Soviet objections—the three Western zones of occupation administratively and economically. This led to the formation, in 1949, of two separate German states that partitioned Germany: The Federal Republic of Germany was formed in the Western part and the German Democratic Republic in the eastern part. Berlin was administered separately by the four powers in their respective areas of jurisdiction under separate agreements (Berlin [1945–91]). Both German governments claimed to represent Germany. The building of the Berlin Wall (1961) impaired the relationship between West and East Germany and was built to prevent the East German people from leaving the East and living in the West. The political transformation in the Soviet Union during perestroika paved the way for the reunification of Germany when the German Democratic Republic acceded to the Federal Republic of Germany on 3 October 1990 and the Two Plus Four Agreement (Treaty on the Final Settlement with respect to Germany) entered into force on 15 March 1991 (Germany, Legal Status after World War II).

(d) Korea

21 Korea, which had been an independent country for centuries, was annexed by Japan in 1910. After World War II, Soviet and American military advisers agreed that the Soviet Army would accept the surrender of all members of the Japanese armed forces north of the 38th parallel of latitude and that the US army would accept the surrender of all members of the Japanese forces south of that parallel. At the Moscow Conference on 27 December 1945, the UK, the Soviet Union, and the US agreed that an international trusteeship should be established over the entire Korean peninsula as a unified nation. However, no trusteeship was established because the Soviet Union and the US could not come to an agreement over the length of a draft trusteeship agreement. Stalin argued for a trusteeship of a shorter period of less than 10 years, whereas Roosevelt argued for a trusteeship that would last between 20 and 30 years. Stalin also called for the creation of a unified Korean government by a direct referendum by the Korean masses, but elections only took place in South Korea. On 25 June 1950, the North Korean Army, supported by China and the Soviet Union, launched an invasion of South Korea to reunify the peninsula by force (Korean War [1950–53]). On the same day, the United Nations Security Council adopted a resolution calling for the immediate cessation of hostilities and for a withdrawal of North Korean forces to the 38th parallel. In the course of the war, the US and sixteen other countries came to the rescue of South Korea under a unified UN Command (UNC). They forced the North Korean forces to retreat to the 38th parallel before a ceasefire was reached. On the 27 July 1953, the Korean armistice Agreement was signed at Panmunjom by the Commander-in-Chief of the UNC, the Supreme Commander of the Korean People’s Army, and the Commander of the Chinese People’s Volunteers. The armistice agreement was opposed by the Government of South Korea, which refused to sign it, or even attend the ceremony, because it insisted on the political reunification of the country. Art. 1 of the agreement established a military demarcation line with both sides withdrawing two kilometres from the line so as to establish a Demilitarized Zone between the opposing forces. According to Art. 1, the Demilitarized Zone was established ‘as a buffer zone to prevent the occurrence of incidents which might lead to a resumption of hostilities’.

(e) Vietnam

22 During World War II, Ho Chi Minh founded the Viet Minh (Vietnam Independence League) with the aim of uniting the different nationalist groups towards its goal of liberation from France, which returned to the country at the end of the war. After the First Indochina War (1946–1954), when the Viet Minh liberated the country from French rule, a provisional military demarcation line was fixed by Art. 1 Agreement on the Cessation of Hostilities in Viet-Nam. The agreement was signed by the Commander-in-Chief of the People’s Army of Viet-Nam and the Commander-in-Chief of the French Union Forces of Indo-China on 20 July. The Final Declaration of the Geneva Conference was concluded on 21 July 1954 and was signed by all of the conference participants (which included Cambodia, the Democratic Republic of Vietnam, France, Laos, the People’s Republic of China, the Soviet Union, and the UK)—except for the US and South Vietnam. According to Art. 6 Final Declaration, the demarcation line ‘should not in any way be interpreted as constituting a political or territorial boundary’. Art. 7 provided that general elections were to be held in July 1956 under international supervision. Accordingly, Vietnam was partitioned at the 17th parallel, pending elections on the reunification of the country. But the elections never took place, as the UK, the US, and France feared a Communist victory. Accordingly, the second stage of the Vietnam War (1955–1975) began with the US entering the conflict on the side of South Vietnam to prevent Communist expansion. The US claimed that South Vietnam was an independent State, although it was never admitted to the UN. North Vietnamese forces captured Saigon in 1975, two years after the Agreement on Ending War and Restoring Peace in Vietnam was signed. The following year, Vietnam was officially reunited as one country on 2 July 1976.

