Two examples of unilateral annexation laws, both illegal under international law
Annexation,[1] in international law, is the forcible acquisition and assertion of legal title over one state's territory by another state, usually following military occupation of the territory.[2] In current international law, it is generally held to be an illegal act.[3] Annexation is a unilateral act where territory is seized and held by one state,[4] as distinct from the complete conquest of another country,[a][7][8] and differs from cession, in which territory is given or sold through treaty.
Annexation can be legitimized if generally recognized by other states and international bodies.[4][9][2]
The illegality of annexation means that states carrying out such acts usually avoid using the word annexation in describing their actions;[10][11] in each of the unresolved annexations by Israel, Morocco and Russia, the states have avoided characterizing their actions as such.[11][12]
These principles were reconfirmed by the 1970 Friendly Relations Declaration.[15] Since the use of force against territorial integrity or political independence is illegal, the question as to whether title or sovereignty can be transferred in such a situation has been the subject of legal debate.[16] '[A]nnexation by the use of force of the territory of another State or part thereof' is an act of aggression according to the Rome Statute of the International Criminal Court.[17]
Occupation and annexation
Illegally annexed territory is considered as still occupied under international law and the provisions of international humanitarian law continue to apply. For precision, such territory may be referred to as "occupied and illegally annexed".[18] In a report to the United Nations General Assembly, Michael Lynk contrasted de jure annexation as a formal declaration[2] by a state that it is claiming permanent sovereignty over territory and de facto annexation without the formal declaration[3] as a descriptive term for a state establishing facts on the ground as the prelude to a future claim of sovereignty.[19]
The Fourth Geneva Convention (GCIV) of 1949 amplified the Hague Conventions of 1899 and 1907 with respect to the question of the protection of civilians,[20] and the rules regarding inviolability of rights have "an absolute character",[21] making it much more difficult for a state to bypass international law through the use of annexation.[21][c]
Annexations since the foundation of the United Nations
Unresolved
By Israel
Israel and the territories Israel occupied in the Six-Day War.
During the 1967 Six-Day War, Israel captured East Jerusalem, a part of the West Bank, from Jordan. While Jordan had annexed the West Bank in 1950, it was considered an illegal occupation and Jordan was recognized as the legal sovereign by the United Kingdom and possibly Pakistan. On 31 July 1988, Jordan relinquished this claim. It has remained occupied until the present day. On 27 June 1967, Israel unilaterally extended its law and jurisdiction to East Jerusalem and some of the surrounding area, incorporating about 70 square kilometers of territory into the Jerusalem Municipality. Although at the time, Israel informed the United Nations that its measures constituted administrative and municipal integration rather than annexation. Later rulings by the Israeli Supreme Court indicated that East Jerusalem had become part of Israel. In 1980, Israel passed the Jerusalem Law as part of its Basic Law, which declared Jerusalem the "complete and united" capital of Israel. In other words, Israel purported to annex East Jerusalem.[22][23][24] The annexation was declared null and void by United Nations Security Council (UNSC) resolutions 252, 267, 271, 298, 465, 476[25] and 478.[26]
Jewish neighborhoods have since been built in East Jerusalem, and Israeli Jews have since also settled in Arab neighborhoods there, though some Jews may have returned from their 1948 expulsion after the Battle for Jerusalem. Only Costa Rica recognized Israel's annexation of East Jerusalem, and those countries who maintained embassies in Israel did not move them to Jerusalem.[27]
The United States Congress passed the Jerusalem Embassy Act, which recognizes Jerusalem as the united capital of Israel and requires the relocation of the U.S. embassy there in 1995.[28] The act included a provision permitting the President to delay its implementation due to national security concerns. This waiver was used by presidents Clinton, Bush, Obama, and Trump, but was allowed to expire in 2019.[29]
Law professor Omar M. Dajani and others[30][31] discuss de facto annexation (also referred to as "creeping annexation"[32]). The debate considers whether, in all the circumstances, there is a pattern of behavior sufficient to conclude that Israel is in violation of the international prohibition against annexation, even absent a formal declaration.[33]
Israel occupied two-thirds of the Golan Heights from Syria during the 1967 Six-Day War, and subsequently built Jewish settlements in the area. In 1981, Israel passed the Golan Heights Law, which extended Israeli "law, jurisdiction, and administration" to the area, including the Shebaa farms area. This declaration was declared "null and void and without international legal effect" by United Nations Security Council Resolution 497. The Federated States of Micronesia recognized the annexation and in 2019, the United States joined in recognition.
