The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice 0198280076, 9780198280071, 9781280813542, 1280813547

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The Right of Conquest The Acquisition of Territory by Force in International Law and Practice

SHARON KORMAN

CLARENDON PRESS

OXFORD

THE RIGHT OF CONQUEST

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OXFORD U N IV E R S IT Y PRESS

Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar es Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Sao Paulo Shanghai Taipei Tokyo Toronto Oxford is a registered trade mark o f Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Sharon Korman 1996 The moral rights o f the author have been asserted Database right Oxford University Press (maker) Reprinted 2003 All rights reserved. No part o f this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope o f the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer ISBN 0-19-828007-6 Jacket illustration: ‘kaiserproklamation 1871’(Anton von Werner). Proclamation o f the German Empire at Versailles, Jan. 1871 Courtesy of the Deutsches Historisches Museum, Berlin

This book is dedicated to the memory of

HEDLEY BULL Montague Burton Professor of International Relations at Oxford University 1977-1985

Every truth has two sides; it is well to look at both before we commit ourselves to either. (Aesop, 'The Mule', Fables, 6th century b c )

ACKNOWLEDGEMENTS This book is based on a thesis submitted in 1992 for the degree of Doctor of Philosophy at Oxford University. I am indebted to Mr Derrick Wyatt for his instructive, and often entertaining, supervision of the legal aspects of the thesis. Pro­ fessor Adam Roberts kindly read the completed draft of the thesis, and offered valuable suggestions. I am deeply grateful to him. Without the generous financial support of the Rhodes Trust this study would not have materialized. I therefore owe a debt of gratitude to the Rhodes Trustees, and to the Victorian Rhodes Scholarship Selection Committee, for granting me this award. I should also like to thank the Australian Federation of University Women (Queensland) for the Audrey Jorss Fellowship which enabled me to complete my doctoral research at Balliol College Oxford; the Lady Davis Fellowship Trust, for the Lady Davis Post-Doctoral Fellowship and the opportunity to undertake re­ search and teaching in the Department of International Relations of the Hebrew University of Jerusalem; and the Harold Hyam Wingate Foundation, for awarding me a Wingate Scholarship upon my return to Oxford in 1993. I am deeply grateful to each of these institutions for their vital support in the later stages of gestation of this work. I wish also to express my thanks to the Warden and Fellows of St Antony's College Oxford for electing me to Senior Associ­ ate Membership of the college while I was preparing the manu­ script for publication. My greatest intellectual debt is to my first Oxford teacher, Professor Hedley Bull, who introduced me to the study of inter­ national relations after an initial training in pure philosophy. His penetrating insights into the great questions of international re­ lations, the astonishing orderliness of his thought, and the pellu­ cid clarity of his writings are a constant inspiration. Although he died tragically before I commenced work on the doctorate, it was chiefly under the influence of his mind and his example that this work was written. S.K. Oxford 1994

CONTENTS Abbreviations Introduction PART ONE. THE RIGHT OF CONQUEST IN TRADITIONAL INTERNATIONAL LAW AND PRACTICE 1. 2.

3. 4.

6. 7.

1

5

The Theoretical Background to the Right of Conquest

7

The Right of Conquest in Relations between European States and 'Barbarian' Political Communities

41

The Right of Conquest in Relations between States Comprising International Society

67

Conditions for the Validity of Title by Conquest

94

PART TWO. THE DEMISE OF THE RIGHT OF CONQUEST IN THE TWENTIETH CENTURY 5.

viii

133

The Moral Turning-Point of the First World War: Self-Determination and the Non-Annexation Principle

135

Legal Developments Regarding the Acquisition of Territory by Conquest

179

International Reactions to the Acquisition of Territory by Force after 1945: Five Case-Studies

249

Conclusion: Continuing Problems Regarding the Abolition of the Right of Conquest

302

Bibliography

309

Index

324

ABBREVIATIONS AJIL APODETI BFSP BYBIL C., Cmd., Cmnd. EPIL FRETILIN GA GAOR HLR HILJ ICJ Pleadings ICJ Reports ICJ Review ICLQ ILC Ybk ILM ILR IYHR LNOJ LNTS LQR PASIL PCIJ RIAA SC SCOR

American Journal of International Law Timorese Popular Democratic Association British and Foreign State Papers British Year Book o f International Law United Kingdom Command Paper Encyclopedia o f Public International Law, ed. R. Bernhardt, 12 instalments (1981-90) Revolutionary Front for an Independent East Timor General Assembly General Assembly Official Records Harvard Law Review Harvard International Law Journal International Court of Justice, Pleadings, Oral Arguments, Documents International Court of Justice, Reports o f Judge­ ments, Advisory Opinions and Orders Review o f the International Commission of Jurists International and Comparative Law Quarterly Yearbook o f the International Law Commission International Legal Materials Israel Law Review Israel Yearbook on Human Rights League o f Nations Official Journal League o f Nations Treaty Series Law Quarterly Review Proceedings of the American Society o f Interna­ tional Law Permanent Court of International Justice, Reports United Nations, Reports of International Arbitral Awards Security Council Security Council Official Records

Abbreviations UDT UKTS UNTS

Timorese Democratic Union United Kingdom Treaty Series United Nations Treaty Series

All human history is pervaded by the struggle of two prin­ ciples: one of them embodied in the slogan, Macht geht vor Recht; the other in the Roman maxim, Ex iniuria ius non oritur. In the field of territorial change the first principle prevailed unchallenged throughout the centuries, embodied in the so-called 'right of conquest.' Robert Langer, Seizure o f Territory, 1947

Gentlemen, if you contest the right of conquest, you cannot have read the history of your own country. It is thus that states are formed . . . The Poles themselves committed the crime of conquest a hundredfold . . . (Otto von Bismarck, speech in the Landtag, 1869, responding to a Polish deputy who had quoted Macaulay on the crime of the Partitions and was demanding recognition of 'Polish rights')

Introduction The proposition that a state that emerges victorious in war is entitled to claim ownership or jurisdiction of territory of which it has taken possession during a war was a recognized principle of international law until the early years of this century. This study is an enquiry into the place traditionally occupied by the right of conquest in international relations, and the causes and consequences of its demise in the twentieth century. At the most general level, this book traces the evolution of attitudes towards the forcible acquisition of territory by states from the early sixteenth century to present times. More specifi­ cally, it seeks to answer the following questions: 1. What were the problems associated with the recognition of the right of conquest? Did it perform any positive role in relation to international order? 2. Was conquest as such ever recognized as a claim to rule, or did there have to be specific justifications for conquest—such as redress for injuries received; the recovery of territory to which one had a legal claim; or the need to institute civilized rule in 'backward' territories? 3. How important, historically, was the right of conquest in the establishment of European colonial empires abroad, and to what extent was it recognized in relations between the European states themselves? 4. Was there a difference in European perceptions of the legit­ imacy of the conquest of non-European lands and peoples, as opposed to the conquest of European territories? Was colonial conquest regarded as somehow less wicked, or more defensible? 5. What were the essential features of conquest as a legal mode of acquisition of title? 6. When did conquest cease to be an acceptable form of territo­ rial acquisition, and what were the stages in the rejection of conquest as part of legitimate international conduct?

2

Introduction

7. Has the change in the law which previously acknowledged the right of conquest represented an advance on the past, in terms of the relationship that now obtains between might and right—or force and law—in international relations? Or does war continue to have the same function in international relations as revolution does in domestic affairs, with the law building itself on the outcome as much in the one case as in the other? 8. What are some of the problems posed by the denial of the right of conquest in our own times? It will immediately be apparent from the purposes set out above that this study is not strictly or narrowly confined within the province of international law. Though its subject-matter concerns a rule of international law which in the past affirmed, and at present negates, the right of conquest, its underlying purpose is to examine the function and significance of that rule by placing it in the wider social and political setting of international relations. In one aspect, this study is a history of the intellectual and public debate about the right of conquest. In some measure, it is also a contribution to that debate. Yet it is not the product of any particularly complex historical research, and Chapters 2 and 3 rely primarily on secondary sources for the historical material which they contain. In Chapter 7, I have, of necessity, due to limitations of length, been selective rather than exhaustive in my choice of case-studies. Important episodes in which the right of conquest has arisen as an issue, but which have not been exam­ ined in these pages, are China's annexation of Tibet in 19501 and Morocco's annexation of Western Sahara in successive stages in 1976 and 1978.2 In so far as both these cases involve alleged historic rights, forcibly asserted by the annexing state in oppo­ 1 For legal analyses of the dispute over the status of Tibet, see C. H. Alexandrowicz, 'The Legal Position of Tibet', AJIL 48 (1954), 265; Michael C. van Walt van Praag, The Status o f Tibet: History, Rights, and Prospects in International Law (Boulder, Colo.: Westview Press, 1987); and A. D. Hughes, 'Tibet', EPIL 12 (1990), 375. 2 The facts surrounding Morocco's seizure of Western Sahara and subsequent developments are given in Keesing's Record o f World Events (1976), 27575-7; and Alan J. Day (ed.), Border and Territorial Disputes, 2nd edn. (Harlow: Longman, 1987), 172-83. For legal analyses of the Western Sahara dispute, see Thomas M. Franck, 'The Stealing of the Sahara', AJIL 70 (1976), 694; and Malcolm Shaw, Title to Territory in Africa: International Legal Issues (Oxford: Clarendon Press, 1986), 93-8, 193-4.

Introduction

3

sition to the wishes of the inhabitants, each has elements in com­ mon with Indonesia's annexation of East Timor in 1976, which I discuss in Chapter 7.3 3 See below, pp. 281-92.

PART ONE The Right of Conquest in Traditional International Law and Practice

Part One of this study examines the theoretical and historical foundations of conquest as a means of acquiring title to territory from the sixteenth century to the start of the twentieth century. Chapter 1 considers the theoretical background to the right of conquest. It explores the ambiguities arising from traditional international law's recognition of the right of conquest, as well as the contribution made by that recognition to peace and stabil­ ity in an international system in which war is endemic. Chapters 2 and 3 consider the historical application of the concept, first in the acquisition of colonial empires outside Europe, and then in relations between the European states themselves. Chapter 4 provides an analysis of the traditional law on conquest.

1

The Theoretical Background to the Right of Conquest

This chapter consists of three sections: the first considers the nature of the right of conquest and the difficulties which its ac­ ceptance has posed for the character of international law; the second considers the positive role which the right of conquest has played, despite these difficulties, in international relations; and the third considers the right of conquest as it affects, or has affected, the rights of people living in conquered territory. That traditionally the right of conquest has been recognized is a proposition whose truth it seems safe to assume.1 For as Lassa Oppenheim noted in 1905: 'As long as a Law of Nations has been in existence, the states as well as the vast majority of writers have recognized subjugation as a mode of acquiring territory.'2 And indeed, those classical international legal thinkers who took account of the customary law of nations3 and the nineteenth and 1 For specific evidence of the existence of a right of conquest, see below, Chs. 2, 3, and 4. 2 International Law, 1st edn. (London: Longmans, Green, 1905-6), i. 288. 3 i.e. Grotius and Vattel. See Hugo Grotius, Mare Liberum (1609), trans. Ralph van Deman Magoffin (New York: Oxford University Press, 1916), ch. 4, in which Grotius recognizes the 'title of war' as a legal title to territory and refers to the acquisition of sovereignty 'by right of conquest'; and De Jure Belli ac Pads (1625), trans. Francis W. Kelsey (Oxford: Clarendon Press, 1925), bk. Ill, ch. 6: 'On the Right of Acquiring Things Taken in War' and ch. 8: 'On the Right to Rule Over the Conquered'. Although Grotius notes (in the latter work) that 'it is praisewor­ thy to abstain from the exercise of the right to acquire sovereignty over the vanquished' (bk. Ill, ch. 15, sect. 2), he none the less acknowledges that the practice of states supports the existence of such a right. See, too, Emmerich de Vattel, The Law o f Nations (1758), trans. Joseph Chitty (Philadelphia: T. & J. W. Johnson, 1863), bk. Ill, ch. 13. Here Vattel considers 'How war is a method of acquisition' (sect. 193) and observes: 'nations have ever esteemed conquest a lawful title; and that title has seldom been disputed . . . ' (sect. 195).

8

Conquest in Traditional Law and Practice

early twentieth-century international legal positivists4 were in virtually unanimous agreement about the presence of the right of conquest among the rules which were recognized by interna­ tional law. It is only in our own times that it has become possible to argue that the right of conquest has ceased to be upheld by international law.

I. THE RIGHT OF CONQUEST AND ITS CON SEQUEN CES FOR INTERNATIO NAL LAW

The right of conquest may be defined as the right of the victor, in virtue of military victory or conquest, to sovereignty over the conquered territory and its inhabitants. I shall indicate first what have been the legal requirements necessary to establish the title by conquest,5 and shall then consider the implications which its acceptance has carried for international law. The only requirement of fact to be fulfilled before the title by conquest can be established is that the territory must be in the effective possession of the conqueror.6 Legally, this is presumed to have occurred when the conquest or military occupation is 4 See e.g. H. W. Halleck, International Law (San Francisco: Bancroft, 1861), ch. 33; Henry Wheaton, Elements o f International Law, 8th edn. (1866), ed. R. H. Dana (repr. Oxford: Clarendon Press, 1936), pt. II, ch. 4, sect. 165 (see too Dana's edi­ torial note: pt. IV, ch. 2, sect. 346, n. 169); Robert Phillimore, Commentaries upon International Law, 2nd edn. (London: Butterworths, 1871-4), i. 327, iii. 873-5; William Edward Hall, A Treatise on International Law, 2nd edn. (Oxford: Clarendon Press, 1884), sects. 204, 205; Theodore Dwight Woolsey, Introduction to the Study o f International Law, 6th edn., rev. & enlarged by Theodore Salisbury Woolsey (New York: Scribners, 1892), 21-2; T. J. Lawrence, The Principles o f International Law (London: Macmillan, 1895), sects. 97-8; lohn Westlake, 'The Nature and Extent of the Title by Conquest', L Q R 17 (1901), 392; Oppenheim, International Law, 1st edn., i, sect. 236; lohn Bassett Moore, A Digest o f International Law (Washing­ ton, DC: Government Printing Office, 1906), i, sect. 87; Coleman Phillipson, The Termination o f War and Treaties o f Peace (London: T. Fischer Unwin, 1916), 9-51, 162; Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States (Boston: Little, Brown, 1922), sect. 106; M. F. Lindley, The Acqui­ sition and Government o f Backward Territory in International Law: A Treatise on the Law and Practice Relating to Colonial Expansion (London: Longmans, Green, 1926), 160-5; Amos S. Hershey, The Essentials o f International Public Law and Organiza­ tion, rev. edn. (New York: Macmillan, 1927), sect. 171; T. E. Holland, Lectures on International Law, ed. T. A. and W. L. Walker (London: Sweet & Maxwell, 1933), 122-4. 5 This subject is dealt with more fully below, in Ch. 4. 6 Wheaton, Elements o f International Law, pt. IV, ch. 2, sect. 346, n. 169.

The Theoretical Background

9

followed either by the complete extinction of the political exist­ ence of the conquered state (i.e. debellatio); or by the cession of the conquered territory through a treaty of peace (when the defeated state remains in existence to make it); or by the practical acquiescence of the defeated state in the conquest, as would be evidenced by its failure to prolong the war for the purpose of recovering it (even if 'from pride or obstinacy' it refuses to con­ clude a formal treaty of peace with the victor).7 In the first and third of these cases, the title by conquest is formally complete when the conquering state unilaterally annexes the conquered territory, extending its own civil administration over it and in­ corporating it into the body of its own state territory.8 What is chiefly remarkable about the idea that there exists a right of conquest in international society is the implication it carries that superior force, or military might, is capable in itself of conferring rights upon states.9 To the extent that international law upholds such a right, it has therefore been said to be a prim­ itive or defective form of law.10 For if the right of conquest is 7 Halleck, International Law, 811. See also Wheaton, Elements o f International Law, pt. IV, ch. 2, sect. 346, n. 169; and John Westlake, The Collected Papers o f John Westlake, ed. L. Oppenheim (Cambridge: Cambridge University Press, 1914), 214. 8 Halleck, International Law, 811-12. 9 Jean-Jacques Rousseau for this reason condemned the idea as one which was both morally reprehensible and logically incoherent: 'the right of the strongest . . . though to all seeming meant ironically, is really laid down as a fundamental principle. But are we never to have an explanation of this phrase? Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will— at the most, an act of prudence. In what sense can it be a duty?' ('The Social Contract' (1762), bk. 1, ch. 3, in The Social Contract and Discourses, trans. G. D. H. Cole (London: Dent, 1973), 168). But for a reply to this argument, see below, pp. 94-5. 10 J. L. Brierly, for example, condemns the validity of treaties induced by force as 'a grave defect in the law' (The Law o f Nations, 6th edn., ed. Humphrey Waldock (Oxford: Clarendon Press, 1963), 318); and J. A. S. Grenville asks: 'How can any system of law admit that right is based on might? This is what is involved if in the relations between States international law accepts that the stronger nation may impose its terms on the weaker nation by war or by threat of force' (The Major International Treaties 1914-1973: A History and Guide with Texts (London: Methuen, 1974), 13). R. Y. Jennings likewise considers it 'anomalous' that con­ quest should have been included among the traditional modes of acquiring title to territory 'because it is at this point that the plan departs somewhat absurdly from the scheme of private law analogies on which it is otherwise based'. On this basis he argues that the validity of the title by conquest 'must cast doubt upon the validity of the scheme as a whole to be a true law governing the acquisition of title; though it must also be remembered that this latter doubt ultimately relates not to this part of the law alone but to the whole system of the traditional

10

Conquest in Traditional Law and Practice

a right conferred by power, and the members of international society are manifestly unequal in terms of power, then interna­ tional law must be such as to favour the stronger over the weaker members of international society. This makes it difficult to com­ prehend how states might truly be said to be equal before the law. Or at least it makes the inequality of power between states difficult to reconcile with the notion of their formal or legal equal­ ity, so long as international law is forced to recognize conquest as providing legal title to territory. The idea that conquest or victory in war should be capable legally of settling the question of rightful possession is therefore one which morally it may be difficult to countenance. Even Vattel, who admits the necessity of affording legal recognition to con­ quests, insists that morally, conquest cannot settle the question of rightful possession: And we must observe that war does not decide the question: victory only compels the vanquished to subscribe to the treaty which termin­ ates the difference. It is an error, no less absurd than pernicious, to say that war is to decide controversies between those who acknowledge no superior judge—as is the case with nations. Victory usually favours the cause of strength and prudence, rather than that of right and justice. It would be a bad rule of decision.11 law, for given a system in which war is no illegality it ineluctably follows that victorious war must be allowed to change rights' (The Acquisition o f Territory in International Law (Manchester: Manchester University Press, 1963), 52). For a similar argument, see H. Lauterpacht, Private Law Sources and Analogies o f International Law (London: Longmans, Green, 1927), 105-6 ,1 6 1 -7 . It may be contended, how­ ever, that the question whether international law is a primitive or defective form of law to the extent that it upholds the right of conquest is best decided not by comparing it with the standards of municipal law, which regulate the relations of individuals within the state, but by reference to the special features of the society of states within which international law has to operate (Michael Akehurst, A Modern Introduction to International Law, 6th edn. (London: Unwin Hyman, 1987), 257-8). Viewed from this perspective, it may be argued that '[i]t is . . . more realistic to see international law as law of a different species, than as merely a more primitive form of what is destined some day to have the nature of a uni­ versal system of non-primitive municipal law' (C. A. W. Manning, 'The Legal Framework in a World of Change', in Brian Porter (ed.), The Aberystwyth Papers: International Politics 1919-1969 (London: Oxford University Press, 1972), 319). On the problems of drawing false analogies between the principles which sustain order within states and those which sustain order within the society of sovereign states, see Hidemi Suganami, The Domestic Analogy and World Order Proposals (Cambridge: Cambridge University Press, 1989). 11 The Law o f Nations, bk. Ill, ch. 3, sect. 38.

The Theoretical Background

11

Vattel does, however, recognize that in international relations war is one of the rules of decision. But in his insistence on the arbitrariness of war as a decision procedure, and on the frequent injustice of the decision thereby reached, Vattel may be seen as repudiating the view, which was perhaps the prevailing view in the Middle Ages, according to which war was seen as a kind of judicial procedure or 'trial by conquest7. On this view war was a contest between two opponents, each of which thought itself to have the just cause, but with no court to decide the question between them; and in going to battle they were appealing to the decision of God, who was thought to have ordained that the just side would win.12 This medieval solution—or dissolution— of the moral problem contained in the right of conquest is one which naturally appears to the eighteenth-century rationalist mind of Vattel as unacceptable.13 But if international society does indeed uphold such a right, then some other justification would appear to be needed to account for its presence in international law. Such explanations or justifications of the right of conquest as have been advanced by the classical international legal thinkers will be the subject of Section II of this chapter. But before coming 12 See M. H. Keen, The Laws o f War in the Late Middle Ages (London: Routledge & Kegan Paul, 1965), 130. 13 But Vattel's view—like that of his contemporary Rousseau— that military victory is a morally neutral fact and as such incapable in moral terms of settling the question of rightful possession has not been universally accepted in modem times. In the late nineteenth and early twentieth centuries, for example, adher­ ents of the doctrine of Social Darwinism regarded war as nature's test for deter­ mining the fitter nation, and military victory as a sign of superior entitlement. As Friedrich von Bernhardi wrote: 'W ar gives a biologically just decision, since its decision rests on the very nature of things' (Germany and the Next War (1912), trans. Allen H. Powles (London: Edward Arnold, 1914), 23). Or to quote from an article entitled 'God's Test by War' published shortly before the First World War: 'Victory in war is the method by which, in the economy of God's providence, the sound nation supersedes the unsound, because in our time victory is the direct offspring of a higher efficiency, and the higher efficiency is the logical outcome of the higher m orale.. . . [ V]ictory is the crown of moral quality7 (from the monthly Nineteenth Century, quoted by H. W. Koch, 'Social Darwinism as a Factor in the "New Imperialism"', in H. W. Koch (ed.), The Origins o f the First World War: Great Power Rivalry and German War Aims (London: Macmillan, 1972), 344). There is thus an obvious parallel between the modem doctrine of Social Darwinism and the medieval concept of the 'trial by battle' inasmuch as both theories accord a moral significance to military victory: in each case, might is taken to reveal who is right. For further illustrations of this aspect of Social Darwinism, see William L. Langer, The Diplomacy o f Imperialism, 1890-1902, 2nd edn. (New York: Knopf, 1951), 85-90.

