No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Proceedings of an international workshop held at the Hebrew University of Jerusalem, 7 December 2017
Published online by Cambridge University Press: 24 October 2018
Professor Yaël Ronen introduced the workshop as the fourth in a series of events on legal aspects of the Middle East conflict. The first two events concerned the Palestine Mandate of 1922. The third focused on the 1948 refugee issue. All these events have and are being held with the generous support of the Knapp Family Foundation and under the auspices of the International Law Forum of the Faculty of Law. Also, as part of the Shabtai Rosenne International Law Center Initiative, the first session was dedicated to the commemoration of the work of the late Shabtai Rosenne, whose scholarship spanned a host of international law issues but who is most renowned for his work on the International Court of Justice (ICJ).
1 Rosenne, Shabtai, ‘Directions for a Middle East Settlement’ (1968) 33 Law and Contemporary Problems 44CrossRefGoogle Scholar, 45.
2 Case concerning East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90, [29].
3 Charter of the United Nations (entered into force 24 October 1945) 1 UNTS XVI.
4 Rosenne, Shabtai, ‘The Perplexities of Modern International Law: General Course on Public International Law’ (2001) 291 Collected Courses of the Hague Academy of International Law 408Google Scholar.
5 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) 993 UNTS 3.
6 Case concerning the Frontier Dispute (Burkina Faso/Mali), Judgment [1986] ICJ Rep 554, [23]–[24].
7 ibid [20].
8 Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion [2010] ICJ Rep 436, [79].
9 UNGA Res 47/135 (18 December 1992), Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc A/RES/47/135.
10 UNGA Res 61/295 (13 September 2007), Declaration on the Rights of Indigenous People, UN Doc A/RES/61/295.
11 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [118].
12 Western Sahara, Advisory Opinion [1975] ICJ Rep 12, [59].
13 ibid, Separate Opinion of Judge Dillard, 122.
14 Higgins, Rosalyn, ‘International Trade Law and the Avoidance, Containment and Resolution of Disputes: General Course on Public International Law’ (1991) 230 Collected Courses of the Hague Academy of International Law 9Google Scholar, 174.
15 Frontier Dispute (n 6) [25].
16 ‘The Arbitration Commission of the Conference on Yugoslavia’ (1992) 31 International Legal Materials 1494, 1498, Opinion No 2, 11 January 1992.
17 General Framework Agreement for Peace in Bosnia and Herzegovina, 30 November 1995, UN Doc A/50/79C.
18 Reference re Secession of Quebec [1998) 2 SCR 217.
19 See generally Lionel Beehner, ‘The Iraqi Kurdish Question’, Council on Foreign Relations, 19 April 2007, https://www.cfr.org/backgrounder/iraqi-kurdish-question.
20 As seen in Nicolas Levrat and others, ‘The Legitimacy of Catalonia's Exercise of its Right to Decide’, Report by a Commission of International Experts, University of Geneva, 2017. For the Catalan declaration see Declaració dels Representants de Catalunya, 10 October 2017, unofficial English translation: http://www.cataloniavotes.eu/wp-content/uploads/2017/10/27-Declaration-of-Independence.pdf.
21 Referendum executed by the Fact Finding Commission of the League of Nations, 1925; see Rafaat, Aram, ‘The 1926 Annexation of Southern Kurdistan to Iraq: The Kurdish Narrative’ (2017) 3 American Research Journal of History and Culture 1Google Scholar.
22 ‘Meeting of the Presidium of the Supreme Soviet of the Union of Soviet Socialist Republics’, 19 February 1954, History and Public Policy Program Digital Archive, translated for CWIHP by Gary Goldberg, 1992, http://digitalarchive.wilsoncenter.org/document/119638.
23 For a detailed discussion about uti possidetis in the context of League of Nations mandates see Bell, Abraham and Kontorovich, Eugene, ‘Palestine, Uti Possidetis Juris and the Borders of Israel’ (2016) 58 Arizona Law Review 633Google Scholar.
24 ‘French Mandate for Syria and the Lebanon’ (1923) 17 American Journal of International Law 177.
