Legitimate Conquests?

by Eugene Kontorovich

One of the most fundamental norms in international law is that a state cannot acquire territory through the use of force. This is understood to be an implication of the U.N. Charter’s ban on force in Art. 2(4): if war is illegal, then benefiting from it should also be illegal. Few major norms are as widely agreed on. Indeed, many argue that the norm is so robust that it does not even allow territory to be acquired through legal war, which under the Charter is confined to self-defense.

I wrote during the Lebanon war last year that plan favored by many international diplomats for ending that war – handing the Sheba farms region over to Lebanon – would appear to violate the anti-conquest norm. Lebanon had never made a claim to the land until Israel withdrew to the international border in 2000. And prior to last year’s war, the U.N. had determined that the area did not belong to Lebanon. When Lebanon’s president said during the war that giving the area to Lebanon would weaken Hezbollah by giving them what they want, the international community suddenly thought maybe the land should be given to Lebanon after all.

Well it turns out there is nothing unusual about international endorsement of Lebanon’s territorial aggrandizement through force. We all know that violations of an international norm do not prove its non-existence, if the violation is met by protestations from observer nations about the illegality of the action. However, not only have there been multiple forcible annexations since the Charter’s adoption, but many of them have been accepted as legitimate by the international community. The leading comprehensive work on the subject describes how several conquests were met with international acceptance. The international community recognized these conquered lands as part of the conqueror, and did not treat them as occupied territory.

Korman’s examples: India’s conquest of Goa, Daman, and Diu in 1961 and Indonesia’s conquest of East Timor in 1975.

However, I’ve come up with further examples where conquest by force was accepted, or broadly accepted, by the international community:

• Israel, 1949. The armistice lines at the end of Israel’s War of Independence were broader than the U.N. partition plan proposed in 1948, yet most nations treat the armistice line (also called the “Green Line”), as Israel’s legitimate border.
• China/Tibet, 1950. Again, while many regard China’s conquest illegal, do any nations treat Tibet as non-Chinese territory?
Indonesia/Dutch New Guinea, 1963. Much the same story as with East Timor. This looked much like the Sheba Farms model: Indonesia attacks, forcing the Dutch to agree to put the area under U.N. control. The U.N. immediately hands it over to Indonesia, which annexed it despite previous commitments to have free elections on independence. Interestingly, the plan to use the U.N. as a straw-man to give Indonesia’s conquest “an outward appearance of legitimacy” was apparently hatched in the White House, by McGeorge Bundy.
• Israel/neighbors, 1967. This is an iffier example. In Security Council Res. 242, the famous deletion of the word “the” before “territories” from which Israel was to withdrawal was meant to allow only a partial withdraw, while being ambiguous enough to allow nations that favored a full withdraw to vote for the resolution.
• North Vietnam/South Vietnam. This is perhaps the biggest one: an entire nation gobbled up whole. Does any country not recognize South Vietnam as part of Vietnam’s sovereign territory?

And of course there are attempted conquests declared illegal: Iraq/Kuwait, Israel/territories (I think I’ll count this in both columns!), Argentina/Falklands (though the opposition was lukewarm at first), and Morocco/Western Sahara; Egypt/Gaza and Jordan/West Bank.

Now comes the bleg. Have I missed anything? Can anyone think of further instances of conquest/attempted conquest since 1947? Are there nations that do not recognize the conquered areas as part of the sovereign territory of the conqueror? I want to get a comprehensive list.

Also, I’d love to know what Opinio Juris readers think of some difficult characterization questions. How would one characterize Morocco’s takeover of Spanish Sahara – accomplished by marching 300,000 unarmed civilians into the territory and effectively overwhelming the Spanish garrison. A mass invasion is surely a use of “force.” If one has a gun and is surrounded by 100 unarmed men demanding one’s wallet, that would probably count as a strong-arm mugging.

Or how should I treat the 1947 peace conference which distributed pieces of occupied Germany and Italy to several victorious countries, while the ink was still drying on the U.N. Charter. Here, force was clearly used to enlarge borders. The border enlargement happened after the Charter went into effect, but the force was applied before. Since the occupation was ongoing, I’d treat the Axis countries as “forced” in 1947 (and thus dismiss the fact that they “agreed” to the border modifications).

http://opiniojuris.org/2007/07/27/legitimate-conquests/

7 Responses

  1. What about Abu Musa and the Tunb islands in the Persian Gulf (seized by Iran in 1971, claimed by UAE)?

    http://en.wikipedia.org/wiki/Abu_Musa

    http://en.wikipedia.org/wiki/Greater_and_Lesser_Tunbs

  2. Israel, 1949. The armistice lines at the end of Israel’s War of Independence were broader than the U.N. partition plan proposed in 1948, yet most nations treat the armistice line (also called the “Green Line”), as Israel’s legitimate border.