12

Conquest in Traditional Law and Practice

to these, I shall indicate two particular consequences which flow from the recognition of the right of conquest, apart from the general consequence already mentioned that a law which recog­ nizes such a right is one which tends to operate in the interests of the stronger. The first consequence may be stated as follows. If international law recognizes conquest as a valid title to territory, then the fruit of every victory, the result of every war, will assume thereby a legal validity. In that case, however, the justice of the cause for which for which a given war has been fought—and perhaps lost— is ultimately disregarded by international law. For the right of conquest operates in such a way that 'the bare fact, not the cause, is held in view, and in the bare fact the right has its origin'.14 But if, in granting the title by conquest, international law recognizes only the facts arising from victory, and disregards the cause of war, then even a state which has fought an unjust war, provided only that it is victorious, will be entitled to the benefit of the right of conquest. Thus, so long as international law upholds the right of conquest, it is incapable of respecting the principle ex injuria jus non oritur, that rights cannot arise from a wrong or unjust act. On the contrary, it suggests that the operative principle in inter­ national relations is rather the opposite rule, that from a wrong or unjust act legal rights do arise. Now it may of course be contended, by way of response to this argument, that prior to the twentieth century, positive interna­ tional law did not distinguish between just and unjust causes of war, nor did it prohibit the use of force for territorial aggrandize­ ment, so that the seizure of territory by an aggressor involved no injuria and the maxim did not apply. It was only after the First World War, when international law prohibited the acquisition of territory by conquest,15 that the conflict between conquest and the ex injuria jus non oritur principle became important; and even then the problem did not arise in respect of the validity of the fruits of past aggression, because of the applicability in such cases of the principle of intertemporal law—namely, that the legal validity and effects of events have to be judged by reference to the law in force at the time they occurred.16 For it is a corollary 14 Grotius, De Jure Belli ac Pads, bk. Ill, ch. 6, sect. 2. 15 See below, pp. 179-92. 16 On the problem of intertemporal law arising in the case of titles based on con­ quest, see Akehurst, A Modern Introduction to International Law, 6th edn., 153-4.

The Theoretical Background

13

of that principle that the acquisition of territory by force at a time when the use of force to acquire territory was not illegal confers good title even when the use of force to acquire territory is illegal.17 But it must also be remembered that prior to the twentieth century, there were numerous instances in which the threat or use of force to acquire territory was regarded as unjust, even though the threat or use of force to acquire territory was not illegal.18 This was a consequence of the fact that under the tradi­ tional international system, states considered themselves subject to moral restrictions on their right to resort to war, even if they were not also subject to legal restrictions in that respect.19 It was, therefore, precisely this lack of correspondence between the re­ quirements of international morality, which disapproved of wars fought for an unjust cause and of conquest resulting from such wars, and the requirements of international law, which did not,20 which appeared on the political plane to prevent the operation of the principle that from a wrong or unjust act, no rights could arise. Moreover, even from the standpoint of legal theory—independ­ ently, that is to say, of any moral or political considerations— there was an undeniable incongruity inherent in an international legal system which recognized the unrestricted right of states to resort to war and conquest. As Yoram Dinstein observes: 17 As the UN General Assembly declared in 1970: the modem prohibition against the acquisition of territory by conquest should not be construed as affecting titles to territory created 'prior to the Charter regime and valid under international law' (GA Resolution 2625 (XXV), 24 Oct. 1970). 18 Thus Frederick the Great's conquest of Silesia by unprovoked attack and in violation of his treaty obligation to respect the integrity of Austria's possessions was certainly regarded as immoral in 1740, even if it was not also illegal at that time (see below, pp. 67-73). Similarly, in 1717, at a time when treaties concluded under duress were recognized as valid in law, the Vice-Chancellor of the Russian Empire, Shafirov, none the less condemned the Russo-Swedish treaty of 1616 (by which Russia had been compelled, under threat of war, to cede numerous provinces to Sweden) as a treaty procured by unjust force— having been im­ posed on Russia when she was in a state of extreme domestic weakness, and for the purpose of obtaining territory to which Sweden had no legal claim— which had thereby inflicted 'damages and injuries' on Russia (see P. P. Shafirov, A Dis­ course Concerning the Just Causes o f the War between Sweden and Russia: 1700—1721 (1717) (Dobbs Ferry, NY: Oceana Publications, 1973), 268-74). 19 Hedley Bull, The Anarchical Society: A Study o f Order in World Politics (Lon­ don: Macmillan, 1977), 154. 20 'The fact that [a] war may have been regarded as unjust by any ethical standards did not in any way affect the legality of force as an instrument of the sovereign state' (Malcolm N. Shaw, International haw, 3rd edn. (Cambridge: Grotius Publications, 1991), 683).

14

Conquest in Traditional Law and Practice

the freedom to indulge in war without thereby violating international law seemed to create an egregious anomaly. It did not make much sense for the international legal system to be based on respect for the sover­ eignty of States, while each State had a sovereign right to destroy the sovereignty of others. On the one hand, it was incumbent on every State to defer to a plethora of rights accorded to other States under both customary and conventional international law. On the other hand, each State was at liberty to attack any other State whenever it pleased.21

This state of affairs yielded the paradoxical consequence that under traditional international law a new status quo could legally originate in the destruction of the legal rights of others. It is precisely this phenomenon, reflected in the regular sanctioning in international law of territorial change brought about by force, and of peace treaties imposed upon the defeated, which has led Robert W. Tucker to identify as a characteristic feature of the traditional international system 'the virtually unrestricted opera­ tion of the principle ex injuria jus oritur, and thus . . . the near equation of law with power'—notwithstanding the fact that the use of force to acquire territory was not technically an injuria under that system.22 The right of conquest is not, however, the only point where international law has been forced to confront this paradox. There are two other points at least where the same problem arises. First, there is the whole institution of the laws of war, which is so vital a part of international law and to which, indeed, the right of conquest may be seen as being essentially attached: the laws of war governing the conduct of war, and the right of con­ quest governing its termination. The laws of war (like the right of conquest) make no discrimination in favour of the just belliger­ ent. Both groups of belligerents in any war between any mem­ bers of international society are equally entitled to the rights (and bound by the duties) arising from the laws of war respect­ ing its conduct, regardless of which side may happen to have the just cause. It is only the fact of the outbreak of war (as with the right of conquest it is only the fact of its termination), and not the cause for which the war is being waged, which confers upon 21 War, Aggression and Self-Defence (Cambridge: Grotius Publications, 1988), 73. 22 The Inequality o f Nations (London: Martin Robertson, 1977), 12. For a pen­ etrating analysis of the relationship between law and force in the traditional international system, see ibid. 3-14.

The Theoretical Background

15

belligerents their respective rights and duties, so that an unjust belligerent is entitled no less than its righteous opponent to bene­ fit from the rights assigned to it by the laws of war. Here, then, is another instance where an unjust act, namely the waging of an unjust war, gives rise to rights, namely those assigned even to an unjust belligerent by the laws of war, in contravention of the principle ex injuria jus non oritur. It is true that in technical terms this problem was avoided so long as positive international law did not differentiate between just and unjust causes of war (although in moral terms the am­ biguity remained to the extent that the legitimacy of war was still seen to depend on the nature of the reasons or causes for waging it). But the problem has plainly not been avoided under contemporary international law, which does posit a distinction between just and unjust causes of war while admitting that for the purposes of the laws of war all belligerents are lawful, whether they are waging a lawful war or not.23 That the general principle ex injuria jus non oritur is thus contravened is clear; but it would be mistaken to suppose that the principle of the equal applica­ tion of the laws of war to both parties in wartime should for this reason be abandoned. For 'any application to the actual conduct of war of the principle ex injuria jus non oritur would transform the contest into a struggle which is subject to no regulation at all',24 whereas there is a need to subject war to a modicum of regulation whatever the circumstances of its inception.25 Moreover, the laws of war do not only confer rights on bellig­ erent states. They also confer rights on human beings—such as 23 See H. Lauterpacht, 'Rules of Law in an Unlawful War', in George A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen's Pure Theory and Related Problems in International Law (Berkeley: University of California Press, 1953), 89-113. 24 Ibid. 92. 25 But see the approach adopted by the prosecution in the Nuremberg Trial, which argued that the mantle of legality should not be allowed to cover killing in an aggressive war (e.g. R. H. Jackson, 'Opening Address', Trial o f the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 19451 October 1946 (Nuremberg, 1947-9) ii. 98, at 146-7; F. De Menthon, 'Opening Address', ibid. v. 368, at 387; H. Shawcross, 'Closing Address', ibid. xix. 433, at 458). This view evidently rested on the assumption that a law which allowed legal rights to derive from a wrong by extending the privileges of the laws of war to the aggressor would be a morally repugnant and defective form of law, re­ gardless of the consequences for international society were the contrary rule to be adopted.

16

Conquest in Traditional Law and Practice

the right of lawful combatants to be treated in a humane way when captured by the enemy, or the right of civilians not to be deported in the event of a military occupation. In such cases, it may be argued, it is not the aggressor state that benefits from the law as a result of its aggression (although indirectly it may do so), but the soldier or the civilian as a human being. But if the increasingly humanitarian purpose of the laws of war does much to reconcile the principle that the laws of war apply equally to the aggressor and the victim with the ex injuria jus non oritur principle,26 it does not wholly dissolve the conflict between the principles in question. For the laws of war do not only protect the rights of individuals; in some cases they protect the rights of states and conflict with the interests of individuals.27 Yet they do not for this reason cease to be applicable to the aggres­ sor, contrary to the principle that from an illegal act, no rights can arise.28 There is, furthermore, another traditionally held rule of inter­ national law, known as the principle or right of prescription, which, no less than the right of conquest, engenders the same kind of paradox. Prescription is the rule according to which a state acquires title to territory on the ground of a long-held and uninterrupted possession, regardless of the validity of the means whereby the territory was originally acquired (even, that is to say, if the acquiring state originally took possession of the ter­ ritory wrongfully and unlawfully). That the application of pre­ scription in international (as opposed to domestic) affairs violates the principle ex injuria jus non oritur is plainly indicated in the following passage from Hall: while under the conditions of civil life it is possible so to regulate its operation as to render it the handmaid of justice, it must be frankly recognized that internationally it is allowed, for the sake of interests 26 See H. Lauterpacht, 'The Limits of the Operation of the Law of War', BYBIL (1953), 206, at 211-14. 27 For example, under the law of occupation—which is a central part of the laws of war—the occupant is permitted to suspend the political rights and cer­ tain civil liberties of the local residents on grounds of military necessity, so as not to endanger the security of its armed forces (see Eyal Benvenisti, The International Law o f Occupation (Princeton: Princeton University Press, 1993), 16). 28 While this is not to demonstrate the existence of a defect in the law which requires to be remedied, it does illustrate the extent to which rigid principles must give way to the exigencies of reality in a system of states in which war is endemic.

The Theoretical Background

17

which have hitherto been looked upon as supreme, to lend itself as a sanction for wrong, when wrong has shown itself strong enough not only to triumph for a moment, but to establish itself permanently and solidly.29

The right of prescription, then, is another principle of inter­ national law which appears to favour the side of might above the cause of justice or right, or which treats might as if it were right. It also gives rise to the anomaly that while on the one hand international law condemns territorial changes which are brought about by illegal means, on the other hand if the law is violated successfully and the fruits of illegality prove enduring, the change is presumed to give rise to new rights of sovereignty which can­ not be questioned and which, by the principle of prescription, must not in future be tampered with. The reason why the title by prescription has traditionally been upheld, or why writers have assumed that it has been necessary to uphold it, is (as will emerge in Section II) not unrelated to the reason why international law has traditionally accepted the title by conquest. The second consequence which flows from the acceptance of the right of conquest is that it provides international law with one reason at least for admitting the validity of treaties signed under duress. As noted at the outset, the position under tradi­ tional international law—that is, the law prevailing before the Covenant of the League of Nations of 1919—was that a state which had been victorious in war was able to establish a title by conquest either through unilateral annexation of the conquered territory or by its forced cession through a treaty of peace. That treaties of peace are normally treaties concluded under duress is obvious; for the vanquished state is generally only prepared to submit to the unfavourable terms of the treaty (which often oblige it to cede portions of its own territory) only out of fear of the further devastation or perhaps even total annihilation that would follow if it refused to submit to them as a condition for ending the war.30 Now one cannot explain away the problem of the validity of the title acquired through peace treaty by claiming that the pro­ blem it poses is less serious than that posed by the title acquired 29 A Treatise on International Law, 2nd edn., 111. 30 See Fariborz Nozari, Unequal Treaties in International Law (Stockholm: S-Bryan Sundt, 1971), 283.

18

Conquest in Traditional Law and Practice

through annexation, since in international law all treaties are subject to the principle pacta sunt servanda. For the applicability of this principle only shows that under traditional international law even treaties concluded under duress had to be observed as if they were genuine treaties. It does not explain why they were so treated, and it cannot in any case provide a moral sanction for unjust treaties which is denied to unjust annexations.31 For whether the title by conquest is established by peace treaty or by annexation, the law in either case works to the benefit of the stronger, and violates thereby the principles of elementary justice—which is why the domestic equivalents of both rules characteristically have no place in municipal law. In municipal law, which operates within states, contracts concluded under duress are not binding contracts, and the seizure of another's property, far from vesting in the possessor a title to the property, is accounted a straightforward act of robbery. Thus, the problem of the admissibility of peace treaties con­ cluded under duress is essentially intertwined with the problem of the validity of the title by conquest understood in its narrow signification as the title acquired by annexation. Whatever it is that explains or justifies the former is also that which explains or justifies the latter. And it is to these explanations and justifica­ tions that we now shall turn.

II. JUSTIFICATIO N S AD VAN CED BY THE CLASSICAL WRITERS ON INTERNATIO NAL LAW

Here I propose to present the main arguments which have been advanced by the classical international legal thinkers in defence of the title by conquest. The writings of Grotius and Vattel may be said to contain between them three main threads of argument on this question, which I shall endeavour to trace in this section. (a) The Necessity o f Limiting the Duration o f Wars through Acceptance of the Title by Conquest The first argument emphasizes the contribution made by the title by conquest to international order in matters concerning war: 31 The moral equivalence of the title acquired through annexation and the title acquired by forced cession is noted by Brierly, The Law o f Nations, 171.

The Theoretical Background

19

first, by reference to the way in which it serves, in conjunction with the laws of war, to moderate the severity and limit the duration of war; and second, by reference to the way in which the institution upholding the validity of peace treaties (and thereby of forced cessions arranged through peace treaties) plays an advantageous role in facilitating the termination of wars. The first part of the argument is elaborated by Vattel, and the second part, which in a sense is contained in the first part, is stated explicitly by Grotius. The just-war theory, or that aspect of it which concerns the jus ad helium, which specifies the causes for which war might justly be waged,32 has not been applied to the laws of war since, if it were applied, this would have the effect of granting all rights to the just party in war and none to the unjust aggressor. It is gen­ erally recognized that this has been necessary because interna­ tional society requires that the conduct of war be subject to regulation, and because reciprocity is the only condition under which the laws of war will be observed. But if the principle distinguishing between the just and unjust belligerent has not been applied in relation to the laws of war which govern its conduct, then it is difficult to insist upon its application in rela­ tion to the acknowledgement of its results. There appears, that is to say, to be a logical tension involved in dismissing the prin­ ciple in the one case and yet insisting upon it in the other. Or rather, to insist upon it in the latter case would seem to diminish the gain which derives from not insisting upon it in the first case. For if indeed it has been advantageous from the point of view of the moderation or regulation of war not to withhold the legal benefit of the laws of war from an unjust belligerent, then this advantage is surely undermined by the simultaneous insistence that if the unjust belligerent should happen to emerge victorious, the law will then refuse to acknowledge the result. It would, for one thing, diminish the incentive on the part of the unjust bellig­ erent to agree to peace terms, even such as are in its own favour, since ex hypothesi those terms would be regarded as legally void. It would appear, then, that the laws of war and the right of conquest go in some sense hand in hand. The former grants rights to the belligerent qua belligerent, and the latter to the victor 32 As opposed to the jus in bello, which specifies how war, once embarked upon, is to be justly waged.

20

Conquest in Traditional Law and Practice

qua victor, in each case the right being granted regardless of the justice of the cause. This appears to be Vattel's position when he argues that 'the rights founded on the state of war, the lawful­ ness of its effects, the validity of the acquisitions made by arms, do not, externally and between mankind, depend on the justice of the cause, but on the legality of the means in themselves.' This rule, he contends, is absolutely necessary to observe 'if people want to introduce any order, any regularity in so violent an operation as that of arms . . . and leave a door constantly open for the return of peace'.33 Yet it is apparent that the force of this reasoning is no longer acknowledged in our own times, when international law accepts that the laws of war apply to all wars regardless of the justice of the cause, but rejects the validity of the title by conquest, whether the laws of war have been observed or not. Thus the link be­ tween the laws of war and the title by conquest, which formerly obtained, has now been severed, since the laws of war apply today no longer on the basis of any presumed right to wage war, but solely in recognition of the humanitarian duty to place re­ strictions on the conduct of war, so long as states continue in fact to resort to it. As Hersch Lauterpacht has put it: 'Banished as a legal institution, war now remains an event calling for legal regu­ lation for the sake of humanity and the dignity of man.'34 We now come to the second part of the argument, which em­ phasizes the need for the rule upholding the validity of peace treaties, even such as are imposed upon the vanquished by an unjust victor. In De Jure Belli ac Pads, Grotius argues that it is a rule of the law of nations that 'all promises made in the course of war, or for the purpose of terminating it, are valid to the extent that they cannot be made void by reason of a fear unjustly inspired.'35 He then defends and supports this rule by emphasiz­ ing the overriding need which exists in international society for bringing wars to an end: 'Unless this rule had been adopted, no limit nor termination could have been fixed for such wars, which are extremely frequent. Yet it is to the interests of mankind that such bounds are set.'36 One way of elaborating upon this argument is to begin by 33 The Law o f Nations, bk. Ill, ch. 12, sect. 190. 34 'The Limits of the Operation of the Law of War', 240. 35 Bk. Ill, ch. 19, sect. 11. 36 Ibid.

The Theoretical Background

21

considering Samuel Pufendorf's objection to it. Pufendorf expli­ citly rejects Grotius' position by claiming first of all that the law of nations does not uphold such a rule, and by arguing in the second place that even if the law of nations did uphold it, the rule could serve no useful purpose in terms of contributing to international order.37 Pufendorf s position is an unusual one; for while on the one hand various of his arguments suggest that he might be a supporter of the right of conquest, on the other hand the position he defends against Grotius forces us to conclude that in fact he cannot approve of such a rule. Pufendorf's position may be set out as follows. On the one hand, there is a strong and definite strand in his writing which emphasizes the obligation of states to accept the results of war. Pufendorf insists that if a state resorts to war without seeking to settle the dispute pacifically it is bound to accept the consequences of a lost struggle.38 For in choosing the path of war, states make an open appeal to 'the uncertain cast of the dice of Mars',39 agree­ ing beforehand to rest their case with the fortune of battle. He emphasizes the distinction between truces and peaces, stressing that 'as a rule, every peace is perpetual, that is, permanently extinguishes the controversies on account of which the war was begun.'40 But while Pufendorf insists that if a state rushes to arms with­ out first trying all pacific means of settling the dispute, then it is under a kind of contract to abide by the result, he also insists, and no less strongly, that if a state is unjustly attacked, and is forced, after vainly appealing to pacific means, to conclude an unjust peace, then in no sense is it bound by the terms of the treaty. The vanquished state is free to repair the injury it has suffered, by waging a new war (which in a sense would be the same war) when the opportunity offers, on the ground that the treaty which had been imposed upon it was invalid from the 37 De Jure Naturae et Gentium (1688), trans. C. H. and W. A. Oldfather (Oxford: Clarendon Press, 1934), bk. VIII, ch. 8, sect. 1. 38 Ibid. 39 Ibid. (The phrase is taken from Samuel Pufendorf, Elementorum Jurisprudentiae Universalis (1672), trans. W. A. Oldfather (Oxford: Clarendon Press, 1931), bk. I, def. 5, p. 41.) 40 Samuel Pufendorf, De Officio Hominis et Civis Juxta Legem Naturalem (1682), trans. F. G. Moore (New York: Oxford University Press, 1927), bk. II, ch. 16, sect. 16.

22

Conquest in Traditional Law and Practice

start in view of the unjust force used to obtain its consent. The victor cannot, according to Pufendorf, have a right to territory which it has acquired by aggression. To the extent that the con­ quest is held, it is held by force alone.41 This latter argument of Pufendorf s is meant as a direct attack upon Grotius. Pufendorf asks whether a treaty of peace is ren­ dered invalid 'by an exception of fear unjustly inspired', and answers in the following way: This is denied by Grotius in the case of formal wars, on the ground that the opposite custom has become the law of nations. . . yet what has been extorted by an unjust war cannot be kept with good conscience. . . so it does not appear clear that there is any law of nations which does not allow one to advance the exception of fear against an unjust victor.42

The disagreement between Pufendorf and Grotius can be ac­ counted for by the fact that Pufendorf eliminates the customary law of nations from his account of international law, identifying the latter absolutely with the law of nature. As a result, all rules for the international conduct of states, far from being inferred from the custom and consent of states, are deduced by Pufendorf only from the a priori principles of natural law which permit no deviation from the standards of justice. Whereas Grotius distin­ guishes the law of nature from the law of nations and thinks of the latter as a positive institution deriving its authority from the custom and consent of states, Pufendorf sides with Hobbes in his conviction that 'nor do we deem that there is any other volun­ tary or positive jus gentium, at least with the force of law prop­ erly so called binding nations as proceeding from a superior'.43 For Pufendorf, then, states are like individuals in a state of nature, bound by no rules save those of the law of nature. And since the natural law insists, in line with the requirements of justice, that a contract extorted by force cannot be binding, so treaties of peace extorted by unjust force cannot be binding ei­ ther. To the extent that the latter are observed, Pufendorf claims, they are observed out of necessity only and not because they are deemed to impose any obligation upon the vanquished. Grotius, 41 The argument is set out in De Jure Naturae et Gentium, bk. Ill, ch. 8, sect. 1. 42 Ibid. 43 Westlake, The Collected Papers o f John Westlake, 64, quoting Pufendorf, De Jure Naturae et Gentium, bk. II, ch. 3, sect. 23.