The vast majority of Syrian Druze in Majdal Shams, the largest Syrian village in the Golan, have held onto their Syrian passports. When Israel annexed the Golan Heights in 1981, 95% of the Majdal Shams residents refused Israeli citizenship, and are still firmly of that opinion, in spite of the Syrian Civil War.[34]
On 29 November 2012, the United Nations General Assembly reaffirmed it was "[d]eeply concerned that Israel has not withdrawn from the Syrian Golan, which has been under occupation since 1967, contrary to the relevant Security Council and General Assembly resolutions," and "[s]tress[ed] the illegality of the Israeli settlement construction and other activities in the occupied Syrian Golan since 1967."[35] The General Assembly then voted by majority, 110 in favour to 6 against (Canada, Israel, Marshall Islands, Federated States of Micronesia, Palau, United States), with 59 abstentions, to demand a full Israeli withdrawal from the Syrian Golan Heights.[35]
On 25 March 2019, the United Statesrecognized the Golan Heights as sovereign Israeli territory.[36]
In response, United Nations Secretary-General António Guterres stated "the status of Golan has not changed",[37][38] and the decision received worldwide condemnation with European members of the United Nations Security Council noting "we raise our strong concerns about the broader consequences of recognizing illegal annexation and also about broader regional consequences" and that "annexation of territory by force is prohibited under international law", adding that unilateral changes to borders violate "the rules-based international order and the UN Charter".[39]
In 1975, and following the Madrid Accords between Mauritania, Morocco, and Spain, the last Spanish troops withdrew from the territory and ceded the administration to Mauritania and Morocco. This was challenged by an independentist movement, the Polisario Front that waged a guerrilla war against both Mauritania and Morocco. In 1979, and after a military putsch, Mauritania withdrew from the territory that left it controlled by Morocco. A United Nations peace process was initiated in 1991, but it has been stalled, and as of mid-2012, the UN is holding direct negotiations between Morocco and the Polisario front to reach a solution to the conflict. The Sahrawi Arab Democratic Republic is a partially recognized state that has claimed the entire region since 1976.
Russia rejects the view that this was an annexation and regards it as an accession to the Russian Federation of a state that had just declared independence from Ukraine following a disputed referendum, and considers it secession as a result of irredentism. A term often used in Russia to describe these events is "re-unification" (воссоединение) to highlight the fact that Crimea was a part of the Russian Empire from 1783 to 1917, and part of the Russian SFSR from 1921 to 1954. Few states recognize this view. Ukraine considers Crimea and Sevastopol its own territory, and oversees the Crimea Platform, an international diplomatic initiative to restore its sovereignty.
Regions of Ukraine annexed by Russia, with a red line marking the area of actual control by Russia on 30 September 2022
The part of former Mandatory Palestineoccupied by Jordan during the 1948 Arab–Israeli War was renamed "the West Bank". It was annexed to Jordan in 1950 at the request of a Palestinian delegation.[44] It had been questioned, however, how representative that delegation was, and at the insistence of the Arab League, Jordan was considered a trustee only.[45] Only Pakistan and the United Kingdom recognized the annexation by Jordan.[46] It was not condemned by the United Nations Security Council and it remained under Jordanian rule until 1967 when it was occupied by Israel. Jordan did not officially relinquish its claim to rule the West Bank until 1988.[47] Israel has not taken the step of annexing the territory (except for the part of it that was made part of the Jerusalem Municipality). Rather, there were enacted a complex (and highly controversial) system of military government decrees in effect applying Israeli law in many spheres to Israeli settlements.