3. Partition as a Technique of Decolonization

23 In the 20th century, partition became a technique of decolonization, particularly in British colonies to resolve communal conflict by preventing majority rule following the transfer of power. It was thought that a division of population and territory to create solid national majorities in separate states would create better conditions for the functioning of representative government in a parliamentary democracy. However, critics of partition pointed out that, in many cases, the drawing of new borders simply created new minority problems and encouraged forced population transfers from the territory (Forced Population Transfer; Population, Expulsion and Transfer). Prominent examples of partition as a technique of decolonization include Ireland in 1920, proposals to partition Palestine in 1937–38 and 1947, the partition of the Punjab and Bengal in August 1947, and British proposals to partition Cyprus in 1958. Other examples of this type of partition include the British withdrawal from the Northern Cameroons and the claim by the Tomlinson Commission established by the Government of South Africa that the partition of British India was ‘somewhat analogous’ to the situation facing the Europeans in Southern Africa.

(a) Ireland

24 Ireland was partitioned by the Government of Ireland Act of 1920 (‘GOI Act’) and the Anglo-Irish Treaty of 1921. The GOI Act led to the establishment of Northern Ireland that remained in union with the UK. Art. 1 Anglo-Irish Treaty provided for the establishment of the Irish Free State that was to have the same ‘constitutional status in the Community of Nations known as the British Empire’. Art. 1 (2) was the key provision of the GOI Act, which established the partition. It provided:

For the purposes of this Act, Northern Ireland shall consist of the parliamentary counties of Antrim, Armagh, Down, Fermanagh, Londonderry and Tyrone, and the parliamentary boroughs of Belfast and Londonderry, and Southern Ireland shall consist of so much of Ireland as is not comprised within the said parliamentary counties and boroughs.

25 Art. 12 Anglo-Irish Treaty provided for the opting out of the new Irish state of the six counties mentioned in Art. 1 (2) GOI Act. A three-man Boundary Commission was established pursuant to this provision, and by Art. 12 Anglo-Irish Treaty it was tasked to

determine in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions the boundaries between Northern Ireland and the rest of Ireland, and for the purposes of the Government of Ireland Act, 1920, and of this instrument, the boundary of Northern Ireland shall be such as may be determined by such Commission.

26 Due to controversy, the report of the Boundary Commission was not published until 1968. As a result, the status quo created by the GOI Act was preserved in the sense that the boundary it established remains the boundary that still separates Northern Ireland from the remainder of the Irish Republic. Accordingly, ‘the wishes of the inhabitants’ was not taken into consideration in drawing up the boundary that was imposed from London.

(b) Mandate Palestine

27 In 1936, the British Government appointed a Royal Commission of Inquiry chaired by Lord Peel to investigate the causes of the disturbances that had broken out in Mandate Palestine due to the failure of Parliament to agree to establish representative government because this would have vested political power in Palestine’s Arab majority that would have taken steps to prevent the emergence of a Jewish national home, which was British policy. Given that the Commission’s terms of reference did not allow it to question British policy, the Commission recommended dividing Mandate Palestine into two states: a Jewish state and an Arab state in union with Transjordan—although Jerusalem, Bethlehem, Nazareth, and the Sea of Galilee were to remain under British control in the Jerusalem Mandate so as to ensure free access to the Holy Places. The Commission recommended establishing a separate Mandate over the Holy Places in ‘keeping the sanctity of Jerusalem and Bethlehem inviolate and of ensuring free and safe access to them for all of the world’. Following the publication of the Peel Report in 1937, when it was thought that the UK might relinquish the Mandate, there was a debate at the Assembly of the League of Nations. During the debate, Iraq, Egypt, Iran, and the Irish Free State criticized the Royal Commission’s proposal to partition Palestine. Accordingly, the Plan was promptly shelved by the British Government although the United Nations General Assembly would propose partition in 1947 (United Nations, General Assembly).