The Theoretical Background

23

on the other hand, in admitting the existence of customary rules of law between nations, is able to recognize the existence of rules (such as the rule upholding the validity of peace treaties, even when imposed by an unjust victor) which, though they deviate from the strict standards of justice, and 'may not be devoid of fault in some degree',44 have been established 'not according to natural equity, but to avoid a greater evil'.45 Pufendorf's position does not in fact accord with the rule tra­ ditionally upheld by international law. As one writer has com­ mented, with regard to this debate between Pufendorf and Grotius: 'The conclusions reached by Grotius have been gener­ ally followed, if reluctantly, by other international scholars. In­ terests of stability would seem to preclude revision [of treaties imposed by military superiority] even if the victor engaged in the war for unlawful reasons.'46 We are left, then, with the second aspect of Pufendorf's argu­ ment against Grotius, where he claims that even if there were a rule forbidding the revision of unjust peace treaties, it could not be said to have contributed in any way to international order, contrary to Grotius' belief that 'the interests of mankind' posit­ ively require it: And even if such a law were to be found, it does not seem that to neglect it would mean any great loss for the peace of mankind. For according to Grotius, the effect of formal war, whatever the nature of the justifying cause, is this: that external dominion, to use his phrase, is secured over the possessions of one's enemies. Therefore, if a man later wage a formal war on his former victor, even though he have had no justifying cause beyond the fear of which we are speaking, he will still, when fortune smiles upon him, not only get back what he lost in an unjust war, but also acquire all his enemy's property.47

Pufendorf's failure to see why the neglect of the rule prohib­ iting the revision of unjust peace treaties would have been a 'great loss for the peace of mankind' stems from his refusal to take seriously the claim of Grotius that the rule had (in fact) been established as a customary rule of international law, and from 44 45 46 491. 47

De Jure Belli ac Pads, bk. Ill, ch. 19, sect. 11. Ibid., bk. Ill, ch. 7, sect. 6. C. F. Murphy, 'The Grotian Vision of World Order', AJIL 76 (1982), 477, at De Jure Naturae et Gentium, bk. VIII, ch. 8, sect. 1.

24

Conquest in Traditional Law and Practice

his consequent failure to consider seriously w hy this should have been so. Pufendorf is, of course, right to claim that a state which considers itself to have been unfairly treated in being forced to cede territory to an unjust victor need not and often does not consider the situation to be irreversible. But w hat is interesting and im portant in the problem raised by Pufendorf is not that a state m ay, if it can, recover w hat it loses in one w ar by w aging and w inning another w ar, but rather that w hen the new w ar is w aged, that state will not proclaim as its cause for w ar the inva­ lidity of the form er peace treaty on the ground of its having been signed under duress.48 (Indeed, it could hardly do so w ithout vitiating at the sam e time its ow n effort to regain by force, in a new treaty of peace, that w hich had form erly been taken from it in the old one.) The question arising from this, which Pufendorf, unlike Grotius, does not consider, is w hy such a rule should have becom e a custom ary rule of the law of nations. Grotius, as w e have seen, accounts for this by saying that 'the peace of m ankind', which urgently requires that w ars be limited and brought to an end, is positively served by such a rule. But if the rule against the revision of peace treaties is a contri­ bution to peace, this is not because it prevents the w aging of fu tu re w ars (contrary to w hat Pufendorf thinks Grotius is sug­ gesting) w hich m ight result in the recovery of territory lost in past w ars, but rather because, in providing the victor w ith the legal guarantee it seeks, in the form of a valid peace treaty (which is often the only condition under w hich the victor is prepared to term inate the w ar), it serves to bring the present w ar to an end. In the absence of such a guarantee, the victor m ight well prefer to prolong the present w ar, reasoning that if no security is to be found in the law, security m ust be sought through the sword. This state of affairs, how ever, w ould manifestly not be in the interests of the peace of mankind, as Grotius is right to suggest. A s H enry Sidgwick w as to put the point in the late nineteenth century:

48 This is not to deny that states have frequently referred to the ethical injustice of treaties signed under duress as a political justification for resorting to war— as did Russia, for example, when resorting to war against Sweden in 1700 (see above, n. 18).

The Theoretical Background

25

expediency forbids us to lay down broadly that a treaty made under unjust coercion is simply invalid; since the universal adoption of this principle would greatly aggravate the evils of unjust victory: it would be the interest of the conqueror to crush his enemy completely and relentlessly, as he would no longer be able to trust his engagements.49

It is in this sense, then, that the rule upholding the validity of peace treaties can be said to contribute to international order: it provides a means of arriving directly at what the outcome of a prolonged struggle would be without actually prolonging the struggle with all the violence and destruction which this would entail.50 'Surrender', as Grotius writes, 'voluntarily permits what force would otherwise take.'51 And while the rule may be objec­ tionable from the point of view of justice, since it plainly defers to the will of the stronger, it does show at the same time how the principle that might is right can function as a principle of order in international society. (b) The Creation o f Stability through Acceptance o f the Right of Conquest We now come to the second main argument advanced in defence of the title by conquest, which, like the first argument, stresses the practical advantage to be gained from its recognition. But whereas the first argument emphasized the advantage of having wars brought materially to a close (since the right of conquest provides the victor with an incentive to cease the fighting when it is still in a position to continue), the second argument focuses on the specific advantage to be had from bringing wars legally or formally to a close. Stressing the need for stability in the relations between states, Vattel puts the argument as follows: 49 The Elements o f Politics (London: Macmillan, 1891), 245. For a similar argu­ ment, see Nassau W. Senior, 'A Review of Henry Wheaton's History o f the Law o f Nations’, Edinburgh Review, 78 (Apr. 1834), 303, at 308: 'the welfare of society requires that engagements entered into by a nation under duresse should be held binding; for if they were not, wars would terminate only by the utter subjugation and ruin of the weaker party'; and Phillipson, The Termination o f War and Treaties o f Peace, 162. 50 See Hedley Bull, 'Society and Anarchy in International Relations', in Herbert Butterfield and Martin Wight (eds.), Diplomatic Investigations (London: Allen and Unwin, 1966), 44. 51 De Jure Belli ac Pads, bk. Ill, ch. 8, sect. 4.

26

Conquest in Traditional Law and Practice

If an unjust war cannot, in its effects, confer any right, no certain pos­ session can be obtained of any thing taken in war, until some acknow­ ledged judge (and there is none such between nations) shall have definitely pronounced concerning the justice of the cause: and things so acquired will ever remain liable to be claimed, as property carried off by robbers.52

And indeed, it is only through the title by conquest, which has the function of pronouncing, through the legal act of annexation or peace treaty, that a given war has been terminated (since its results have been registered in law), that stable territorial rela­ tions between states could ever have got off the ground in the first place. For given that the existing frontiers of most states, when they are traced back far enough, will be seen in most cases to be based at least in part upon territorial acquisitions which have been made in the course of various military struggles, it is plain that in the absence of at least an implicit recognition of the title by conquest, these wars would still today be regarded as legally unfinished and the territorial borders based upon them as legally uncertain. In this sense the title by conquest may be said to have provided the crucial first step out of the Hobbesian state of na­ ture: for through it the state of peace has been able legally to be distinguished from the state of war; and without it the relations between states would have remained (almost by definition) in a continuous state of war of all against all in which no law at all could be said to have taken root. It may be noted that the argument from the need for stability has also been used in defence of the title by prescription. As Hall remarks: 'the object of prescription as between states is mainly to assist in creating a stability of international order which is of more practical advantage than the bare possibility of an ultimate victory of right.'53 And indeed, the title by prescription often acts in such as a way as to confirm the title by conquest, and in confirming it, rendering the title incontestable so that it cannot be the subject of future wars or quarrels. When the right of con­ quest and the right of prescription act together in this way, we have a situation where 'what is gained by the sword is held by law until the conquest is cured by prescription'.54 The titles by 52 The haw o f Nations, bk. Ill, ch. 12, sect. 188. 53 A Treatise on International haw, 2nd edn., 111. 54 Hessel E. Yntema, 'International Law as a Hindrance and as an Aid to Peaceful Change', PASIL 30 (1936), 36, at 45,

The Theoretical Background

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conquest and by prescription are, in fact, essentially similar: for in neither case does the principle ex injuria jus non oritur act as a barrier to the establishment of title (inasmuch as in either case legal rights may arise from the destruction of the legal rights of others), and in both cases effective possession is the key require­ ment—although, whereas with conquest it is the only require­ ment, prescription requires in addition the fact of long-standing possession and the absence of protest on the part of the former possessor. (c) The Problem o f Passing Legal Judgement upon the Justice of the Cause The third argument which has been advanced in defence of the title by conquest differs from the first two in that it stresses not so much the practical advantage to be gained by its recognition as the theoretical impossibility of replacing it by some more equitable principle such as would be applicable in domestic so­ ciety. The principle ex injuria jus non oritur, that just title cannot accrue from unjust action, can be applied in respect of war, so the argument runs, only in a society above whose members there exists a legal body with the authority to determine which side in a conflict has committed the unjust action,55 and with the neces­ sary power at its disposal to enforce its decision. International society, however, being a society of sovereign states, is one which by definition lacks such a legal body, in which case the principle in question seems necessarily inapplicable. Thus Vattel, who advances this argument, admits, on the one hand, that '[t]he conditions necessary for rendering an acquisi­ tion, made by arms, just and irreproachable before God and our conscience, are these—justice in the cause, and equity in the measure of the satisfaction', but recognizes, on the other, that 'nations cannot, in their dealings with each other, insist on this rigid justice'.56 For, as he says: in the contests of nations and sovereigns who live together in a state of nature, how can this rule be enforced? They acknowledge no superior. Who then shall be judge between them, to assign to each his right and 55 i.e. has resorted to war without just cause or, having resorted to war justly, has offered terms to the vanquished which are excessive in their rigour. 56 The Law o f Nations, bk. Ill, ch. 13, sect. 195.

28

Conquest in Traditional Law and Practice

obligations,— to say to the one, 'you have a right to take up arms, to attack your enemy and subdue him by force';—and to the other, 'Every act of hostility that you commit will be an act of injustice; your victories will be so many murders, your conquests, rapines and robberies'?57 Vattel concludes that in the absence of a supranational body above states w hich m ight legally establish, in the event of a w ar, w hich side has the just cause and w hich is the aggressor, which victories are lawful and w hich conquests unlawful, and in the absence of an international police force w ith the pow er to ensure that all conquests illegally acquired are returned to their rightful owner, the law of nations has had instead to insist that provided that the law s of w ar them selves are observed, all victories are lawful, and every conquest provides just title. Victory and defeat have had, therefore, to be treated as purely factual m atters, and the law has had to follow the facts as they present them selves at the conclusion of w ar, in accordance w ith the principle ex fa ctis ju s oritur. N ow Vattel, it should be noted, goes further than this. O r rather, he is led to the sam e conclusion by m eans of another argum ent, w hich goes beyond the definitional point that above states which are sovereign there cannot be an international court w ith com ­ pulsory jurisdiction. For in V attel's view the right of conquest m ust be accepted not only because there is no legal body above states w ith the authority to determ ine w hich w ars are just and w hich are unjust w ith respect to their cause, but because, over and above this, no fellow state or group of states has the author­ ity to m ake legal pronouncem ents of this kind either.58 For states to attem pt to do this, he thinks, w ould be to violate a sovereign state's right to judge for itself w hat constitutes for it a just cause of w ar.59 This latter view of V attel's, how ever, is one w hich in the tw en­ tieth century seem s not to com m and m uch support. For w hen 57 Ibid., ch. 12, sect. 188. 58 'it exclusively belongs to each nation to form her own judgement of what her conscience prescribes to her,— of what she can or cannot do' (ibid., prelims., sect, 16). 59 According to Vattel, for one state to undertake to judge the motives or actions of another would be to 'invade her liberty, and infringe her most valuable rights'; for, as he puts it, '[ejvery free and sovereign state has a right to deter­ mine, according to the dictates of her own conscience, what her duties require of her, what she can or cannot do with justice' (ibid., bk. Ill, ch. 12, sect. 188).

The Theoretical Background

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states go to war today, they plainly do assume the right to pass legal (as opposed to moral) judgements upon the motives or causes of those states with whom they are at war, as is evidenced by the perennial charges and counter-charges of 'aggression' which are constantly rehearsed, where 'aggression' is meant not merely as a military term denoting objective military facts such as the firing of the first shot, or even the use of illegal means of warfare, but as a legal term denoting the waging of war for unjust or unlawful motives or purposes. The most celebrated and obvious example of this thinking is the view which underlay the Nuremberg Judgement, when the victors after the Second World War assumed the right to exercise 'jurisdiction' over Nazi Ger­ many (or its representatives) and to inflict 'punishment' for the 'international crime' of planning and waging aggressive war (as distinct from actually fighting it by unjust or illegal means). This subject is one to which we shall return at a later point in this enquiry. For the present, however, there remains to be con­ sidered that aspect of the right of conquest which as yet we have not touched upon, namely, the idea that the conqueror has rights, by virtue of conquest, over the inhabitants of conquered territory.

III. THE RIGHTS OF THE CO N Q UERO R OVER THE IN HABITANTS OF CON Q UERED TERRITORY

If conquest has traditionally provided states with title to con­ quered territory, the question arises: what were the conqueror's legal rights over the inhabitants of the conquered territory? This is an area in which international law has seen great changes since the early seventeenth century. Our purpose in the present section will be to note what these changes have been, and to account for the dramatic contraction in the rights of the con­ queror which has taken place in the centuries since Grotius. It was Grotius' view that the rights of the conqueror over the conquered were, in his own time (the early seventeenth century), absolute and unlimited. Hence, he claims, the conqueror was at that time permitted by the law of nations to kill or enslave any person captured on enemy territory,60 including women and 60 De Jure Betti ac Pads, bk. Ill, ch. 7, sect. 1.

30

Conquest in Traditional Law and Practice

children, and to destroy and pillage all private property belong­ ing to the inhabitants.61 The right of the conqueror to reduce the conquered people into slavery was even viewed as a concession in their favour, since by right (that is, by the rights which the laws of war of the time assigned to belligerents, and by implica­ tion to the victor) the conqueror could have put them to death.62 Three factors in particular may be said to have influenced this view of the absolute nature of the rights conferred by conquest on the victor in a seventeenth-century war. First there was the fact that the laws of war themselves were of a brutal and indis­ criminate character. These laws, as Grotius expounds them, per­ mitted belligerents to kill and injure all who were on enemy territory, including women and children; to plunder all enemy property; and to kill or enslave prisoners of war. If these were the laws of war of the time, then it naturally followed that the right of the victor should be no less harsh. In the second place, the indiscriminate nature of the laws of war (and thereby of the right of the victor) was itself a function, partly, of the conception of war which prevailed at the time (as it had also prevailed in antiquity and the Middle Ages) before the modern state had fully developed, according to which war was a contention between the whole populations of belligerent states.63 This conception implied that 'every subject of one bellig­ erent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will/64 In the third place, the idea of the absolute and unlimited rights of the conqueror over the conquered inhabitants was consonant with the absolute and unlimited right which the absolute monarchs of the seventeenth century in any case had over their own subjects. For in Grotius' time, state territory was still identified, as it had been in the Middle Ages, with the private property of the monarch.65 The failure fully to distinguish between the imperium or territorial supremacy of the monarch over the state territory and the private property or dominium of the monarch, meant that such transfers of sovereignty as took place (whether by conquest, cession, sale, or gift) included not merely the transfer 61 Ibid., ch. 8, sect. 4. 62 Ibid., ch. 7, sect. 5. 63 Oppenheim, International Law, 1st edn., ii. 59. 64 Ibid. 65 Ibid. i. 265.

The Theoretical Background

31

of the territory or public property of the state, but also 'all pri­ vate lands and the property and services of the subjects, who were transferred with the soil, in the same manner as a slaveholder may transfer his slaves and all they possess, together with the title to his plantation'.66 And just as the territory and inhabitants of these 'patrimonial kingdoms' (as Grotius calls them)67 were considered in the light of the absolute property of ruling families (who, having received the blind submission of their subjects, were free to sell and barter them away like any other property which they possessed), so, when a conqueror occupied the territory of his enemy, that territory too was 'in every point considered his State property, with which and with the inhabitants therein he could do what he liked'.68 By the middle of the eighteenth century, however, when the age of absolutism was being tempered by the spirit of the En­ lightenment, there was a sense that civilization had undergone a great advance since ancient times. The laws of war expounded by Vattel were much milder and more discriminating than those which Grotius had expounded over a century earlier, and the rights of the victor had correspondingly contracted. While war might result in a transfer of sovereignty to the conqueror, the property of individuals was to be left undisturbed: In the conquests of ancient times even individuals lost their lands.. . . But at present war is less dreadful in its consequences to the subject: matters are conducted with more humanity: one sovereign makes war against another sovereign, and not against the unarmed citizens. The conqueror seizes on the possessions of the state, the public property, while private individuals are permitted to retain theirs. They suffer but indirectly by the war; and the conquest only subjects them to a new master.69

As this quotation from Vattel reveals, there had by his time been a movement away from the old conception of war as a contest between peoples towards Rousseau's idea of war as a contention between states through their armed forces. This new doctrine was set down by Rousseau in the following famous passage from The Social Contract: 66 67 68 69

Halleck, International Law, 128. See e.g. De Jure Belli ac Pads, bk. I, ch. 3, sect. 12. Oppenheim, International Law, 1st edn., ii. 168. Vattel, The Law o f Nations, bk. Ill, ch. 13, sect. 200.

32

Conquest in Traditional Law and Practice

War then is a relation, not between man and man, but between State and State, and individuals are enemies only accidentally, not as men, nor even as citizens, but as soldiers; not as members of their country, but as its defenders. Finally, each State can have for enemies only other States, and not men; for between things disparate in nature there can be no real relation.70

If war was now a relationship between states and not peoples, then victory in war, while it might vest in the victor certain rights over the vanquished state—to overthrow it, for example— it could not grant the conqueror any right over the conquered people as such—it could not, that is to say, deprive them of their lives, their liberty, or their property.71 For those private subjects of the vanquished state who did not belong to the armed forces were on this view considered not to have taken part in the contest. Thus, by the eighteenth century, the conqueror was no longer considered to have the right to reduce the citizens of the con­ quered state to slavery. As Baron de Montesquieu writes: 'From the right of killing in the case of conquest, politicians have drawn that of reducing people to slavery—a consequence as ill grounded as the principle.' For '[i]t is a plain case, that when the conquest is completed, the conqueror has no longer a right to kill, because he has no longer the plea of natural defence and self-preservation.'72 And Vattel, taking up the same position, contends that: when a sovereign, arrogating to himself the absolute disposal of a peo­ ple whom he has conquered, attempts to reduce them to slavery, he perpetuates the state of warfare between the nation and himself. . . . Should it be said that in such a case there may be peace, and a kind of compact by which the conqueror consents to spare the lives of the vanquished, on condition that they acknowledge themselves his slaves, —he who makes such an assertion is ignorant that war gives no right to take away the life of an enemy who has laid down his arms and submitted.73

By the second half of the eighteenth century the question of the extent of the rights of the conqueror with respect to the treatment 70 Bk. 1, ch. 4; see The Social Contract and Discourses, 171. 71 Here, struggling to be born, is a doctrine of the rights of man or of human rights such as are not to be overruled by governments, in war or peace. 72 The Spirit o f Laws (1748), trans. Thomas Nugent (New York: Hafner Publish­ ing Company, 1949), bk. 10.3, 135. 73 The Law o f Nations, bk. Ill, ch. 13, sect. 201.

The Theoretical Background

33

of the local inhabitants, once the territory had been acquired by the victor, was not only a subject for theoretical reflection: it was sometimes a matter of considerable official concern. This was illustrated in the public debates following the British conquest of French Canada in 1760 (during the Seven Years War), which was subsequently confirmed in the peace of Paris of 1763. The conquest of French Canada, which had been France's old­ est colony and was inhabited by some 70,000 French settlers, confronted Britain with the problem of the administration of a territory acquired by war, and the rule of a non-British—but European—people whose language, religion, law, and mode of life were utterly alien to its own.74 One of the central themes of debate in the House of Commons, prior to the passage of the Quebec Act of 1774, was thus the question of the extent of the right of the conqueror, and the degree to which it might be lim­ ited by any countervailing rights of the conquered. According to one historian's commentary on the proceedings: All speakers in the House of Commons on both sides showed a concern with human rights, placing them, ostensibly at least, above any special interest. The reports of the law officers, without exception, were rational and humane . . . There was a concern to stress the limitations of the right of the conqueror. 'C an . . . the conqueror impose such laws as he pleases?" asked Wedderbum [the Solicitor-General]. 'This proposition has been maintained by some lawyers who have not distinguished between force and right.' Nor was it forgotten that Canadians were persons. 'I am free to say,' said Charles James Fox, who opposed the bill, 'that the Canadi­ ans are my first object; and I maintain, that their happiness and their liberties are the proper objects, and ought to be the leading principle, of this bill.. ,'75

On 26 May 1774, during the second reading of the Canada Bill, the Solicitor-General delivered a speech whose text may be said to constitute a remarkable document in the history of public debate about the right of conquest.76 Taking his theoretical cue 74 On the novel nature of this problem for the British Empire, see William Harrison Woodward, A Short History o f the Expansion o f the British Empire, 7500 1930 (Cambridge: Cambridge University Press, 1931), 248. 75 Hilda Neatby, Quebec: The Revolutionary Age, 1760-1791 (London: Oxford University Press, 1966), 141. 76 The text is given in Henry Cavendish, Debates o f the House o f Commons in the Year 1774 on the Bill fo r Making More Effectual Provision fo r the Government o f the Province o f Quebec, ed. J. Wright (London: Ridgway, 1839), 49 ff.

