IndianLawNotes.com

PUBLIC INTERNATIONAL LAW LONG ANS. Unit-II

PUBLIC INTERNATIONAL LAW – LONG ANS. Unit-II

1. Define and critically examine the concept of State Recognition in International Law. Discuss the theories of recognition (constitutive and declaratory) and analyze their practical implications with reference to judicial decisions and state practices.

State Recognition in International Law

Introduction

Recognition of States is one of the most complex and debated concepts in the domain of Public International Law. While International Law governs relations among sovereign states, the question of whether a new political entity should be regarded as a “State” with legal personality largely depends upon the act of recognition by other states. Recognition is not merely a political courtesy but has deep legal and practical consequences. It determines whether a new entity can enter into diplomatic relations, sign treaties, or become a member of international organizations. However, the process of recognition has been controversial because it lies at the intersection of law and politics.

Meaning and Definition of State Recognition

State recognition may be defined as the formal acknowledgment or acceptance by existing states that a new political entity possesses the attributes of statehood under international law and is capable of entering into international relations.

According to Lauterpacht, recognition is a “declaration or acknowledgement by existing states that a community fulfilling the conditions of statehood exists as an international person.”

In simple words, recognition transforms a de facto situation into a de jure reality by admitting the new state into the international community.

Legal Basis of Recognition

Recognition of a state is tied with the Montevideo Convention, 1933 which prescribes the essential qualifications of statehood:

  1. A permanent population.
  2. A defined territory.
  3. Government.
  4. Capacity to enter into relations with other states.

Recognition, therefore, functions as the mechanism by which these attributes are validated by existing members of the international community.

Types of Recognition

  1. De facto Recognition – It is provisional, acknowledging that the authority in question exercises actual control but its permanence or legitimacy is uncertain. Example: UK’s recognition of the Soviet Government in 1921.
  2. De jure Recognition – It is permanent, conclusive, and acknowledges that the entity lawfully satisfies all conditions of statehood.
  3. Collective Recognition – Recognition granted collectively through international organizations (e.g., admission into the UN).
  4. Conditional Recognition – Sometimes states impose conditions before granting recognition (e.g., respect for human rights or adherence to peace agreements).

Theories of Recognition

The debate on recognition revolves around two major theories:

1. Constitutive Theory

  • Propounded by scholars like Oppenheim, this theory states that a state becomes a subject of international law only when it is recognized by existing states.
  • Recognition has a constitutive effect, i.e., without recognition, an entity cannot enjoy the rights and duties of a state under international law.

Merits:

  • Ensures stability in international relations because only recognized states participate in international dealings.
  • Provides a legal safeguard against uncertain or illegitimate authorities.

Demerits:

  • Makes existence of statehood dependent on the will of other states, leading to political misuse.
  • Denies objective existence of statehood even if the entity fulfills Montevideo criteria.
  • Example: The prolonged refusal of Western states to recognize the Soviet Union despite it satisfying statehood conditions.

2. Declaratory Theory

  • Supported by scholars like Hersch Lauterpacht and Kelsen, this theory argues that recognition is merely a political act of acknowledging an already existing fact.
  • If an entity fulfills the criteria of statehood under International Law, it is a state irrespective of recognition. Recognition is only declaratory, not constitutive.

Merits:

  • Provides objectivity and fairness in international law.
  • Avoids political manipulation in recognition.
  • Example: Bangladesh after the 1971 Liberation War satisfied Montevideo conditions and was recognized by many states later, but its statehood existed from the moment of independence.

Demerits:

  • In practice, lack of recognition still prevents an entity from enjoying full international rights (such as joining UN, entering treaties).
  • Example: Taiwan fulfills Montevideo criteria but its non-recognition by most states restricts its global status.

Practical Implications of Recognition

The theories must be tested in practice through judicial decisions and state practices. Recognition has profound consequences:

  1. Diplomatic Relations – Recognition permits exchange of ambassadors and establishment of embassies.
  2. Treaty-Making Power – Recognized states can enter into binding treaties.
  3. Membership in International Organizations – Recognition, especially collective, is crucial for joining the UN or regional bodies.
  4. Legal Standing in Courts – Recognition decides whether the courts of other states will entertain suits filed by that entity.

