Updated: Oct 17, 2019
By: Vani Manoraj
Sovereignty as a concept forms the bedrock of international law and order. The United Nations was established on the premise of securing peace and respecting the sovereignty of States.
The Montevideo Convention on the Rights and Duties of States, 1933 under Article 1 categorically enumerates the four criteria for statehood namely a permanent population, a defined territory, government and capacity to enter into relations with other state. Even though Article 1 fails to mention sovereignty as a criterion, it holds an important place under International law.
Sovereignty refers to complete control exercised by an entity devoid of external intervention. In political theory, sovereignty is understood as a substantive term designating supreme authority over a polity. It is the basic principle underlying the dominant Westphalia model of state foundation.
However, as a concept, sovereignty is inherently ambiguous. Various authors have explored the definition, having far reaching impact for “both international and domestic legalities” (Arcanjo, 2019). Krasner defines sovereignty as “a system of political authority based on territory, mutual recognition, autonomy and control” (Krasner, 2001).
Therefore, territory is an important aspect of sovereignty. The supreme authority of a power over a definite territory is also referred to as “territorial sovereignty”.
Modes of Acquisition
Acquisition of territory by a State can be equated with the acquisition of property by an individual under domestic legal order. Generally, possession and administration are the two essential factors required to constitute an effective occupation (Agarwal, 2019).
For possession, the territory must be taken under the state’s control (corpus) and with the intention of acquiring sovereignty over it (animus). Possession is effected by the conclusion of a settlement or by the presentation of intention by the occupying state.
It is necessary that the occupying state establish an administrative function in order to effectively exercise sovereignty over the territory (Agarwal, 2019). Under International Law there are 5 ways of acquiring territory.
Terra Nullis is a Latin expression meaning “nobody’s land”. Terra means “earth” and nullis means “no one”. The expression in legal terminology refers to the land which has not been in possession of any person.
This is an “original acquisition” method of acquiring territory. Such land can be acquired by mere occupation of the land. However, mere occupation is not sufficient to prove sovereignty over the land. In Milirrpum v Nabalco Pty Ltd the Supreme court of the Northern Territory (Australia) held that at the time of original settlement British colonizers colonisation of Australia can be regarded as terra nullius.
Nevertheless, this was overruled in Mabo v Queensland (No 1) decision in 1992. In the Eastern Greenland case, the International Court of Justice stated that claims to sovereignty “based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involve two elements, each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority”(Legal Status of Eastern Greenland, 1933).
Prescription refers to the method of acquiring territory by passage of time. In prescription a state establishes sovereignty over land already under the rule of another. The key element is the acquiescence by the former sovereign of the occupation.
Prescription legalises (de jure) the de facto acquisition of territory and can be equated with the common law doctrine of easement by prescription under Laws of property. In the Island of Palmas Case (1928) between the Netherlands and United States decided that the Island of Palmas belonged to the Netherlands under the principle of prescription.
United States contended that it had acquired the territory from Spain who in turn had acquired the territory terra nullis. The Permanent Court of Arbitration held that the Netherlands continuous and peaceful sovereignty over the island, in absence of any challenge by Spain transferred the territory to the Netherlands.
Cessation is a peaceful transfer of the territory from one sovereign to another. It is effectuated either by the conclusion of a treaty or an act of adjudication followed by peaceful transfer of territory.
Under this mode of occupation all rights vested with the sovereign pass to another shadowed by the legal principle of “Nemo dat quod non habet”. This is a “Derivative Acquisition” method of acquiring territory by means of treaty.
Accretion is a physical process where a new land formed by natural or artificial process on an existing land acquired by the sovereign of such existing land.
The customary rule under international law states that the extension of territory by new formations effects without the State actively taking steps to extend its sovereignty. However, no State can alter the natural conditions of its own territory to the disadvantage of the neighbouring State (Agarwal, 2019).
Examples of this form of acquisition are the creation of rivers islands or lands due to volcanic eruption in the sea.
Conquest followed by annexation is a mode of acquisition wherein a sovereign acquires territory by use of process with the intention of permanent acquisition. It is also known as subjugation. This form of acquisition shall be dealt in detail in the article.
Annexation is derived from the two Latin terms ad meaning “to” and nexus meaning “joining”. Annexation means the forcible acquisition of territory by one state at the expense of another state (Hofmann, 2013). Therefore, the primary characteristics of Annexation are acquisition of territory, use of force and corpus et animus.
It is important to note that Annexation is an illegal form of acquisition of territory under contemporary international law. This is founded on the consensus among states as evidenced by Article 2(4) of the U.N. Charter requiring a prohibition on the use of force.
Also, this prohibition extends to treaty-based annexations and States are required to not recognise such acquisitions. Therefore, it can be said that Annexation and the process for annexation do not have any legal validity.
