International Law in the Middle East

POLS 472-01

International Law in the Middle East

Fall 2013

Dr. Nesrine Badawi

Meeting: Monday and Wednesday 10:00-11:15 am

Office Hours: Monday and Wednesday 11:15 – 12:15 (but you need to book an appointment 24 hours in advance)

Over the course of this semester we will be using the theory and practice of international law to help us make sense of some of the most significant and controversial issues facing states, peoples and individuals in the MENA region, and to think critically about the manner in which these issues have arisen and been responded to. Focusing broadly on two themes – self-determination and the use of force – the topics we will examine include: the influence of European colonialism on state-formation in the Middle East; the 2003 invasion of Iraq and the controversial doctrine of “pre-emptive self-defence” used to justify this invasion; NATO’s “humanitarian” intervention in Libya and the wider question of the international community’s “responsibility to protect”, and many other regional issues to which the international legal dimension is crucial. We will also be reversing this relationship, using our analysis of the issues facing the Middle East to help us make sense of, and think critically about, international law. For instance, if the Security Council had passed a second resolution authorising the use of force against Iraq in 2003, would we – as international lawyers – have nothing to criticise about the war and its aftermath?

This course is premised on the idea of student-led learning: in this class your views (informed, of course, by your reading, thinking and independent research) are considered both legitimate and important. As one of its members, therefore, you are not only encouraged, but expected, to participate.

COURSE ASSESSMENT

Paper (due December 2nd,2013)20%

Midterm25%

Final25%

Participation and Attendance20%

Paper: You will be asked to write a research paper on a relevant topic.

Paper Word Count: 3000-3500 words (excluding footnotes).

Participation:

Students are expected to participate actively in every class, and will be called upon in each class to discuss the reading materials and answer related questions. If you are not present, or if you are unprepared, you will receive no credit towards your participation grade, which is worth 10% of the total mark.

As part of the participation assessment, you will be asked to take several pop quizzes

GRADING POLICY

N.B. Coursework that is handed in late will be penalised at a rate of 10% for the first 24 hours and 20% for the next 24 hours. No assignments will be accepted after 48 hours. There are no exceptions to this rule.

A 94-100B+ 87-89C+ 77-79D+ 67-69 F <59
A- 90-93 B 84-86 C 74-76 D 64-66
B- 80-83 C- 70-73 D- 60-63

READING MATERIALS

There no textbooks for the course; instead, you will be provided with readings and handouts, which will be made available to you on blackboard, or by email, if they are not available on the internet directly. Please bring the relevant readings to class with you. The “core reading” texts are compulsory. You must read and reflect on all of these before coming to class, using the list of “discussion points” for each topic to guide your thinking. Please note, however, that the list of “further readings” for any topic is by no means comprehensive; on the contrary, these materials constitute only a very tiny selection of what is out there, and are designed to broaden your knowledge and spark your imagination with regard to a particular topic. When writing essays and revising for exams you are expected to do your own research into the areas you need to know more about – a task which has become vastly easier in recent years thanks to the huge range of international legal materials and scholarship now available electronically, either via databases such as HeinOnline, and/or directly on the web (see “useful websites and other resources”, below). Please refer back to this syllabus at all times.

ELECTRONIC RESOURCES

HeinOnline (database of legal journal articles, among other things):

Go to AUC Library > Find Articles [With Databases] > See All Databases > HeinOnline Core Collection > Law Journal Library [from where you can either look up a journal article via the alphabetical list of law journals; or click on the SEARCH tab > Field Search > and search for what you want.