Judicial Decisions on Recognition

  1. Tinoco Arbitration (Great Britain v. Costa Rica, 1923) – Recognition was not considered constitutive. The arbitrator, Chief Justice Taft, held that validity of acts of government did not depend on recognition but on effective control. This supports declaratory theory.
  2. Luther v. Sagor (1921, UK) – British court upheld validity of acts of Soviet Government after UK recognized it. This shows recognition has legal effects within municipal law.
  3. Banco de Bilbao v. Sancha (1938, UK) – Recognition of Franco’s Spanish Government by UK led courts to accept Franco’s decrees.
  4. Somaliland and Taiwan Cases – Despite satisfying Montevideo criteria, lack of widespread recognition limited their participation in international forums.

These decisions reveal that while statehood may exist independent of recognition (declaratory), recognition plays a crucial role in conferring practical legitimacy and legal standing.

State Practices

  1. Recognition of Bangladesh (1971–72) – Initially opposed by Pakistan and some allies, but gradually recognized by major powers. Its admission into UN in 1974 demonstrated declaratory theory, as Bangladesh was already a state before recognition.
  2. Recognition of Israel (1948) – Immediately recognized by US and USSR, but several Arab states refused. Despite non-recognition, Israel continued to function as a state, supporting declaratory theory.
  3. Recognition of Palestine – More than 130 states recognize Palestine, but absence of recognition from key powers and UN membership highlights constitutive aspects.
  4. Recognition of Kosovo (2008) – Mixed recognition: over 100 states recognize it, but not universally accepted. This shows political elements dominate recognition.

Critical Examination

The controversy between constitutive and declaratory theories is more academic than absolute. In practice, recognition reflects a hybrid model:

  • Legally, statehood is a matter of fact based on Montevideo criteria (declaratory view).
  • Politically, recognition by other states and international organizations is essential for exercising full rights (constitutive effect).

Thus, recognition is both law and politics: law provides objective criteria, while politics decides acceptance in the international community.

Contemporary Challenges in Recognition

  1. Secessionist Movements – Entities like Catalonia, Kurdistan, or Crimea face political opposition despite territorial and governmental control.
  2. Human Rights and Democracy Conditions – Increasingly, states tie recognition with compliance of democratic norms (conditional recognition).
  3. Role of International Organizations – Admission into the UN has become a major yardstick of recognition, giving recognition a collective dimension.
  4. De Facto Authorities – Taliban in Afghanistan (2021) exercise control but lack widespread recognition due to political and human rights concerns.

Conclusion

Recognition of states in international law remains a delicate balance between objective legal criteria and subjective political discretion. The constitutive theory exaggerates the role of recognition, while the declaratory theory downplays its practical necessity. Judicial decisions like Tinoco Arbitration affirm that statehood is not created by recognition, yet state practices show that without recognition, an entity struggles to fully participate in international law.

Hence, recognition should be viewed as declaratory in principle but constitutive in effect. The law establishes that a state exists when it meets Montevideo criteria, but politics determines the extent to which it enjoys rights in the community of nations. This dual nature explains why entities like Israel, Palestine, Taiwan, and Kosovo continue to generate debates. Recognition, therefore, remains both a legal necessity and a political instrument in international law.

2. What is State Succession? Discuss in detail the different kinds of succession (succession to treaties, property, debts, and membership of international organizations). How has international law dealt with succession in cases of decolonization and the breakup of states?

State Succession in International Law

Introduction

State succession is one of the most challenging topics of International Law. When changes take place in the sovereignty of a territory—such as decolonization, secession, unification, or dissolution of states—questions arise about the legal consequences for treaties, debts, property, and international obligations. State succession refers to the replacement of one state by another in the responsibility for the international relations of a territory. This concept has been recognized and codified in various forms by international treaties such as the Vienna Convention on Succession of States in Respect of Treaties, 1978 and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983, though not universally ratified.

Definition of State Succession

According to Oppenheim, state succession is the “replacement of one state by another with regard to sovereignty over a given territory.”
The International Law Commission (ILC) defines it as “the replacement of one state by another in the responsibility for the international relations of a territory.”