34

Conquest in Traditional Law and Practice

from Montesquieu,77 and citing, inter alia, the practice of the Ottoman Empire, Wedderburn insisted that the right of conquest did not entail a general licence to impose upon the conquered the law of the conqueror: With respect to the government of the country, the first question is, what is the extent of the right? The learned gentleman says, that the right of the conquering nation, generally and indefinitely, is, to give the laws of the conqueror to the conquered.. . . But not only are there in­ stances of great states that have not considered themselves warranted, by right of conquest, in forcing their laws upon the conquered, even countries that have scarcely any trace of public laws and general sys­ tems, have had more policy, with regard to the countries they have made themselves masters of. The very Mussulman, the Ottoman, the Turks, the worst of all conquerors, in the countries they subdued, left the people in possession of their municipal laws. That is the case of Wallachia; that is the case of Moldavia; that is the case with all the great settlements in which the Turks have pushed their arms. Those settle­ ments have a governor of the country to preserve the religion of the country and the manners of the country, appointed by the authority of the court; but they are governed according to their own laws and customs.. . . Unless you hold the principle, that you may enforce the slavery of the people conquered, and that, because you have a right to kill (which is not true, for that extends no further than the immediate heat of action)—if you save life, you may dispose of it as you please, there is no other ground upon which that doctrine can stand. You can preserve the acquisitions in time of peace, so as to give to the country subdued as much tranquillity, as much property, and as much enjoy­ ment of that property, as is consistent with your own safety; and this, it is your duty to do. The principles of humanity, the principles of natu­ ral justice, demand this at our hands, as a recompense for the evils of war; and not that we should aggravate those evils, by a total subversion of all those particular forms and habits, to which the conquered party have been for ages attached. Upon this principle, Sir, I do maintain, that it would have been most unjust to have relapsed into the barbarity of former ages; and this we should have done if we had, with a rough stroke, said to the Canadians, that the laws of Canada should be totally obliterated. . ,78

77 The Spirit o f Laws, bk. 10.3 and 10.4. See e.g. Cavendish, Debates, 55-6, where Wedderburn explicitly cites the authority of Montesquieu. 78 Ibid. 50-2.

The Theoretical Background

35

The Attorney-General, Edward Thurlow, likewise took his stand against those who argued that British law ought to be imposed on the French Canadians—thereby opposing the views of the four hundred Protestant settlers who had recently immigrated to Canada from New England and who had proposed institutions which would have excluded all but Protestants from political power.79 According to Thurlow, Britain's moral obligation to­ wards the inhabitants of the conquered territory, and its vested interest in the happiness of its newly acquired subjects, dictated a very restricted reading of the right of conquest: My notion is, that it is a change of sovereignty. You acquired a new country; you acquired a new people; but you do not state the right of conquest, as giving you a right to goods and chattels. That would be slavery and extreme misery. In order to make the acquisition either available or secure, this seems to be the line that ought to be followed— you ought to change those laws only which relate to the French sover­ eignty, and in their place substitute laws which should relate to the new sovereign; but with respect to all other laws, all other customs and institutions whatever, which are indifferent to the state of subjects and sovereign, humanity, justice, and wisdom equally conspire to advise you to leave them to the people just as they were. Their happiness depends upon it; their allegiance to their new sovereign depends upon i t .. .. When the Crown of Great Britain makes a conquest of any foreign established country,. . . it is an article of humanity and justice to leave the country in possession of their laws . . ,80

This was the policy eventually embodied in the Quebec Act of 1774, which recognized the wishes of the French Canadians to retain their religion, rights, and customs (in striking contrast to the policy of Protestant and English 'ascendancy' that was fol­ lowed during the same years in Ireland). The Quebec Act ac­ knowledged Roman Catholicism to be the religion of the colony, allowed the existing French law to continue in force in civil matters, and confirmed the feudal landholding system which had been in force prior to the British conquest of the territory. While British practice in Quebec was, perhaps, uncommon in its time for the freedom and toleration which it allowed to the Roman Catholic community,81 it was not altogether unique by 79 See Woodward, A Short History o f the Expansion o f the British Empire, 15001930, 249. 80 Cavendish, Debates, 30, 37. 81 See e.g. Neatby, Quebec, 263.

36

Conquest in Traditional Law and Practice

eighteenth-century standards. For the same respect for the reli­ gious liberties of the inhabitants of a conquered territory which Britain had demonstrated in Canada following its conquest of the territory in 1760, had previously been demonstrated by Frederick the Great following Prussia's conquest of Silesia in 1740.82 As one historian records: What the king wished to see extended to Silesia was his own basic tolerance in matters of faith, a tolerance which was fed by the Enlight­ enment, and which he had often publicly expressed. . . [As Frederick noted in a letter of 1741]: 'Since the peaceful practice of one's religion is an integral part of what man perceives as his happiness, I shall never deviate from my firm resolve to protect the rights and liberties of every religion.. . .' He therefore resisted the demands of his protestant sub­ jects for the return of all churches appropriated [by Austria] since 1621 or the abolition of all tithes for the catholic clergy, since such an aboli­ tion would conflict with his stated principles.83

Consonant with these improvements in the practice of war and conquest, and with the changing conception of war as a relation between states and not peoples (for the personality and relations of the state were now being distinguished from the personality and relations of the subjects), there was a third change, or movement for change, expressed in Vattel's repudiation of 'patrimonialism' as a principle of international relations. The rejection of the patrimonial principle, according to which people could be bartered about at the will of the ruler, represents the international version of (the radical wing of) the French Enlight­ enment' s attack upon the domestic absolutism of the ancien regime. Just as the domestic theory called for an end to absolutism, and for the establishment of government based upon popular sover­ eignty, so the international version of that theory called for an end to patrimonialism, insisting upon the principle that people's allegiance cannot be changed without their expressed consent. According to Vattel, the patrimonial principle was no part of the law of nations, for people could not be 'acquired' by a conqueror: 82 This case is discussed below, at pp. 67-73. 83 Peter Baumgart, 'The Annexation and Integration of Silesia into the Prussian State of Frederick the Great', in Mark Greengrass (ed.), Conquest and Coalescence: The Shaping o f the State in Early Modern Europe (London: Edward Arnold, 1991), 169-70, quoting from a letter in French from Frederick II to Sinzendorf, dated 20 Oct. 1741.

The Theoretical Background

37

Some have dared to advance this monstrous principle, that the con­ queror is absolute master of his conquest,—that he may dispose of it as his property . . . ; and hence they derive one of the sources of despotic government. But, disregarding such writers, who reduce men to the state of transferable goods or beasts of burthen,—who deliver them up as the property or patrimony of another man,— let us argue on prin­ ciples countenanced by reason and conformable to humanity.84

A similar viewpoint was expressed by Rousseau: 'It is making fools of people to tell them seriously that one can at one's pleas­ ure transfer peoples from master to master, like herds of cattle, without consulting their interests or their wishes.'85 Vattel's assertion of the rights of peoples against the rights of rulers indicates his support for the idea that government should take place with the consent of the governed, or, as it was later to become known, the doctrine of the self-determination of peoples. This doctrine, which became in 1789 the ideology of the French Revolution, had, by the time of Napoleon's defeat in 1814, spread across Europe to an extent that made it impossible for the patrimonial principle to be restored or incorporated as it had previously been into international law or morality. But if the doctrine of the self-determination of peoples was now emerging as the new principle of legitimacy in international relations in place of the old dynastic principle, which had placed the rights of rulers above the rights of the nation or the people, then the logical corollary was that the right of conquest, by means of which the conqueror had the right to rule the inhabitants of the conquered territory, could itself no longer be part of interna­ tional law. For if the principle of self-determination applies, then a victor cannot have a right to rule by virtue of conquest, but only by virtue of the people's consent. This was how matters stood, or appear to have stood, in theory. In practice, so long as conquest furnished the victor with a title to conquered territory, the idea that the consent of the inhabit­ ants should be obtained before the victor could acquire personal sovereignty over them could not in reality be insisted upon. For just as the inhabitants did not choose to have the land they 84 The Law o f Nations, bk. Ill, ch. 13, sect. 201. 85 J. J. Rousseau, Political Writings, ed. C. E. Vaughan (1915), i, 340-1, quoted in Alfred Cobban, The Nation State and National Self-Determination (London: Collins, 1969), 32.

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Conquest in Traditional Law and Practice

inhabited taken over by the conqueror, neither did they choose to have their allegiance transferred in the way that it must be transferred if the conqueror is to become territorially supreme over the conquered territory and its inhabitants. Thus, as Hall argued (towards the end of the nineteenth century): The principle that the wishes of a population are to be consulted when the territory which they inhabit is ceded, has not been adopted into international law, and cannot be adopted into it until the title by con­ quest has disappeared.86

Oppenheim (in the beginning of the twentieth century) likewise argued that 'there is no rule of the Law of Nations in existence which obliges a subjugator to grant the privilege of emigration to the inhabitants of the conquered territory.'87 Nor was it the case that in the event of a forced cession (arranged through a treaty of peace) the victor was obliged to consult by means of a plebis­ cite the wishes of the inhabitants of the territory to be ceded. On this question, Oppenheim commented as follows: The hardship involved in the fact that in all cases of cession the inhab­ itants of the territory lose their old citizenship and are handed over to a new sovereign whether they like it or not, has created a movement in favour of the claim that no cession shall be valid before the inhabitants have by a plebiscite given their consent to the cession. And several treaties of cession concluded during the nineteenth century stipulate that the cession shall only be valid provided the inhabitants consent to it through a plebiscite. But it is doubtful whether the Law of Nations will ever make it a condition of every cession that it must be ratified by a plebiscite. The necessities of international policy may now and then allow or even demand such a plebiscite, but in most cases they will not allow it.88

However, even if it would not be true to say that the hold­ ing of plebiscites became a legal requirement which had to be met before cessions could be validated, there is no doubt that after the French Revolution and the rise of national liberation movements throughout Europe in the nineteenth century, states became subject to new moral pressures which prior to the Revo­ lution, in the era when patrimonialism was still acceptable, had been entirely absent. States now felt obliged to show that even in 86 A Treatise on International Law, 2nd edn. (1884), 46. 87 International Law, 1st edn., i, 292. 88 Ibid. 272-4.

The Theoretical Background

39

their conquests they had disavowed the patrimonial principle. And it is this important change in the moral climate of interna­ tional relations which explains why many treaties of cession concluded during the nineteenth century contained the stipula­ tion that the acquiring state would give the inhabitants of the ceded territory the option of retaining their old citizenship,89 or of emigrating within a certain period, if they did not wish to transfer their allegiance to the new sovereign.90 Thus, to take an example, Germany agreed in Article 2 of the Peace Treaty of Frankfurt, 10 May 1871—which was imposed upon France after its defeat in the Franco-Prussian War—that the French inhabit­ ants of the ceded territory of Alsace-Lorraine would have, until 1 October 1872, the privilege of transferring their domicile from the ceded territory to French soil.91 This German action is partly to be explained by the need which evidently existed at the time to avert the charge that the conquering state was assuming sov­ ereignty over the inhabitants of the ceded territory against the people's will. It was certainly the case, then, that by the nineteenth century, there had been a definite and discernible change in the moral tone or atmosphere in which international relations were con­ ducted, in consequence of the great political push that had been given by the French Revolution to the doctrine of the self­ 89 Although, as Oppenheim notes, the legal stipulation was such that 'failing a stipulation expressly forbidding it, the acquiring State [could] expel those in­ habitants who . . . made use of the option and retained their old citizenship, since otherwise the whole population of the ceded territory might actually consist of foreigners and endanger the safety of the acquiring State' (ibid. 274). 90 The practice of option, which was designed to ensure that 'a new nationality and a new bond of allegiance may not be imposed on the inhabitants against their will', appears to have become definitely established towards the end of the eighteenth century, under the influence of the French Revolution (Phillipson, The Termination o f War and Treaties o f Peace, 294-5), An early and important instance of the practice of option was that contained in Art. 9 of the Treaty of Campo Formio of 1797, between France and the Holy Roman Empire. Other examples include the Treaty of Paris of 1815 (Art. 7), which conferred the right of option on the inhabitants of all the territories that were to change sovereigns; and Art. 9 of the Treaty of Paris of 1898, between the USA and Spain, which extended the right of option to Spanish subjects who were 'natives of the Peninsula' residing in the Philippines and Puerto Rico— although natives of the islands themselves were not given the option and thus became American subjects (though not neces­ sarily citizens) by the very fact of annexation (ibid. 295-6). 91 For the text of the Treaty of Frankfurt, see Edward Hertslet, The Map o f Europe by Treaty (London: Butterworths, 1875-91), iii, no. 446.

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Conquest in Traditional Law and Practice

determination of peoples. As a result, the idea of the right of conquest, or that aspect of it which concerned the conqueror's rights of sovereignty over the inhabitants of the conquered ter­ ritory, had been forced decisively on the defensive. But this was only the first step in the process which was to advance with even greater force in the twentieth century, and which was to render the right of conquest unacceptable not only in terms of interna­ tional morality but also in terms of international law. One of our tasks in Part Two of this study will be to trace the main stages of this further movement away from the right of conquest, and, more particularly, of the movement away from international law's acceptance of the title by conquest. First, however, it will be necessary to illustrate how the principle of conquest operated in practice, by focusing on the period, before the Covenant of the League of Nations of 1919, when interna­ tional law still recognized the validity of conquest as a title for the acquisition of territory.

2

The Right of Conquest in Relations between European States and 'Barbarian' Political Communities The expansion of Europe from the sixteenth century onwards was to a large extent achieved by means of war and conquest, which, as I shall argue, the European states recognized as a legitimate mode of acquisition of title to lands inhabited by non-Christian or 'uncivilized' peoples.1 Whereas one writer's observation that '[m]ost of the colonial acquisitions by European Powers from the 15th to the 19th century were effected by conquest'2 perhaps overstates the case—since it overlooks the importance of major episodes of colonial expansion, such as the partition of Africa in the nineteenth century, in which title to territory was generally based upon claims that it had been ceded by consent of African rulers and much less frequently upon claims that it had been acquired by right of conquest3—it none the less provides some indication of the importance of conquest as a mode of acquisition of territory in the process of European imperial expansion. Our purpose in the present chapter will be (1) to demonstrate the way in which lands inhabited by non-Christian or 'backward' peoples were regarded by the European powers as being auto­ matically open to acquisition by conquest; (2) to explore the general grounds on which the European powers justified the conquest of 'barbarian' political communities; and (3) to empha­ size the historical importance of conquest as a basis of title to 1 Lindley, The Acquisition and Government o f Backward Territory in International Law, 26-7. 2 Erich Kussbach, 'Conquest', EPIL 3 (1982), 119, at 120. 3 Hedley Bull, 'European States and African Political Communities', in Hedley Bull and Adam Watson (eds.), The Expansion o f International Society (Oxford: Clarendon Press, 1984), 111. See, too, James Crawford, The Creation o f States in International Law (Oxford: Clarendon Press, 1979), 180; and Shaw, Title to Territory in Africa, 33, 38, 45 -6 .

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Conquest in Traditional Law and Practice

territory in the establishment of the European colonial empires— as reflected in the numerous instances of colonial expansion in which the claim to rule colonial territories and peoples was ac­ tually based on conquest.

I. LANDS IN H A BITED BY N O N -CH RISTIAN PEO PLES REGARDED AS A U TO M A TIC A LLY OPEN TO ACQUISITION BY CONQUEST

In identifying the principles which informed the Christian pow­ ers in their relations with the non-Christian or 'barbarian' world, and which concerned, in particular, the Christian or European claim of a right to acquire sovereignty over 'infidel' or 'uncivil­ ized' peoples, it is well to begin by considering the view, ex­ pressed by Quincy Wright,4 that the claims of the European colonial powers to the overseas territories which they acquired by force were based 'on the theory, prevalent in the age of dis­ coveries, that territories not in the possession of a Christian prince were "territorium nullius” subject to acquisition by Papal grant or by discovery and occupation without regard to the wishes of the native inhabitants'.5 This statement, it would seem, is not quite an accurate presentation of the posture actually adopted by the European powers in relation to the non-Christian political com­ munities which they confronted in the New World, Asia, and Africa. For it was not in fact the case—except in respect of Aus­ tralia and some other sparsely inhabited lands, which were treated as territories belonging to no sovereign6—that tribal societies were 4 'The Goa Incident', AJIL 56 (1962), 617, at 629. Note, however, that Wright is here describing the perceptions of Asian and African states in the era of decolonization, and may not be expressing his own opinion on the subject. 5 For an African statement of this view, see Ambassador Bedjaoui's analysis of the concept of terra nullius, presented on behalf of the Algerian government in the oral pleadings in the Western Sahara case (JCJ Pleadings (1982), Western Sahara, 1975, iv, 452-94). Bedjaoui's contention was that the colonial powers had applied the concept of terra nullius in the fifteenth and sixteenth centuries to any territory which did not belong to a Christian sovereign, and in the nineteenth century to any territory which did not belong to a 'civilized' state. Thus the concept of terra nullius had effectively constituted the legal spearhead of European colonization, and was employed as such by the colonizing powers. But for a reply to this argument, see below, nn. 7, 8, 13, and 81. 6 See Lindley, The Acquisition and Government o f Backward Territory in Interna­ tional Law, 40-1.

Colonial Expansion by Right o f Conquest

43

simply ignored by European powers and their lands treated as terrae nullius, acquirable by papal donation or by discovery and occupation as if they had constituted vacant lands belonging to nobody.7 On the contrary, as M. F. Lindley concludes in his wellknown study The Acquisition and Government o f Backward Territory in International Law, on the basis of a comprehensive survey of state practice 'extending over four centuries and derived from four continents': it appears that, on the whole, European States, in establishing their dominion over countries inhabited by peoples in a more or less back­ ward stage of political development, have adopted, as the method of such extension, Cession or Conquest, and have not based their rights upon the Occupation of territorium nullius.8

It is true that the European powers assumed, as between them­ selves, that discovery (or papal donation)9 furnished the discov­ erer's state (or the beneficiary of the papal grant) with exclusive rights of acquisition of territories not in the possession of a Chris­ tian prince;10 and that this principle—by presupposing that lands 7 That 'territories inhabited by tribes or peoples having a social and political organization were not regarded as terrae nullius' was affirmed by the Interna­ tional Court of Justice in its Advisory Opinion concerning Western Sahara on the basis of an analysis of state practice from 1884 onwards (ICJ Reports (1975), 12, at 39 (par. 80)). 8 p. 43. See also Lindley's general discussion at pp. 24-43. In determining whether occupation of terra nullius was the appropriate mode of acquisition— as opposed to cession or conquest—the criterion which tended to be applied was not whether the inhabitants were Christian or 'civilized' or not, but whether or not they were politically organized (pp. 22-3). See, too, the Advisory Opinion of the International Court of Justice in the Western Sahara case, ICJ Reports (1975), 12, at 39. 9 It should be remarked that, by the fifteenth century, papal donation was no longer recognized as granting exclusive rights of acquisition, except by Spain and Portugal inter se. In their dealings with other European powers, however, Spain and Portugal tended to reinforce their claims under papal grants with rights based upon discovery, since England, France, and Holland refused to recognize the validity of papal donation (see D. P. O'Connell, International haw, 2nd edn., i (London: Stevens, 1970), 408-9). Thus, as William H. Prescott observes: 'what­ ever difference of opinion may have subsisted between the Roman Catholic— or rather the Spanish and Portuguese— nations and the rest of Europe, in regard to the true foundation of their titles in a moral view, they have always been content, in their controversies with one another, to rest them exclusively on priority of discovery' (History o f the Conquest o f Mexico (London: Sonnenschein, Lowrey, 1888), 246 n. 1). 10 Lindley, The Acquisition and Government o f Backward Territory in International Law, 24-7.

44

Conquest in Traditional Law and Practice

inhabited by 'infidels' or 'uncivilized' peoples were ipso facto open to acquisition by Christians—necessarily implied, as Wright is correct to suggest, a denial of the rights of non-Christian political societies to sovereignty over the territories they inhabited. But discovery and papal donation were not thought by themselves to confer sovereignty over non-Christian territory wherever there was a native population already in possession of such territory. What they were thought to confer was rather the right, assertible by the discoverer's state against other European powers, to take the steps necessary to acquire the lands discovered,11 either by conquest, which alone could extinguish the sovereignty of the natives without their consent, or by cession, which would have the effect of conveying it from the native tribes to the Christian state concerned.12 As Lindley explains: 'The general trend of opinion was in the direction of denying sovereign rights to nonChristians, but, even among those who held this view, it was put forward as legitimizing a war of Conquest and not as rendering the lands of non-Christians territoria nullius which could be ac­ quired by Occupation.'13 That the papal grants of the fifteenth century did not purport to grant sovereignty over territory as such, but rather to bestow upon the named Christian monarchs the right to conquer nonChristian lands, and thence to acquire title, is reflected in the language of the Bull of Nicholas V, issued in 1452, in support of the Portuguese advance down the coast of West Africa, which accorded to Alphonse of Portugal the right to 'invade, conquer, storm, attack and subjugate' and reduce into perpetual servitude the Saracens, pagans and other enemies of Christ.14 And in 11 Not unlike what in later times might have been called a 'sphere of influence' (ibid. 29). 12 Ibid. 26-7. 13 Ibid. 11. The position was thus curiously paradoxical. On the one hand, the Christian powers tended to deny sovereign rights to non-Christians. On the other hand, the claim that non-Christian lands had been acquired by 'right of conquest impliefd] a pre-existing right of the conquered to rule themselves, which [wa]s transferred to the conquerors' (Martin Wight, International Theory: The Three Tra­ ditions, ed. Gabriele Wight and Brian Porter (Leicester: Leicester University Press, 1991), 58). For as Malcolm Shaw points out: 'Conquest involves, it would seem, an implicit recognition of the international personality of the opposing party' (Title to Territory in Africa, 46). 14 According to the translation rendered in Lindley, The Acquisition and Govern­ ment o f Backward Territory in International Law, 26.

Colonial Expansion by Right o f Conquest

45

granting to Ferdinand and Isabella of Spain the exclusive right of acquiring dominion in the New World—in order that 'barbarian nations [may] be subdued and brought under . . . [the Catholic] Faith'15—Alexander Vi's famous Bull Inter Caetera about events in the Indies, issued in 1493, likewise envisaged warfare as the means of acquiring that dominion. Indeed, the main purpose of Inter Caetera, as one writer has suggested, was probably 'not to make a gift but to make a demarcation. It was aimed . . . at the problem of keeping the peace between the Spaniards and the Portuguese.'16 That the claim of discovery, too, was thought to give the dis­ coverer's state only the exclusive right to acquire by conquest or cession the country discovered—with a view to keeping the peace between the great European powers engaged in the competition for overseas territories—but was not taken to constitute, in the absence of conquest or cession, a mode of acquisition of sover­ eignty over territory already in the possession of native tribes is brought out in two leading decisions of the Supreme Court of the United States which emphasized the significance of discov­ ery and conquest in the acquisition of European title to territory in America. Thus, in the case of Johnson and Graham's Lessee v. McIntosh, decided in 1823, Chief Justice Marshall delivered the following celebrated judgement, arguing that it was ultimately conquest or cession, and not merely discovery, which consti­ tuted the method whereby title to lands inhabited by American Indians was to be acquired: They [the United States] maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occu­ pancy, either by purchase or by conquest;. . . We will not enter into the controversy, whether agriculturalists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and specu­ lative opinion of individuals respecting the original justice of the claim .. ,17

15 According to the translation provided by Michael Donelan in 'Spain and the Indies', in Bull and Watson (eds,), The Expansion o f International Society, 79. 16 Ibid. 81. 17 8 Wheaton 543, at pp. 587-8 (1823), US Supreme Court.