Avalon Project (Documents in Law, History and Diplomacy): http://avalon.law.yale.edu/

(see esp. Avalon’s special collection, “Middle East 1916-2001: A Documentary Record,” http://avalon.law.yale.edu/subject_menus/mideast.asp)

Al Haq,

United Nations

Security Council Resolutions Archive

General Assembly Resolutions Archive

UN Treaty Collection

International Court of Justice

International Criminal Tribunal for the Former Yugoslavia

International Criminal Tribunal for Rwanda

International Criminal Court

UN High Commissioner for Human Rights

European Court of Human Rights

Inter-American Court of Human Rights

United Nations Peacebuilding Commission

International Coalition for the Responsibility to Protect

International Committee of the Red Cross

Amnesty International

Human Rights Watch

Coalition Provisional Authority (inc. legal documents relating to the occupation)

B'Tselem (Israeli Info. Center for Human Rights in the OPT)

Breaking the Silence (Israeli soldiers talk about the OPT)

Al-Haq (Palestinian human rights NGO)

Jadaliyya (ezine produced by the Arab Studies Institute)

> see esp. recently-launched section on “Occupation, Intervention and Law (OIL)”:

Inner City Press

Law and Disorder (blog)

Inside Justice (blog)

For links to other useful websites for international legal materials, see:

American Society of International Law(ASIL)

> see also ASIL Insights ("international law behind the headlines," provide brief, balanced accounts of the international law issues raised by newsworthy late-breaking events)

European Journal of International Law (EJIL), archived online at

> see also EJIL links:

University of Chicagowww.lib.uchicago.edu/~llou/forintlaw.html

Lauterpacht Centre for International Law

CLASSROOM POLICIES

Behaviour:

Students are expected to abide by the Student Academic Conduct Code and assist in creating an environment that is conducive to learning and that protects the rights of all members of the University community. Incivility and disruptive behaviour will not be tolerated, will certainly lead to a low participation grade, if not a fail, and may result in a request to leave class and referral to the Office of Student Affairs for discipline. Examples of inappropriate classroom conduct include repeatedly arriving late, using a mobile phone or checking email/internet during class, talking while the instructor or other students are speaking and leaving the classroom without permission.

Plagiarism/Cheating:

Plagiarism and cheating of any kind will not be tolerated. Any assignment which shows evidence of either will receive an immediate fail. It is essential that you attribute all the ideas that you have borrowed. Distinguishing between your own words and ideas and those of others is by no means as easy as it sounds. See the University guidelines for more details: http://www.aucegypt.edu/academics/integrity/Students/Pages/default.aspx

Lateness:

Minor and infrequent lateness is occasionally unavoidable, but please enter the classroom quietly and with as little disruption as possible. Repeated or disruptive lateness will be penalised.

Mobile phones and laptop computers:

Any and every use of mobile phones during class is strictly prohibited. If you use your phone, it will be confiscated for at least the rest of the class, and your participation grade will suffer. Similarly, when it comes to the use of laptops, this must be for note-taking only. Accessing the internet or using instant messaging programmes is not permitted. If used for these purposes, you will lose the privilege of using your laptop in class and marks will be deducted from your participation grade.

Sessions

Session 1 (04/09/2013): Introduction to the Course

Session 2 (08/09/2013): Critical Tools I

Nathaniel Berman, “In the Wake of Empire.” American University International Law Review 14 (1999), 1521-69.
James Thuo Gathii, “International Law and Eurocentricity,” European Journal of International Law 9 (1998), 184-211.

Session 3 (11/09/2013): Critical Tools II

Antony Anghie & B. S. Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts,” Chinese Journal of International Law 2 (2003), 77-103 – focus on pp. 77-87.
Martti Koskenniemi, The Gentle Civiliser of Nations: the Rise and Fall of International Law, 1870-1960. Cambridge: Cambridge University Press, 2001, Chs. 1 and 2.

Statehood and Self Determination

Session 4 (15/09/2013) & Session 5 (18/09/2013): Statehood, Recognition and International Personality in the Nineteenth Century – the Ottoman Empire

Core Reading:

Hugh McKinnon Wood, “The Treaty of Paris and Turkey’s Status in International Law,” American Journal of International Law 37 (1943), 262-74.
Feroz Ahmad, “Ottoman Perceptions of the Capitulations, 1800-1914,”Journal of Islamic Studies 11 (2000), 1-20.
John Westlake, The Collected Papers of John Westlake on International Law, ed. Lassa Oppenheim (Cambridge: Cambridge University Press, 1914), 6-7; 78-85.