Thus, state succession is not about mere political change; it is about the transfer of rights and obligations under international law from a predecessor state to a successor state.

Causes of State Succession

  1. Decolonization – When colonies gain independence (e.g., India from Britain in 1947, African states in the 1960s).
  2. Secession – A part of the state breaks away to form a new state (e.g., Bangladesh from Pakistan in 1971).
  3. Unification – Two or more states merge into a single state (e.g., unification of Germany in 1990).
  4. Dissolution – A state breaks up into multiple new states (e.g., breakup of the Soviet Union, Yugoslavia, and Czechoslovakia).
  5. Annexation or Merger – When one state absorbs another (e.g., incorporation of Goa into India in 1961).

Kinds of Succession

The implications of state succession can be studied under different heads:

1. Succession to Treaties

  • Treaties are the backbone of international obligations, and succession raises the question whether the successor state is bound by treaties signed by the predecessor.
  • Two main approaches exist:
    • Universal Succession (Continuity) – The successor state automatically inherits all treaties.
    • Clean Slate Doctrine (Tabula Rasa) – The successor state starts afresh and is not bound by predecessor’s treaties unless it chooses to accept them.

Practice and Rules:

  • The Vienna Convention on Succession of States in Respect of Treaties, 1978 embodies the clean slate doctrine for newly independent states, especially after decolonization.
  • For cases of state continuity or unification, treaties of the predecessor generally continue to bind the new state (e.g., Federal Republic of Germany after reunification recognized East Germany’s treaties selectively).
  • Case Law:
    • Gabcíkovo-Nagymaros Project (Hungary/Slovakia, 1997, ICJ) – ICJ held Slovakia as a successor state was bound by Czechoslovakia’s treaty obligations.
    • Fisheries Jurisdiction Case (UK v. Iceland, 1974) – Example of how succession disputes affect treaty rights over resources.

2. Succession to Property

  • Property includes movable and immovable property, state assets, embassies, public lands, ships, etc.
  • The Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, 1983 provides that:
    • Newly independent states acquire property situated within their territory at the date of succession.
    • Property located abroad (such as embassies) is usually divided equitably or through agreement.
  • Example: After the dissolution of the USSR in 1991, Russia inherited most foreign embassies and assets abroad, though distribution was contested by other successor states.

3. Succession to Debts

  • Debts are financial obligations of the predecessor state.
  • Two approaches:
    • Continuity – Successor inherits all debts.
    • Clean Slate – Newly independent states are not bound by predecessor’s debts.
  • The 1983 Vienna Convention supports clean slate for decolonized states, while in cases of dissolution, debts are usually divided equitably.
  • Example:
    • After the breakup of Yugoslavia, foreign debts were divided among successor states under the Agreement on Succession Issues, 2001.
    • India after independence did assume a share of British-India’s debts as part of negotiated settlement with Pakistan.

4. Succession to Membership of International Organizations

  • Membership in international organizations raises political and legal issues.
  • Continuity vs. Fresh Application:
    • In some cases, one successor state is treated as a continuing state, while others must apply afresh.
    • Example: Russia was recognized as the continuing state of the USSR in the UN Security Council, while other republics had to apply as new members.
    • Czechoslovakia’s breakup (1993) led both Czech Republic and Slovakia to apply as new UN members—no continuity recognized.
  • Decolonization – Newly independent states generally apply afresh to international organizations, though admission is usually assured.

Succession in Cases of Decolonization

  • Decolonization after World War II posed significant questions about succession.
  • The principle of self-determination allowed colonies to emerge as independent states, but most resisted inheriting colonial obligations.
  • Clean Slate Doctrine became a widely accepted rule for decolonized states: they were not bound by colonial treaties unless they expressly accepted them.
  • Example: India after independence in 1947 declared that it would honor most international treaties, but this was more a matter of policy than obligation. African states in the 1960s often refused to assume colonial debts and treaties.
  • UN General Assembly resolutions, such as Resolution 1514 (1960) on Decolonization, supported the right of colonies to independence free from prior obligations.