Following an Indonesian invasion in 1975, East Timor (Timor-Leste) was annexed by Indonesia and was known as Timor Timur. It was regarded by Indonesia as the country's 27th province, but this was never recognised by the United Nations. The people of East Timor resisted Indonesian forces in a prolonged guerrilla campaign.
Following a referendum held in 1999 under a UN-sponsored agreement between the two sides, the people of East Timor rejected the offer of autonomy within Indonesia. East Timor achieved independence in 2002 and is now officially known as Timor-Leste.
After being allied with Iraq during the Iran–Iraq War (largely due to desiring Iraqi protection from Iran), Kuwait was invaded and annexed by Iraq (under Saddam Hussein) in August 1990. Hussein's primary justifications included a charge that Kuwaiti territory was in fact an Iraqi province, and that annexation was retaliation for "economic warfare" Kuwait had waged through slant drilling into Iraq's oil supplies. The monarchy was deposed after annexation, and an Iraqi governor installed.
United States president George H. W. Bush ultimately condemned Iraq's actions, and moved to drive out Iraqi forces. Authorized by United Nations Security Council resolutions, an American-led coalition of 34 nations fought the Gulf War to reinstate the Kuwaiti Emir. Iraq's invasion (and annexation) was deemed illegal and Kuwait remains an independent nation today.
Tibet and approximate line of communist advance in February 1950
The rule of the Qing dynasty over Tibet was established after a Qing expedition force defeated the Dzungar Khanate which had occupied Tibet in 1720, and lasted until the fall of the Qing dynasty in 1912. The Imperial Edict of the Abdication of the Qing Emperor issued in 1912 provided the legal basis for the Republic of China (ROC) to inherit all Qing territories, including Tibet.[48][49][50] However, the ROC had no effective control over Tibet from 1912 to 1951;[51] In the opinion of the Chinese government, this condition does not represent Tibet's de jure independence as many other parts of China also enjoyed de facto independence when the Chinese state was torn by warlordism, Japanese invasion, and civil war.[52]
Tibet came under the control of the People's Republic of China (PRC) after attempts by the Government of Tibet to gain international recognition, efforts to modernize its military, negotiations between the Government of Tibet and the PRC, and a military conflict in the Chamdo area of western Kham in October 1950. Many analysts consider the incorporation of Tibet into the PRC an annexation.[53][54][55]
If the actions of 1950 constituted an annexation, it was subsequently legalized by the Seventeen Point Agreement by the Government of Tibet in October 1951. From 1959 onwards, claims were made that this agreement was signed under pressure; academics have debated this ever since, but Tibet is recognized internationally as part of China.[56][57]
After the withdrawal of the British Empire from India, each of the Princely States of India and Pakistan that had been protectorates of the British Empire were given the choice of either 1. opting to join India, 2. opting to join Pakistan or 3. resume their former status as fully independent states. While most of the princely states opted to join either Pakistan or India, Hyderabad State elected instead to resume full independence. Following the expiration of ultimatums from India, the Indian military launched its Operation Polo on 13 September 1948 and invaded Hyderabad. After conquering most of Hyderabad in five days of warfare, the Nizam and signed a treaty on 18 September 1948 that saw Hyderabad annexed by India.
In 1954, the residents of Dadra and Nagar Haveli, a Portuguese enclave within India, ended Portuguese rule with the help of nationalist volunteers. From 1954 to 1961, the territory enjoyed de facto independence. In 1961, the territory was merged with India after its government signed an agreement with the Indian government.