However, in international law the theory sometimes fails to account for the realities of international convention. In order to understand the disconnect between the law and the practice on annexation, it is pertinent to analyse the development of the law on annexation.
During the period of colonisation, under international law, use of force to acquire territory did not constitute an illegal act.
The States believed that war was an important act by the State. This belief is represented in Oppenheim’s International Law where in analyzing cause of war he states “If ... territory cannot be acquired by peaceable means, acquisition by conquest alone remains if International Law fails to provide means of peaceful change in accordance with justice”.
Moreover, Schwarzenberger held that “In the international society, law is subordinate to the rule of force. If the whole State machinery [of the defeated State] has collapsed, conquest would permit acquisition of title to the territory of this State”.
Wu in her article states that “According to these theories, colonial wars or other aggressive wars started by imperialist countries in order to annex territories of other countries are lawful.
The Japanese seizure of China’s three northeastern provinces, Italy’s annexation of Ethiopia, and Fascist Germany’s occupation of Poland, Czechoslovakia, and so forth were all lawful” (Wu, 1960).
She concludes that “[Conquest is one of] the various methods used by imperialist countries to plunder the territory of colonized countries and weak and small countries” (Wu, 1960).
Under conventional international law, annexation was effected by a unilateral declaration by the State acquiring territory after the complete defeat of the Adversary State.
The complete defeat presupposed that either the adversary had been destroyed or there was existence of circumstances in which the hostilities could not be continued.
Furthermore, a declaration of intention to exercise control over the annexed territory was necessary to effectuate the acquisition. Wu states that conquest was a method of acquiring territory where no treaty existed (Wu, 1960).
However, according to Ranier Hoffman, annexation could also be effected by the conclusion of a treaty. He states that the conclusion of treaty included an element of compulsion.
The annexing State exercised force to compel the ceding State to sign a peace treaty and transfer the territory to the former. Such annexations were legally valid and complied with international law (Hofmann, 2013).
A complete defeat of the adversary or an acceptance of cessation of hostilities was necessary to give legal effect to the annexation. In the absence of the same the annexing State would only have been considered as an occupying power.
Therefore, annexation of Orange Free State and Transvaal by United Kingdom (1900) and Tripolitania by Italy (1911) did not constitute legal transfer of terrestrial sovereignty. Also, a plebiscite by the people of the territory confirming the transfer was not a requirement.
The Winds of Change (World War I and II)
The World War I showed the world the evils of war. The direct consequence of WWI was the creation and establishment of League of Nations.
Under Article 10 of the Covenant of the League of Nations, the members undertook “to respect the integrity and independence of all the others and to join in preserving them against aggression”.
Moreover, Article 12 provided that the members shall submit “themselves to submit all serious disputes to peaceful settlement or to inquiry by the Council and in no case to resort to war until these procedures had had time to lead to a settlement” and Article 16 stated “all members promised to join in common action against any other which made war in violation of the Covenant”.
Therefore, the members of the League of Nations accepted the prohibition on the use of war and the resolution of disputes by peaceful settlement. This new development in international convention of outlawing war was confirmed by the Kellog-Briand Pact of 1928.
This was a multilateral agreement which sought “to eliminate war as an instrument of national policy” (Britannica, 2019).
The agreement though ineffective due to lack of means of enforcement among other shortcomings, was still an important development in re-enforcing the practice of renouncing war to settle disputes.
Another substantial development was the Stimson Doctrine under which the United States declared that it would not recognise any situation, treaty or agreement which would have been brought about contrary to the Kellog-Briand Pact.
This was adopted by other states including in 1932 resolution of the League of Nations Assembly, the Anti-war Treaty of Non-aggression and Conciliation, 1933 (Saavendra Lamas Treaty- Article 2) and the Montevideo Convention on the Rights and Duties of States, 1933 (Article 11) thereby giving the doctrine wide application.
However, these developments did not absolutely establish the illegality of annexation.
The establishment of State of Manchukuo by Japan (1932), annexation of Ethiopia by Italy (1936), Austria by Germany (1938) and Czechoslovak by Germany, Hungry and Poland (1938) are evidences of annexation as a form of acquiring territory.
This changed during the period leading up to and during the World War II where various annexation by both the Allied and Axis powers were not recognised by the international community.
The horrors of the WWII, the human capacity for destruction and the weight of the atrocities committed strengthened the conviction for peace.
The absolute establishment of the illegality of annexation was confirmed by the creation of the United Nations. Under the UN Charter, Article 2(3) and (4) places a general ban on annexation and obliges the member states to resolve their disputes through “peaceful means”.
Moreover, it states that the Member States shall “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”.
This same principle is reaffirmed in the 1970 General Assembly “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States” where “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force and that no territorial acquisition resulting from such act shall be recognized as legal” (Agarwal, 2019).