(c) British India

28 British India consisted of an amalgamation of administrative units, crown agencies, and princely states, through which the British Empire had exercised direct and indirect authority. While some of these units would coalesce after independence, others would break away to form separate states: India and Pakistan were established as a result of the partition announced by Admiral Mountbatten (1900–1979), last Viceroy of the British Indian Empire, on 3 June (carried out on 15 August 1947). The Princely states were given the ‘choice’ to accede either to India or to Pakistan. Despite this ‘choice’, some of the Princely states such as Hyderabad and Junagadh were forcibly incorporated into the Union of India. Burma, which had formerly been part of British India, attained independence the following year, and East Pakistan became independent in 1971 after it seceded from West Pakistan to form the state of Bangladesh. The 3 June Partition Plan approved by the British Government provided that the demarcation of the Punjab and Bengal was to be undertaken ‘on the basis of ascertaining the contiguous majority areas of Muslims and non-Muslims’. The Plan also instructed the Commission to take ‘other factors’ into account. What is striking about the 3 June Plan is that it distinguished rights to territorial sovereignty on the basis of whether a specific population formed the majority in an allotted territory. This was in contrast to the partition of Ireland in 1920, for example, where greater weight was given to the views of Irish landowners in drawing the boundary.

(d) The UN Partition Plan for Palestine

29 In contrast to the partitions of Ireland and India, the UK did not have exclusive jurisdiction over Palestine because it was a League of Nations Mandate, and therefore the UK needed international consent from the League of Nations, and following the Second World War, from the UN before it could lawfully revoke the Mandate. This was complicated by the wording of the Mandate, which envisaged the establishment of a Jewish national home in Palestine that provoked fierce opposition from the Arab population (Arab-Israeli Conflict). The UN welcomed the British decision to relinquish the Mandate and established the United Nations Special Committee on Palestine (‘UNSCOP’) to make recommendations, under Art. 10 UN Charter, concerning the future government of Palestine. UNSCOP’s majority report recommended partition. Following further study by two subcommittees, and an attempt by Egypt, Syria, and Iraq, to challenge the legality of partition at the ICJ, the General Assembly narrowly—by 33 votes to 13 with 10 abstentions—passed a Resolution that contained a Plan of Partition with Economic Union. The Plan recommended the establishment of two states: an independent Arab state and an independent Jewish state linked by an economic union with Jerusalem established as a corpus separatum under UN supervision. The success of the Plan depended on the cooperation of the Mandatory Power with the Palestine Commission, but the UK refused to cooperate with the Commission. The Arab states and India proposed an alternative federal plan and rejected linking a solution to the refugee problem in Europe to Palestine. The US proposed a Trusteeship for Palestine, but the UK refused to consider it and did not maintain law and order in the Mandate before British troops departed on 31 June 1948. Despite the failure to implement the UN Partition Plan, the UN insisted that Jerusalem should be placed under effective United Nations control in General Assembly Resolution 194 (III).

(e) South Africa

30 Following its victory in the 1948 elections, the Nationalist Government representing the interests of South Africa’s European population wanted to prevent the prospect of majority rule in the country that would have resulted from the enfranchisement of Africans that was being demanded by the UN. This is because it was feared that were they given equal civil and political rights in a single South African state political power would pass from the European minority into African hands. Accordingly, the government decided to establish self-governing African homelands in South Africa that would progressively become independent states although the bulk of the land would remain in European hands (South African Bantustan Policy). It was thought that such a policy might win support from the UN as a way in which both Europeans and Africans could exercise their respective, but separate, rights to self-determination. The same could be said of South Africa’s plans to establish homelands in South West Africa (Namibia) following the recommendations of the Odendaal Commission in 1962. Given that the purpose of establishing the Homelands was to preserve minority rule, none of the homelands established in South Africa and Namibia were recognized by the international community as they were considered contrary to international law (Non-Recognition).