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This theme was later elaborated by the United States Supreme Court in 1832 in the Worcester v. State of Georgia case: It is difficult to comprehend the proposition th at. . . discovery . . . should give the discoverer rights in the country discovered which annulled the pre-existing rights of the ancient possessors.. . . But power, war, con­ quest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend.18

As the court went on to state, the great maritime powers of Europe discovered and visited different parts of America at nearly the same time; and to regulate the right of acquisition, which they all asserted, between themselves—with a view to avoiding the out­ break of destructive wars in the competition for new territories— the rule was adopted that discovery gave to the discoverer's state exclusive rights of acquisition in respect of the land discov­ ered. But this principle, while it shut out the right of competition among those who agreed to it, [was] not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the Euro­ pean discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the possessor to sell.19

And if, in the absence of a willingness on the part of the posses­ sor to sell, it became necessary for a state to fight with the na­ tives in order to turn those rights of acquisition into rights of possession, then the territory acquired, as Lindley points out, 'would be an acquisition by Conquest, none the less because no other European Power had the right to make the Conquest'.20 Thus the theory, which was actually acted upon by European states, that lands which were not in the possession of a Christian prince were automatically open to acquisition by Christians was based not on the claim that lands in the possession of native tribes were territoria nullius and thus open to acquisition by dis­ covery and occupation, but on the assumption that Christians had an automatic right to extinguish the sovereignty of infidel 18 6 Peters 515, at p. 543 (1832), US Supreme Court. 19 Ibid. 543-4. 20 The Acquisition and Government o f Backward Territory in International Law, 27.

Colonial Expansion by Right o f Conquest

47

kingdoms by conquering them. This is reflected not only in the language of the papal grants, as noted above, but also, as the following examples illustrate, in the commissions granted by the European sovereigns to navigators and explorers in the fifteenth, sixteenth, and seventeenth centuries, which all refer to conquest (or cession) as the means whereby title to newly dis­ covered lands inhabited by native political communities was to be acquired. Thus, the first commission of Ferdinand and Isabella to Columbus, dated 30 April 1492, referred to lands to be discov­ ered and conquered;21 the letters patent issued by Henry VII to the Cabots in 1495 authorized them to discover any heathen lands which previously had been unknown to Christians, and 'to sub­ due, occupy, and possess them, getting unto the King the rule, title and jurisdiction thereof';22 Francis I's commission to de Roberval in 1540 empowered him to subject the natives of Canada to the sovereignty of the French Crown either by cession or, if the natives proved unwilling to relinquish their sovereignty vol­ untarily, by conquest;23 and the charter of Acadie granted by Henri IV of France to de Monts in 1603 authorized him to subject the people of the territory to the Crown of France, either by con­ cluding treaties with them or through conquest and colonization.24 The principal conclusion which emerges from the above, then, is that Christian states, while not putting forward any general claim that territories not in the possession of a Christian prince were territoria nullius, did assert, in embarking upon the course of colonial expansion in the non-Christian world, a tacit right to war and conquest against 'infidel' or 'uncivilized' peoples. This, however, raises the question of the moral or legal foundation on which this presumed right was held by the advancing Europe­ ans to rest.

II. DOCTRINES JUSTIFYIN G THE FORCIBLE ACQ UISITION OF N O N -CH RISTIAN OR 'BA C K W A R D ' TERRITORY

The Spanish and Portuguese conquests in the New World gave rise to new legal problems concerning relations between Christian 21 Ibid. 27.

22 Ibid. 25.

23 Ibid. 27.

24 Ibid. 27-8.

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Conquest in Traditional Law and Practice

and non-Christian states: Was the doctrine of just war applicable to wars with American aborigines? (That is to say, in order for a war against them to be legitimate, did there have first to be an offence from the other side?) Or were 'infidel' rulers not entitled to retain their political and territorial sovereignty at all, in which case Christians might make conquests of them, even in the ab­ sence of an injury received? While Spanish scholars in the sixteenth century, especially Vitoria, devoted themselves to a study of these problems, it is not clear to what extent the European monarchs themselves, in auth­ orizing the conquest of newly discovered lands, had bothered to justify their acquisitions at all. According to Sir Michael Howard: It was only towards the end of the nineteenth century that the Europe­ ans saw any need to justify their conquest and rule. Conquest was, after all, a perfectly normal historical process and always has been. Where territory was, or seemed to be, unoccupied, the European settlers took possession of it in the name of their own sovereigns. Where it was occupied, they dictated terms to the conquered inhabitants. Nor did there seem anything unusual about it to the inhabitants themselves, most of whom had conquered or been conquered often before in their history. They accepted their new rulers, for the most part, as clearly possessing what the Chinese called 'the Mandate of Heaven'.25

On the other hand, as Donelan points out, in the sixteenth and seventeenth centuries European sovereigns still acknowledged that there had to be a moral or legal justification for war if the results of victory or conquest were themselves to be accounted lawful or just: For these were still the ages of belief in 'the just war'; states were not yet credited with the sovereign right to make war at will and to acquire title to territory simply by declaring it annexed; they had to have a just cause. It is true that the tradition of European kingship was that the proper work of a king was to extend the lands and glory of his dynasty. People believed this the more lightly in that before the days of the centralized nation-state, though the warfare caused suffering, the change of ruler usually made little difference. This and the egotism of a great king no doubt gave him a sense of personal right to go out and conquer. None the less, it was necessary to have a legal right, a public justification.26 25 The Lessons o f History (Oxford: Clarendon Press, 1991), 26. 26 'Spain and the Indies', 78.

Colonial Expansion by Right o f Conquest

49

On what grounds, then, did the European monarchs, in the era of colonial expansion, justify the right, which they claimed, to acquire their empires through the conquest of lands inhabited by non-Christian or 'barbarian' peoples? (a) The Spreading o f Christianity as the Early Justification for the Acquisition o f Overseas Empire by Conquest Until the seventeenth century, it was a commonly held belief within Christendom that difference of religion was a legitimate (and indeed praiseworthy) ground for making war against 'infi­ dels'.27 The limitations on the just causes of war that were deemed to apply in relations between Christian peoples were regarded as inapplicable when it came to relations with non-Christian peo­ ples;28 and this was reflected in the belief of the Spanish conquistadores that the paganism of the native Americans afforded a sufficient justification for waging war against them and seizing their territories, irrespective of whether a specific offence had been committed against the Spaniards or not. It is true that the early international legal thinkers, such as Vitoria,29 Gentili,30 and Grotius,31 denied that religious difference was a sufficient cause for taking up arms and acquiring territory by conquest. But such progressive doctrines must be seen as a protest against the practice of the times and not as a reflection of it. For in practice, the spreading of Christianity was accounted a just cause of war by sixteenth-century European sovereigns, who considered that they had an implicit right to wage war against 'infidels' as such. Thus, in the early sixteenth century, the Spanish monarchs justified their conquests in America on the ground that the Pope had assigned to Spain the right to acquire dominion in the Indies, 27 See Coleman Phillipson's introd. to Alberico Gentili, De lure Belli Libri Tres (1612), trans. J. C. Rolfe (Oxford: Clarendon Press, 1933), 34a. 28 See Lothar Kotzsch, The Concept o f War in Contemporary History and Interna­ tional Law (Geneva: Droz, 1956), 25; and William Ballis, The Legal Position o f War: Changes in its Practice and Theory from Plato to Vattel (The Hague: Nijhoff, 1937), 81, who refers to 'the distinction between peoples with respect to war' as the principle accepted by European states in this period. 29 Franciscus de Vitoria, De Indis et de Jure Belli Relectiones, trans. J, P. Bate (Washington, DC: Carnegie Institution of Washington, 1917), 170. 30 De lure Belli Libri Tres, bk. I, ch. 9, 31 Mare Liberum, ch. 4.

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Conquest in Traditional Law and Practice

by force if necessary, for the purpose of spreading the Christian faith. The strongest evidence of this assumption may be found in the Spanish Royal Proclamation known as 'The Requirement', drafted in 1513, which had to be read in full and translated to the Indians. This document asserted the Papal and Spanish claims to the New World; declared that in view of these claims resistance to the Spaniards was unlawful and war on the part of the Span­ iards just; and left the Indians with one of two alternatives—they had either to acknowledge the supremacy of the Pope and the Spanish Crown, or else suffer enslavement and confiscation of their property as a punishment for making unjust war. Once the ceremony was completed, if the Indians still proved recalcitrant, the Spaniards considered that the way was open to war and annexation.32 But the Spanish Crown may not have really believed that the grant of the Pope, as temporal and spiritual lord of the world, constituted the primary justification for its conquest of the Indies.33 The extension of the Christian faith alone probably seemed jus­ tification enough to the Spaniards,34 as it no doubt did to those other European sovereigns who, although having no specific grant from the Pope, none the less authorized the conquest of newly discovered lands which had not been previously occupied by Christian princes, presumably on the same assumption that the conquest and conversion of 'infidels' was ipso facto just. In his famous History of the Conquest of Mexico, Prescott nicely captures the view, which was prevalent in the sixteenth century, that the spreading of Christianity was a sufficient justification for the acquisition of colonial empires by conquest: to judge the action fairly, we must transport ourselves to the age when it happened. The difficulty that meets us in the outset is, to find a jus­ tification of the right of conquest, at all. But it should be remembered that religious infidelity, at this period . . . was regarded . . . as a sin to be punished with fire and fagot in this world, and eternal suffering in the next. This doctrine, monstrous as it was, was the creed of the Romish, 32 Georg Schwarzenberger, The Frontiers o f International Law (London: Stevens, 1962), 53. 33 Indeed, the Spaniards took great care to claim that they had other titles to the Indies, though they did not specify these (J. H. Elliott, The Old World and the New, 1492-1650 (Cambridge: Cambridge University Press, 1970), 80). 34 Donelan, 'Spain and the Indies', 81.

Colonial Expansion by Right o f Conquest

51

in other words, of the Christian Church . . . Under this code, the territ­ ory of the heathen, wherever found, was regarded as a sort of religious waif, which, in default of a legal proprietor, was claimed and taken possession of by the Holy See, and as such was freely given away by the head of the Church, to any temporal potentate whom he pleased, that would assume the burden of conquest.. . . With the right of conquest, thus conferred, came also the obligation, on which it may be said to have been founded, to retrieve the nations sitting in darkness from eter­ nal perdition.. . . However much it may have been mixed up with worldly considerations of ambition and avarice, [this obligation] was still active in the mind of the Christian conqueror.. . . The concession of the Pope, then, founded on, and enforcing, the imperative duty of con­ version, was the assumed basis—and, in the apprehension of that age, a sound one— of the right of conquest.35

It may thus be argued that in the age of great territorial dis­ coveries, the wars of conquest waged by Christian sovereigns against non-Christian communities were regarded by the former as 'just wars' not in the ordinary sense of wars fought to enforce specific rights, as was understood by the term when it was ap­ plied within Christendom in the Middle Ages, but in the sense of 'holy wars' fought to extend the true faith, which were re­ garded as ipso facto just, even if there had been no specific of­ fence from the other side. This distinction between a just war (which required a just cause) and a holy war (which did not) has been elaborated by Martin Wight as follows: In the notion of the Just War, the premise is that all parties have their due rights, and war is the means of penalizing violation of right and ensuring restoration and restitution. It is a juridical conception, of war as the instrument of law. In the notion of the Holy War, the premise is that the true believers are right, and that infidels are to be converted or exterminated.. . . It is a religious conception, of war as the instrument of God's will, or of history.36

As already noted, however, the assumption that 'barbarians' had no rights, and that Christian states therefore had an absolute right to conquer barbarian lands without the need of any prior just cause (in the sense of an injury received), was repudiated by the early international legal thinkers, most notably Vitoria. 35 pp. 244-6. 36 Systems o f States, ed. Hedley Bull (Leicester: Leicester University Press, 1977), 3 4 -5 .

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(b) Vitoria’s Rejection of the Validity of the Right of Conquest in the Absence o f a Just Cause of War Franciscus de Vitoria, a Dominican theologian-jurist teaching at the University of Salamanca in the first half of the sixteenth cen­ tury, protested against the orthodoxy of his time (which consid­ ered it justifiable to deprive 'barbarians' of their dominions simply because they refused to recognize the supremacy of the Papacy or to accept the Christian faith) in terms of the doctrine of nat­ ural law, according to which the Amerindian communities had natural rights to sovereignty, just as the Christians had, which might act as a moral or legal bar to conquest.37 By this means Vitoria sought to repudiate the notion that Christians had an absolute right to conquer non-Christian communities, that is, a right that was not limited by the requirement which was held to apply in relations among the Christian powers themselves, that there had first to be a 'just cause' for war before title could legit­ imately be acquired by conquest. In his lecture De Indis Recenter Inventis, delivered in 1539, Vitoria rejected the various apologies for conquest which had been ad­ vanced in his time in defence of Spain's conquest and rule in the New World.38 In particular, he rejected the view that the refusal of the Amerindians to accept the Christian faith was a just ground for waging war against them and acquiring their territory by conquest, because they are innocent in this respect and have done no wrong to the Spaniards.. . . [As] St. Augustine says: 'It is involved in the definition of a just war that some wrong is being avenged, as where a people or state is to be punished for neglect to exact amends from its citizens for their wrongdoing or to restore what has been wrongfully taken away'. Where, then, no wrong has previously been committed by the Indians, there is no cause of just war.39

Thus Vitoria insisted that the Indians had legitimate princes, just as the Christians had, and that a war against them was per­ missible, as it was between Christians, only for a 'just cause'. It was only on the ground of transgressions against the law of nations—conceived of as a system of rights and duties applicable 37 De Indis et de Jure Belli Relectiones, 128. 38 Ibid. 130-4, 137. 39 Ibid. 143.

Colonial Expansion by Right of Conquest

53

to all political communities without distinction as to religion— that the Spaniards, in Vitoria's view, could claim to have under­ taken the conquest of 'infidel' kingdoms in the New World justly. But the doctrine of natural law as applied by Vitoria to the relations between Christian states and 'barbarian' political com­ munities, though it did accord to pagan rulers a legal position similar to that of Christian princes, did not assert the 'equality' of Christian and pagan princes, as has sometimes been sug­ gested.40 For Vitoria deemed that pagan princes were duty-bound to admit Christian missionaries and that resistance to the work of the missionaries, as well as any measure against Indians con­ verted to Christianity, was a good cause of war which would entitle the Pope to depose Indian rulers in order to replace them with Christian princes41 But this right of Christian penetration in the infidel world was an unreciprocable right: 'Admission of nonChristian missionaries in Spain was, of course, unthinkable.'42 Apart from the denial of the right of the Spaniards to convert Indians to Christianity, the failure of the Indian rulers to protect the 'safety and peace' of those who came from afar or the refusal of the Indians to grant the Spaniards such 'natural rights' as the right to trade with them or the right to journey in their lands were violations of the natural law of nations which, in Vitoria's view, constituted a just ground of war against the natives, which might lead to the acquisition by Spain of sovereignty through the right of conquest.43 Thus, while rejecting conventional justifications for the right of conquest—in particular, the assumption that infidelity was suf­ ficient ground for waging war against non-Christians and de­ priving them of their dominion—Vitoria put new ones in their place, holding that the Spanish conquests in America were jus­ tified if the natives opposed travel, trade, and propagation of the gospel, and if these rights under the law of nations could be secured only by war. As Schwarzenberger observes: 'However 40 See e.g. Quincy Wright's remark that 'Francis of Victoria and other writers of the Naturalist School of international law .. . held that Montezuma of Mexico and other non-Christian states had equal rights under natural law' ('The Goa Incident', 629 n. 37). 41 De Indis et de Jure Belli Relectiones, 156-9. 42 Arthur Nussbaum, A Concise History o f the Law o f Nations, rev. edn. (New York: Macmillan, 1954), 81. 43 De Indis et de Jure Belli Relectiones, 151-5.

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idealistic the intentions of the Spanish naturalists were, in fact, their doctrines provided highly convenient ideologies for the empire-builders of the sixteenth century/44 In view of the legal justifications for conquest advanced by Vitoria, it is impossible to accept McMahon's conclusion that 'Vitoria. . . did not recognize conquest as a legal means of obtaining territory.'45 Such a conclusion overlooks the fact that in De Indis Vitoria set out to determine what, in terms of the law of nations, might constitute a legitimate defence of the Spanish acquisition of the New World by conquest, and not to argue that the acquisition of empire by conquest was ipso facto invalid. That Vitoria clearly accepted the proposition that conquest in a just war (i.e. one which had been fought in a 'just cause') gives lawful title to sovereignty over the conquered territory and its inhabit­ ants, with all the attendant 'rights of the conqueror', is demon­ strated in the following passage: If, after the Spaniards have used all diligence. . . to show that nothing will come from them to interfere with the peace and well-being of the aborigines, the latter nevertheless persist in their hostility and do their best to destroy the Spaniards, then they can make war on the Indians . . . and may enforce against them all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their former lords and setting up new ones . . . [A]ll the things enumerated would be lawful against Christians, when once a just war has arisen. Therefore they are lawful against the aborigines, too. Also, it is a universal rule of the law of nations that whatever is captured in war becomes the property of the conqueror.46

Proceeding on this same ground, Vitoria contended that the right to acquire new territories by conquest might also flow from the right to assist allies in a just war. Referring to the war of the oppressed Tlaxcala against the Mexicans (of which Cortes had made such adroit use), Vitoria argued that if the Spaniards had been invited to help a party among the Indians who had been wronged and were victorious, then they could 'share the rewards of victory' which would 'fall to them under the law of war'.47 44 The Frontiers o f International Lam, 53. 45 Matthew M. McMahon, Conquest and Modern International Law: The Legal Limitations on the Acquisition o f Territory by Conquest (Washington, DC: Catholic University of America Press, 1940), 35. 46 De Indis et de Jure Belli Relectiones, 155. 47 Ibid. 160.

Colonial Expansion by Right o f Conquest

55

Citing the authority of St Augustine and Aquinas in defence of the right of acquiring territory by conquest in a war fought in the cause of allies against foreign wrongdoers, Vitoria wrote: this was a method very much in vogue among the Romans for the extension of their Empire; that is, they brought aid to their allies and friends and so making a just war came, by right of war, into possession of fresh provinces. Yet the Roman Empire is approved by St. Augustine . . . and by St. Thomas . . . as a lawful one.. . . [T]here does not seem any other juridic title whereby the Romans came into possession of the world, save in right of war, and the most especial cause of their wars was the defence and protection of their friends.48

But if Vitoria's position on the right to sovereignty resulting from the acquisition of territory by war is indeed to be distin­ guished, as McMahon claims it is, from that of other writers on international law, such as Grotius or Vattel, it is not in virtue of any alleged refusal on Vitoria's part to recognize conquest as a legal mode of acquiring territory, but rather in virtue of his re­ fusal to accept the notion that conquest as such, irrespective of the justice of the cause of war, furnished the conqueror with a legal title to the territory conquered. For to the extent that Grotius and Vattel derived the rules of the law of nations not only from the a priori principles of natural law but also from the actual practice of states, the latter were able to admit that under the customary law of nations, the fact of conquest by itself, irrespec­ tive of the justice of the cause of war, settled the question of title or rightful possession. Vitoria, on the other hand, who derived his position on the right of conquest solely from the natural law of nations, insisted that there was an indissoluble connection be­ tween the right of conquest and the just-war doctrine, such that, in the absence of a just cause of war, conquest was incapable of giving rise to rights. Indeed, it was precisely on the suspicion that the Spanish conquest of America had lacked a just cause that Vitoria appeared to reject the validity of Spain's title to the Indies by conquest. Yet Vitoria himself departs somewhat from his insistence that a just cause of war, defined in terms of transgressions against the natural law of nations, was the only ground on which Spain's conquests in the Americas might be justified. For in pointing to 48 Ibid.

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the intellectual inferiority of the Amerindians, who, he argues, had no proper laws or magistrates, were without any literature or arts (including the mechanical arts), and lacked the refine­ ments of agriculture or artisans, Vitoria proceeds to suggest that if the Indians were incapable of properly administering a state, then the Spanish kings might forcibly acquire sovereignty over them in order to raise them in the scale of civilization, on condi­ tion that this was done 'for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards'.49 In such a case, however, it is not so much the rights as the duties of the conqueror which Vitoria seeks to emphasize, since the forcible assumption of sovereignty over the Amerindians on the grounds of their political and cultural backwardness would be founded not on the rights of war, but on the precepts of charity.50 Here Vitoria foreshadows what in later centuries the European states came to regard as the central justification for the acquisition by conquest of sovereignty over 'primitive' societies—namely, the failure of the latter to meet the standards of Western civilization51 which, by the nineteenth century, had come to supplant Chris­ tianity as the standard of moral assessment of non-Christian states.52 (c) The Doctrine of Civilization as a Justification for Conquest in the Nineteenth Century In the eighteenth and nineteenth centuries, as religious influ­ ences on international politics gave place to secular ones, the apologists of European expansion in the colonial world tended to justify the conquest of 'barbarian' peoples less in terms of the right and duty to convert infidels to Christianity than by refer­ ence to the benefits of 'civilization' which European conquest and rule would serve to confer upon the backward.53 For by this time there had emerged within Europe a sense of cultural supe­ riority—'so strong that we would not hesitate to condemn it today 49 Ibid. 161-2. 50 Ibid. 51 Gerrit W. Gong, The Standard o f 'Civilization' in International Society (Oxford: Clarendon Press, 1984), 37. 52 F. Parkinson, The Philosophy o f International Relations: A Study in the History o f Thought (London: Sag;e Publications, 1977), 23-4. 53 Tucker, The Inequality o f Nations, 9. On the doctrine of civilization see A. P. Thornton, Doctrines o f Imperialism (New York: John Wiley, 1965), ch. 4.

