‘We Must Defend Ourselves Or Die!’: The Principle Of Uti Possidetis Juris In International Law, Custom

By Obadiah Mailafia

I read with interest the other day the unattributed submission of someone on the juridical doctrine of Uti Possidetis Juris. He essentially reduces the principle to the idea that any territory that you possess as a fait accompli by dint of sheer force is, ipso facto, yours by right of conquest.

He used it as a basis to deliver a warning to the Yoruba and Ndigbo of the South that should their territories be overrun by the Fulani militias; the latter would get to keep such territories and that this would be so recognised under international law.

I think things might not be as simplistic as we sometimes would like to have them. The doctrine of Uti Possidetis Juris (UPJ) derives from the ancient Roman Law. In the delectable Latin language, it refers to, “as you possess under law”. This meant that in the ordinary course of events, a man could not be dispossessed of immovable property that he has traditionally owned and enjoyed, no matter how acquired.

The ancient Romans were well-known for being sticklers for public order. UPJ therefore existed for the sole function of removing the potential for chaos with regards to the right to private property ownership. Much of international law as does municipal law, inherited and adapted many of such precepts of Roman jurisprudence.

In terms of application to the Law of Nations, UPJ enunciated the principle that newly formed states should preserve inherited borders at the time of independence or formation of new states. The idea was to eschew precipitation of endless territorial disputes and conflicts over landmasses that may be seen as terra nullius (no man’s land).

The defunct OAU (now AU) adopted this principle of respect for old colonial boundaries in 1963 when the continental body was created. It has also been widely applied to Latin America and Asia in the time of decolonisation and to the defunct USSR at the time of its disintegration into a motley of successor states. The principle has also been extended to war situations where international law recognises the right to keep conquered territory after cessation of hostilities.

Today, it is being tacitly applied to the situation of actual possession of a territory under control of a country that has gained the upper hand after a war. For example, Israel repossessed Jerusalem by conquest after it emerged as victor in the 1967 war with the Arabs. British claim to the Falklands/Malvinas Islands was based not just on conquest, but on de facto possession going back to colonial times. Same applies to Gibraltar, which continues to irk the Spaniards to this day.

But where the author is wrong is in the fact that, the Fulani war and aggressive territorial land-grabbing in Nigeria, as evil as it is today, is a domestic rather than an international act of aggression. We also know that most of the killers are mercenary Janjaweeds from neighbouring countries and beyond.

We all know that there are foreign powers that want Nigeria to collapse by all means. They are the ones arming, financing, and fueling this war; working in cahoots with their local agents in Nigeria; a horrific band of vipers from the pits of hell who care neither about God nor about humanity. They have, sadly, hoodwinked the majority of the Muslim Ummah into believing that this evil and unjust war that they are waging is ultimately for the supremacy of Islam. They do not care whether the country survives or perishes.

These facts alone destroy any trace of moral legitimacy in their sordid and evil scheme. In the unlikely event that they were to overrun Ile-Ife tomorrow, for example, I do not believe the International Court of Justice (ICJ) will by that fact confer on them the right to keep this spiritual heartland of Yoruba land.

Based on the principle of non-aggression that has existed since the League of Nations, the UN Charter expressly outlaws’ wars of conquest over territory. International law, as far as I know, does not reward a “successful” act of aggression. As far back as 1956, Britain and France were humiliated and had to capitulate after invading Egypt and taking over the Suez Canal. Saddam Hussein learned it the hard way when he invaded Kuwait in the summer of 1990.

Having said this, let me reveal that I know what the current Fulani war strategy is. They want to gobble up as much of the South as they possibly can, so that tomorrow they can use it as a bargaining chip in any postbellum negotiations and horse-trading. If a cessation of fire is to be reached, they will say, OK, we are prepared to give up Ile-Ife, but we shall keep everything from Okun land to the whole of the Middle Belt.

Of course, they would want to conquer the South with its oil and gas endowment, which their great grandfather Othman Danfodio promised them as an eternal legacy. But I do know their real target is not the South per se. Their real target is the Middle Belt, with its sprawling ancient savannah green lands and vast untapped mineral resources.

