Peoples, Territorialism and Boundaries

Malcolm N. Shaw ¹

Full text available: PDF format ^*

I. Introduction

Territorial change is often a painful process. It impacts not only upon the international community and the states concerned, both old and new, but also upon the individuals and groups that inhabit the areas involved. This is especially so where an existing independent state is dismantled in whole or in part. How such interests may be acceptably accommodated within the framework of international law is a crucial question in an era of rapid and dramatic international political change. The major elements to be considered in situations of change of sovereignty include, apart from human rights generally, the rights of self-determination and of groups, and the law relating to territory. The latter would embrace the rules governing the acquisition of title and the principles of stability of boundaries and territorial integrity. In particular, the problem is raised of the legal basis of the transformation of internal or administrative borders into international boundaries upon independence in the light of territorial and human rights concerns.

In looking at these elements, the essential focus needs to be upon the instant in time, or the bridge of time, at which, or during which, a new political entity emerges upon the international scene. This is the vantage point from which one must survey the interplay of relevant principles as the international community seeks to come to terms with a new member in a way which is acceptable to it, to states generally, to the states especially involved and to the individuals, peoples and groups particularly concerned. While considering the range of applicable principles, one must keep in mind that what is in question for present purposes is the basis of legitimation of the new entity in law and not in politics or morality, for these raise different issues.

A new state may seek the source of its legitimacy within the framework of international law either in the territorialist conception, whereby it claims that it is entitled to come to independence within a particular and accepted territorial framework, or as a consequence of the exercise of self-determination, with its focus upon the people in question. This essential distinction has been the source of much confusion in the decolonization context. One other possibility relates to the application of the principle of effectiveness coupled with recognition, whereby the very fact of the establishment of effective control over the territory is deemed to be sufficient when accompanied by clear international acceptance. In practice, the international community will regard the third ground as an exceptional circumstance for obvious policy reasons, not least because it is invariably linked with the use of force.² The basic choice, therefore, is between self-determination, or other possible variant of human rights, and territorialism as the founding principle governing the positioning of boundaries in the case of newly emerging states. Although the question of the basis of legitimacy of a new state in international law is different from the establishment of its boundaries, in reality there is a close relationship between the two. This is particularly the case of newly independent states emerging out of existing states where there were established administrative borders. Self-determination concentrates upon the relevant `people', whose pattern of habitation will dictate the appropriate international boundaries. Territorialism, on the other hand, puts the emphasis upon the fact that existing borders of whatever provenance will continue, by virtue of changing their status from internal to international lines.

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1 Barrister; Sir Robert Jennings Professor of International Law, University of Leicester, University Road, Leicester, LE1 7RH, England. This article is based on a paper delivered at Liverpool University in May 1997. It has been considerably rewritten and enlarged.

2 See, for example, the case of British-mandated Palestine and the emergence of the boundaries of Israel as a consequence of the use of force against it; see generally, J.N. Moore (ed.), The Arab-Israeli Conflict, 4 vols. (1974-1994).

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