    • China/Tibet, 1950. Again, while many regard China’s conquest illegal, do any nations treat Tibet as non-Chinese territory?

    I’m not sure these two should “count.” In both cases the invading country had not joined the UN, and thus renounced the Right of Conquest. Additionally, it was still relatively early in the UN Charter’s existence, thus one could argue as to whether a real international norm had been formed at that particular point.

    As to whether such lofty goals as renouncing conquest were practical or helpful in the UN charter… I’m still undecided.

  3. Matthew – As far as I can tell, China was a member of the U.N. since 1945. You’re right about Israel, though, it was admitted right after the armistice agreements were signed and thus the Charter did not apply to the Independence War.

    Since the Charter is a conventional norm, I think it has full force the moment it goes into effect, and does not need to “gain steam” like a customary norm.

  4. Huh??

    Palestine was administered by Britain, a charter memeber of the UN, under a League of Nations mandate. Not only does the UN Charter apply, the original mandate does as well.

    It’s a situation that really makes a mockery of international law, norms, whatever. Pure hypocrisy.

  5. Obviously, a similar situation is on-going in Kosovo. Whatever the complexities of the matter, I believe it is a fair statement that only pressure from other nations prevent Serbia from taking action to preserve their own territorial integrity. Absent that pressure, whatever internal demand for autonomy or independence that might exist in Kosovo, the Serb state would maintain a veto.

    One may also note the Northern territory of Cyprus. While much disputed, even with consequences right up to today, such as the EU, one state (Turkey) has carved territory out of another (Cyprus). In theory, if Greek and Greek-Cypriat objections could be overcome, a global recognition of Turkish Cyprus would otherwise be unobjectionable.

    Further, Russsian troop-occupied Moldova. This territory, Transnistria, exists within a globally recognized state, exists as a result of force or the threat of force, and probably could never survive independently of Russia. It might be said to be a ‘slow motion’ version of the acquisition (or retention) of territory by force that is not yet complete.

    Likewise, Nagorno-Karabakh between Armenia and Azerbaijan. Of course, Russia remains in (apparently permanent) possession of Japanese territory from WWII.

    I suppose also one could count in the great violence that gave birth to a separate India and Pakistan. Or the lesser violence that separated East Pakistan (Bangladesh) from West Pakistan. Similarly, the violence that separated Singapore from Malaysia.

    Finally, force – or more often, the threat of force – is regularly used for more marginal territorial disputes of which there are two types. (1) Border disputes are often negotiated or sent to arbitration based upon such threats. One fairly would argue that if this is agreed upon by the parties afterward, this is acceptable, especially if not actual force is ever used, but in principle, these concessions would not be made if the relevant nations waived the use of force in advance. Perhaps, Hong Kong and Macao are subsets of this category. (2) Maritime disputes are often subject to forceful action or the threat of force. Two examples: U.S. military travel through the Northwest Passage in waters vehemently claimed as sovereign by Canada. The maritime border between present day Peru and Chile (let alone the complications of a claim from Bolivia) exists as an example.

    Besides, perhaps I’m just reading things too narrowly, but isn’t the U.N. 2(4) prohibition on the use of force to acquire the territory of another STATE? And isn’t the root of the Israel/Arab problem that the “occupied” or “disputed” territories are not part of any sovereign state? (Something distinct from Sheba or the Golan Heights?)

  6. Eugene –

    While Korman’s examples might sound substantial, mroe sophisticated statistical analyses of territorial changes in recent history show a substantial decline during the Charter era. See in particular, Mark W. Zacher, The Territorial Integrity Norm: Interstate Boundaries and the Use of Force, 55 INT’L ORG. 215 (2001). Zacher’s data show that “While approximately 80 percent of territorial wars led to re-distributions of territory for all periods prior to 1945, this figure dropped to 30 percent after 1945.” Zacher identifies only 12 territorial conflicts from 1945 to 2000 that led to territorial adjustments. And these were pretty peripheral.

    The territorial integrity norm has acquired a remarkable force. I wouldn’t dismiss it so readily based on a few outlying examples.

  7. Matthew – As far as I can tell, China was a member of the U.N.

    Which China, though? The Communist one didn’t get Taiwan’s security council seat until 1971. I must admit, though, with the Korean War and such, I find the whole UN status of China a little confusing.

    Palestine was administered by Britain, a charter memeber of the UN, under a League of Nations mandate. Not only does the UN Charter apply, the original mandate does as well.

    Britain didn’t really fight the War of Independence, though.

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