The award of the arbitrators in the Taba case has been subject to criticism on the grounds that the arbitrators based their decision on existing markers on the ground and refrained from examining when the markers had been placed and by whom and whether their siting was in accordance with the legal boundary. Nevertheless, it was a landmark case in that for the first, and so far only time, Israel and a neighbouring Arab State settled a border dispute by means of an international arbitration. States usually go to arbitration only on matters that they do not consider to be of fundamental importance and losing would not have far-reaching consequences. This is true of the Taba dispute, which involved a dispute of some 250 metres of shoreline.Professor Lapidoth summarises that for political and perhaps even psychological reasons the two parties attributed to this dispute much more weight than was objectively reasonable.

This chapter examines the role of private rights in the process of land and maritime delimitation. To determine this, the study performs a comparative analysis in pairs. Firstly, it compares the effect of private rights in land and maritime delimitation treaties. Then it compares the effect of private rights in land and maritime delimitation rulings. A synthesis of the findings reached shows that the effect of private rights is extensive and significant in land delimitation, but restricted or even absent in maritime delimitation. Hence, the risk of reallocation is greater for offshore private rights in the first place. This asymmetry has important implications for private actors operating in contested waters and for international law in general.

Chapter three deals with the role of international law in the ideology of the postcolonial ‘national’ state. With its ambition of achieving a homogeneous and unified sovereign entity, the postcolonial state essentially relies on international law principles for the continuity of colonial boundaries (uti possidetis), territorial integrity, sovereign equality, and non-interference in internal affairs. Contrary to the conventional wisdom that the uti possidetis principle helps in the maintenance of peace and order, I argue that uti possidetis is a key problem. Far from being a corrective mechanism halting potential ‘disorder’ emanating from decolonisation, the continuation of arbitrarily drawn colonial boundaries undermines the legitimate right to self-determination of numerous ethnic minorities in postcolonial states and often results in violent ethnic conflicts. The argument for uti possidetis in international law is also normatively inconsistent as it depends upon the capacity of the postcolonial state to efface ethno-nationalism while simultaneously allowing the state to produce its own sustaining nationalist ideology in majoritarian terms. The minority problem is thus embedded in the very ideological making of the postcolonial ‘national’ state in international law. My arguments in this chapter are substantiated with in-depth case studies on the Rohingya and the CHT hill people.