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as "racist"/54—that Europeans on both sides of the Atlantic came to believe that in virtue of the superiority of the 'white man's' civilization, European peoples 'had a self-evident right to settle in territories they found agreeable and to subjugate any native inhabitants as might offer resistance'.55 Michael Howard describes the emergence and content of this nineteenth-century outlook as follows: as European societies in the eighteenth and nineteenth centuries devel­ oped new standards of cleanliness, health, social efficiency and techni­ cal achievement. . . [there emerged] an assumption of cultural superiority that made [their] imperial dominance appear to the conquerors not only natural and inevitable but in a deep ethical sense right. Indeed it came to be seen as an obligation, a mission civilisatrice, to open up the dark places of the world, as they were seen, to the light.56

Perhaps the oldest element in the theory which asserted a natural right of European expansion in America and Asia, by force if necessary, in virtue of the superior civilization of Europe, was the doctrine of the superiority of agriculture, derived from the alleged obligation of cultivating the soil. This view may be traced back to the sixteenth century, when Thomas More laid it down that the inhabitants of his ideal state, Utopia, account it 'perfectly justifiable to make war on people who leave their land idle and waste yet forbid the use and possession of it to others who, by the law of nature, ought to be supported from it'.57 Vattel, writing two and a half centuries later, likewise relied on the doctrine of the superiority of agriculture as the rationale of European expansion in America.58And the American jurist James Kent, writing in the middle of the nineteenth century—at a time when American advocates of the westward expansion of the 54 Howard, The Lessons o f History, 27. 55 Ibid. 42. 56 Ibid. 26. 57 Utopia (1516), ed. George M. Logan and Robert M. Adams (Cambridge: Cambridge University Press, 1989), bk. II, 56. 58 Commenting on the Anglo-Saxons settling in America and expanding inter­ nally at the expense of the Indians, Vattel, who approved of this practice and placed little value on the territorial rights of wandering tribes, asserted that the agricultural mode of life was superior to that of food-gathering (i.e. hunting and fishing) since the cultivation of the soil was 'an obligation imposed by nature on mankind'. On this basis, he concluded that a nation might take possession of such lands as were in excess of what a people leading a pastoral or roaming life would require if they were to cultivate the soil (The Law o f Nations, bk. I, sects. 81, 209).

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United States regarded the conquest of Native American and Mexican lands as the fulfilment of the nation's 'manifest destiny to overspread the continent allotted by Providence for the free development of our yearly multiplying millions'59—put the ar­ gument as follows: if unsettled and sparsely scattered tribes of hunters and fishermen show no disposition or capacity to emerge from the savage to the agricultural and civilized state of man, their right to keep some of the fairest por­ tions of the earth a mere wilderness, filled with wild beasts, for the sake of hunting, becomes utterly inconsistent with the civilization and moral improvement of mankind.60

Thus, as Prescott observes, whereas Spain and Portugal had emphasized the concession of the Pope and the duty of convert­ ing infidels to Christianity as the moral foundation of the right of conquest which they asserted in the New World: The ground on which the Protestant nations assert a natural right to the fruits of their discoveries in the New World is very different. They consider that the earth was intended for cultivation, and that Provid­ ence never designed that hordes of wandering savages should hold a territory far more than necessary for their own maintenance, to the exclusion of civilized man.61

But the introduction of agriculture in backward territories was only one aspect of the civilizing mission that was taken to jus­ tify the conquest of non-European lands. The provision of good 59 This phrase, which contains the first use of the term 'manifest destiny', was coined by John L. O'Sullivan in an unsigned editorial article in the United States Magazine and Democratic Review, July 1845 (see Julius W. Pratt, 'The Origin of "Manifest Destiny"', American Historical Review, 32 (1927), 795, at 798). The con­ cept of 'manifest destiny' was invoked by apologists of American expansionism in the mid-nineteenth century as a rationalization of the forcible westward ex­ pansion of the United States at the expense of the Indians. It was a slogan which emphasized, inter alia, God's injunction that the soil be used intensively by ag­ ricultural settlers, rather than by nomadic hunters. On the history of the idea, see Albert K. Weinberg, Manifest Destiny: A Study o f Nationalist Expansionism in American History (Baltimore: Johns Hopkins Press, 1935); and Frederick Merk, Manifest Destiny and Mission in American History: A Reinterpretation (New York: Knopf, 1963). For a brief but informative review of the various connotations of the concept, see Howard R. Lamar, The Reader's Encyclopedia o f the American West (New York: Crowell, 1977), s.v. 'manifest destiny'. 60 Commentaries on American Law, 11th edn., ed. G. F. Comstock (Boston: Little, Brown, 1866), iii, sect. 387. 61 History o f the Conquest o f Mexico, 246 n. 1.

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government, of law and order and economic development—in short, the institution of civilized rule on the European model— in 'primitive' parts of the world was the end which was univer­ sally held by educated opinion within Europe to justify conquest, if this was the only means by which the advancement of 'civili­ zation' could be achieved. In all its variations, the justification given for the conquest and rule of colonial peoples was the pre­ sumed inability of non-European peoples to meet the standards of 'civilization'. These standards, as Robert Tucker explains: were those of European liberal civilization. Though not without a sub­ stantial measure of ambiguity, they were generally held to require not only an effective government over a defined territory but a willingness and ability to accept the obligations of European international law, particularly those obligations relating to the protection of the life, lib­ erty, and property of foreigners.62

A striking illustration of the attempt to justify the conquest of 'barbarian' peoples by reference to the doctrine of civilization may be found in Russia's attempt to provide a rationale for its conquests in Central Asia in the latter half of the nineteenth century. In a circular issued in November 1864 to Russia's con­ sular officers abroad, the Russian Chancellor, Prince Gorchakov, sought to clarify the motives and aims of the Russian Empire as follows: The position of Russia in Central Asia is that of all civilised states which come into contact with half-savage, wandering tribes possessing no fixed social organization. It invariably happens in such cases that the interests of security on the frontier, and of commercial relations, compel the more civilised state to exercise a certain ascendancy over neighbours whose turbulence and nomadic instincts render them difficult to live with.63

This, argued Gorchakov, had been 'the lot of all countries placed in the same conditions. The United States in America, France in Algiers, Holland in her colonies, England in India'—all had been inexorably drawn into a course of conquest and expansion, less from a desire to extend their dominion than from 'imperious necessity': 62 The Inequality o f Nations, 9. 63 See the translation of this memorandum, dated 21 November 1864, in W. K. Fraser-Tytler, Afghanistan: A Study o f Political Developments in Central and Southern Asia, 2nd edn. (London: Oxford University Press, 1953), 319-23, at 319.

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Thus in our own despite the Imperial Government finds itself reduced to the dilemma already stated: it must allow an anarchy to become chronic which paralyses all security and all progress, and involves dis­ tant and expensive expeditions at frequent intervals; or on the other hand it must enter on a career of conquest and annexation such as gave England her Indian Empire, in view of dominating in succession the petty independent states whose turbulent habits and perpetual revolts leave their neighbour neither truce nor repose.64

But Russia, Gorchakov emphasized, cherished no design of con­ quest as such, only the advancement of progress and civilization: People of late years have been pleased to credit us with a mission to civilise neighbouring countries on the continent of Asia. The progress of civilisation has no more efficacious ally than commercial relations. These require in all countries order and stability as conditions essential to their growth; but in Asia their existence implies a revolution in the manners of the people. Asiatics m u st. . . be made to understand that it is more advantageous to favour and assure trade by caravans than to pillage them.65

Thus a complete transformation of the habits of the people was necessary; but as the peoples of Asia would not transform them­ selves, someone had to do it for them. The Imperial Russian Cabinet, in assuming this task in Central Asia, was naturally guided by the interests of Russia. But it believed at the same time that by extending the area of European civilization, it was ser­ ving the interests of 'civilisation and humanity at large'.66 This justification for the exercise of the right of conquest against 'barbarian' peoples, based on the doctrine of civilization, which the Russians pleaded in Central Asia, was repeated by the North Americans in asserting their 'manifest destiny' to occupy the continent from sea to sea; 'by Frenchmen, invoking their mission civilisatrice in Africa and in the Far East; by Germans, planning to implant their Kultur in a world that so plainly needed it; by Japanese, who wanted to westernize others as they themselves had been westernized; and by the British who, without asserting doctrine, took it for granted that their presence anywhere ensured more peaceful and prosperous conditions than those that had obtained before.'67 While some were inclined to glorify conquest 64 Ibid. 320. 65 Ibid. 322 66 Ibid. 323. 67 Thornton, Doctrines o f Imperialism, 154.

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as the means by which civilization was advanced—as did Treitschke, who remarked: 'the great strides which civilisation makes against barbarism and unreason are only made actual by the sword'68—others preferred to emphasize the justice of the end served by conquest. This was the approach adopted by Lord Lytton, Disraeli's Viceroy in India. As A. P. Thornton writes: [Lytton] realised that war and conquest were thought by many men quite sincerely to be utterly detestable, and he joined them in condemn­ ing wars that were anywhere undertaken to gratify personal ambition, to indulge national vanity, or to provide active service for an army. But once that had been said, there was more to say. War and conquest were still potent agents of civilisation. Conquest by the Romans had made possible at length the diffusion of Christianity and the development of public law. It was from savages that Englishmen and Spaniards had wrested control of the Americas. The Russian Empire had been formed after a series of wars with barbarous tribes of which Europe knew noth­ ing. The whole history of British rule in India supplied a further exam­ ple of the same theme.69

Underlying this reasoning was the presumption that the rules of international morality—particularly the rule enjoining states to desist from aggression and conquest in their relations with one another—which applied in relations between 'civilized' peo­ ples, did not automatically apply beyond the 'civilized' world.70 John Stuart Mill expressed the prevailing nineteenth-century outlook when he wrote: To suppose that the same international customs, and the same rule of international morality, can obtain between one civilised nation and another, and between civilised nations and barbarians, is a grave error, and one which no statesman can fall into.. . . Among many reasons why the same rules cannot be applicable to situations so different, the two following are among the most important. In the first place, the rules of ordinary international morality imply reciprocity. But barbarians will not reciprocate.. . . In the next place, nations which are still barba­ rous have not got beyond the period during which it is likely to be for 68 Quoted ibid. 156. 69 The Imperial Idea and its Enemies: A Study in British Power (London: Macmillan, 1959), 77. 70 See James Mayall, 'International Society and International Theory', in Michael Donelan (ed.), The Reason o f States: A Study in International Political Theory (Lon­ don: Allen and Unwin, 1978), 127, who refers to this double standard as 'the barbarian option'.

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their benefit that they should be conquered and held in subjection by foreigners.71

Karl Marx, whose attitude towards European colonial expansion was one of support for the results which expansion by the ad­ vanced countries would ultimately bring to stagnant societies, was even more explicit on the benefits which European conquest and rule would confer on 'backward' peoples. With respect to British rule in India he wrote: 'England has to fulfil a double mission in India: one destructive, the other regenerating—the annihilation of old Asiatic society, and the laying of the material foundation of Western society in Asia.'72 Thus, at a time when, within Europe, conquest and foreign rule were increasingly being viewed as a violation of the rights of peoples to self-determination, a double standard of interna­ tional morality was at work within the colonial world, where the Western powers continued to assert a right of war and conquest against 'backward' peoples in the name of extending the area of European civilization. While supporting the right of national selfdetermination within Europe, liberal opinion found it impossible to admit its present applicability to colonial peoples in Africa and Asia, believing that the 'backward' races were not yet suffi­ ciently advanced in the scale of civilization to be able to govern themselves. Within Europe, conquest might be a violation of the rights of states and nations, but as Mill said, natives and savages had not yet got beyond the stage where conquest was likely to be to their benefit. 'Barbarians' had to be educated and civilized before they could be entrusted with liberty.73 The belief of the European imperial powers that they had a civilizing mission to perform in 'primitive' parts of the world thus provided conceptual support for empire as a political form, and lent conviction to the assertion that conquest was a legit­ imate means of acquiring sovereignty over 'backward' peoples since the latter had, for their own good, to be brought within the 71 'A Few Words on Non-Intervention', Dissertations and Discussions: Political, Philosophical, and Historical (Boston: William Spencer, 1864-7), iii. 251-2. 72 'The Future Results of British Rule in India', in Shlomo Avineri (ed.), Karl Marx on Colonialism and Modernization: His Dispatches and Other Writings (New York: Doubleday, 1969), 132-3. 73 Howard, The Lessons o f History, 27; James Mayall, Nationalism and Interna­ tional Society (Cambridge: Cambridge University Press, 1990), 45 -6 .

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pale of the civilized world. But to what extent was the right of conquest actually asserted in practice by the European powers involved in the acquisition of colonial possessions in America, Asia, and Africa?

III. IN STAN CES OF THE ACQ UISITION OF CO LO N IAL TERRITORY BY RIGHT OF CON Q UEST

It was by right of conquest that the European powers acquired the greater part of the continent of America from the sixteenth to the nineteenth century.74 Spain's claims of a right to exclude other European powers from the New World were based on discovery and papal grant, 'but the acquisition on behalf of the Spanish Crown of Mexico by Cortes in 1518-21, and of Peru by Pizarro in 1533, are always regarded as conquests'.75 As one historian tells us, the Spanish kings themselves believed that they had a right to the Indies 'by conquest'.76 Prior discovery and conquest were likewise the premiss on which Spain's opponents in Europe were to base their own claims in America.77 As James Kent points out, 'The title of the Euro­ pean nations, and which passed to the United States, to this vast territorial empire, was founded on discovery and conquest.'78 Sir William Blackstone, in his commentary on the extension of British dominion in America, similarly contends that the American colo­ nies are principally to be deemed conquered, or ceded countries: Our American plantations are principally of this latter sort [conquered or ceded countries], being obtained in the last century either by right of conquest and driving out of the natives (with what natural justice I shall not at present inquire), or by treaties.79 74 Lindley, The Acquisition and Government o f Backward Territory, in International Law, 28. 75 Ibid. 76 Elliott, The Old World and the New, 1492-1650, 81, 101. This is reflected, for example, in the capitulation granted by the Spanish Crown to Pizarro before he set out on his expedition, giving him 'the right of discovery and conquest in the province of Peru' (William H. Prescott, History o f the Conquest o f Peru, i (London: Routledge, 1847), 247). 77 Elliott, The Old World and the New, 1492-1650, 101. 78 Commentaries on American Law, 1, sect. 258. 79 Commentaries on the Laws o f England, 3rd edn. (Oxford: Clarendon Press, 1768), bk. I, 107.

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It is not surprising, therefore, that the fact of conquest should have loomed so large in the decisions of the United States Su­ preme Court respecting disputes as to territorial ownership be­ tween the states of the Union. As Robert Phillimore remarked with regard to the public jurisprudence of the US Supreme Court: it has become a cardinal maxim of their public jurisprudence that the system under which the United States were settled has been that of converting the discovery of the country into conquest; and the property of the great mass of the community originates in this principle, which cannot be rejected by Courts of Justice.80

The great European powers engaged in colonial expansion in Asia likewise acquired by right of conquest vast stretches of ter­ ritory occupied by peoples who were not regarded as full mem­ bers of the civilized society of states.81 This may be seen from the history of the extension of British dominion in India; of Dutch sovereignty in the East Indies; of Russian imperial authority in Northern and Central Asia; and of French rule in Indo-China. With regard to Great Britain in India, Charles II, in his charter of 1661, authorized the East India Company to make war (or peace) wherever it was engaged in trade with any people who were not Christians. The war and peace-making powers thus granted by the charter were acted upon, with the result that the history of the spread of British power in India has been described as a history of wars and treaties of peace (and of treaties of alliance and treaties of protection) between the British and the native states82—or, as one historian has put it, of the 'gradual incorporation under one dominion of States that have submitted and States that have been forcibly subdued'.83 Great Britain's 80 Commentaries upon International Law, 2nd edn., i. 873. 81 But note that states and certain non-state entities which were not admitted to the European-defined 'family of nations', on the grounds that they did not fulfil the requirement of 'civilization', were none the less considered capable in international law of holding title to territory and of transferring it to other par­ ties. That is to say, their territories were not treated as terra nullius acquirable by occupation, but as territories the sovereignty of which could be acquired only by cession or conquest in virtue of the presence of a pre-existing territorial sovereign implicitly recognized as such by the Europeans (see Shaw, Title to Territory in Africa, 44-5). 82 Lindley, The Acquisition and Government o f Backward Territory in International Law, 31. 83 Alfred Lyall, The Rise and Expansion o f British Dominion in India, 5th edn. (London, 1910), 244, quoted ibid.

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annexation of Burma in 1886 was another case of the acquisition of Asian territory by right of conquest.84 Dutch sovereignty in the East Indies was established either by conquests or by treaties made with the native rulers.85 But the Russian Empire in Northern and Central Asia was mainly ex­ tended by right of conquest. Thus Siberia and the Steppe were conquered by the Cossacks in the sixteenth and seventeenth cen­ turies. And Central Asia and Turkestan were won in successful Russian campaigns in the latter half of the nineteenth century.86 That Russia herself considered her advance in Central Asia to be a case of conquest (rather than of occupation of territorium nullius) was made clear by Gorchakov in his circular of 1864, which explicitly characterized Russia's position as the result of 'con­ quest and annexation', justified by the doctrines of necessity and civilization.87 In Indo-China (in territories over which China claimed suze­ rain rights) France, too, extended her authority by treaties forced upon local powers by means of successful wars. Thus, the French protectorate over Cambodia in 1863 and the acquisition of prov­ inces in Lower Cochin China were the result of the French expedi­ tion and the capture of Saigon. And the protectorate over Annam and Tonking was the result of wars fought in 1873 and 1883.88 Although in Africa the method of colonial acquisition was overwhelmingly that of cession, and 'title by conquest was the exception',89 a prominent example of territorial expansion by conquest was the French conquest of Madagascar in 1896. In this case, too, sovereignty was assumed by a European power over a colonial territory by superior force or right of conquest (not only in fact but also in theory, since France expressly rested her title to the sovereignty of Madagascar upon the right conferred by conquest).90 Similarly, in the case of In re Southern Rhodesia, the 84 P. E. Corbett, Law and Society in the Relations o f States (New York: Harcourt, Brace, 1951), 100. 85 Lindley, The Acquisition and Government o f Backward Territory in International Law, 31. 86 Ibid. 31-2. 87 See above, 59-60. 88 Lindley, The Acquisition and Government o f Backward Territory in International Law, 32. 89 Shaw, Title to Territory in Africa, 46. 90 Lindley, The Acquisition and Government o f Backward Territory in International Law, 191.

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British Crown was found by the Judicial Committee of the Privy Council to have acquired the territory of Matabeleland and Mashonaland by conquest,91 while in respect of the Sudan, Britain claimed that upon the defeat of the Khalifa's army at Omdurman in 1898 by Anglo-Egyptian forces, 'all the territories which were subject to the Khalifa passed by right of conquest to the British and Egyptian Governments.'92 Thus the right of conquest was repeatedly and openly appealed to by the European powers in asserting rights to sovereignty over portions of their colonial empires. Indeed, there were occa­ sions on which the right of conquest was also recognized by non-European rulers whose territory had been the object of colo­ nial conquest.93Thus in the preamble of the treaty of friendship and perpetual alliance, signed on 10 November 1784 by the Neth­ erlands East-India Company and the King of Johore, the latter formally acknowledged that his kingdom had 'been legally ac­ quired by the Netherlands Company in virtue of the right of warlike conquest'.94 The foregoing illustrations highlight both the prominent role played by conquest in the history of colonial expansion and the extent to which conquest was openly invoked by the European powers as the basis of title to territory in the colonial world. The principle that successful conquest entitled the victor to claim sovereignty over the conquered territory was not, however, lim­ ited in its application to the context of European colonial expan­ sion, but was equally in evidence in relations between the European powers themselves. 91 In re Southern Rhodesia (1919), Appeal Cases, UK Law Reports (1919), 211. 92 C. 9054 (1898), 5, quoted in Lindley, The Acquisition and Government o f Back­ ward Territory in International Law, 164. 93 As J. H. W. Verzijl observes: 'Indian princes also occasionally acquiesced in the operation of this "right" in their dealings with colonizing Powers or Char­ tered Companies' (International Law in Historical Perspective, iii (Leyden, 1970), 356). 94 As quoted and translated by Verzijl, ibid. ii (Leyden: Sijthoff, 1969), 41-2, from the Dutch text of the treaty given in G. F. de Martens, Recueil de traités, 5 (1826), 82.

3 The Right of Conquest in Relations between States Comprising International Society The importance of the right of conquest in the evolution of ter­ ritorial boundaries within Europe down to the middle of the nineteenth century was observed by Henry Wheaton: The title of almost all the nations of Europe to the territory now pos­ sessed by them, in that quarter of the world, was originally derived from conquest, which has been subsequently confirmed by long posses­ sion and international compacts, to which all the European States have successively become parties.1

In the eighteenth century, two outstanding instances of ter­ ritorial acquisition brought about through the use of force, which gave rise to recognized rights of sovereignty, were Prussia's conquest of Silesia in 1740 and the three partitions of Poland in 1772, 1793, and 1795, the latter terminating Poland's existence as a member of the society of states. As these two important cases provide a useful indication of eighteenth-century attitudes to­ wards the forcible acquisition of territory by states, I propose to begin by considering each of them in turn. I. PRUSSIA'S CON Q UEST OF SILESIA: 1740

In December 1740, only seven months after becoming King of Prussia, Frederick II shocked Europe by invading Silesia and precipitating the War of the Austrian Succession (1740-48). It was the conquest of Silesia which converted Frederick the Sec­ ond into Frederick the Great, and which transformed Prussia from a petty principality into a Great Power of Europe.2 1 Elements o f International Law, pt. II, ch. 4, sect. 165. 2 W. F. Reddaway, Frederick the Great and the Rise o f Prussia, rev. edn. (London: Putnam, 1925), 89; E. N. Williams, The Penguin Dictionary o f English and European History, 1485-1789 (Harmondsworth: Penguin Books, 1980), s.v. 'Frederick II'.

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Background In October 1740, the Emperor Charles VI died, leaving to his daughter, Maria Theresa, his hereditary Habsburg dominions— Austria, Hungary, Bohemia, the Austrian Netherlands (Belgium), large parts of Italy, and much else. By an instrument called the Pragmatic Sanction, which was the subject of protracted negotia­ tions, all the leading European and German states (except Ba­ varia) had agreed to acknowledge Maria Theresa's right to succeed to an undivided inheritance.3 Notwithstanding Prussia's acceptance of the Pragmatic Sanc­ tion, Frederick II decided to seize the opportunity of the political situation created by the death of the Emperor Charles VI to add to Prussia the richest and most northerly Habsburg province of Silesia. It has been calculated that by this conquest Frederick the Great increased the resources and population of Prussia by almost a half.4 Prussia's Hereditary Claims to Parts o f Silesia Frederick took great pains to produce a pretext for his invasion and conquest of Silesia. He had inherited certain legal claims of the House of Brandenburg to portions of Silesia, and Ludwig, a jurist of the University of Halle, was commissioned to draw up a memorandum on the question.5 The essence of the Prussian case was that three of the nine duchies of Lower Silesia and the duchy of Jagerndorf in Upper Silesia had been fraudulently with­ held from Prussia by Austria in the previous century, when Austria had compelled Prussia to waive its claims in Silesia.6 Armed with this plea of hereditary right, Frederick drew up a memorandum which, after revision by his foreign minister, Podewils, was circulated to his representatives at foreign courts, defending his seizure of Silesia and responding to the charge that Prussia had violated the Pragmatic Sanction by this act: 3 R. J. White, Europe in the Eighteenth Century (New York: St Martin's Press, 1965), 96-8. 4 Derek McKay and H. M. Scott, The Rise o f the Great Powers, 1648-1815 (Lon­ don: Longman, 1983), 175. 5 G. P. Gooch, Frederick the Great: The Ruler, the Writer, the Man (London: Longmans, Green, 1947), 9. 6 The outlines of the Prussian case are set out ibid. 9-10.