(f) Cyprus

31 The dispute that emerged in the Crown Colony of Cyprus between Greek and Turkish Cypriots was the first time partition would be successfully opposed by the emerging UN majority in the General Assembly. The partition plan for Cyprus that the British Colonial Office found most attractive was to engineer the gradual polarization of the two communities over a period of years so that partition would come about as a natural consequence of political developments in Cyprus rather than being artificially imposed and enforced at great cost by the UK. Significantly, the Colonial Office recognized that partition had no prospect whatsoever of commending itself to the Greeks and the Greek Cypriots. This was because partition was the solution officially advocated by the Turkish Government and the Turkish Cypriot leaders. Cyprus was debated at the General Assembly in 1958, when partition was raised by the UK. During the debate it became apparent that apart from Turkey, only Pakistan was willing to support partition. The proposal to partition Cyprus and the subsequent criticisms raised in the General Assembly against partition influenced Britain’s decision not to divide the island. Instead, in Arts I and II Treaty of Guarantee (16 August 1960), which was concluded between Cyprus, of the one part, and Greece, Turkey, and the UK, of the other part, the parties—including Cyprus—collectively agreed to prevent a union between Cyprus and Greece (enosis) or a partition of the island. However, in 1974, Turkey invaded Cyprus and proclaimed the ‘Turkish Federated State of Cyprus’ in those areas of the island that the UK had considered dividing in 1958. On 15 November 1983 the ‘Turkish Republic of Northern Cyprus’ (‘TRNC’) proclaimed independence, but in Resolution 541 (1983) the Security Council declared the proclamation ‘null and void’ and called upon states not to recognize the TRNC.

(g) The Northern Cameroons

32 The German protectorate of Kamerun was confiscated from Germany after World War I when its rights over the territory were revoked by the Versailles Peace Treaty. The territory was subsequently divided into two Mandates by the Council of Four at the Peace Conference (Peace Treaties after World War I). The British Mandate was called the Northern Cameroons. It had an unusual geography: consisting of two non-contiguous parts divided into a northern and southern region separated by the British Protectorate of Nigeria. For administrative convenience, the northern region was administered as part of two northern provinces of Nigeria, while the southern region was administered as a separate province of Southern Nigeria. In 1946, the UK placed both regions of the Northern Cameroons under the international trusteeship system. In the same year, France concluded a trusteeship agreement over Cameroon. After independence (1 June 1960), Cameroon complained that the UK was administering the Trust Territory as though it was part of the Federation of Nigeria ‘contrary to the rule of unity’ that it claimed had deprived the Northern Cameroons of its own cohesive political institutions. Two UN referendums were held in the territory: the first (held on 7 November 1959) was inconclusive, the second—held from 11 to 12 February 1961—resulted in 59.97 per cent of the voters favouring fusion of the northern portion of the Northern Cameroons with Nigeria, while the southern portion voted to join Cameroon. Cameroon contested the results of the referendum in the northern portion, complaining of voting irregularities and brought the matter before the ICJ (Northern Cameroons Case). However, the court held that it could not examine the dispute because the jurisdictional provision in the trusteeship agreement for the Cameroons was no longer in force.

(h) The British Indian Ocean Territory

33 In 1965, the UK divided the Chagos Islands and the three groups of islands from the Seychelles to form a new colony called the British Indian Ocean Territory (Diego Garcia [British Indian Ocean Territory]). The decision to detach the islands was both a form of decolonization with respect to Britain’s departure from Mauritius, and an attempt to preserve Anglo-American power in the Indian Ocean during the War in Vietnam by establishing a naval base and an air base in the Indian Ocean. The partition subsequently led to a dispute between the UK and Mauritius over the status of the islands in an arbitration that was brought under Art. 287, Annex VII, and Art. 1 UNCLOS (Chagos Marine Protected Area Arbitration). Mauritius alleged that the detachment of the islands was only secured as a result of coercion exercised by British officials on Mauritian politicians who had little choice but to agree to the establishment of the military based as the price for independence. The legality of the detachment of the islands is currently before the ICJ which has been asked to provide a legal opinion to the General Assembly on whether the process of decolonization was lawfully completed in the territory.

