Annexation

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Basic Law: Jerusalem, Capital of Israel passed by the Knesset on 30 July 1980
Federal Law Admitting to the Russian Federation the Republic of Crimea, passed by the Duma on 21 March 2014
Two examples of unilateral annexation laws
Civilians and coalition military forces wave Kuwaiti and Saudi Arabian flags as they celebrate the end of the annexation of Kuwait by Iraq (February 1991).
Tourists in Crimea with Russian flag flying (June 2015)

Annexation (Latin ad, to, and nexus, joining) is a concept in international law referring to the forcible transition of one state's territory by another state. It is generally held to be an illegal act.[1] It is distinct from conquest, which refers to the acquisition of control over a territory involving a change of sovereignty.[2][3]

Annexation differs from cession, because unlike cession where territory is given or sold through treaty, annexation is a unilateral act where territory is seized and held by one state.[4] Annexation can be legitimized via general recognition by international bodies (i.e. other countries and intergovernmental organisations).[4][5][6]

Evolution of international law

Acquisition of title

International law regarding the use of force by states has evolved significantly in the 20th century.[7] Key agreements include the 1907 Porter Convention, the 1920 Covenant of the League of Nations and the 1928 Kellogg–Briand Pact,[7] culminating in Article 2(4) of Chapter I of the United Nations Charter, which is in force today: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations".[7] 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.[8]

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".[1]

Protection of civilians

During World War II, the use of annexation deprived whole populations of the safeguards provided by international laws governing military occupations.

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.[9]

The authors of the Fourth Geneva Convention made a point of giving the rules regarding inviolability of rights "an absolute character",[10] thus making it much more difficult for a state to bypass international law through the use of annexation.citation needed 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.

Examples since 1949

Tibet

Tibetan representatives in Beijing and the People's Republic of China signed the Seventeen Point Agreement on 23 May 1951, authorizing the PLA presence in Tibet.[11] The Central Tibetan Administration considers it invalid and as having been signed under duress.[12]

Portuguese 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, 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 (UNSC) was vetoed by the Soviet Union.[13] Goa and Daman and Diu were incorporated into India.

Sikkim

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, the Indian independence spurred popular political movements in Sikkim and the ruler 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 1967 India and China went to war in Sikkim, Cho La incident where a Chinese occupation was attempted and 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 May 16, 1975, Sikkim officially became the 22nd state of the Indian Union and the monarchy was abolished.

Rockall

Lieutenant Commander Desmond Scott hoists the Union Flag in 1955

On 18 September 1955 at precisely 10:16 am, in what would be the final territorial expansion of the British Empire, 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.[14] 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), the Republic of Ireland or Iceland.

East Timor

Following an Indonesian invasion in 1975, East Timor 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.

Western Sahara

Morocco officially annexed Western Sahara in 1976

In 1975, and following the Madrid Accords between Morocco, Mauritania and Spain, the latter withdrew from the territory and ceded the administration to Morocco and Mauritania. This was challenged by an independentist movement, the Polisario Front that waged a guerrilla war against both Morocco and Mauritania. In 1979, and after a military putsch, Mauritania withdrew from the territory which 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.

West Bank

The part of former Mandatory Palestine occupied by Jordan during the 1948 Arab–Israeli War, which some Jews call "Judea and Samaria", was renamed "the West Bank". It was annexed to Jordan in 1950 at the request of a Palestinian delegation.[15] It had been questioned, however, how representative that delegation was, and at the insistence of the Arab League, Jordan was considered a trustee only.[16] Only the United Kingdom and Pakistan recognized the annexation by Jordan[17] It was not condemned by the UNSC 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.[18] Israel has not taken the step of annexing the territory (except for parts 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.

East Jerusalem

During the 1967 Six-Day War, Israel occupied East Jerusalem, a part of the West Bank, from Jordan. On June 27, 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.[19][20][21] The annexation was declared null and void by UNSC Resolutions 252, 267, 271, 298, 465, 476[22] and 478.[23]

Israel and the territories Israel occupied in the Six-Day War.

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 (1948). Only Costa Rica recognized Israel's annexation of East Jerusalem, and those countries who maintained embassies in Israel did not move them to Jerusalem.[24] The United States Congress has passed the Jerusalem Embassy Act, which recognizes Jerusalem as the united capital of Israel and requires the relocation of the U.S. embassy there, but the bill has been waived by presidents Clinton, Bush, and Obama on national security grounds.

Golan Heights

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 UNSC Resolution 497. The only state that recognized the annexation is the Federated States of Micronesia.

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.[25]

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."[26] 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.[26]

Kuwait

After being allied with Iraq during the Iran–Iraq War (largely due to desiring Iraqi protection from Iran), Kuwait was invaded and declared 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 the UNSC, 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.

Crimea

In March 2014, Russia annexed most of the Crimean Peninsula, at that time part of Ukraine, and administers the territory as two federal subjects — the Republic of Crimea and the federal city of Sevastopol.[27] Russia rejects the view that this was an annexation and regard it as an accession to the Russian Federation of a state that had just declared independence from Ukraine following a referendum, and considers 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 part of Russian Empire and later Russian SSR.