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It would be wrong to accuse the King of infringing the Pragmatic Sanc­ tion. His Majesty does not contest the succession in Austria but is merely maintaining his own rights of which the late Emperor could not dispose since they were not his property and which for that reason he could not transmit to his daughter.7 But neither Frederick nor Podewils nor the jurists suggested that Prussia had a legal right to the whole of Silesia. 'If the young King', as G. P. Gooch observed, 'had contented himself with the four duchies to which alone he laid claim, his reasoning would have been more impressive; but since even such a limited de­ mand would undoubtedly have been refused he threw legality to the winds and gambled for the larger prize/8 Raison d'Etat the True Guide o f Frederick's Action The hereditary claim to Silesia had in any case been put forward by Frederick only for the sake of form—nobody believed it, least of all himself. The weakness of Prussia's claims had been made known to him by Podewils in a memorandum of 29 October 1740: On the question of right I must point out with profound respect that, whatever well-founded pretensions the House of Brandenburg once possessed to the duchies ... there are solemn treaties to which the House of Austria will appeal and by which the House of Brandenburg was induced, though by fraudulent means, to renounce claims in return for trifles. However, we can always manage to revive these ancient rights.9 Frederick was thus well aware of the argument, which Macaulay was later to state, that his seizure of Silesia, more than a century after the injustice of which he complained had been committed, was a clear case of violating rights which Austria had by then acquired through the operation of prescription: It is certain that, whoever might originally have been in the right, Prussia had submitted. Prince after prince of the house of Brandenburg had acquiesced in the existing arrangement.... Is it not perfectly clear that, if antiquated claims are to be set up against recent treaties and long possession, the world can never be at peace for a day?10 7 Quoted ibid. 11. 8 Ibid. 12. 9 Quoted ibid. 7. 10 Lord Macaulay, 'Frederic the Great' (Apr. 1842), in Literary and Historical Essays Contributed to the Edinburgh Review (London: Oxford University Press, 1913), 649-50.

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But considerations of legal title or dynastic rights counted for little with Frederick. It was mainly for the chancelleries and the public that he was concerned to advance his bogus claims,11 and Podewils's justified misgivings about their validity did not con­ cern him: 'The question of right (droit) is the affair of the minis­ ters; it is your affair; it is time to work at it in secret, for the orders to the troops are given/12 Dynasticism thus played no part in Frederick's policies, and when Podewils concocted a legal justification for the attack Frederick congratulated him with the exclamation: 'Splendid, that's the work of an excellent charlatan!'13 His own view of international morality was that the ruler should unashamedly further the interests of his own state: 'If there is anything to be gained by being honest, let us be honest; if it is necessary to deceive, let us deceive/ he wrote to Podewils in May 1741.14 Thus, it was the interest of the state, or raison d'état, which in Frederick's view was the ultimate justification of his action. He was entitled to Silesia, not because of any ancient hereditary claims to it, but because he needed it—to round out Prussia's frontiers—and there was no one to stop him from taking it. Frederick would probably have seized the coveted province had there been no claims at all to Silesia, as he almost admitted in a celebrated letter of 3 March 1741: 'My youth, hot headedness, thirst for glory. . . the satisfaction of seeing my name in the gazettes and then in history carried me away/15 Frederick's decision to conquer Silesia was not, however, de­ termined solely by the desire to enhance his own reputation: 'The deeper cause was the resolve to secure for Prussia the status of a Great Power, to grasp the rich prize to which he thought her entitled by her vital needs and growing strength.'16 The addition to Prussia of Silesia—with its population of a million, many of them Protestant, its flourishing agriculture, ore deposits, and famous textile industry—would greatly increase Prussia's strength 11 Gooch, Frederick the Great, 10. 12 Memorandum from Frederick II to Podewils, 7 Nov. 1740, as quoted in Reddaway, Frederick the Great and the Rise o f Prussia, 91. 13 Quoted in McKay and Scott, The Rise o f the Great Powers, 1648-1815, 164. 14 Quoted in Reddaway, Frederick the Great and the Rise o f Prussia, 91. 15 Quoted in McKay and Scott, The Rise o f the Great Powers 1648-1815, 164. 16 Gooch, Frederick the Great, 10.

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and wealth; and Silesia, bordering Brandenburg, formed a nat­ ural extension up the River Oder.17 As G. P. Gooch explains: [Frederick's] dominions were scattered across northern Europe from the Rhineland to the Russian frontier, the central core being separated from the outlying possessions by blocks of foreign territory.. . . Such sprawl­ ing possessions clamoured for a change, and Silesia was the first and most important item in the programme of consolidation. A further con­ sideration was the extreme poverty of his inheritance, much of it con­ sisting of sand and forest.. . . More taxpayers, more soldiers, more food, more industries were urgently required. The patriotic purpose was assumed to justify the means.18

The European Reaction: The Recognition o f Prussia's Conquest o f Silesia If Frederick the Great was 'a callous, determined proponent of Realpolitik’,19 he was not uniquely villainous in this respect by comparison with his foreign contemporaries. As one historian observes, 'moral considerations meant little to any eighteenthcentury ruler except Maria Theresa'.20 It is true that European opinion, even in the eighteenth century, required that dynastic claims be put forward as moral or legal justifications for con­ quest or territorial aggrandizement; but in that epoch everything was ultimately justified in the name of the state—that is, in terms of the consolidation and extension of state power which was, after all, the goal after which all European sovereigns were striving.21 The seizure of Silesia has been described as a case of 'flagrant aggression in which the realities of the situation could not be screened by a tangle of conflicting dynastic claims'.22 Yet there was little opposition to it, among the major European powers, on 17 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 164. 18 Frederick the Great, 10. 19 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 163. 20 Gooch, Frederick the Great, 10. 21 Evan Luard, War in International Society: A Study in International Sociology (London: Tauris, 1986), 154. See, too, Albert Sorel, Europe and the French Revolu­ tion: The Political Traditions o f the Old Regime, trans. A. Cobban and J. W. Hunt (London: Collins, 1969), 42-6. 22 Ian Brownlie, International Law and the Use o f Force by States (Oxford: Clarendon Press, 1963), 17.

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moral or legal grounds.23 The verdict of three wars24 was ac­ cepted as finally settling the question whether Silesia should be Austrian or Prussian, and Frederick secured international recog­ nition for his conquest in the Treaty of Aix-la-Chapelle of Octo­ ber 1748, which ended the War of the Austrian Succession.25 It has been remarked by Gooch that, even by the lax moral standards of the eighteenth century, 'the rape of Silesia ranks with the partition of Poland among the sensational crimes of modern history'.26 Yet Frederick, far from placing himself by his act outside the European family of states, emerged from the episode with his prestige greatly enhanced. As Michael Howard explains, the seizure of Silesia was certainly seen as immoral or at best sharp practice, but it was cer­ tainly not regarded as barbaric. Indeed it made Frederick eminently bundnis fähig, a good alliance partner, courted first by the French and then by the British.. . . His contemporaries admired or disliked him as a skilful player on the board of power politics and as a military leader of genius.27

The recognition of Prussia's conquest of Silesia may thus be said to illustrate the way in which the principle ex injuria jus oritur tended, in the eighteenth century, to operate virtually unrestricted.28 Although conquest by unprovoked attack was regarded as an immoral act, at that time, as Acton observed, 'Frederic was much more widely applauded for his prompt suc­ cess than detested or despised for his crime.'29 This was a telling manifestation of the international spirit of the age of absolutism, when a principal concern of European rulers was to make a name 23 Ibid. 24 i.e. the First Silesian War (1740-2), the Second Silesian War (1744-5), and the Seven Years War (1756-63)— otherwise called the Third Silesian War (since its true cause in Europe was Austria's struggle to regain Silesia and to curb the dangerous power of Prussia). 25 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 173. 26 Frederick the Great, 10-11, 27 The Lessons o f History, 53. 28 Although Prussia's act of aggression was not technically an injuria under eighteenth-century international law, Prussia's right to Silesia none the less ori­ ginated in a violation of Austria's right to the integrity of its possessions under Maria Theresa's rule, which the European powers, in subscribing to the Prag­ matic Sanction, had engaged to observe and defend. 29 Lectures on Modern History (delivered 1899-1901) (London: Macmillan, 1926), 291.

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for themselves as great conquerors on the model of Frederick.30 It was this concern that led Montesquieu to conclude that 'the spirit of monarchy is war and aggrandizement',31 and Frederick to observe, a quarter of a century after the Silesian episode, that 'The jurisprudence of sovereigns is commonly the right of the stronger.'32

II. TH E TH REE PARTITIONS OF PO LA N D :

1772, 1793, 1795 Towards the close of the eighteenth century a significant altera­ tion was made in the map of Europe. It was effected by armed force, though it can hardly be said that there was any war. By a process effected in three stages—known as the three partitions of Poland—the Polish-Lithuanian Commonwealth, that is, the King­ dom of Poland with the Grand Duchy of Lithuania annexed to it, was obliterated from the list of European states. The first partition was made by agreement between Russia, Prussia, and Austria in 1772; the second by Russia and Prussia in 1793; and the third by the three states dividing the residue of Poland between them in 1795. These partitions provide a striking illustration of the acquisition of territory by force justified, as its perpetrators sought to do, by reference to the balance of power and the need to maintain peace among the Great Powers. The Background to the First Partition The first partition of Poland, in 1772, was a consequence of the alarm of the Great Powers at Russia's rapid success in the early stages of its war with Turkey (1768-74). Austria and Prussia were particularly concerned by the prospect of a considerable extension of Russian power in the Balkans and around the Black Sea, which threatened to disturb the balance of power. Both states aimed to restrict Russia's gains from the Ottoman Empire, but 30 White, Europe in the Eighteenth Century, 232. The Empress Catherine, for example, was to be celebrated as 'the Great' more for her conquests abroad than for her reforms at home (ibid. 227). 31 The Spirit o f Laws, bk. 9.2. 32 Quoted in Reddaway, Frederick the Great and the Rise o f Prussia, 92.

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neither wished to go to war for this purpose. There was an ob­ vious danger that a general European war would break out if one or other side entered the war on the side of the Ottoman Empire, since this would activate the two main defensive alli­ ances which existed at that time between Russia and Prussia and between France and Austria.33 It was in the attempt to prevent the outbreak of such a war, while at the same time maintaining the balance of power (which, according to eighteenth-century thinking on the question, was assumed to require roughly equivalent gains among the Great Powers),34 that Frederick II proposed the solution of a tripartite partition of Polish territory, in which Russia, Prussia, and Aus­ tria would participate. Russian support for the scheme was soon obtained. And Maria Theresa—despite her sincere belief that the partition violated 'all that has hitherto been held just and sacred'35—'wept, but still took'.36 For the Habsburg Empress, still smarting from Prussia's seizure of Silesia, and also desiring com­ pensation for Russia's gains from Turkey, could not afford to watch while Russia and Prussia made substantial territorial gains, since this would further weaken the relative position of the Habsburgs in Central Europe. The Destruction of Poland by Three Successive Partitions In order to save appearances, the partitioning governments of 1772 invoked ancient rights to the Polish provinces which they seized. However, in the perpetration of this iniquitous deed these were a mere matter of form. The rulers in reality attached no value to them and did not expect anyone to be convinced by them. 'I have a poor opinion of our claims', Maria Theresa admitted . . . [while Frederick warned:] 'When one's claims are not very sound, it is better not to go into them in detail.' The dec­ laration of 1772 subordinated these pretended claims to the principle of expediency, the only one that could be invoked: 'Whatever may be the extent and boundaries of the respective claims, the resulting gains should be exactly equal/37 33 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 224-5. 34 See Jeremy Black, The Rise o f the European Powers, 1679-1793 (London: Edward Arnold, 1990), 162; and Sorel, Europe and the French Revolution, 66-7. 35 Quoted in White, Europe in the Eighteenth Century, 234. 36 A remark attributed to Frederick by Sorel, Europe and the French Revolution, 49. 37 Ibid. 66.

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By the first partition of 1772, Poland was deprived of almost 30 per cent of its territory and 35 per cent of its population. Russia obtained the eastern part of Lithuania; Austria obtained Galicia; and Prussia obtained the coveted prize of Polish Prussia, which now became West Prussia (though without Danzig and Thom)—an acquisition of immense strategic value, uniting the central core of the Hohenzollern territory with the isolated duchy of East Prussia. The precise shares of the partitioning powers were laid down in a Treaty of Partition between Russia, Prussia, and Austria, signed in St Petersburg on 5 August 1772.38 After possession had already been taken, the threat of further annexations and the presence of Russian soldiers were sufficient to persuade the Polish Diet at Warsaw to ratify these conventions (30 September 1773).39 Although the partitioning powers had justified their action by the argument that Polish 'anarchy' was a threat to the peace of Europe, the first partition of Poland was primarily a result of the territorial ambitions of the neighbouring powers—ambitions which were aroused, rather than satisfied, by the initial seizure of Polish territory. The first partition thus made way for a sec­ ond, in 1793, by which Poland was deprived of half its remain­ ing territory and people. On this occasion, Russia annexed the greater part of the remaining territory of Lithuania, while Prussia took Danzig, Thorn, and Posen. There was strong opposition within Poland to this brutal loss, and it was only with great difficulty, and with the help of Rus­ sian bribes and soldiers, that the ratification of the formal treaties of cession was forced through the Diet of Grodno in August and September of 1793.40 As the historian of the European political system, A. H. L. Heeren, was to write in 1809: 'The partition itself was bad enough, but the manner in which the consent of the nation was extorted at the Diet of Grodno was still worse. Such scenes had never before been witnessed in Europe.'41 The intolerable humiliation of the second partition provoked the uprising led by the national hero, Kosciuszko, in a desperate 38 For a brief analysis of the treaties respecting the partition of Poland, see Woolsey, Introduction to the Study o f International Law, 5th edn. (New York: Scribner's, 1888), app. II, 450, 453. 39 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 227. 40 Ibid. 249. 41 A. H. L. Heeren, A Manual o f the History o f the Political System o f Europe and its Colonies, 5th edn. (1830), trans. unknown (London: Bohn, 1864), 371.

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effort of the Poles to free themselves. By way of punishment for this attempt, the three Great Powers then combined to destroy Poland entirely. In 1795, by the third partition, the rump of Po­ land was divided between Russia, Prussia, and Austria. No treaty was possible, because Poland had ceased to exist as an inde­ pendent state: to underline this, the partitioning powers vowed never to use the name of the vanished kingdom again.42 The annihilation of Poland—one of the oldest and largest of the European states, which had for centuries formed part of the political and constitutional fabric of the continent—came to be regarded by Western liberal opinion in the nineteenth and early twentieth centuries as the greatest wickedness in politics, as an open and gross violation of the law of nations and of interna­ tional morality.43 As the critics took great pains to point out, not only did the partitions violate the right of Poland, as a sovereign state, to independent existence; but they were also carried out in flagrant disregard of the principle that sovereign ownership of territory had to be respected in time of peace. An examination of the reactions of the European powers to the partitions of Po­ land will thus serve as a valuable test of prevailing eighteenthcentury attitudes to the question of the admissibility of the acquisition of territory by force.

The European Reaction: The Recognition of the Partition of Poland The partitioning powers had rightly calculated that Europe would remain unmoved by the disappearance of Poland from the political stage. As Acton observed: 'By a series of treaties it had condoned 42 McKay and Scott, The Rise o f the Great Powers, 1648-1815, 251. It was not until 1918, with the collapse of the three eastern empires in the First World War and the triumph of Woodrow Wilson's principle of national self-determination, that Poland was to be reconstituted as a sovereign and independent state. 43 Thus the jurist Henry Wheaton, writing in the middle of the nineteenth century, characterized the first division of Poland as 'the most flagrant violation of natural justice and international law which has occurred since Europe first emerged from barbarism' (History o f the Law o f Nations in Europe and America (1842) (New York: Garland Publishing, 1973), 269). And the distinguished histor­ ian Temperley, writing in the early twentieth century, condemned 'the dismem­ berment and annihilation of this peaceful and inoffensive state' as 'one of the worst international crimes that modem Europe has witnessed' (H. W. V. Temperley (ed.), A History o f the Peace Conference o f Paris, (London: Frowde, Hodder, and Stoughton, 1920-4), vi. 226).

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the seizure of Silesia. It was too late to complain of the dismem­ berment of Poland.'44 The weakness and internal divisions of Poland had, in any case, long suggested that it might become a victim of the powerful states which surrounded it. For all these reasons, then, '[t]he partitions of Poland did not shock 18thcentury Europe. Even England did not resent them. What Eng­ land did not like was the way the thing was done without her concurrence.'45 British officials found the first partition of Poland objectionable not because it was a violation of Poland's rights, but because it interfered with British trade in Danzig.46 A memo­ randum drawn up by George III, for instance, spoke of the bal­ ance of power and commercial interests, but was not concerned with the public law or morality.47 The European continent greeted news of the first partition with no greater moral indignation than did Britain. 'The Partition of Poland was committed under the eyes of an indifferent Europe', wrote the former French envoy in Warsaw, the Due de Broglie.48 Many contemporary statesmen not only considered the first par­ tition a fortunate event which saved Europe from war, but also believed that the firm and spirited intervention of Prussia and Austria had prevented Poland from becoming a Russian prov­ ince, and that the partition was really a defeat for Catherine II of Russia49—in other words, that it was a victory for the balance of power in Europe, as the partitioning powers had themselves sought to portray it.50 Moreover, if there was little opposition to the destruction of 44 Lectures on Modern History, 302. 45 Louis L. Gerson, Woodrow Wilson and the Rebirth o f Poland, 1914-1920 (New Haven: Yale University Press, 1953), 1. 46 D, B. Horn, British Public Opinion and the First Partition o f Poland (Edinburgh: Oliver and Boyd, 1915), ch. 1. 47 Papers o f George III, ed. Fortescue, ii. 428, cited in Brownlie, International Lam and the Use o f Force by States, 17. 48 The King's Secret—The Secret Correspondence o f Louis XV with his Diplomatic Agents (London, 1881), i. 68 ff., quoted in Gerson, Woodrow Wilson and the Rebirth o f Poland, 1914-1920, 2. 49 Horn, British Public Opinion and the First Partition o f Poland, 46. 50 Frederick II claimed that the principal reason for the partition was the desire to avoid the general war which was on the point of breaking out. 'What is m ore/ he added, 'the balance of power between such close neighbours had to be main­ tained.' Catherine II, for her part, praised the determination of the partitioning powers to keep the balance between them by means of equal acquisitions— a formal arrangement on which Maria Theresa had insisted—as 'a truly noble and impressive idea to set before Europe' (see L. R. Lewitter, ‘The Partitions of Po­ land', New Cambridge Modern History, 8 (1965), 333, at 335).

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Poland on the ground that it constituted a violation of the right of states to independence, there was none at all to be heard in the chancelleries of Europe on the ground that it violated the right of nations or peoples to self-determination. For in the eighteenth century, when partition was a major political fashion and na­ tionalities had no recognized rights, absolute monarchs were con­ sidered the owners of the territories and peoples over which they ruled.51 Commenting on the prevalence before the French Revolution of 'the ancient rule that the sovereignty of the con­ queror extended to all inhabitants of a conquered country with­ out regard to individual desires', Sarah Wambaugh writes: 'Even the several partitions of Poland appear to have caused no com­ ment on the score of disregard of the popular will.'52 The attitude of Europe to the partition of Poland was thus one of rapid reconciliation with the accomplished fact of Poland's annihilation. Friedrich von Gentz, a severe critic of the partition, was thus able to write in 1806: The fate of Poland is long ago decided, not only in fact but in right. By a number of treaties of peace and conventions concluded between the partitioning powers, and all the other European states, their old and new possessions are recognized and guaranteed; the former Polish prov­ inces are now so compleatly united and incorporated with their old territory as to make it impossible to separate the one from the other; the reestablishment of Poland is therefore impracticable, either in fact or right.53

Yet, notwithstanding his judgement that once Poland had been partitioned, however reprehensible that act might have been, the status quo had been changed and a new international legal order created which in turn had to be preserved, Gentz condemned the failure of Europe to oppose or censure the partition at the time at which it was committed as a measure of the extent to which the moral fabric of international society had degenerated in the latter half of the eighteenth century. The partition of Poland in 1772, he wrote: 51 Ibid. 334. 52 A Monograph on Plebiscites: With a Collection o f Official Documents (New York: Oxford University Press, 1920), 4. 53 Fragments upon the Present State o f the Political Balance o f Europe, ch. 2, in M. G. Forsyth, H. M. A. Keens-Soper, and P. Savigear (eds.), The Theory o f Inter­ national Relations (London: Allen and Unwin, 1970), 292.

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was one of the first [occurrences] by which the relaxation of public spirit and of a lively interest in the common welfare of states disclosed itself distinctly to view. The silence of France and England, the silence of Europe, whilst such an alarming measure was contrived and carried into effect, is still more astonishing than the measure itself. The imbecil­ ity of the French cabinet, at the period when the evening shades began to gather round the life of Louis XV, explains, but does not justify this silence. From England alone, and still less from the other powers, could any effectual opposition be expected whilst France was dumb; but that no public demonstration, no energetic remonstrance, no earnest protes­ tation, no audible disapprobation should have followed—these mani­ fest symptoms of general relaxation and decay of strength will not surely escape the observation of the future historian.54

The silence which characterized the European reaction to the partitions was, in one aspect, a manifestation of the belief that the acquisition of territory by force, even when carried out in breach of international principles, was ultimately admissible so long as it was effected in accordance with the requirements of the balance of power and did not undermine the whole interna­ tional system in the process. This fact, however, does not defeat the conclusion that the arbitrary extinction of Polish sovereignty by superior force or right of conquest and the failure of Europe to reprove it stand as a condemnation of the international order of the ancien régime— that is, of an international system which held up the balance of power as the route to international order. For the balance-ofpower doctrine tended, in practice, to operate as a sanction for the brutal acquisitiveness of eighteenth-century continental di­ plomacy, as may be seen by the scant respect that was paid to the existence and legitimacy of weaker states whose rights were frequently and openly sacrificed on its altar. Moreover, as a solu­ tion to the problem of international order, the balance-of-power system was clearly inadequate; for while the partitions of Poland were, indeed, consistent with the requirements of the balance of power,55 at least so far as the balance in Eastern Europe was concerned, at the same time, by sanctioning the acquisition of territory by means which were wholly unjustifiable, they 54 Fragments upon the Present State o f the Political Balance o f Europe, iv. 51-9, quoted in Wheaton, History o f the Law o f Nations in Europe and America, 281-2. 55 See Bull, The Anarchical Society, 108.