Further Reading:

Brett Bowden, “The Colonial Origins of International Law: European Expansion and the Classical Standard of Civilisation,” Journal of the History of International Law 7 (2005), 1-23.
Lassa Oppenheim, International Law: a Treatise, Vol. 1, 1st Ed. (London, New York & Bombay: Longmans, Greens & Co., 1905), pp. 30-34; 99-101.
Convention on the Rights and Duties of States (inter-American), Montevideo, 26 Dec. 1933, LNTS 165 (1934) 19 [“Montevideo Convention”], available at
General Act of the Conference of Berlin, Berlin, 26 February 1885. BSP & Other, 76/4 [“Berlin Act”], esp. Arts. I, V, VI, IX, X, XXXIV and XXXV.

Session 6 (22/09/2013) & Session 7 (25/09/2013): The Legal Framework for Self-Determination in the Middle East prior to 1945 – Protectorates

Core Reading:

Malcolm McIlwraith, “The Declaration of a Protectorate in Egypt and its Legal Effects,” Journal of Social and Comparative Legislation 17 (1917), 238-59.
James Crawford, The Creation of States in International Law. 2nd Ed (Oxford: Clarendon Press, 2006), pp. 282-328 (Ch. 7: “Dependent States and Other Dependent Entities”).

Further Reading:

Norman Dwight Harris, “The New Moroccan Protectorate,” American Journal of International Law 7 (1913), 245-67, esp. p. 261, ff.
Nathan J. Brown, “Law and Imperialism: Egypt in Comparative Perspective,” Law & Society Review 29 (1995), 103-125.
Robert L. Tignor, “Decolonization and Business: the Case of Egypt,” The Journal of Modern History 59 (1987), 479-505.

Session 8 (29/09.2013) & Session 9 (02/10/2013): The Legal Framework for Self-Determination in the Middle East prior to 1945 – Mandates

Core Reading:

Antony Anghie, “Colonialism and the Birth of International Institutions: Sovereignty, Economy and the Mandate System of the League of Nations,” New York University Journal of International Law and Politics 34 (2002), 513-633.

Further Reading:

Address on the Fourteen Points for Peace. Speech by US President Woodrow Wilson to Congress, 8 Jan. 1918. The Woodrow Wilson Presidential Library, available at
Nathaniel Berman, “‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International Law.” Harvard Law Review 106 (1992-93), 1793-1903.

Holiday: 06/10/2013

Session 10 (09/10/2013): Midterm

Holiday: 16/10/2013

Session 11 (13/10/2013) & Session 12 (20/10/2013): Self Determination in the Middle East: Palestine- UP to 1948 (Critical Perspectives)

Core Reading:

Geoffrey Watson, “Before Oslo: A Brief Legal History of the Arab-Israeli Conflict,” pp. 3-40 in The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements, (Oxford: Oxford University Press, 2000).
GA Res.181 (“Partition Plan”), A/Res/181(II)[A-B], 29 Nov. 1947, available at
Declaration of the State of Israel, 14 May,1948, available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/Declaration+of+Establishment+of+State+of+Israel.htm
SC Res. 242, 22 Nov. 1967, available at

Further Reading:

Sykes-Picot Agreement, 16 May 1916, available at
Hussein-McMahon Correspondence, 14 July – 10 Mar. 1916, esp. Letters 1-4, available at
The Balfour Declaration, November 2, 1917: http://avalon.law.yale.edu/20th_century/balfour.asp
British Mandate for Palestine, in American Journal of International Law 17, Supplement: Official Documents (Jul. 1923), 164-71.
Benny Morris, “The idea of transfer in Zionist thinking before 1948”, in Benny Morris, The Birth of the Palestinian Refugee Problem Revisited, 2nd Ed. (Cambridge: Cambridge University Press, 2nd ed., 2004), 40-64 (available as an e-book through the library website)
Summary of the Report of the Palestine Royal Commission, July 1937 (“Peel Commission”),
British White Paper on Palestine, 9 Nov. 1938 (approved by Parliament, 1939), available at http://avalon.law.yale.edu/20th_century/brwh1939.asp
Anglo-American Committee of Inquiry, April 1946 http://avalon.law.yale.edu/20th_century/angap04.asp
SC Res. 338, 22 Oct. 1973, available at