25 UNGA Res 441 (2 December 1950), The Ewe Problem, UN Doc A/RES/441; Musgrave, Thomas D, Self-Determination and National Minorities (Oxford University Press 1997) 158Google Scholar.
26 African Union, ‘26th Activity Report of the African Commission on Human and Peoples’ Rights (ACHPR) submitted in Accordance with Article 54 of the African Charter on Human and Peoples’ Rights’, Mgwanga Gunme v Cameroon, Annex 4, 266/2003, May 2009, http://www.chr.up.ac.za/images/files/documents/ahrdd/theme02/african_commission_26th_activity_report.pdf.
27 Kosovo (n 8) [79], [82], [83].
28 UNGA Res 181(II) (29 November 1947), Future Government of Palestine, UN Doc A/RES/181(II).
29 UNSC Res 242 (22 November 1967), UN Doc S/RES242.
30 Kontorovich, Eugene, ‘Resolution 242 Revisited: New Evidence on the Required Scope of Israeli Withdrawal’ (2015) 16 Chicago Journal of International Law 127, 133–34Google Scholar.
31 UNGA Res 67/19 (4 December 2012), Status of Palestine in the United Nations, UN Doc A/RES/67/19.
32 Kontorovich, Eugene, ‘Israel/Palestine – The ICC's Uncharted Territory’ (2013) 11 Journal of International Criminal Justice 979CrossRefGoogle Scholar.
33 Abdullah Salah, Letter from the Permanent Representative of Jordan to the United Nations Addressed to the Secretary-General (18 November 1988), UN Doc A/43/827.
34 Martin, Geoffrey J, ‘In Memoriam: Richard Hartshorne, 1899–1992’ (1994) 84 Annals of the Association of American Geographers 480, 480–92CrossRefGoogle Scholar.
35 Agnew, John, Mitchell, Katharyne and Toal, Gerard (eds), A Companion to Political Geography (Blackwell 2003) 125CrossRefGoogle Scholar.
36 Barzun, Jacques, From Dawn to Decadence: 500 Years of Western Cultural Life, 1500 to the Present (HarperCollins 2000)Google Scholar.
37 Kosovo (n 8) 80, 95, 114.
38 UNGA Res 71/292 (22 June 2017), Request for an Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of Chagos Archipelago from Mauritius in 1965, UN Doc A/Res/71/292 (2017).
39 Lorde, Audre, ‘The Master's Tools Will Never Dismantle the Master's House’ in Moraga, Cherrìe and Anzaldúa, Gloria (eds), This Bridge Called My Back: Writings by Radical Women of Color (Persephone Press 1981) 98Google Scholar.
40 Zacher, Mark W, ‘The Territorial Integrity Norm: International Boundaries and the Use of Force’ (2001) 55 International Organisation 215, 215–16CrossRefGoogle Scholar.
41 Great Britain, Royal Commission on Alien Immigration, Report of the Royal Commission on Alien Immigration (His Majesty's Stationery Office 1903), https://babel.hathitrust.org/cgi/pt?id=umn.31951001537094i;view=1up;seq=5. As Eastern European Jewish immigration was confronted by antisemitism and concerns within Western European Jewish communities, Zionists were actively promoting the idea that the crisis of Eastern European Jewish immigration could be resolved only by shifting the waves of immigrants outside Europe to a territory that could accommodate Jewish colonisation. As Herzl told the Royal Commission on Alien Immigration: ‘The solution of the Jewish difficulty is the recognition of Jews as a people and the finding by them of a legally recognized home, to which Jews in those parts of the world in which they are oppressed would naturally migrate for they would arrive there as citizens just because they are Jews, and not as aliens. This would mean the diverting of the stream of emigration from this country and from America, where so soon as they form a perceptible number they become a trouble and a burden, to a land where the true interest would be served by accommodating as many as possible … nothing will meet the problem the Commission is called upon to investigate and advise upon except a diverting of the stream of migration that is bound to go on with increasing force from Eastern Europe. The Jews of Eastern Europe cannot stay where they are – where are they to go? If you find they are not wanted here, then some place must be found to which they can migrate without, by that migration, raising the problems that confront them here. These problems will not arise if a home be found them which will be legally recognized as Jewish’.