4. Partition as a Form of Conflict Resolution

34 During the conflict in Yugoslavia in the 1990s, political scientists and policymakers began debating whether partition could provide a solution to civil war. The debate was sparked by various proposals to end the war in Bosnia, notably the Dayton Peace Accord, but it has also been mentioned as a possible solution to end the conflicts in Kosovo, Iraq, and Syria. In contrast to earlier partitions, however, post-Cold War partitions do not overtly seek to compromise the territorial integrity and political independence of states. This may explain why a federal solution was proposed to resolve the conflict in Bosnia, for example, rather than partition.

(a) Bosnia and Herzegovina

35 Following the dissolution of Yugoslavia (Yugoslavia, Dissolution of), the General Framework Agreement for Peace in Bosnia and Herzegovina (the ‘Dayton Accords’) was concluded on 21 November 1995 by the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia—the delegation of Yugoslavia was authorized to sign on behalf of the Republika Srpska. The negotiation of the agreement was a classic example of ‘coercive diplomacy’, having been secured by US negotiators through the use and the threat of armed force (Use of Force, Prohibition of Threat). By Art. III of the agreement, the neighbouring states of Croatia and the Federal Republic of Yugoslavia (now Serbia and Montenegro) were invited to ‘welcome and endorse the arrangements that have been made concerning the boundary demarcation between the two Entities, the Federation of Bosnia and Herzegovina and Republika Srpska, as set forth in the Agreement at Annex 2’. Annex 2 established an inter-entity line by dividing the Federation between Bosnia and Herzegovina, with a majority Bosniac and Croat population, from Republika Srpska, with its majority Serb population. Annex 4 contained a Constitution that was, by the preamble, ‘committed to the sovereignty, territorial integrity, and political independence of Bosnia and Herzegovina in accordance with international law’. Art. I (1) of the Constitution provided that the legal existence of Bosnia and Herzegovina would continue ‘under international law as a state, with its internal structure modified’. Art. I (4) provided that there would be freedom of movement throughout Bosnia and Herzegovina and that the constituent republics or ‘entities’ would ‘not impede full freedom of movement of persons, goods, services, and capital throughout Bosnia and Herzegovina’. Both republics were prohibited from establishing controls at the boundary that divided them. A presidency was established by Art. V of the Constitution responsible for conducting the foreign policy of Bosnia and Herzegovina and for the execution of decisions of the parliamentary assembly, comprised of a House of Peoples and a House of Representatives.

(b) Kosovo

36 The adoption of Resolution 1244 by the Security Council on 10 June 1999 established a UN protectorate over Kosovo after an 11-week bombing campaign of Serbia by NATO forces. This followed the refusal of Serb leaders to sign the Rambouillet Accords, and set in motion the events that led to the de facto separation of Kosovo, formerly an autonomous province of Yugoslavia, from Serbia. On 17 February 2008, 109 out of the 120 members of the Assembly of Kosovo, including the Prime Minister and President of Kosovo, adopted a declaration of independence. Serbia contested the declaration stating that it represented a forceful and unilateral secession. The General Assembly requested an Advisory Opinion from the ICJ asking whether the declaration of independence was in accordance with international law Kosovo (Advisory Opinion). On 22 July 2010, by ten votes to four, the court held that the declaration did not violate international law. Presently, 116 states recognize Kosovo. Serbia continues to contest Kosovo’s status insisting that it remains a constituent part of Serbia. In negotiations on joining the European Union, Serb leaders have said that they would be willing to end their dispute with Kosovo by partitioning the province between the northern majority Serbian parts of the province from the rest of the territory, but this has been rejected by Kosovar leaders that would prefer to maintain the current borders.