Holiday: 16/10/2013

Session 13 (23/10/2013) & Session 14 (27/10/2013): Self Determination in the Middle East: Palestine- Up to Present (Critical Perspectives):

Core Reading:

Declaration of Principles on Interim Self-Government Arrangements, Agreement between the Government of Israel and the Palestinian Liberation Organisation, 13 Sep. 1993, available at
Israeli-Palestinian Interim Agreement (“Oslo II”), Washington, 28 Sep. 1995, available at
A Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli-Palestinian Conflict, April 30, 2003 available at http://www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/A+Performance-Based+Roadmap+to+a+Permanent+Two-Sta.htm
GA Res. 67/19, Status of Palestine in the United Nations, 4 Dec. 2012, at

Further Reading:

PLO Negotiations Affairs Department, “The Historic Compromise: The Palestinian Declaration of Independence and the Twenty-Year Struggle for a Two-State Solution,” Consortium for Applied Research on International Migration (European University Institute: Robert Schuman Centre for Advanced Studies), 15. Nov. 2008, available at
Palestine’s UN Initiatives and the Representation of the Palestinian People’s Rights, Al Haq’s Questions & Answers, 15 Sep. 2011, Ref. 286/2011, at
Aeyal Gross, “Following UN Vote on Palestine, Israel may now find itself at the Hague,” Haaretz, 2 Dec. 2012, at
Aeyal Gross, “Palestinian Statehood of Confusion,” Haaretz, 30 Nov. 2012, at

Session 15: 30/10/2013 Changing Attitudes to Self-Determination – Western Sahara and the “earned sovereignty” approach

Core Reading:

Western Sahara Advisory Opinion, ICJ Rep., 1975, paras. 35-37; 42-59; 70-83; 87-89 and 162.
Catriona Drew, “The Meaning of Self-Determination: ‘The Stealing of the Sahara’ Redux?” In Karin Arts & Pedro Pinto Leite, eds., International Law and the Question of Western Sahara (Leiden: International Platform for Jurists of East Timor, 2007), 15-122.
Paul R. Williams et al, “Resolving Sovereignty-Based Conflicts: the Emerging Approach of Earned Sovereignty,” Denver Journal of International Law 31 (2002-03), 349-53.

Further Reading:

UN Security Council Resolution 1720, S/Res/1729 (2006), 31 Oct. 2006, available at
Thomas M. Franck, “The Stealing of the Sahara,” American Journal of International Law 70 (1976), 694-721.
Wayne Madsen, “Big Oil and James Baker Target the Western Sahara,” Counterpunch, 8 Jan. 2003,
Interview with Bachir Dkhil, one of Polisario’s founders, who defected to Morocco, available at
Christine Chinkin, “Western Sahara and the UN Second Decade of Decolonisation,” in Karin Arts & Pedro Pinto Leite, eds. (see above), 329-344.
Williams, Paul R. & Francesca Jannotti Pecci. “Earned Sovereignty: Bridging the Gap Between Sovereignty and Self-Determination.” Stanford Journal of International Law 40 (2004), 347-386. Reuters News Agency, “UN Shuns W. Sahara Rights Plea after France Objects,” 31 Oct. 2006, available at

Declaration on the Granting of Independence to Colonial Territories and Peoples. UN General Assembly, Res. 1514 (XV), 14 Dec. 1960, GAOR 15th Session, Supp. 16, p. 66 [Colonial Declaration], available at
Declaration on Principles of International Law Concerning Friendly Relations Among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV), 24 Oct. 1970, at (section on “self-determination of peoples”).
James Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’ in P. Alston (ed.), Peoples’ Rights (United States: Oxford University Press, 2001) pp. 7-67.

JUS AD BELLUM & JUS IN BELLO

Session 16 (03/11/2013): Use of Force in the Second Gulf War

CORE READING:

Christopher Greenwood, “New World Order or Old? The Invasion of Kuwait and the Rule of Law,” Modern Law Review 55 (1992), 153-178.
Nadje Al-Ali, “Reconstructing Gender: Iraqi Women between Dictatorship, War, Sanctions and Occupation,” Third World Quarterly 26 (2005), 739-758.