In 1961, India and Portugal engaged in a brief military conflict over Portuguese-controlled Goa and Daman and Diu. India invaded and conquered the areas after 36 hours of fighting, thus ending 451 years of Portuguese colonial rule in India. The action was viewed in India as a liberation of historically Indian territory; in Portugal, however, the loss of both enclaves was seen as a national tragedy. A condemnation of the action by the United Nations Security Council was vetoed by the Soviet Union.[58] Goa and Daman and Diu were incorporated into India.
The strategic importance of Sikkim was realized in 1960s during the Sino-Indian War. Map in Polish.
During the British colonial rule in India, Sikkim had an ambiguous status, as an Indian princely state or as an Indian protectorate. Prior to Indian independence, Jawaharlal Nehru, acting as the leader of Executive Council, agreed that Sikkim would not be treated as an Indian state. Between 1947 and 1950, Sikkim enjoyed de facto independence. However, Indian independence spurred popular political movements in Sikkim and the ruling Chogyal came under pressure. He requested Indian help to quell the uprising, which was offered. Subsequently, in 1950, India signed a treaty with Sikkim bringing it under its suzerainty, and controlling its external affairs, defence, diplomacy and communications. A state council was established in 1955 to allow for constitutional government under the Sikkimese monarch. Meanwhile, trouble was brewing in the state after the Sikkim National Congress demanded fresh elections and greater representation for the Nepalese. In the 1967 Nathu La and Cho La clashes, Chinese border attacks were repulsed. In 1973, riots in front of the palace led to a formal request for protection from India. The Chogyal was proving to be extremely unpopular with the people. In 1975, the Kazi (prime minister) appealed to the Indian Parliament for a change in Sikkim's status so that it could become a state of India. In April, the Indian Army moved into Sikkim, seizing the city of Gangtok and disarming the Palace Guards. A referendum was held in which 97.5% of the voting people (59% of the people entitled to vote) voted to join the Indian Union. A few weeks later, on 16 May 1975, Sikkim officially became the 22nd state of the Indian Union and the monarchy was abolished.[60]
One example of a claimed annexation after World War II is the Kingdom of Norway's southward expansion of the dependent territoryQueen Maud Land. On most maps, there had been an unclaimed area between Queen Maud Land's borders of 1939 and the South Pole until 12 June 2015, when Norway formally claimed to have annexed that area.[64]
Lieutenant Commander Desmond Scott hoists the Union Flag in 1955
On 18 September 1955 at precisely 10:16 am, Rockall was declared officially annexed by the British Crown when Lieutenant-Commander Desmond Scott RN, Sergeant Brian Peel RM, Corporal AA Fraser RM, and James Fisher (a civilian naturalist and former Royal Marine), were deposited on the island by a Royal Navy helicopter from HMS Vidal (coincidentally named after the man who first charted the island). The team cemented in a brass plaque on Hall's Ledge and hoisted the Union Flag to stake the UK's claim.[65] However, any effect of this annexation on valuable maritime rights claims under UNCLOS in the waters beyond 12 nautical miles from Rockall are neither claimed by Britain nor recognised by Denmark (for the Faroe Islands), Iceland or Ireland.[citation needed]
^ abcRothwell et al. 2014, p. 360: "Annexation is distinct from cession. Instead of a State seeking to relinquish territory, annexation occurs when the acquiring State asserts that it now holds the territory. Annexation will usual follow a military occupation of a territory, when the occupying power decides to cement its physical control by asserting legal title. The annexation of territory is essentially the administrative action associated with conquest. Mere conquest alone is not enough, but rather the conquering State must assert it is now sovereign over the territory concerned. For example, the defeat of Germany and Japan in 1945 led to their occupation by the United States and allies for a number of years, but the States themselves were not absorbed by the Allied Powers part of their respective territories. Examples of annexation in contemporary practice are not common, and are generally viewed as illegal."