(c) Iraq

37 Following the invasion and occupation of Iraq (Iraq, Invasion of [2003]), the Iraq Study Group, a ten-person bipartisan panel, was appointed by Congress on 15 March 2006, to examine US policy towards Iraq. Headed by former Secretary of State James Baker, the Iraq Study Group looked at partition as a possibility for ending the insurgency. At the time, Iraq was engulfed in sectarian violence, and the US Government was looking at various options to end it, including a federation of three states—Sunni, Shia, and Kurd. However, the Iraq Study Group concluded that the risks associated with this option were too high.

All eighteen Iraqi provinces have mixed populations, as do Baghdad and most other major cities in Iraq. A rapid devolution could result in mass population movements, collapse of the Iraqi security forces, strengthening of militias, ethnic cleansing, destabilization of neighbouring states, or attempts by neighbouring states to dominate Iraqi regions (Baker and Hamilton 31).

(d) Syria

38 Calls to partition Syria with a view to ending the civil war face similar problems to proposals to partition Iraq. More significantly, no single power has a monopoly on the use of force that would be necessary to enforce partition in contrast to the situation in Iraq during the US occupation. Most of the populated areas of Syria remain under government control, and Syria, Iran, and Russia have made it clear that they intend to preserve the unity of the country.

D. The Legality of Partition

39 There is a general presumption in international law that dividing a state without its government’s consent, would be contrary to international law. This is because partition, by definition, would amount to an unlawful intervention (Intervention, Prohibition of) in the internal affairs of that state, and violate its territorial integrity and political independence. Partition would also amount to a grave violation of international law if it was imposed by way of armed force (Use of Force, Prohibition of). This might explain why most partition treaties have been concluded in secret. A partition treaty to destroy a state (Debellatio) would violate the sovereign equality of states, a cardinal principle of international law (States, Sovereign Equality). Commenting on the secret German-Soviet Protocol for the partition of Poland that envisaged the country’s extinction in 1939, Marek wrote that it was ‘in flagrant contradiction to the very assumption on which alone an international law can exist: that of the co-existence of separate, independent and internationally protected states’ (Marek 431–32).

40 Given that partition is a hegemonic act resulting in the division of territory without a government’s consent, and given that there are no longer any territories not claimed by states today, partition could only be considered lawful if it was conditioned temporally and justified by reference to a higher norm or authority. This might explain why in the pre-Charter era most partitions were justified by the need to maintain a balance of power, whereas more recent partitions have been justified in order to preserve international peace and security.

41 The Security Council (United Nations, Security Council) has almost unrestricted powers within its core field of activity, the maintenance of international peace and security. Accordingly, the Security Council could, in theory, acting under Chapter VII UN Charter, call for the partition of territory, and take measures to enforce it, if this is the only way of preserving international peace and security. However, as Judge Fitzmaurice argued in his Dissenting Opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion), even if the Security Council, after making the necessary determinations under Art. 39 Charter, ordered the occupation of a country or piece of territory in order to restore peace and security, ‘it could not thereby, or as part of that operation, abrogate or alter territorial rights’ (at 294 para. 115). This would await the peace settlement.

42 The General Assembly also possesses the power to make recommendations with the consent of the administering power in respect of League of Nations Mandate or Trust Territories, which could include recommending partition, given the powers accorded the General Assembly by the UN Charter—see eg Arts 16 and 85 UN Charter. However, the General Assembly lacks the power to enforce its recommendations, and would need additional agreement from the permanent members of the Security Council to enforce any recommendations to partition a Mandate or Trust Territory with the consent of the administering power.