Without the Middle Belt they will be nothing but a poverty-stricken Sahelian Ruritanian backwater of no value to anybody. This, they know extremely well. Does it surprise you then that everything they touch eventually turns into a desert? These wicked people have never built a civilisation anywhere on our continent. They simply take up arms to conquer and possess by subterfuge what others have painstakingly built over centuries, if not millennia.

The true legal character and general application of UPJ is yet to be fully agreed upon by the learned community of jurists, beyond the need to provide “finality and order” for the Parliament of Man. After all, international law itself is a growing and dynamic field. It cannot be stagnant, even as international society is continually transformed by the relentless forces of technology, trade, finance and globalisation.

The case-law is also evolving, complimented by international customary practices that have endured from time immemorial. Hugo Grotius testified to it as did Emmerich de Vattel and the Jesuit lawyers of Salamanca. In our century, Timor Leste was yanked out of Indonesia to become an independent sovereign state not too long ago. So was South Sudan from the very unreasonable Arabs up North. In none of these cases did international law or the international community of nations yield any territory to the “coloniser” by virtue of any ostensible right of possession on the basis of superior force or conquest.

For my part, I still pray for the peace of Jerusalem. And I continue to groan in the spirit in my dawn watches for Nigeria to remain one indivisible country under God. I pray that Nigeria does not break up. Because there is no such thing as a happy or peaceful divorce. The case of the Czechs and Slovaks was an outlier. I fear that ours might consume millions of innocent lives.

But I am also a realist enough to know that if the Fulani militias continue their genocidal war of aggression against those Mandela would describe as “an unarmed and defenseless people”, our beloved country will face the inevitable fate of dissolution. Lest we forget: The same international law accords communities that face an existential threat to their very survival the right as well as duty to defend themselves, if their government is unable and/or unwilling to protect them. The right to self-defense is also enshrined in natural law and in universal global ethics. Do not be afraid of them. For they are mere paper tigers.

As recounted in the Old Testament, the giant Goliath came to the battlefield with a frightful armour and sword. The shepherd boy David approached him with a sling and 2 stones; and a burning faith in the Mighty One of Israel. The armour that the elders thrust upon him were too heavy for the shepherd boy, so he threw them off. His small skinny body evoked cruel, savage laughter from the giant. Goliath straddled the land with an arrogant, boastful swagger. But the shepherd boy was not afraid. He actually ran towards the evil giant, shouting, “I come against you in the Name of the Holy One of Israel”.

Before you knew it, the giant came down with a mighty bang. David used Goliath’s own sword to chop off his head. All the Philistines that had tormented the children of Israel to no end, we are told, fled in all directions. So will our enemies come in one way and flee in all directions. They will run when no one is pursuing them. So shall we defeat and shame all the enemies of God’s people in Nigeria. Please, Never be afraid of them. The Egyptians you see today, you shall see them no more.

At the end of the day, we live by faith and not by law. International Law is a man-made law. It cannot be superior to the Law of our God which is eternal and unchanging. As St. Augustine of Hippo Regis, my beloved patron saint, said long ago, an unjust law is no law. Therefore, defend your family. Defend your community. Defend your church. If Nigeria deserves to survive, she will survive. Our Dharma, our sacred duty right now, is to protect life.

Let us also beware that foreign imperialist powers are behind the genocidal militias in our midst. We must also understand that Muslims are not our enemies. The terrorists are. They are our mortal enemies. They aim to destroy our communities and take over our ancestral homelands by force of arms. They must be left in no doubt as to our resolve. All lovers of freedom must resist them. We must defend the land and the people we love. It is a sacred duty reposed on us by God Himself. We must therefore apply the utmost wisdom to defeat the barbarians at the gates. We shall reinvent our New Nigeria as a country governed by the rule of law, progress, freedom, social justice and civilised values. A land of hope and glory — a light unto the nations. We must defend ourselves or die!

— Dr. Mailafia is a development economist, a former official of the African Development Bank Group and one-time Deputy Governor of the Central Bank of Nigeria (CBN).

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