HU Credits: 1

Degree/Cycle: 1st degree (Bachelor)

Responsible Department: Law

Semester: 2nd Semester

Teaching Languages: English

Campus: Mt. Scopus

Course/Module Coordinator: Prof Malcolm Shaw

Coordinator Email: shawmalcolm@hotmail.com

Coordinator Office Hours:

Teaching Staff:
Prof Malcolm Shaw

Course/Module description:
Examination of the basic principles of the international law of territory and how they interact with the evolving rules of international human rights law

Course/Module aims:
An appreciation of the nature and scope of international human rights and the international law of territory insofar as they interrelate.

Learning outcomes - On successful completion of this module, students should be able to:
i)Understand the nature and scope of the principles of the international law of territory;
ii)Understand the nature and scope of the relevant rules of international human rights law

Attendance requirements(%):
100

Teaching arrangement and method of instruction:

Course/Module Content:
Rise of territorialism and state sovereignty; early views of human rights and state responsibility

This seminar will trace the foundations of the international legal system, focusing upon the rise of the sovereign independent state and the consequential change in the status of inhabitants. The evolution and meaning of the principle of territorialism will also be covered.

Questions

1. How and why did a system of independent sovereign states evolve?

2. What is sovereignty?

3. What effect did this have for the citizens of such states?

4. To what extent is it possible to talk of an international system and, if so, what actually did this mean?

5. What is meant by territorialism?

Selected Readings

M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590

M N Shaw, International Law, 9th ed., 2021, Cambridge, chapters 1 and 2

2. Acquisition of title to title in the classical era: colonialism, colonial powers and local peoples

This seminar will examine the evolution of European colonialism particularly in the 19th century with emphasis upon the concepts of sovereignty in classical international law and the status of local tribes in the process of acquisition of territory.

Questions

1. What factors impelled the rise of European colonialism, particularly in the 19th century?

2. What did sovereignty mean in practice in this era?

3. What, if any, role was ascribed by international law to local peoples in the process of colonization? Has this view changed in recent years?

4. What was the effect of colonialism on international law?

Select Reading

M. N. Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590

M.N. Shaw, “Acquisition of Teritory in Nineteenth Century Africa: Some Thoughts” in Dupuy, Fassbender, Shaw and Sommermann (eds), Essays in Honour of Christian Tomuschat, Kehl, NP Engel Verlag, 2006, p. 1029.

S. Huh, “Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)”, 26 European Journal of International Law, 2015, p. 709

3. Rise of Self-Determination in the 19th and early 20th centuries

The seminar will look at the rise of nationalism in 19th century and the effects it had upon the structure of international law. The impact of the First World War and the Wilsonian principles will also be examined, together with the 1919 post-war Versailles peace and settlement. This seminar will also examine the rise and meaning of self-determination since 1945 within the context of decolonisation and with regard to independent states. In addition,

the concept of group protection (including minorities, indigenous peoples and other entities) will be covered.

Questions

1. What factors fed into the development of the rights to self-determination and what actually did it mean in the 19th century?

2. What changes took place as a consequence of the First World War in the structure of international law with regard to this right?

3. What new legal rights and mechanisms began to evolve in this period and why? What did they mean in theory and in practice?

4. Does this right have any role after decolonisation and with regard to already independent states and, if so, how may this be defined? Would it include the right to secede?

5. What is or should be the role of a referendum in deciding questions of self-determination and secession?

Select Reading

M. N. Shaw, International Law, 9th ed., 2021, Cambridge, sections on self-determination in chapters 5, 6 and 9

M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590

A. Cassese, Self-Determination of Peoples, Cambridge, 1995, generally (the classic work)

F. Menendez and M. Germann, “Contested Sovereignty: Mapping Referendums on Sovereignty over Time and Space”, 48 British Journal of Political Science, 2018, p. 141

D. Moeckli and N. Reimann, EJIL:talk, 1 December 2022, https://www.ejiltalk.org/are-sovereignty-referendums-but-a-tool-to-legitimize-territorial-claims-of-the-powerful/

Additional Reading

K Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002)

The Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 Advisory Opinion, ICJ Reports, 2019.

Kosovo, Advisory Opinion, ICJ Reports, 2010, p. 403

Quebec case, (1998) 161 DLR (4th) 385

Scottish Lord Advocate Reference Re Devolution, UK Supreme Court, [2022] UKSC 31, especially para. 87 and following

And as to the following recent events:

1) F. van den Driest, “Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law’, 62 Netherlands International Law Review, 2015, p. 329; T.D. Grant, Aggression against Ukraine: Territory, Responsibility and International Law, New York, 2015 and www.bbc.co.uk/news/world-middle-east-26248275 (Crimea). Also https://www.ejiltalk.org/orwellian-rulings-of-the-russian-constitutional-court-on-the-donetsk-kherson-luhansk-and-zaporizhzhia-provinces-of-ukraine/ and https://www.ejiltalk.org/to-perfect-the-imperfect-title-how-referenda-were-historically-manipulated-to-justify-territorial-conquest-by-nations/