42 Benton, Lauren and Ford, Lisa, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Harvard University Press 2016)CrossRefGoogle Scholar.
43 Covenant of the League of Nations (entered into force 10 January 1920) (1920) 1 League of Nations Official Journal 3.
44 The British Mandate for Palestine confirmed by the Council of the League of Nations, 24 July 1922, ‘Annex 391 – British Mandate for Palestine’ (1922) 3 League of Nations Official Journal 1007.
45 British White Paper of 1939, The Avalon Project: Documents in Law, History and Diplomacy, 9 November 1938, available at: http://avalon.law.yale.edu/20th_century/brwh1939.asp.
46 The full text of the correspondence (consisting of ten letters) can be found at: http://www.jewishvirtuallibrary.org/jsource/History/hussmac1.html.
47 Hohfeld, Wesley N, ‘Fundamental Legal Conceptions’, Paper 4378 (1919) Faculty Scholarship Series 710Google Scholar. See also Anna di Robilant and Talha Syed, ‘The Fundamental Building Blocks of Social Relations Regarding Resources: Hohfeld in Europe and Beyond’ in Shyamkrishna Balganesh, Ted Sichelman and Henry E Smith (eds), The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Cambridge University Press, forthcoming), https://ssrn.com/abstract=3149768.
48 The disintegration thesis was largely developed by Thomas Grey decades after Hohfeld's leading work: Grey, Thomas C, ‘The Disintegration of Private Property’ (1980) 22 Nomos – Property 69Google Scholar.
49 Holmes, Oliver W, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457Google Scholar.
50 Kosovo (n 8) [79]: ‘During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’.
51 UNGA Res 61/295 (n 10) art 3.
52 See Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 334Google Scholar; Hannum, Hurst, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (University of Pennsylvania Press 1996)CrossRefGoogle Scholar. Further, Nowak points out that the travaux préparatoires show that the expression – the right of self-determination – refers to all peoples, including those living in independent states: Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, NP Engel 2005) 20Google Scholar mn 28. The principle of territorial integrity, which is regarded as an important part of the international legal order, is confined to the sphere of relations between states: see Kosovo (n 8) [80].
53 UN Charter (n 3) art 1(2) declares that one of the four purposes of the UN is ‘[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’. art 1 of the two human rights covenants of 1966 provides: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’: ICCPR and ICESCR (n 5). UNGA Res 2625(XXV), 24 October 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc A/RES/25/2625, Preamble: ‘[t]he principle of equal rights and self-determination of peoples’.
54 Weber, Max, Essays in Sociology (Routledge 2013) 176Google Scholar.
55 Young, Iris Marion, ‘Self-determination as Non-domination’ (2005) 5 Ethnicities 139CrossRefGoogle Scholar.
56 Kosovo (n 8); Reference re Secession of Quebec (n 18).
57 United Arab Emirates’ Constitution of 1971 with Amendments through 2004, art 6, https://www.constituteproject.org/constitution/United_Arab_Emirates_2004.pdf.
58 Constitution Act 1867, 30 & 31 Vict c 3 (UK), s 91(24).
59 For an overview, see Walters, Mark D., ‘Promise and Paradox: The Emergence of Indigenous Rights Law in Canada’ in Imai, Shin, McNeil, Kent and Richardson, Benjamin J (eds), Indigenous Peoples and the Law: Comparative and Critical Perspectives (Hart 2009) 21Google Scholar.
60 UNGA Res 61/295 (n 10).
61 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.
62 The James Bay and Northern Québec Agreement (Indian and Northern Affairs 1976) C-67.
63 Cree-Naskapi (of Quebec) Act, SC 1983–1984, c 18. The range of Cree self-government powers under this Act will be expanded significantly upon the enactment of Bill C-70, An Act to give effect to the Agreement on Cree Nation Governance between the Crees of Eeyou Istchee and the Government of Canada, to amend the Cree-Naskapi (of Quebec) Act (introduced into the House of Commons on 18 February 2018).
64 Eastmain Band v Gilpin (1987) RJQ 1637.
65 Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 51, CA, para 20.
66 See, eg, Haida Gwaii Reconciliation Act, SBC 2010, c 17.