^ abHofmann 2013, p. i: "Annexation means the forcible acquisition of territory by one State at the expense of another State. It is one of the principal modes of acquiring territory... in contrast to acquisition a) of terra nullius by means of effective occupation accompanied by the intent to appropriate the territory; b) by cession as a result of a treaty concluded between the States concerned (Treaties), or an act of adjudication, both followed by the effective peaceful transfer of territory; c) by means of prescription defined as the legitimization of a doubtful title to territory by passage of time and presumed acquiescence of the former sovereign; d) by accretion constituting the physical process by which new land is formed close to, or becomes attached to, existing land. Under present international law, annexation no longer constitutes a legally admissible mode of acquisition of territory as it violates the prohibition of the threat or use of force. Therefore annexations must not be recognized as legal."
^Marcelo G Kohen (2017). "Conquest". In Frauke Lachenmann; Rüdiger Wolfrum (eds.). The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law. Oxford University Press. p. 289. ISBN978-0-19-878462-3. Conquest and annexation are not synonymous either. The latter term is used within and outside the context of armed conflicts, to designate a unilateral decision adopted by a State in order to extend its sovereignty over a given territory. In many cases, the effective occupation of a terra nullius was followed by a declaration of annexation, in order to incorporate the territory under the sovereignty of the acquiring State. In the context of armed conflicts, annexation is the case in which the victorious State unilaterally declares that it is henceforth sovereign over the territory having passed under its control as a result of hostilities. This attempt at producing a transfer of sovereignty through the exclusive decision of the victor is not generally recognized as valid, both in classical and in contemporary international law. An example of a case of annexation preceding the adoption of the UN Charter is the annexation of Bosnia-Herzegovina by the Austro-Hungarian Empire in 1908. The annexation was not recognized by the major Powers and required a modification of the 1878 Treaty of Berlin which had simply granted Austria-Hungary the right to administer the territory. Another example is the annexation of Ethiopia by Italy in 1936. Examples of purported contemporary annexations are the Golan Heights annexed by Israel in 1980 and Kuwait by Iraq in 1990, both declared null and void by the Security Council, or the incorporation of Crimea and the City of Sebastopol in the Russian Federation.
^Kohen, p.288, refers to clause 101 of the PERMANENT COURT OF INTERNATIONAL JUSTICE, 1933, April 5th, General List: No. 43. TWENTY-SIXTH SESSION, LEGAL STATUS OF EASTERN GREENLAND: "Conquest only operates as a cause of loss of sovereignty when there is war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State."
^"Annexation". Encyclopædia Britannica. Encyclopædia Britannica Online. Retrieved 20 March 2014. Unlike cession, whereby territory is given or sold through treaty, annexation is a unilateral act made effective by actual possession and legitimized by general recognition.
^Dajani, Omar M. (2017). "Symposium on revisiting Israel's settlements: Israel's creeping annexation". AJIL Unbound. 111. Cambridge University Press: 51–56. doi:10.1017/aju.2017.21. ISSN2398-7723. S2CID149297181. Archived from the original on 25 January 2022. Retrieved 9 March 2022. …today's legal prohibition of conquest creates an incentive for states to obfuscate the reality of annexation that did not exist when such actions were lawful. Excessive formalism, accordingly, seems misplaced when assessing whether a state has manifested an intention to hold a territory "under its dominion" with sufficient clarity to constitute an unlawful annexation. Indeed, state practice offers no shortage of examples in which the international community has looked past a state's formal characterization of its actions when evaluating their lawfulness for this purpose—most recently in relation to Russia's annexation of Crimea. Accordingly, while a formal act of annexation is powerful evidence of intent, the lack of one is by no means dispositive. What other kinds of acts signal such an intention? As noted above, it may be signaled by a state's exercise, for a prolonged time, of the kinds of governmental functions typically reserved to a sovereign. An occupant's refusal to accept the law of occupation's applicability would seem probative for drawing this conclusion—as would a refusal to comply with duties under that law that relate specifically to distinguishing the rights of an occupant from those of a sovereign.