2) Prime Minister v Parliament of Catalonia, STC No. 114/2017, https://www.tribunalconstitucional.es/en/Paginas/default.aspx , 17 October 2017; 112 AJIL, 2018, p. 80; https://www.politico.eu/article/how-the-world-reacted-to-catalan-independence-declaration , particularly referencing the reaction of the German, British and US governments and https://www.bbc.couk/news/world-europe-41464712 (Catalonia)

3) M. Sterio, “Self-Determination and Secession under International Law: The Cases of Kurdistan and Catalonia”, 22 ASIL Insights, 2018; www.rudaw.net/english/world/080620172 and https://www.gov.uk/government/news/foreign-secretary-statement-on-the-kurdish-regional-governments-intention-to-hold-a-referendum-on-independence-from-iraq (Kurdistan) https://www.ejiltalk.org/towards-a-united-kurdistan-prospects-for-kurdish-self-determination/

4. The Meaning of Title to Territory and the Concept of Uti Possidetis

This seminar will analyse the methodology of acquiring title to territory, focusing upon the role and nature of boundary treaties and the scope of the doctrine of effective control. The general principles governing the international law of territory will be surveyed. This seminar will also look at the concept of uti possidetis and the relationship between boundaries and peoples in a situation of a transfer of title to territory.

Questions

1. What is the meaning of title to territory?

2. What methods and mechanisms existed and exist with regard to the acquisition of territory in international law?

3. How did the concept of uti possidetis arise and where and what did it mean?

4. To what extent has this concept changed from its original meaning?

5. What is the justification, if any, of this concept? What are its limits?

6. How does it relate to the principle of self-determination and to human rights?

Select Reading

M N Shaw, “The International Court of Justice and the Law of Territory”, in C.J. Tams and J. Sloan, The Development of International Law by the International Court of Justice, Oxford, OUP, 2013, p. 151

M. N. Shaw, International Law, Cambridge, 9th ed., 2021, chapter 10

H. Thirlway, “Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice”, 31 Leiden Journal of International Law, 2018, p. 117

M N Shaw, "Peoples, Territorialism and Boundaries", 8 (3) European Journal of International Law, 1997, p. 478

M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590

S. Ratner, “Drawing a Better Line” 90 American Journal of International Law, 1996, p. 590

Burkina Faso v Mali, ICJ Reports, 1986, pp. 554, 565 and 568

Additional Reading

RY Jennings, The Acquisition of Territory in International Law (Manchester: MUP, 1963)

Island of Palmas case (Netherlands v USA), 2 RIAA 828

Burkina Faso v Mali, ICJ Reports, 1986, pp. 554, 565 and 568 Croatia v Slovenia, June 2017, https://pca-cpa.org/en/cases/3/

5. Situations of Administration in the Absence of Title: Control and Human Rights

This seminar will examine the balance of rights and duties inherent in situations, such as belligerent occupation and the international administration of territory, with reference to international humanitarian law and human rights and their relationship. Relevant caselaw of the European Convention on Human Rights will also be noted.

Questions

1. What does occupation mean in international law and what rights and duties are involved? How do such situations arise and end?

2. How do situations of the international administration of territory arise and how, if at all, do they differ from traditional occupations under international law?

3. How are internationally administered territories governed under international law? What international legal principles apply?

4. How do the structures and principles of international humanitarian law and international human rights law relate in such situations, if at all?

5. What impact is the rise of cyberspace likely to have on the question of title to territory and control over territory?

Select Reading

M N Shaw, “Territorial Administration by Non-Territorial Sovereigns” in The Allocation of Authority in International Law (eds. Broude and Shany), Hart Publications, 2008, p. 369

M. N. Shaw, International Law, Cambridge, 9th ed., 2021, chapters 5 and 20

Antal Berkes, “Human Rights Obligations of the Territorial State in the Cyberspace of Areas outside its Effective Control”, 52 Israel Law Review, 2019, p. 197.

Construction of a Wall case, ICJ Reports, 2004, pp. 136, 178 and following

Congo v Uganda, ICJ Reports, 2005, pp. 168, 230, 242-5

Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Request for Advisory Opinion, ICJ - https://icj-cij.org/case/186