Succession in Breakup of States

When states dissolve, the principle is different from decolonization:

  1. Soviet Union (1991) – Russia was recognized as the continuing state, inheriting UN Security Council seat, nuclear arsenal, and most assets, while other republics became new states.
  2. Yugoslavia (1990s) – Initially, Serbia and Montenegro claimed continuity, but the UN rejected this. All republics were treated as successor states and had to apply afresh for membership.
  3. Czechoslovakia (1993) – Peaceful breakup into Czech Republic and Slovakia, both treated as successor states without continuity.
  4. Sudan/South Sudan (2011) – South Sudan, upon independence, applied as a new member to the UN, while Sudan continued membership.

These examples show that continuity or succession depends on political consensus as much as on legal doctrine.

Critical Analysis

  • Treaty Succession: The clean slate doctrine ensures fairness to new states but may create instability in international obligations.
  • Debt Succession: While equitable distribution is logical in dissolution, the clean slate doctrine for decolonization reflects international justice against colonial exploitation.
  • Property: Division of property often creates disputes, highlighting the need for negotiated settlements.
  • Membership: The practice of recognizing one state as a “continuing state” (Russia for USSR) shows the political character of succession.

International law has tried to codify rules, but in practice, politics outweighs legal doctrine. Each case of succession has been treated uniquely, depending on the balance of power, negotiations, and recognition by other states.

Conclusion

State succession in international law is a dynamic and politically sensitive area. While the Vienna Conventions of 1978 and 1983 attempt to codify rules, state practice shows no uniform principle. The clean slate doctrine is widely applied in decolonization, granting new states freedom from colonial obligations. In contrast, continuity or equitable distribution applies in cases of dissolution or unification.

Thus, succession is governed by a blend of legal principles and political realities. Decolonization strengthened the doctrine of self-determination and clean slate, while the breakup of states such as the USSR and Yugoslavia highlighted the role of international organizations in determining continuity. In sum, state succession reflects both the evolution of international law and the power politics of the international community.

3. Explain the principle of responsibility of States for international delinquencies. What are the rules relating to attribution of acts to the State, and what remedies are available to injured States? Illustrate with case laws such as the Trail Smelter Arbitration and United States Diplomatic and Consular Staff in Tehran case.

Responsibility of States for International Delinquencies

Introduction

The principle of State Responsibility is a cornerstone of Public International Law. Just as individuals are held accountable for wrongful acts under domestic law, states too can be held responsible for wrongful conduct in their international relations. International delinquencies occur when a state violates international obligations—whether by aggression, violation of sovereignty, environmental damage, or denial of diplomatic rights.

The International Law Commission (ILC) has codified much of this law in the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), which, though not a treaty, reflects customary international law.

Concept of State Responsibility

State responsibility arises when:

  1. There is a breach of an international obligation – i.e., violation of treaty obligations, customary law, or general principles of law.
  2. The wrongful act is attributable to the State – i.e., carried out by organs of the state or entities acting under its control.

Example: Unlawful use of force, violation of human rights, denial of diplomatic immunities, or causing transboundary environmental harm.

International Delinquencies

The term “international delinquency” refers to an internationally wrongful act of a state, which may include:

  • Aggression or war crimes.
  • Violations of sovereignty or territorial integrity.
  • Breach of international treaties.
  • Environmental harm to other states.
  • Denial of diplomatic protection or immunities.

The wrongful act does not require mens rea as in criminal law. Responsibility is objective: if conduct is inconsistent with international obligations, the state is responsible.

Rules of Attribution of Acts to the State

Attribution is the key step in establishing state responsibility. The ILC Draft Articles (2001) codify the rules:

  1. Conduct of State Organs (Article 4)
    • Acts of legislative, executive, judicial, or administrative organs are attributable to the state, even if ultra vires.
    • Example: If the police unlawfully detain a foreign national, the state is responsible.
  2. Acts of Persons Exercising Governmental Authority (Article 5)
    • Entities empowered by domestic law to exercise governmental functions (e.g., private contractors in wartime) are attributable.
  3. Ultra Vires Acts (Article 7)
    • Even if state officials act outside their authority, if they act in official capacity, the state is responsible.
  4. Conduct Directed or Controlled by a State (Article 8)
    • Acts of private groups under the direction or control of the state are attributable.
    • Case: Nicaragua v. USA (ICJ, 1986) – USA was held responsible for supporting Contra rebels against Nicaragua because of its effective control.
  5. Conduct Acknowledged or Adopted by a State (Article 11)
    • If a state endorses or adopts actions of private groups, it assumes responsibility.

Consequences of Internationally Wrongful Acts

When a state commits an internationally wrongful act, three consequences follow:

  1. Obligation of Cessation – The wrongful act must stop immediately.
  2. Obligation of Non-Repetition – State must guarantee not to repeat the wrongful act.
  3. Obligation of Reparation – State must make reparations, which may include:
    • Restitution – Restore situation to original condition.
    • Compensation – Monetary payment for loss/damage.
    • Satisfaction – Apology, acknowledgment, or symbolic remedy.

Remedies Available to Injured States

Injured states have several remedies under international law:

  1. Diplomatic Protection
    • State may espouse claims of its nationals harmed abroad.
    • Case: Barcelona Traction (Belgium v. Spain, ICJ, 1970) – Only the national state has the right to espouse claims of its corporations or citizens.
  2. Countermeasures (Self-help)
    • Injured states may take proportionate, non-forcible countermeasures against the responsible state.
    • Example: Trade restrictions, suspension of treaties.
  3. Retorsion
    • Unfriendly but lawful acts, such as withdrawal of diplomats.
  4. Judicial Remedies
    • Injured states may approach international tribunals such as ICJ or arbitration.
  5. Collective Action
    • In case of serious breaches (e.g., aggression, genocide), collective measures by international community may be taken (UN Charter, Ch. VII).

Case Laws Illustrating State Responsibility

1. Trail Smelter Arbitration (United States v. Canada, 1941)

  • Facts: Fumes from a Canadian smelter caused environmental damage across the US border in Washington State.
  • Issue: Could Canada be held responsible for transboundary environmental harm caused by private industry within its territory?
  • Decision: Tribunal held Canada responsible, declaring the famous principle:
    • “No state has the right to use its territory in such a manner as to cause injury to another state.”
  • Significance: Established principle of transboundary environmental responsibility and attribution of private industrial activities to the state.

2. United States Diplomatic and Consular Staff in Tehran Case (ICJ, 1980)

  • Facts: Iranian militants seized the US Embassy in Tehran and took diplomats hostage in 1979. Initially, the Iranian government did not organize the attack but later endorsed it.
  • Issue: Whether Iran could be held responsible for acts committed by private individuals.
  • Decision: ICJ held Iran responsible because:
    • It failed to protect the embassy as required under Vienna Convention on Diplomatic Relations, 1961.
    • It endorsed and supported the militants’ actions, thereby making them attributable to the state.
  • Remedy: Iran was required to release hostages and provide reparations.
  • Significance: Reinforced obligations of states to protect diplomatic missions and highlighted attribution of private acts when endorsed by state.

3. Nicaragua v. USA (ICJ, 1986)

  • USA was held responsible for supporting Contra rebels by providing arms and training, as it exercised “effective control” over their operations. This case clarified attribution of acts of non-state actors to a state.

4. Corfu Channel Case (UK v. Albania, ICJ, 1949)

  • Albania was held responsible for failing to warn British ships of mines in its waters. The Court affirmed that states have an obligation not to knowingly allow their territory to be used for acts contrary to rights of other states.

Special Categories of Wrongful Acts

  1. International Crimes of States (jus cogens violations) – e.g., aggression, genocide, apartheid. These trigger erga omnes obligations (owed to all states).
  2. Serious Breaches – Under ILC Draft Articles (2001), serious breaches of peremptory norms invite collective responses from international community.

Critical Analysis

  • The ILC Draft Articles on State Responsibility (2001) are not legally binding treaties but widely recognized as reflecting customary law.
  • Attribution rules strike a balance: states are not liable for every private act, but when they exercise control, endorse, or fail to prevent, liability arises.
  • Remedies such as restitution and compensation reinforce the principle of justice, though enforcement remains difficult due to political realities.
  • The Trail Smelter case demonstrates environmental accountability, while the Tehran case shows that states cannot hide behind the excuse of private actors.

Conclusion

The principle of State Responsibility for International Delinquencies is central to ensuring accountability in international law. When a state breaches its obligations, rules of attribution determine whether the act is imputable to the state. Injured states may then pursue remedies through restitution, compensation, countermeasures, or international adjudication.

Case law—from the Trail Smelter Arbitration to the Tehran Hostages Case—illustrates how international tribunals have progressively developed doctrines of attribution and state responsibility.

In today’s world, issues like terrorism, cyber-attacks, and environmental harm further challenge traditional notions of responsibility. Nonetheless, the fundamental principle remains: states must ensure that their conduct, and conduct within their territory, does not cause harm or violate international obligations.

4. Define State Territory in International Law. Discuss the various modes of acquiring State Territory such as occupation, prescription, cession, annexation, accretion, and conquest. Examine the legality of territorial acquisition in light of the prohibition on the use of force under the UN Charter.

State Territory in International Law and Modes of Acquisition

Introduction

Territory is one of the fundamental attributes of statehood. A state cannot exist without a defined geographical area over which it exercises sovereignty. International law recognizes territory as the physical space within which a state exercises supreme authority and jurisdiction over population and resources. Territorial sovereignty implies both exclusive rights (control, legislation, exploitation of resources) and exclusive duties (non-interference with other states, protection of environment, etc.).

The question of how a state acquires territory has been a major issue in international law. Historically, territory was acquired through occupation, conquest, and colonization. In modern international law, especially after the adoption of the UN Charter (1945), the use of force for territorial acquisition has been prohibited, and principles like self-determination of peoples and respect for territorial integrity have become dominant.

Definition of State Territory

According to Oppenheim, territory of a state is “that definite portion of the surface of the earth which is subject to the sovereignty of the state.”

It includes:

  1. Land territory – Mainland and islands.
  2. Maritime territory – Territorial waters, continental shelf, exclusive economic zone (subject to UNCLOS).
  3. Sub-soil territory – Resources beneath land and sea.
  4. Airspace – Air above land and sea up to outer space.

Thus, state territory is not merely land but extends to sea and air zones recognized by international law.

Modes of Acquisition of State Territory

Traditionally, international law recognized several modes of acquiring territory. These are divided into:

  • Original Modes – Occupation, Accretion.
  • Derivative Modes – Cession, Prescription, Annexation, Conquest.

1. Occupation

  • Definition: Occupation is the acquisition of territory that is terra nullius (belonging to no one) by a state through effective control and intention to exercise sovereignty.
  • Requirements:
    • Territory must be terra nullius (not under sovereignty of any state).
    • There must be effective occupation (actual control, administration).
  • Case Law:
    • Island of Palmas Arbitration (1928) – Netherlands vs. USA: Arbitrator Max Huber held that mere discovery does not confer sovereignty; effective and continuous display of authority is necessary.
  • Modern Context: Genuine occupation of terra nullius is rare today since almost all land is under sovereignty. Only remote areas like Antarctica (governed by Antarctic Treaty, 1959) remain outside state sovereignty.

2. Prescription

  • Definition: Acquisition of territory through continuous, peaceful, and uninterrupted exercise of sovereignty over it for a long time, without protest from other states.
  • It is analogous to “adverse possession” in municipal law.
  • Conditions:
    • Effective and continuous possession.
    • Passage of sufficient time.
    • Acquiescence (silence or acceptance) by the former sovereign.
  • Case Law:
    • Island of Palmas also highlighted prescription: Netherlands maintained continuous authority which was recognized.
  • Example: The incorporation of the territory of Alsace-Lorraine by France after long control has been seen as an example.

3. Cession

  • Definition: Transfer of territory from one state to another through a treaty or agreement. It may be voluntary or compelled.
  • Forms:
    • Sale (e.g., Alaska ceded by Russia to USA in 1867).
    • Exchange of territory.
    • Gift or donation.
  • Examples:
    • Treaty of Paris (1898): Spain ceded the Philippines to the USA.
    • France ceded Louisiana territory to USA in 1803 (Louisiana Purchase).
  • Legal Basis: Valid under international law when based on consent.
  • Modern Rule: Must respect the principle of self-determination; colonial cessions without people’s consent are considered illegitimate today.

4. Annexation

  • Definition: Unilateral incorporation of territory by one state into its sovereignty, usually following occupation or conquest.
  • Distinction: Unlike cession (which is consensual), annexation is imposed.
  • Examples:
    • Annexation of Goa by India in 1961 after military action against Portugal.
    • Israel’s annexation of East Jerusalem (1967) – not recognized internationally.
  • Modern Legality: Under the UN Charter, annexation by force is illegal as it violates Article 2(4) prohibiting the use of force against territorial integrity.

5. Accretion

  • Definition: Natural processes that gradually add new land to a state’s territory.
  • Examples:
    • Formation of new islands by volcanic activity.
    • River shifting its course leading to natural expansion of territory.
  • This mode is universally accepted as lawful since it occurs naturally without violating international obligations.

6. Conquest

  • Definition: Acquisition of territory by victory in war and subsequent assertion of sovereignty.
  • Historically, conquest was recognized as a valid mode of acquisition.
  • Modern Legality: After the UN Charter, conquest is no longer legal. The prohibition of aggressive war under Article 2(4) and the principle of inadmissibility of acquisition of territory by force (UNGA Resolution 2625, 1970) make conquest unlawful.
  • Examples:
    • Iraq’s invasion and attempted annexation of Kuwait (1990) was declared illegal by UN Security Council, and Kuwait’s sovereignty was restored.
    • Nazi Germany’s conquests during WWII are also considered illegal under modern law.

Legality of Territorial Acquisition under UN Charter

The adoption of the UN Charter (1945) fundamentally changed the legal status of territorial acquisition:

  1. Prohibition on Use of Force (Article 2(4))
    • Member states shall refrain from the threat or use of force against the territorial integrity or political independence of any state.
    • Territorial acquisition by force is illegal.
  2. Right of Self-Determination (Article 1(2))
    • Peoples have the right to freely determine their political status.
    • Territorial acquisitions violating self-determination (e.g., colonial annexations, occupations) are invalid.
  3. UN Declarations and Resolutions
    • UNGA Resolution 2625 (1970): Prohibited acquisition of territory by force and emphasized self-determination.
    • UN Security Council Resolution 242 (1967): Stressed inadmissibility of territorial acquisition by war in the context of Middle East conflict.
  4. ICJ Jurisprudence
    • Advisory Opinion on Namibia (1971) – South Africa’s continued presence in Namibia declared illegal due to violation of self-determination.
    • Advisory Opinion on Legal Consequences of Construction of a Wall (2004) – ICJ held Israel’s construction of wall and settlements in occupied Palestinian territory violated international law.

Modern Practice

  • Illegal Annexations:
    • Russia’s annexation of Crimea (2014) condemned as violation of international law and Ukraine’s sovereignty.
    • Israel’s annexation of Golan Heights not recognized internationally.
  • Legitimate Territorial Changes:
    • Peaceful cession through treaties (e.g., transfer of Hong Kong from UK to China in 1997).
    • Unification (e.g., reunification of Germany in 1990).

Thus, only peaceful, consensual, or natural methods of acquisition (cession, accretion) are legitimate today.

Critical Analysis

  • Traditional modes like occupation, conquest, and annexation are largely obsolete under modern law.
  • Today, consent-based acquisition (cession) and natural expansion (accretion) remain valid.
  • Prescription is still recognized but requires long peaceful possession and acquiescence.
  • Occupation of terra nullius has little scope left, given the principle of self-determination.
  • The shift from might-is-right to legal principles marks the evolution of international law after the UN Charter.

Conclusion

Territory is an essential element of statehood, and international law prescribes specific modes of acquiring it. Historically, states expanded through conquest and annexation, but modern law—guided by the UN Charter—prohibits acquisition of territory by force. Only peaceful and consensual methods like cession, accretion, and long-term prescription remain legitimate.

The evolution reflects the international community’s commitment to peace, stability, and respect for sovereignty. In contemporary international law, territorial integrity and self-determination prevail over conquest and annexation, reinforcing the idea that no territorial change is lawful unless achieved through consent, negotiation, or natural processes.