A Theory of Annexation

Abstract

Annexation has been strictly forbidden under international law for the better part of a century. And yet common conceptions of annexation continue to view a formal state act by the annexing state as necessary for qualifying a situation as annexation. This is a relic of the antiquated legal regime of conquest, where a declaration of annexation was a mechanism for consolidating a then-permissible imposition of sovereignty over a territory acquired by force. Maintaining this requirement today, when such acquisition is invalid and a jus cogens violation, undermines conceptual clarity and generates a rule-of-law problem: the perpetrator retains the power to evade legal consequences for its transgression by refraining from official state acts signalling annexation. This requirement thus bestows the power of self-characterization on the annexing state, whose people lacks the right to self-determination in the territory. We argue that the failure to reconceptualize annexation in light of the normative shift it underwent perpetuates the pre-20^th century normative order and therefore undermines the entrenchment of the new legal order that prohibits the acquisition of territory by force.

We thus propose a theory of annexation which draws on theories of bureaucratic administration to identify annexations even when they are not proclaimed as such by the perpetrator. We define annexation as the incorporation by a state of another state’s territory, and suggest that identifying a situation as annexation requires the fulfillment of three cumulative qualifications: the normative organizing framework with which the state administers the territory; the organizational structure of control assimilates the management of the territory into the bureaucratic machinery of the state; and the symbolic performance of power erases symbolic differences between the territory and the annexing state. To demonstrate the value of the theory, we apply it to the case of Israel’s control of the Occupied Palestinian Territory, as analyzed in the recent Advisory Opinion issued by the International Court of Justice. Thus, the proposed reconceptualization may support the goal of the contemporary international legal order to suppress aggressive use of force and ensure the self-determination of peoples.

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