27 Jul Legitimate Conquests?
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).