Additional Reading

E. Benvenisti, The International Law of Occupation, Oxford, 2nd ed., 2012 (generally)

Y. Dinstein, The International Law of Belligerent Occupation, Cambridge, 2nd ed., 2019 (generally)

A. Gross, The Writing on the Wall: Rethinking the International Law of Occupation, Cambridge, 2017 (generally)

B. Knoll, The Legal Status of Territories Subject to Administration by International Organisations, Cambridge, 2008;

OR

C. Stahn, The Law and Practice of International Territorial Administration, Cambridge, 2008;

OR

R. Wilde, International Territorial Administration, Oxford, 2008

Required Reading:
Selected Readings
M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590
M N Shaw, International Law, 9th ed., 2021, Cambridge, chapters 1 and 2
M. N. Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590
M.N. Shaw, “Acquisition of Teritory in Nineteenth Century Africa: Some Thoughts” in Dupuy, Fassbender, Shaw and Sommermann (eds), Essays in Honour of Christian Tomuschat, Kehl, NP Engel Verlag, 2006, p. 1029.
S. Huh, “Title to Territory in the Post-Colonial Era: Original Title and Terra Nullius in the ICJ Judgments on Cases Concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)”, 26 European Journal of International Law, 2015, p. 709
M. N. Shaw, International Law, 9th ed., 2021, Cambridge, sections on self-determination in chapters 5, 6 and 9
M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590
A. Cassese, Self-Determination of Peoples, Cambridge, 1995, generally (the classic work)
Additional Reading

K Knop, Diversity and Self-Determination in International Law (Cambridge University Press, 2002)
The Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 Advisory Opinion, ICJ Reports, 2019.
Kosovo, Advisory Opinion, ICJ Reports, 2010, p. 403
Quebec case, (1998) 161 DLR (4th) 385
1) F. van den Driest, “Crimea’s Separation from Ukraine: An Analysis of the Right to Self-Determination and (Remedial) Secession in International Law’, 62 Netherlands International Law Review, 2015, p. 329; T.D. Grant, Aggression against Ukraine: Territory, Responsibility and International Law, New York, 2015 and www.bbc.co.uk/news/world-middle-east-26248275 (Crimea)
2) Prime Minister v Parliament of Catalonia, STC No. 114/2017, https://www.tribunalconstitucional.es/en/Paginas/default.aspx , 17 October 2017; 112 AJIL, 2018, p. 80; https://www.politico.eu/article/how-the-world-reacted-to-catalan-independence-declaration , particularly referencing the reaction of the German, British and US governments and https://www.bbc.couk/news/world-europe-41464712 (Catalonia)
3) M. Sterio, “Self-Determination and Secession under International Law: The Cases of Kurdistan and Catalonia”, 22 ASIL Insights, 2018; www.rudaw.net/english/world/080620172 and https://www.gov.uk/government/news/foreign-secretary-statement-on-the-kurdish-regional-governments-intention-to-hold-a-referendum-on-independence-from-iraq (Kurdistan)
M N Shaw, “The International Court of Justice and the Law of Territory”, in C.J. Tams and J. Sloan, The Development of International Law by the International Court of Justice, Oxford, OUP, 2013, p. 151
M. N. Shaw, International Law, Cambridge, 9th ed., 2021, chapter 10
H. Thirlway, “Territorial Disputes and Their Resolution in the Recent Jurisprudence of the International Court of Justice”, 31 Leiden Journal of International Law, 2018, p. 117
M N Shaw, "Peoples, Territorialism and Boundaries", 8 (3) European Journal of International Law, 1997, p. 478
M N Shaw, “Self-Determination, Human Rights and the Attribution of Territory” in Essays in Honour of Bruno Simma, (ed D. Khan), Oxford, OUP, 2011, p. 590
S. Ratner, “Drawing a Better Line” 90 American Journal of International Law, 1996, p. 590
Burkina Faso v Mali, ICJ Reports, 1986, pp. 554, 565 and 568

Additional Reading
RY Jennings, The Acquisition of Territory in International Law (Manchester: MUP, 1963)
Island of Palmas case (Netherlands v USA), 2 RIAA 828
Burkina Faso v Mali, ICJ Reports, 1986, pp. 554, 565 and 568

Croatia v Slovenia, June 2017, https://pca-cpa.org/en/cases/3/
Select Reading
M N Shaw, “Territorial Administration by Non-Territorial Sovereigns” in The Allocation of Authority in International Law (eds. Broude and Shany), Hart Publications, 2008, p. 369
M. N. Shaw, International Law, Cambridge, 9th ed., 2021, chapters 5 and 20
Antal Berkes, “Human Rights Obligations of the Territorial State in the Cyberspace of Areas outside its Effective Control”, 52 Israel Law Review, 2019, p. 197.

Construction of a Wall case, ICJ Reports, 2004, pp. 136, 178 and following

Congo v Uganda, ICJ Reports, 2005, pp. 168, 230, 242-5

Additional Reading

E. Benvenisti, The International Law of Occupation, Oxford, 2nd ed., 2012 (generally)
Y. Dinstein, The International Law of Belligerent Occupation, Cambridge, 2nd ed., 2019 (generally)
A. Gross, The Writing on the Wall: Rethinking the International Law of Occupation, Cambridge, 2017 (generally)

B. Knoll, The Legal Status of Territories Subject to Administration by International Organisations, Cambridge, 2008;
OR
C. Stahn, The Law and Practice of International Territorial Administration, Cambridge, 2008;
OR
R. Wilde, International Territorial Administration, Oxford, 2008

Additional Reading Material:

Grading Scheme :
Attendance / Participation in Field Excursion 100 %

Additional information: