A Theory of Annexation

Abstract

The prohibition on the annexation of territory is a cornerstone of modern international law. An act violating this prohibition is deemed null and void and produces a duty on all states to respond. However, annexation has not been clearly defined, and it remains uncertain what, except a formal declaration by the annexing state, would qualify as annexation. Liminal cases have been described as constituting de facto annexation or unlawful occupation, and yet these concepts give rise to several difficulties.

Developing a definition of annexation is critical for various international contexts, including Ukraine and Palestine. Indeed, in December 2022 the United Nations General Assembly requested the International Court of Justice to issue an advisory opinion on the legal status and consequences of Israel’s control of the Occupied Palestinian Territories, pushing the doctrinal and theoretical gap regarding the definition of annexation to a boiling point.

In this Article we offer a novel theory of annexation, in two main steps. First, we demonstrate that the ideas of de facto annexation and unlawful occupation suffer from a shared weakness, which we call the problem of asymptotic argument. Both rely on the existence of a threshold beyond which a situation crystalizes as annexation. However, when the situation crosses that threshold, it has already become annexation de jure. The ideas of de facto annexation and unlawful occupation therefore always encounter an infinite distance from their goal.

Second, drawing on organizational theories, particularly New Institutionalism, we argue that organizational changes may serve as evidence of shifts in sovereignty. We identify changes in the organizing normative framework, organizational structure, and the symbolic performance of power as indicators for a change in the legal status of a territory, even if no formal declaration of annexation is made. Our theory is then applied to the case study of Israel’s occupation of the West Bank. Studying Israel’s newly sworn-in government’s agenda and actions, we conclude that the organizational changes we are now witnessing qualify as Israeli annexation of the West Bank.

Keywords: Annexation, Occupation, Use of Force, Aggression, Territorial Disputes, Israel/Palestine