In This Article Middle East Boundaries and State Formation

  • Introduction
  • Cases
  • Some Seminal Public International Law Works on Statehood, Territoriality and Title to Territory

International Law Middle East Boundaries and State Formation
by
Michelle Burgis-Kasthala
  • LAST MODIFIED: 15 January 2019
  • DOI: 10.1093/obo/9780199796953-0174

Introduction

States are the primary actors in the international system, and as Shaw reminds us, “statehood is inconceivable in the absence of a reasonably defined geographical base” (Shaw 1982, p. 61, cited in Some Seminal Public International Law Works on Statehood, Territoriality and Title to Territory). Boundaries will not always be clear, but “some piece of land is essential before one can accept the establishment and continuation of a state” (p. 73). Territorial exclusivity allows for the exercise of state power, or sovereignty (especially see the Island of Palmas Case (or Miangas), United States v Netherlands (1928) II RIAA 829). The ability to identify and ensure a state’s territorial dominion—including its boundaries—lies at the heart of international order. Through the interplay between fact and law, a body of doctrine relating specifically to title to territory emerged, much of which was consolidated and developed further through adjudication and arbitration. The first section of this review surveys some key general works in this field of scholarship, particularly in relation to the question of the delimitation of international boundaries. While international law is concerned with determining sovereign control over territory and its limits through boundaries, asking broader questions about state formation tends to arise from other disciplines, particularly sociology, but also history, political science, international relations, anthropology, and geography. Hence, in seeking to survey scholarship on boundaries and state formation, a multidisciplinary appraisal is required and this is particularly the case once we ground our discussion in the regional specificities of the Middle East. Events across the region remind us about the particularly problematic nature of many boundaries that do not equate with historical affiliations (see the section The Arab States System Reconsidered in the Light of the Arab Uprisings). The imposition of colonial rule and respective boundaries then is central to any consideration of sovereignty and territory for Middle East states. All matters brought for arbitration and adjudication rest largely on questions of the continuing framework that colonial rule brought in dividing many parts of a region ill-suited to territorial partition. This is particularly so for the Arabian or Persian Gulf (hereinafter, the Gulf), with its harsh terrain and tribal patterns of settlement. In addition, the Middle East has nurtured particularly powerful transnational movements that have challenged the nation-state, including political Islam and pan-Arabism. Although rarely do these forces dismantle extant boundaries, they do illustrate the tenuous and ongoing nature of state formation and deformation across the Middle East. For the purposes of this article, the ‘Middle East’ is understood here as spanning North Africa and West Asia from Morocco to the Gulf. Although at times ‘Arab world’ is used instead, this is to capture the particular dynamics of pan-Arabism, notwithstanding the important role played by Turkey, Iran, and Israel in the region.

Cases

Although the Middle East contains a number of ongoing territorial and boundary disputes (some of them are addressed in the final section), a number have also been considered by the International Court of Justice (ICJ): Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad); Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar/Bahrain) (Merits); by arbitration (the Dubai/Sharjah Border Arbitration; the Case Concerning the Location of Boundary Markers in Taba between Egypt and Israel; and the Award of the Arbitral Tribunal in the First Stage of the Proceedings, Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen)); the United Nations (Final Report on the Demarcation of the International Boundary Between the Republic of Iraq and the State of Kuwait); as well as in domestic settings (Beit Sourik Village Council v. Israel and Israeli Defence Force Commander in the West Bank). Almost all of these cases arise from the desire of the parties to secure stability in their diplomatic relations with neighboring states, but also from economic interests, particularly in relation to oil exploration. The importance of oil throughout the region has beset not only independent modern Middle Eastern states, but also shaped colonial policy, especially on the part of Britain. Many of the cases noted in this section consider in some detail the role of colonial interests in shaping the region and its boundaries. What is noteworthy is the way in which courts and arbitral awards have tended to defer to the practice of colonial parties over and above more nuanced historical accounts (see in particular Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar/Bahrain) (Merits)). A number of these cases comprise a territorial and maritime dimension, but only the former is considered here. Although most of these cases can be classed as standard boundary delimitation cases, the two ICJ advisory opinions on Western Sahara and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory are confined to responses to the questions posed by the General Assembly. Nonetheless, both cases are landmarks on the law of self-determination and the relationship between a people and a territory.

  • Award of the Arbitral Tribunal in the First Stage of the Proceedings, Territorial Sovereignty and Scope of the Dispute (Eritrea/Yemen). Arbitral Tribunal. Decision of 9 October 1998. UN Reports of International Arbitral Awards 22: 209–332.