^Hofmann 2013, p. ii: "...States are under a legal obligation to abide by the Stimson Doctrine and not to recognize as lawful territorial changes effected by means of annexation. Moreover, even the annexation of the entire territory of a State does not result in the automatic extinction of that State as a subject of international law notwithstanding that it no longer has the capacity to act as such since it cannot exercise sovereign and effective control over any territory."
^Carrie McDougall (2021). The Crime of Aggression under the Rome Statute of the International Criminal Court. Cambridge University Press. doi:10.1017/9781108769143. ISBN978-1-108-73852-1. S2CID241838777. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly Resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression:(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;
^Lustick, Ian S. (16 January 1997). "Has Israel Annexed East Jerusalem?". Middle East Policy Council Journal. 5 (1): 34–45. doi:10.1111/j.1475-4967.1997.tb00247.x.
^Jerusalem Embassy Act of 1995, Pub. L.Tooltip Public Law (United States)104–45 (text)(PDF), November 8, 1995, 109 Stat. 398.
^Aeyal Gross (2017). The Writing on the Wall: Rethinking the International Law of Occupation. Cambridge University Press. p. 122. ISBN978-1-316-50932-6. The perceived separation of the OPT from Israel and the lack of de jure annexation allows the continued attitude toward the OPT as "merely" occupied to persist. In reality, however, events familiar from the context of East Timor, Western Sahara, and Northern Cyprus, such as settlements and the taking of land and of natural resources, as detailed in the next chapter, have occurred in this territory even without a formal annexation.
^Orna Ben-Naftali; Michael Sfard; Hedi Viterbo (2018). The ABC of the OPT: A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory. Cambridge University Press. p. 411. doi:10.1017/9781316661376. ISBN978-1-107-15652-4. the ICJ concluded that the "route of the Wall will prejudge the future frontier between Israel and Palestine" and generates "the fear that Israel may integrate the settlements and their means of access" in a manner "tantamount to de facto annexation"
^"UN report: Israel's "creeping annexation" of territory is illegal". Christian Science Monitor. 31 January 2013. Archived from the original on 7 March 2022. Retrieved 7 March 2022. The United Nations' first report on Israel's overall settlement policy describes it as a "creeping annexation" of territory
^Freeman, Lesley (2013). Running From Tenda Gyamar: A Voluteer's Story of Life with the Refugee Children of Tibet. Winchester, UK: Mantra Books. p. 5. ISBN978-1-78099-853-4. With the collapse of the Chinese Empire in 1911, Tibet Declared its independence.
^"Tibet Through Chinese Eyes", The Atlantic, 1999, archived from the original on 19 May 2017, In Western opinion, the "Tibet question" is settled: Tibet should not be part of China; before being forcibly annexed, in 1951, it was an independent country.
^Anne-Marie Blondeau; Katia Buffetrille (2008). Authenticating Tibet: Answers to China's 100 Questions. University of California Press. p. 61. ISBN978-0-520-24464-1. Archived from the original on 23 June 2016. It was evident that the Chinese were not prepared to accept any compromises and that the Tibetans were compelled, under the threat of immediate armed invasion, to sign the Chinese proposal.
^Scholars have debated the existence of a norm against conquest since 1945 but states have continued to pursue annexation of small swaths of territory.[5][6]
^It is generally held that countries are under obligation to abide by the Stimson Doctrine that a state: "cannot admit the legality of any situation de facto nor... recognize any treaty or agreement entered into between those Governments... not... recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27, 1928".[14]
^GCIV Article 47, in the first paragraph in Section III: Occupied territories, restricted the effects of annexation on the rights of persons within those territories: "Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory."
Further reading
Look up annexation in Wiktionary, the free dictionary.
Rothwell, Donald; Kaye, Stuart; Akhtarkhavari, Afshin; Davis, Ruth (2014). "6.6 Cession and Annexation". International Law: Cases and Materials with Australian Perspectives. Cambridge University Press. ISBN978-1-107-69119-3.