43 The Security Council’s powers to partition territory are not unlimited, even if the partition is deemed as being necessary to preserve international peace and security. The Security Council must act in accordance with the Purposes and Principles of the UN, and the actions of the Security Council must not contravene peremptory norms of international law (Ius Cogens). It is widely accepted that peremptory norms of international law include the prohibition of aggression, apartheid, genocide, slavery, and torture (Torture, Prohibition of). The ICJ has also held that ius cogens include the principles and rules concerning the basic rights of the human person (Human Rights and Humanitarian Law) and international humanitarian law (Humanitarian Law, International). In addition, Art. 19 Draft Articles on State Responsibility (1980) provide that a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination, amounts to a peremptory norm of international law.

44 Given that partition often involves the use of force that may result in widespread human rights violations and population transfers, or even genocide, its legality is highly questionable. It may, however, be possible to conceive of situations where partition may lead to a lessening of violence in a conflict situation, especially if that conflict risks imperilling the stability of neighbouring states as a result of armed conflict (Armed Conflict, International; Armed Conflict, Non-International) or causes mass population transfer (Refugees).

45 Partition resulting from a war of self-defence or, more controversially, humanitarian intervention, might also be justified on a temporary basis, but could not provide grounds for the division of territory into separate sovereign units. Nor would Occupation Law (Occupation, Belligerent) provide a basis for partition, since occupation is a temporary phenomenon that does not vest sovereignty in the Occupying Power, although there is no prohibition on dividing occupied territory for administrative convenience, as long as there is no alteration of the territory’s status. For example, France was occupied during World War II and was divided in the 22 June 1940 armistice agreement between France and Germany but the Vichy regime (known as ‘unoccupied France’) was not a separate sovereign state distinct from the rest of France. The situation was different in Vietnam, with both the Communists and the Nationalists complaining of the illegal nature of the 1956 partition, the refusal to hold elections, and to maintain the division by force.

46 It would appear that partition as a technique of decolonization was a lawful, though controversial practice, until the General Assembly sought to abolish the practice in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 [XV]) (‘Decolonization Declaration’). In this sense, a rule prohibiting partition as a method of decolonization evolved in the practice of the UN during the Cold War. In the first half of the 20th century, partition was prohibited only in respect of territory belonging to members of the League of Nations with Art. 10 Covenant of the League of Nations binding its members ‘to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League’. Art. 2 (4) UN Charter widened this prohibition to encompass all states, by binding UN members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’. The Decolonization Declaration amended this principle further to include territories other than states, such as former mandates, trust territories, as well as non-self-governing territories. Accordingly, para. 6 Decolonization Declaration provided that: ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’. In Principle 5 (8) of the Friendly Relations Declaration (1970) (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 [XXV]), this prohibition is stated more clearly: ‘Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country’.

47 In 1965, when the British order to detach the Chagos Islands from Mauritius and the Seychelles came to light in a report of the Special Committee on the Situation with regard to the Implementation of the Granting of Independence to Colonial Countries and Peoples, the General Assembly passed a resolution expressing its ‘deep concern’ over the actions of the UK ‘to detach certain islands from the Territory of Mauritius for the purposes of establishing a military base’. The General Assembly noted that the establishment of such a base ‘would be in contravention of the [Decolonization] Declaration, and in particular of paragraph 6’. The resolution ‘reaffirmed the right of the people of Mauritania to freedom and independence’ in accordance with General Assembly resolution 1514 (XV); called on the British Government to take ‘effective measures’ with a view to ‘the immediate’ and ‘full implementation’ of General Assembly Resolution 1514 (XV); and called on Britain to ‘take no action which would dismember the Territory of Mauritius and violate its territory integrity’.

48 Also in 1965, the General Assembly endorsed the findings of the report of the Special Committee on Decolonization, which condemned the establishment of the African Homelands. The General Assembly insisted that ‘any attempt to partition the Territory [of South West Africa] or to take any unilateral action, directly or indirectly, preparatory thereto constitutes a violation of the Mandate [for South West Africa] and of resolution 1514 (XV)’. With respect to South Africa, the UN was equally categorical. In 1971, the General Assembly denounced the policy to ‘artificially to divide the African people into ‘nations’ according to their tribal origins’ and justify ‘the establishment of non-contiguous Bantu homelands on that basis’ and condemned ‘the establishment of Bantu homelands and the forcible removal of the African people of South Africa and Namibia to those areas as a violation of their inalienable rights, contrary to the principle of self-determination and prejudicial to territorial integrity of the countries and the unity of their peoples’ (UNGA Res 2775 [XXVI] [1971]).