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    This Arbitration considers competing claims to a variety of small islands and islets in the Red Sea. Contrary to the Parties’ request, the Arbitrators decided to break up the various islands into groups. Although historic title, maps, and oil concessions are considered, most attention is given to effective government control, mediated by the uninhabited status of the islands and early-21st-century civil wars for both Parties. The Award is noteworthy for its consideration of Islamic law as well as its endorsement of shared fishing rights for Yemeni and Eritrean nationals. UN Reports available through purchase only.

  • Beit Sourik Village Council v. Israel and Israeli Defence Force Commander in the West Bank. Israeli Supreme Court as the Israeli High Court of Justice. HCJ 2056/04, ILDC 16 (IL 2004), Judgment of 30 June 2004.

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    Handed down just prior to the ICJ’s consideration about the status of the entire length of Israel’s wall in the occupied West Bank, this case considered the legality of a small stretch of the wall under Israeli and international humanitarian law. Guided largely by notions of proportionality, the Court ordered the redrawing of certain parts of the wall so that the impact of land confiscations on the local Palestinian population would be ameliorated somewhat.

  • Case Concerning the Location of Boundary Markers in Taba between Egypt and Israel. Decision of 29 September 1988. 27 ILM 1421. Arbitral Tribunal. UN Reports of International Arbitral Awards 20: 1–118.

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    This Arbitral Award arose out of the 1979 Peace Treaty between Egypt and Israel and a subsequent special agreement of 1982 for demarcating the location of a number of boundary pillars along the width of the parties’ internationally recognized border. The arbitrators take 1923 as the critical date and the establishment of the Palestine Mandate, but rely extensively on a 1906 British–Ottoman agreement.

  • Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar/Bahrain) (Merits). Judgment of 16 March 2001. International Court of Justice. ICJ Reports, 2001: 40–82.

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    The Qatar/Bahrain Case is one of only two territorial disputes brought to the ICJ by Arab states. The parties presented a detailed appraisal of competing colonial interests in the Gulf along with the emergence of Bahrain and Qatar as independent states. The Court determined sovereignty over the Hawar Islands and the Zubarah peninsula, as well as maritime features and the parties’ maritime boundary, all of which were vital in securing stability for future oil concessions.

  • Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya/Chad). Judgment of 3 February 1994. International Court of Justice. ICJ Reports, 1994. 6–39.

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    The Territorial Dispute is a classic boundary delimitation decision by the ICJ that ultimately rests on a 1955 treaty between Libya and France. Although Libya tried to counter the weight of this treaty through an historical account of its links to the Aouzou Strip, the Court settled on a simpler, colonially confined approach to the drawing of postcolonial borders between two modern African states.

  • Dubai/Sharjah Border Arbitration. Arbitral Award of 19 October 1981. Court of Arbitration. 91 ILR 543, 1993: 543–701.

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    The Dubai/Sharjah Arbitration was primarily concerned with delimiting the parties’ maritime boundary, but had to consider parts of the territorial boundary as well, particularly in coastal zones. In establishing sovereignty of these former British protectorates, the Tripp Decisions of 1956 and 1957 as well as later state control were considered, largely in Dubai’s favor.

  • Iraq-Kuwait Boundary Demarcation Commission. Final Report on the Demarcation of the International Boundary Between the Republic of Iraq and the State of Kuwait. New York: United Nations Security Council, 1993: 1–44.

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    This boundary commission was created by the United Nations as part of its mandate to reestablish peace in the wake of Iraq’s invasion of Kuwait in 1990. The Commission largely relied on a 1963 boundary agreement between the two States in demarcating the boundary. This decision was then endorsed by the Security Council in Resolution 833 (1993). Not available online due to copyright restrictions.

  • Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. Advisory Opinion of 9 July 2004. International Court of Justice. ICJ Reports, (2004): 136–203.

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    This Advisory Opinion explores the legal implications for both Israel and third states regarding Israel’s construction of a wall in the West Bank by considering various related legal regimes including international human rights law; international humanitarian law; the right to self-determination; and, for third states, state responsibility. The Court concludes that large parts of the wall’s route are illegal and requests the wall’s removal in such areas, along with remedial activity. It also requests that third states do not assist in the wall’s construction or recognize its effects as legal.

  • Western Sahara. Advisory Opinion of 16 October 1975. International Court of Justice. ICJ Reports, 1975.

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    The Western Sahara opinion remains one of the most important self-determination cases where the Court responded positively to a request by the General Assembly and its decolonization agenda for the territory and its people. The Court found that Western Sahara was not terra nullius at the time of Spanish colonization. Although Moroccan and Mauritanian legal ties were recognized, the Court did not regard these as amounting to sovereign ties. The Court held that the territory should be supported in exercising its right to self-determination.

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