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Legal findings of interest in the Israeli Practices Opinion will be discussed in a multi-part series titled: “Review of the Israeli Practices Opinion”. This post serves as the fourth and final entry.
Part 1, which is concerned with whether the Court’s advisory jurisdiction extends to pronouncing upon Israel’s international responsibility without its consent, can be found here.
Part 2, which is concerned with whether there existed a bilateral dispute between Israel and Palestine that would bar the ICJ’s exercise of advisory jurisdiction, can be found here.
Part 3, which is concerned with the ICJ’s entitlement to review the validity of the advisory jurisdiction conferred upon it, can be found here.
In a commentary post on the International Court of Justice’s 19 July 2024 Israeli Practices advisory opinion, authors Ingrid Brunk and Monica Hakimi suggest that the customary prohibition on annexation of foreign territory extends, to any practice that evinces, to borrow the Court’s words, “intent […] to exercise permanent control over […] [foreign] territory. As examples of this phenomenon, the two authors referred to “‘creeping’ annexations around the world, whether by Morocco in Western Sahara, Turkey in Northern Cyprus, or China in the South China Sea and the Himalaya region”. This assertion is founded on a longer paper the two authors wrote, essentially (and this simplifies an excellent paper to a practically inappropriate degree) arguing that the prohibition on annexations is broader than the prohibition on use of force.
This post aims to challenge this theory. In doing so, a description of Brunk and Hakimi’s ideas will first be provided, followed by a criticism arguing that insufficient weight has been given to the importance of State practice in assessing the content of the customary prohibition on annexation. A conclusion wraps up the piece.
A description of Brunk and Hakimi’s article
One of the key conclusions of Brunk and Hakimi’s article is that the prohibition on annexation is distinct from the prohibition on use of force, and therefore, an annexation can occur without use of force. To provide support for this assertion, the two authors argued that the prohibition on annexation is derived from the development of three central projects in international law: (1) the entrenchment of State authority in certain territories; (2) decolonization and self-determination; and (3) interstate peace achieved largely through the prohibition on the use of unlawful force.
This, in turn, was supported by historical examples: Latin American States, in the 1800s, fearful of re-colonization by European States, created a series of pacts together respecting each other’s territorial integrity and political independence (Brunk and Hakimi, p. 23). The United States would follow suit in 1932 with the Stimson Doctrine, which articulated a duty of non-recognition for territory acquired by force (Brunk and Hakimi, p. 22). More historical examples were then provided, all demonstrating that the prohibition on annexation was developed by States acting in pursuance of the three projects above (see Brunk and Hakimi, pp. 38-39).
Accordingly, although States’ attempts at annexation historically overlapped with uses of force, non-forcible attempts violations of the right to self-determination of a foreign population could theoretically fall within this concept as well. The most salient example provided by the two authors was China’s “coercive behaviour” in the South China Sea that did not necessarily amount to use of force in respect of the surrounding territories’ land masses or maritime zones (Brunk and Hakimi, p. 43).
Criticism of the above theory
In criticizing the above theory, this author makes four points: (1) too much weight has been given to this concept of projects instead of actual State practice; (2) actual State practice, such as criticisms of modern annexations, have always focused on the forcible nature of annexation; (3) State practice has never opposed non-forcible means of annexation; and (4) to date, no violation of a foreign people’s self-determination has occurred without accompanying uses of force.
Beginning with the first point, Brunk and Hakimi’s assertion that States generally act in the direction of the three stated projects is unfortunately undercut by the authors’ own acknowledgement that “not everyone was equally committed to all three projects, or to the particular balance that has been struck among them, where their policy rationales have diverged” (Brunk and Hakimi, p. 38). If the projects were truly reflective of widespread and virtually uniform State practice, as is required to create a rule of customary law (North Sea Continental Shelf, para. 74), then the situation might be different.
But, and this now goes to the second point, condemnation of annexations have always been accompanied by a condemnation of the annexation’s underlying use of force. For example, the article cites Iraq’s invasion of Kuwait in 1990 as a major flashpoint in the development of the prohibition on annexation (Brunk and Hakimi, p. 36). At the same time, the article acknowledges that although States could have condemned this action as a violation of the right to self-determination, States like the United States instead condemned the act as violating the prohibition on use of force (Brunk and Hakimi, p. 36). This was not unintentional, as States were hoping to avoid the use of their statements as analogies for the treatment of Palestine by Israel (Brunk and Hakimi, p. 36). The same language and attitude would be adopted in respect of another major flashpoint: Russia’s attempted annexation of Crimea (Brunk and Hakimi, pp. 53, 58). Indeed, on that occasion, 100 States adopted a UNGA Resolution, explicitly reaffirming the territorial integrity of Ukraine against threat or use of force. These two examples, representative of a broader pattern of conduct, signals that the prohibition on annexations, from the perspective of State practice, is connected to the prohibition on use of force.
Coming then to the third point, in contrast to the frequent condemnation visited upon forcible annexations, non-forcible annexations, such as those achieved through voluntary cession, peaceful treaties, or mutual agreements, have not been subject to the same prohibitions. A good example of this is the one frequently cited by Brunk and Hakimi, namely China’s non-forcible “coercive behaviour” in the South China Sea (Brunk and Hakimi, p. 43). While this action may perhaps be viewed as being unfriendly, it has yet to be specifically condemned as an act of annexation (importantly, it cannot simply be referred to as an act of annexation in gestation, but must, to fully align with Brunk and Hakimi’s conclusions, be considered an act of annexation on its own).
Finally, turning to the fourth point, for Brunk and Hakimi’s claim to work, they must demonstrate that it is possible to violate a foreign State’s right to self-determination without force. However, this is simply not possible, as the de jure actions a State takes within its territory is limited to the confines of that territory, unless international law prescribes a different effect (See Nottebohm, pp. 20-21) Thus, even in cases where States de jure treat a foreign territory as its own, such as by conferring citizenships in foreign territories as a way of asserting control over them (i.e., Venezuela in Guyana or Russia in Ukraine), such control is illusory until it is accompanied by a show or act of force.
In summary, State practice has only ever condemned annexation when it is accompanied by force. Hence, for Brunk and Hakimi’s claim to work, they must demonstrate that the prohibition on annexation can be traced to a different norm that does not prohibit force, such as the prohibition on violating a foreign State’s self-determination. However, it was shown that a violation of that prohibition necessarily required force, meaning ultimately, the prohibition on annexation and the prohibition on use of force are inextricably tied together.
Conclusion
Brunk and Hakimi write in their article: “we think the right answer is to prohibit annexations realized through any coercive measures no matter whether that threat or use of force also fits within the terms of Article 2(4).” (emphasis added) (p. 43) Unfortunately, this proposal to broaden the prohibition to include non-forcible annexations, although well-intentioned, lacks robust support from State practice. As shown above, such non-forcible measures are unfriendly, but not illegal; and they cannot be made illegal just because “we think” they ought to.
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