Antarctica

One example of a claimed annexation after World War II is the Kingdom of Norway's southward expansion of the dependent territory Queen Maud Land. On most maps there had been an unclaimed area between Queen Maud Land's borders of 1939 and the South Pole until June 12, 2015 when Norway formally claimed to have annexed that area.[28] The Antarctic Treaty, however, states: "The treaty does not recognize, dispute, nor establish territorial sovereignty claims; no new claims shall be asserted while the treaty is in force".citation needed

Gallery of maps

See also

References

  1. ^ a b Hofmann 2013: "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." Cite error: Invalid <ref> tag; name "FOOTNOTEHofmann2013" defined multiple times with different content (see the help page).
  2. ^ Marcelo G Kohen (2017). "Conquest". In Frauke Lachenmann; Rüdiger Wolfrum. The Law of Armed Conflict and the Use of Force: The Max Planck Encyclopedia of Public International Law. Oxford University Press. p. 289. ISBN 978-0-19-878462-3. 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 extent 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. 
  3. ^ 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."
  4. ^ a b  One or more of the preceding sentences incorporates text from a publication now in the public domainChisholm, Hugh, ed. (1911). "Annexation". Encyclopædia Britannica (11th ed.). Cambridge University Press. 
  5. ^ "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. 
  6. ^ Rothwell, Donald; Kaye, Stuart; Akhtarkhavari, Afshin; Davis, Ruth (2 May 2014). "6.6 Cession and Annexation". International Law: Cases and Materials with Australian Perspectives. Cambridge University Press. ISBN 978-1-107-69119-3. 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 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. 
  7. ^ a b c Jennings & Kohen 2017, p. 80.
  8. ^ Jennings & Kohen 2017, p. 81.
  9. ^ "Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Commentary - Art. 47. Part III : Status and treatment of protected persons #Section III : Occupied territories". ICRC. Retrieved 20 March 2014. it was obvious that they were in fact always subservient to the will of the Occupying Power. Such practices were incompatible with the traditional concept of occupation (as defined in Article 43 of the Hague Regulations of 1907) 
  10. ^ Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.Commentary on Part III : Status and treatment of protected persons #Section III : Occupied territories Art. 47 by the ICRC
  11. ^ Goldstein, Melvyn C. A History of Modern Tibet, 1913-1951: The Demise of the Lamaist State (1989) University of California Press. p.47. ISBN 978-0-520-06140-8
  12. ^ Powers, John. History as Propaganda: Tibetan Exiles versus the People's Republic of China (2004) Oxford University Press. pp. 116–7. ISBN 978-0-19-517426-7
  13. ^ "The United Nations Security Council S/5033". www.un.org. Retrieved 17 July 2017. 
  14. ^ BBC staff. "On this day: 21 September 1955: Britain claims Rockall". BBC. Retrieved March 2012.  Check date values in: |access-date= (help)
  15. ^ [1] Archived October 2, 2011, at the Wayback Machine.
  16. ^ Arab League Session: 12-II Date: May 1950
  17. ^ Marshall J. Berger, Ora Ahimeir (2002). Jerusalem: a city and its future. https://books.google.com/books?id=FGOY5oDGGLUC&pg=PA145: Syracuse University Press. p. 145. ISBN 978-0-8156-2912-2. 
  18. ^ Romano, Amy (2003). A Historical Atlas of Jordan. The Rosen Publishing Group. p. 51. ISBN 978-0-8239-3980-0. 
  19. ^ Sela, Avraham. "Jerusalem." The Continuum Political Encyclopedia of the Middle East. Ed. Avraham Sela. New York: Continuum, 2002. pp. 391-498.
  20. ^ Frank, Mitch. Understanding the Holy Land: Answering Questions about the Israeli-Palestinian Conflict. New York: Viking, 2005. p. 74.
  21. ^ "A/35/508-S/14207 of 8 October 1980." Archived June 12, 2012, at the Wayback Machine. UNISPAL - United Nations Information System on the Question of Palestine. 8 October 1980. 8 June 2008
  22. ^ UNSC Resolutions referred to in UNSC res 476 - 252, 267, 271, 298, 465
  23. ^ UNSC res 478 Archived 2012-01-05 at the Wayback Machine.
  24. ^ Lustick, Ian S. (16 January 1997). "Has Israel Annexed East Jerusalem?". Middle East Policy Council Journal. 5 (1). doi:10.1111/j.1475-4967.1997.tb00247.x. 
  25. ^ "Syria: 'We still feel Syrian,' say Druze of Golan Heights". 
  26. ^ a b "UN Doc A/67/L.24". Archived from the original on 2012-12-02. 
  27. ^ "Putin signs laws on reunification of Republic of Crimea and Sevastopol with Russia". ITAR TASS. 21 March 2014. Retrieved March 21, 2014. 
  28. ^ Rapp, Ole Magnus. "Norge utvider Dronning Maud Land helt frem til Sydpolen - Aftenposten". Aftenposten.no. Retrieved 2016-08-08. 

Further reading