Status Under Contemporary International Law
Various resolutions of the UN Security Council reconfirm the position that annexation is illegal (UNSC Res. 242 (1967), 338 (1973), 425 (1978), 497 (1981), 520 (1982), 1224 (1999), 1472 (2003), 1559 (2004), 1701 (2006) and 2334 (2016)).
It is also confirmed by Article 5(3) General Assembly Resolution 3314 which states “no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful”.
In the Nicaragua case the International Court of Justice regarded the prohibition of force as a principle of customary international law.
The jus cogens nature of the principle was translated into practice when the Security Council adopted Resolution 662 (1990) unanimously declaring that the annexation of Kuwait by Iraq was illegal and called upon member states to refrain from recognizing the annexation either directly or indirectly.
Recently the Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967, Michael Lynk made a statement confirming that Annexation is a flagrant violation of international law.
He stated that “Without this absolute prohibition, acquisitive states would have a strong incentive to obfuscate the origins of the territorial acquisition, leading us backwards to the days when borders were impediments to overcome, rather than frontiers to respect.” and observed that “absolute prohibition against annexation applies whether the occupied territory was acquired through a war of aggression or a defensive war” (OHCHR, 2019).
It is firmly established that annexation does not form a valid method of acquiring territory and is contrary to the principles of equality among states and respecting integrity of states.
However, this principle on paper does not meet the practice of states. Even after accepting prohibition on annexation, there have been various instances where States have resorted to use of force to acquire territory.
In 1954 and 1967, India took control of Goa and Sikkim respectively from the Portuguese and China. India claimed that the annexation of the territories was a process reintegration of the territories in India and a liberation of the people from the shackles of colonialism.
However, both the instances can be defined as textbook annexation. In 1969 Indonesia annexed Western New Guinea following a controversial referendum. Additionally, the fight for the recognition of Sahrawi Arab Democratic Republic (partially recognised state) is a direct result of the annexation of Western Sahara by Morocco.
However, one of the two most prominent example of annexation by a State is that of
the annexation of Crimea by Russia in 2014.
The Russian justify the annexation on the grounds that the same was conducted to respect the right of self-determination of the Crimean people.
A plebiscite was conducted in Crimea which was a part of Ukraine thereby creating an independent Crimean state, which then voluntarily concluded a treaty with Russia consequentially incorporating Crimea as a part of Russia.
Russia claims that this was a process of secession and re-unifies Crimea with Russia which has historically been part of the Russian Empire and later the Russian SSR.
The other example that has been on the international agenda is that of Israel’s annexation of Golan Heights. The issue has been part of international discussion and outrage since 1967, but recently the issue was enflamed because of statements made by U.S President Donald Trump recognizing the annexation.
Michael Lynk condemning the statement has been optimistic about the efficacy of the principle on illegality of annexation observing that there has been a considerable decrease in such instances.
He stated “While annexation has not disappeared from the modern world, this strict prohibition in international law has had a considerable dampening effect.
The power of the prohibition is that annexations in the modern world, when they do happen, are rarely recognized by other nations. International law, when married to international resolve, works.” (OHCHR, 2019).
However, it is clear from recent events that even though the principle on annexation under international law may be jus cogens, States do not consider it binding in nature. There is a huge disparity between the convention and law on the practice of annexation.
This may seem irrelevant in the larger scheme of issues but the practice of annexation raises some poignant legal issues for the people who are subject to such acts.
It is important to note that when a State annexes a territory, it also exercises control over the destiny of the people living in those territories. It is imperative that the will of the people be held to a higher regard than the geo-political nature of Annexation.
Arcanjo, M. (2019). Has Climate Change Rendered the Concept of Sovereignty Obsolete?. Retrieved 28 September 2019, from https://climate.org/has-climate-change-rendered-the-concept-of-sovereignty-obsolete/
Agarwal, A. (2019). Sovereign State Territory - Academike. Retrieved 25 September 2019, from https://www.lawctopus.com/academike/sovereign-state-territory/
Eastern Greenland PCIJ Series A/B No 53
Hofmann, R. (2013). Annexation (2013). Retrieved 28 September 2019, from https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1376
Island of Palms (Perm. Ct. Arb. 1928)
Krasner, S., 2001. Rethinking the Sovereign State Model. Review of International Studies, 27 (Special Issue, Dec 2001), p.18
Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141
Mabo v Queensland (No 1) (1988) 166 CLR 186
Nicaragua case (Merits) ICJ Reports 1986
OHCHR | Annexation is a flagrant violation of international law, says UN human rights expert. (2019). Retrieved 27 September 2019, from https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24716&LangID=E
Wu, H. (1960). A criticism of Bourgeois International Law on the Question of State Territory. Retrieved 26 September 2019, from https://www.tjsl.edu/slomansonb/6.2_BourgeoisIntlLaw.pdf