49 The non-intervention principle also places limitations on the right of states to divide territories where this would deprive a people of their national identity (see Art. 3 UNGA Res 2131 [XX] [1965]). This was expanded in 1981 to include the duty of states ‘to ensure that its territory is not used in any manner which would violate the sovereignty, political independence, territorial integrity and national unity or disrupt the political, economic and social stability of another State; this obligation applies also to States entrusted with responsibility for territories yet to attain self-determination and national independence’—see Art. II (b) UNGA Res 36/103 (1981).

50 The existence of a prior right prohibiting partition, whether this is expressed in a treaty or in an agreement binding two or more states, can also be grounds for challenging the legality of partition. This argument has been advanced by van der Linden, with regard to the partition of Africa. In her view, European states violated the protectorate treaties they invoked to justify the partition because they prohibited interference with native property rights (van der Linden 234–36). A more recent example was Israel’s unilateral ‘disengagement’ from the Gaza Strip in 2005, while Israel retained control of, and moved some settlers, to the West Bank, in violation of Art XI (1) and Art XXXI (8) 1995 Israel-Palestinian Interim Agreement, which stipulates that ‘the two sides view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period’.

51 It has also been argued that partition brought about by conditions amount to duress or coercion would be contrary to international law. Carty considered that Ireland accepted rather less than an independent status in the Anglo-Irish treaty in 1921 due to coercion from the British side, but concludes that ‘the treaty was still legal, although only just, since the consensus against coercion only began to grow from the conclusion of the Kellogg-Briand Pact of 1928’ (see Carty 165; Kellogg-Briand Pact [1928]). Judge Mohammad Zafrulla Khan made a similar argument with respect to the partition of British India in 1947. He argued that a ‘moth-eaten’ Pakistan was imposed on Jinnah in haste by Mountbatten in order to frighten Jinnah (see Khan 27–48). A similar argument was made during the arbitration between Mauritius and the UK, when Mauritius argued that its consent to the detachment of the Chagos Islands was obtained under conditions amounting to duress (see Chagos Marine Protected Area Arbitration Memorial by Mauritius vol 1 [1 August 2012] 109–12; Reply by Mauritius vol I [18 November 2013] 28–33).

E. Assessment

52 The legality of partition needs to be assessed against the state of international law that existed at the time partition took place (Intertemporal Law). This is not always a straightforward assessment, however, especially if the partition poses a peril to the balance of power such as the disturbances in Poland that repeatedly disturbed the peace of Europe. While most jurists accepted the first partition of Poland as necessary to preserve the European balance of power, the legality of the last partition that removed Poland from the map of Europe was criticized as a flagrant violation of international law by American, British, and French jurists in the 19th century. Accordingly, a partition that was initially viewed as being lawful could become unlawful over time if the maintenance of partition disturbs the peace.

53 In contemporary international law, the UN Charter places significant limitations on the ability of states to partition territory given the experiences of World War II. Customary international law also places significant limitations on the ability of states to partition territory as it was influenced by the anti-partition sentiments of Third World states during decolonization that placed additional limitations on the ability of states to partition territory.

54 Yet it would be wrong to think that partition is unlawful in all cases. Partition could be brought about by the agreement of great powers in a peace treaty with the consent of the elected representatives of a territory undergoing partition. This could also involve the convening of a referendum on partition. It may also be possible for the Security Council to call for the partition of territory, and to take measures to put a temporary partition into effect, if it is necessary to preserve international peace and security. The inter-entity line in Bosnia could provide a model for the internal bifurcation of a state without affecting its external borders. It might also be possible to conceive of other ways of reaching agreement about partition among great powers with the consent of the government of the territory and the neighbouring powers.

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