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established precedents of arbitrary spoliation which were later to be imitated or invoked by the French Revolution and Napoleon— in that sense tending to foster conditions of great insecurity.56

III. N IN ETEEN TH -C EN TU R Y IN STAN CES OF TERRITORIAL ACQUISITION BY CONQUEST

In the period between 1815 and 1914 state practice, as Brownlie points out, 'was still dominated by an unrestricted right of war and the recognition of conquests, qualified by the political sys­ tem of the European Concert': the right of states to go to war and to obtain territory by right of con­ quest was unlimited although some qualifications to this position had appeared by 1914. Situations resulting from resort to force were re­ garded as legally valid as in the case of the Prussian annexation of the Danish duchies and the annexation of Alsace-Lorraine by the German Empire. Great Britain, France, and Russia made numerous incursions in Asia and Africa, many of which resulted in annexations or the imposi­ tion of a protectorate. The United States fought wars in 1846 and 1898 resulting in the annexation of Texas, the Philippines, Cuba, and Puerto Rico. British law officers' opinions of the time assume the validity of title by annexation.57

Still, although the customary and conventional law of the period between the Congress of Vienna (ending the Napoleonic wars) in 1815 and the outbreak of the First World War in 1914 did not yet restrict the right of states to resort to war and obtain territory by right of conquest, the concept of the Concert of Europe and the Congress system (or the 'public law of Europe' as it was also known) raised a strong presumption against unilateral changes in the status quo58 When changes in the Congress system were effected unilaterally, signatories of the Final Act of the Congress of Vienna of 9 June 1815 who had not been consulted frequently protested, even if they ultimately acquiesced in the fait accompli.

56 See on this point Sorel, Europe and the French Revolution, 67-8. 57 Brownlie, International Law and the Use o f Force by States, 19-20. 58 Ibid.

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(a) Austria's Annexation o f Cracow: 1846 A good case in point was the reaction to Austria's annexation of the Free City of Cracow in 1846. Under Article VI of the Treaty of Vienna (9 June 1815) it had been agreed that: 'The Town of Cracow, with its Territory, is declared to be for ever a Free, In­ dependent, and strictly Neutral City, under the protection of Austria, Russia, and Prussia.'59 Despite this stipulation, the Free City of Cracow was forcibly 'restored' to Austria under an agree­ ment of 6 November 1846, called the Convention of Cracow,60 concluded between Austria, Russia, and Prussia without con­ sulting the other contracting parties of the Treaty of Vienna. The perpetrators of this act sought to justify it on the grounds that Cracow had 'called upon the inhabitants of all parts of an­ cient Poland to take arms and to revolt against the existing Governments', and had allowed an armed band 'to make an irruption from the territory of Cracow into our own States',61 thereby failing to fulfil the conditions of its independent exist­ ence—namely, its strict neutrality. Great Britain and France re­ fused, however, to accept this argument as sufficient justification for the annexation. The British government protested that the measure was in breach of positive stipulations contained in the Treaty of Vienna; that it was 'justified by no adequate necessity' since full security of the territories of the three protecting powers might have been afforded without destroying the separate and independent existence of Cracow; and that, in any case, no part of the system established by the Final Act of the Congress of Vienna could be altered without the consent of all its signator­ ies.62 The French government, for its part, took its stand upon 'the maintenance of acquired rights' and 'the respect due to the Independence of States'. It insisted that the suppression of the Republic of Cracow was 'an act positively at variance with the letter as well as with the meaning of the Treaty of Vienna', and that it was 'the incontestable right of all the Powers that were 59 For the text of the Treaty of Vienna, see Hertslet, The Map o f Europe by Treaty, i, no. 27. 60 The text is given ibid. ii, no. 201. 61 See the Austrian Declaration relative to the Annexation of Cracow to Aus­ tria, 11 Nov. 1846, ibid., no. 202. 62 British Protest against the Annexation of Cracow to Austria, dated 23 Nov. 1846, ibid., no. 203.

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parties to the Treaty of Vienna, to take a part in the deliberations and the decisions of which the Republic of Cracow might be the object'.63 In the end, however, both governments acquiesced, perhaps for reasons of the kind which Lord Palmerston once expressed in his capacity as British Foreign Secretary: It would be inconsistent with the power and dignity of the British Empire to insist too strongly upon points which . . . it might be inexpedient, if not impossible, to enforce by arms.64

As Robert Langer remarks in this connection: 'It is in fact hard to deny that in those days the only alternative to yielding was military action, since the idea of non-recognition was not yet born.'65 Three further changes to the status quo established by the Treaty of Vienna, which were accomplished by conquest or forced ces­ sion—namely, Prussia's annexation of the Danish duchies of Schleswig-Holstein in 1866; her ensuing forcible incorporation of four members of the German Confederation; and Germany's annexation of Alsace-Lorraine in 1871—will be examined below. (b) Prussia's Annexations of 1866 Prussia's conquest of the Danish duchies of Schleswig-Holstein was a case of annexation in violation of the 'Integrity of the Danish Monarchy' which had been recognized as a 'permanent principle' by a treaty of 8 May 1852,66 signed at a Conference of the Great Powers in London by Great Britain, Austria, France, Prussia, Russia, Sweden, Norway, and Denmark.67 Since 1459 the two feudal duchies of Schleswig and Holstein had been linked with the Kingdom of Denmark, the Danish King having inherited the titles of Duke of Schleswig and Duke of 63 French Protest against the Annexation of Cracow to Austria, dated 3 Dec. 1846, ibid., no. 204. 64 Instruction to Lord Durham, St Petersburg, dated 3 July 1832, BFSP 37 (18489), 1439-40. 65 Seizure o f Territory: The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice (Princeton: Princeton University Press, 1947), 8-9. “ Text in Hertslet, The Map o f Europe by Treaty, ii, no. 230. 67 For a detailed discussion of the Schleswig-Holstein question, see Wambaugh, A Monograph on Plebiscites, 132-49.

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Holstein. But the union was a purely personal union—not a union of the Crowns—and could be sundered, the inheritance under the Salic law (still in force in Schleswig-Holstein) following to males only, and under the Danish law to males and females.68 After the Congress of Vienna in 1815, Holstein, which was wholly German in population, was made a member of the Ger­ man Confederation (though subject to the Danish King, who remained Duke of Holstein), and Schleswig, of which the south­ ern part was solidly German in language and sympathies, re­ mained outside; yet both enjoyed their own constitutions. However, the Danish nationalists, faced with the imminent fail­ ure of the male line, which was the only common heir in Den­ mark and the duchies, soon pressed for the incorporation of both duchies under the Danish Crown and a single Danish constitu­ tion. On 28 January 1848, King Frederick VII of Denmark accord­ ingly issued a rescript, arbitrarily decreeing that there would be a single constitution for the three units—Holstein, Schleswig, and Denmark—leaving to the duchies autonomy in local matters, but providing for common estates.69 The estates of the duchies, however, were warmly sympathetic with the new German nationalist spirit, which was eager to unite under the German Confederation all territories inhabited by Germans, and in March 1848 they answered the royal rescript with a demand for the incorporation of Schleswig as a state in the German Confederation under the sovereignty of the Danish King. But the King, although yielding a separate constitution for Holstein, refused to allow the incorporation of Schleswig in the Confederation, and proceeded instead to incorporate the duchy as an integral part of the Kingdom of Denmark. Open revolt ensued in the duchies, and Danish troops were immediately dispatched to Schleswig. This was made the excuse by the Prus­ sian government for the dispatch of Prussian troops into Holstein, an action endorsed by the German Diet at Frankfurt which de­ clared that the Federal German State of Holstein was in danger of being attacked by Denmark.70 Mediation was offered by Great Britain and Russia, and a division according to nationality was proposed—the northern, Danish-inhabited part of Schleswig to be incorporated in 68 Ibid. 133.

69 Ibid. 132-3.

70 Ibid. 134-5.

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Denmark, and the remaining, German-inhabited part in the Ger­ man Confederation. This solution, which at the time was ac­ cepted by Prussia, would have allowed Denmark to gain the northern part of Schleswig irrevocably; but the Danish govern­ ment 'refuse[d] to recognize the new doctrine of nationality and rested its case on treaties and historic right'.71 In the event, no settlement was reached, and in 1852, at a Conference of the Great Powers in London, the Danish King was confirmed in the succession in the duchies, although it was pro­ vided that the union between the duchies and Denmark should be purely personal.72 Yet in 1863, King Christian IX, counting on the continued support of the Great Powers and propelled by the enthusiasm of his Danish subjects, signed a constitution unifying the political institutions of Denmark and the duchies, contrary to the terms of the London agreement.73 This was an affront to the national sentiment of German people everywhere; and in 1864 Prussia and Austria, vying with each other as leaders in the na­ tional cause, intervened by joint military operations in Schleswig, 'ostensibly to take possession of the duchy as a guarantee of the execution of certain undertakings made by the Danish govern­ ment in 1852 and since repudiated',74 but actually with the objec­ tive of annexation. Prior to the inauguration of hostilities, Great Britain had made its intentions known concerning the proposed annexation. In a note to the Chargé d'Affaires dated 17 December 1863, to be transmitted to the Foreign Office in Berlin verbally, it was de­ clared on behalf of the British government 'that they would con­ sider any departure from the Treaty of Succession of 1852 by Powers who signed or acceded to that treaty as entirely incon­ sistent with good faith'.75 But the Danish army was defeated, the occupation of the duch­ ies was effected by 12 May 1864, and a treaty of peace was signed at Vienna on 30 October 1864 confirming the joint conquest.76 Whereas the Danes had earlier refused to cede Holstein and that part of Schleswig whose inhabitants wished to join the German Confederation, now the Danes were forced to make a peace in 71 Ibid. 138. 72 Ibid. 73 Ibid. 139. 74 Ibid. 75 British Foreign Office. Parliamentary Papers, 1864, Denmark and Germany, no. 3, p. 382. 76 Text in Hertslet, The Map o f Europe by Treaty, iii, no. 367.

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which not even the northernmost part of Schleswig was left to them. By the terms of peace, the King of Denmark renounced all his rights over the duchies of Schleswig-Holstein and Lauenberg in favour of the King of Prussia and the Emperor of Austria and undertook to recognize any dispositions which the said monarchs should make in regard to them. This action contravened the treaty obligations of 8 May 1852, which were binding on both Austria and Prussia and which recognized the Danish King's right of succession in the duchies. Prussia and Austria at first tried to administer the duchies in common, an arrangement which, with each state seeking to gain exclusive control of the duchies, led to endless altercations. A compromise was attempted through the Convention of Gastein— signed on 14 August 1865 by Austria and Prussia77—under which the co-sovereignty of the conquered Danish duchies was aban­ doned (Article 1), and it was agreed that the administration of Schleswig would go to Prussia and of Holstein to Austria. The British government on 14 September 1865 issued a circular ex­ pressing regret at this development, which had annulled both the treaty of 1815, which gave the King of Denmark a seat in the German Diet as Duke of Holstein, and the treaty of 1852, which recognized the Danish King's right of succession to the whole Danish monarchy. The language used is significant, for it re­ veals the extent of the change in thinking which had by this time taken place—under the influence of the growing belief in selfdetermination and the principle of plebiscites as a condition of transfer of territory—on the question of the legitimacy of con­ quest as a mode of acquisition of title: It might have been expected that when Treaties were thus annulled, the popular feeling of Germany, the wishes of the people of the Duchies themselves, and the opinions of the D iet. . . would have been recog­ nised in their place. In this manner if an order of Rights had been over­ thrown, another Title drawn from the assent of the people would have been set up, and that Title might have been received with respect and maintained with a prospect of permanence. But all Rights, old and new, whether founded on the solemn Compact of Sovereigns or on the clear expression of the popular will, have been set at naught by the Convention of Gastein, and the dominion of Force is the sole power acknowledged and regarded. 77 Text ibid., iii, no. 370.

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Violence and conquest are the bases upon which alone the Partition­ ing Powers found their agreement. Her Majesty's Government deeply lament the disregard thus shown to the principles of public right, and the legitimate claims of a people to be heard as to the disposal of their own destiny.78

The British objections, however, were of no avail. In 1866, two years after the joint conquest of the duchies, a short war broke out between the conquerors (Austria and Prussia), the quarrel between them concerning the ultimate disposal of the spoils which they had acquired from Denmark. Prussia invaded Hanover and Hesse, and Prussian troops occupied Dresden on 18 June—while Bavaria, Saxony, Hanover, Baden, Hesse, and Wiirttemburg sided with Austria. On 3 July Prussia defeated Austria and her allies at Koniggratz, and, by the preliminaries signed at Nikolsburg in July 1866 and embodied in the Treaty of Prague, signed on 23 August 1866,79 Austria ceded to Prussia all the rights acquired by the treaty of peace of 30 October 1864 over the duchies of Holstein and Schleswig. The stipulation was added, however, that the northern districts of Schleswig should be ceded to Denmark if, by a free vote, the population should express a wish to be so united (Article 5). The King of Prussia and the military party, however, were opposed to the fulfilment of this treaty provision, and, without waiting for the promised plebiscite, the duchies in their entirety were formally united to Prussia by an act of incor­ poration on 12 January 1867.80 A second important result of Prussia's victory in 1866 was her annexation of four of the German states which had been mem­ bers of the German Confederation and had allied themselves with Austria. After Prussia's subjugation of the Kingdom of Hanover, the Electorate of Hesse-Cassel, the Duchy of Nassau, and the Free Town of Frankfurt, the King of Prussia addressed 78 Ibid., no. 372. 79 Ibid., no. 388. 80 After the fate of Alsace-Lorraine, which Prussia had annexed in 1871 in opposition to the wishes of the inhabitants, it became clear that there was little hope of inducing Prussia to hold a test of public opinion in North Schleswig, and Germany was formally released from this condition by a treaty with Austria dated 11 October 1878 (see the Treaty between Austria-Hungary and Germany modifying Art. V of the Treaty of Peace of 23 Aug. 1866, signed at Vienna, Consolidated Treaty Series, 153 (1878), 293-4). However, the plebiscite for which provision was made in the Treaty of Prague of 1866 was eventually held in 1920, following Germany's defeat in the First World War.

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a message to the Landtag, dated 16 August 1866, calling for its sanction to the annexation of the four German states to Prussia. In justifying the proposed annexation, it was argued that [the four principalities] took an active part in the War of Austria against Prussia, and appealed to the decision of War for themselves and their Countries. This decision, according to God's decree, has been against them. Political necessity obliges us not to restore to them the power of government, of which they have been deprived by the victorious ad­ vance of our army.81

Yet the message took pains to state that the 'political necessity' which justified the annexation did not arise 'from a desire of acquiring Territory' as such, but solely from the need to protect the Prussian state: The aforesaid countries could, in case they maintained their Independ­ ence, cause, from their geographical position, difficulties and obstruc­ tions, by a hostile or even doubtful attitude of their Governments towards Prussian policy and military action, far surpassing the extent of their actual power and importance. Not from a desire of acquiring Territory, but from a feeling of duty to protect our inherited States from a recur­ rence of the danger, to give a broader and surer foundation to the na­ tional reorganization of Germany, the necessity arises for us to unite for ever [the four principalities with Prussia].82

By a decree dated 20 September 1866, the Landtag gave its sanction to the annexation of the four states to Prussia. Three days later the King of Hanover protested against this annexation; and on 24 September 1866, the inhabitants of Frankfurt, too, protested against the annexation of their territory to Prussia. But the forcible incorporation of the four German states into Prussia did not meet with any serious opposition from the signatories of the Treaty of Vienna or from other powers, and acquiescence in the fait accompli was general. (c) The German Annexation o f Alsace-Lorraine: 1871 The diplomatic crisis which provoked the outbreak of the FrancoPrussian War of 1870, whose outcome was the compulsory ces­ sion of Alsace-Lorraine by France to the newly founded German 81 Hertslet, The Map o f Europe by Treaty, iii, no. 385.

82 Ibid.

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Empire, was, as we now know, largely contrived by Bismarck. Bismarck required a war with France in 1870 for two main rea­ sons: (1) to prevent France from opposing Prussia's establish­ ment of German unity; and (2) to ensure a political and military union between Prussia, the North German Confederation, and the south German states.83 Since Emperor Napoleon III of France had begun the war against Prussia, Prussia was able to enlist the aid of the remain­ ing members of the North German Confederation and the south German states. Bismarck had realized that the war of 1870 had at its inception to be presented to German public opinion as a purely defensive war, since this was the only way in which Germany could be united against France.84 It was for this reason that he worked hard to bring the French invasion about. None of Bismarck's actions, however, had threatened the territorial integ­ rity of France; and thus there can be no doubt that by invading first 'France was the immediate aggressor'.85 It was with considerable plausibility, therefore, that the Ger­ man people could claim, in July 1870, that the German nation had been the victim of French aggression, and that the war, on the German side, was a war of defence.86 However, some six weeks after the outbreak of war, as Walzer points out, 'the war of defence was over, Germany was triumphant at Sedan, Bona­ parte a prisoner, his empire overthrown. But the fighting contin­ ued, for the chief war aim of the German government was not resistance but expansion: the annexation of Alsace-Lorraine.'87 The occupation of Alsace-Lorraine and Prussia's subjugation of France were followed by the forced cession of the two French provinces, over the protests of their inhabitants, from France to Germany. The cession was embodied in Article 1 of the treaty of peace signed at Frankfurt on 10 May 1871, between France and the newly constituted German Empire.88 The cession of Alsace-Lorraine was 'a sacrifice to which France was never to reconcile herself'.89 The war, indeed, had been 83 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 160. 84 Ibid. 85 Michael Howard, The Franco-Prussian War (London: Hart-Davis, 1961), 40. 86 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illus­ trations (London: Allen Lane, 1978), 65. 87 Ibid. 88 Text in Hertslet, The Map o f Europe by Treaty, iii, no. 446. 89 Howard, The Franco-Prussian War, 449.

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prolonged for five months due to the refusal of the Provisional Government, which had come to power after Sedan, to cede 'an inch of our soil or a stone of our fortresses'.90 There were bitter protests from the inhabitants of Alsace-Lorraine against any for­ cible transference of their homes, their communities, and their institutions to another nationality; and the elections for deputies held in the two provinces on 8 February 1871 during the German occupation resulted in an almost unanimous vote against an­ nexation. Every one of the fifteen deputies elected was pledged to vote against the proposed cession; and on 16 February 1871 these deputies delivered to the French National Assembly at Bordeaux a formal protest in the name of the people of AlsaceLorraine in which they declared that they held in advance 'as null and void any act, treaty, vote or plebiscite which should abandon to the foreigner all or part of Alsace-Lorraine'. They proclaimed 'the right of Alsatians and Lorrainers to remain members of the French family to be for ever inviolable', and called upon Europe not to permit 'the seizure of a people like a vile herd of cattle'.91 Germany's Claims to Alsace-Lorraine In 1870, both France and the new Germany claimed AlsaceLorraine. The Germans based their claim on historic right—the lands had been part of the Holy Roman Empire, the original German Reich, before their conquest by Louis XIV—and on cul­ tural and linguistic kinship; and France on two centuries of possession and effective government.92 By the middle of the nine­ teenth century, however, it was not legal titles but political alle­ giance—that is, the wishes of the inhabitants—which came increasingly to be seen as the more weighty factor in determin­ ing the right to ownership in such a case. As Temperley wrote in 1920: Alsace-Lorraine was acquired by the French through the methods which have led to the consolidation of most modern States, namely, conquest, trickery and cession. The method of acquisition and the ethnological and linguistic character of the population are, however, irrelevant to the 90 As quoted in Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 162. 91 As quoted ibid. 92 On the history of Alsace-Lorraine, see Ruth Putnam, Alsace and Lorraine: From Caesar to Kaiser, 58 B.C.—1871 A.D. (New York: Freeport, 1915).

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question of rightful ownership. It is indisputable that the inhabitants became in a very short time 'more French than the Parisians'.93

Bismarck himself was aware that from the standpoint of na­ tionality, the annexation of Alsace-Lorraine would be a source of weakness and trouble to Germany.94 But in demanding the trans­ fer of Alsace-Lorraine to the German Empire, Bismarck was motivated neither by considerations based on the constitution of the Holy Roman Empire95 nor by arguments drawn from anthro­ pology, language, and culture (which aroused his amused con­ tempt).96 His insistence was determined, rather, by strategic considerations—the conviction that the new Germany had to be adequately guarded from the west against a recurrence of French aggression97—and by the desire to win popular support for Prussia in Germany.98 On the question of justification, he appears to have been content to regard the annexation as an acquisition by right of conquest, justified by the consideration that France was a nation with a record of constant aggression which she could not be trusted not to renew at the first opportunity.99 For the Liberals, on the other hand, 'who desired the German flag to wave wherever the German tongue was spoken, the pos­ session of Alsace was Germany's manifest destiny';100 while for most Germans—particularly the German Nationalists, often led by professors—the annexations were 'the "liberation" of German territories wrested from a divided Empire in the seventeenth and eighteenth centuries'.101 As Putnam observes: There was a persistent inclination to count the Deutsches Reich, created in 1871, not as the offspring of the North German Confederation, but as the heir in fee to the Holy Roman Empire, laid to rest in 1806.... [SJingularly enough, even such an authoritative historian as Heinrich von Sybel, with wide experience as a statesman, prefers the shadowy 93 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 159. 94 Ibid. 161. 95 Putnam, Alsace and Lorraine, 184. 96 Temperley (ed,), A History o f the Peace Conference o f Paris, ii. 160. 97 Putnam, Alsace and Lorraine, 184-5. 98 F. R. Bridge and Roger Bullen, The Great Powers and the European States System, 1815-1914 (London: Longman, 1980), 137. 99 As Putnam observes, Bismarck 'seems to have regarded the annexation as an act of force majeure amply justified by the attending circumstances' (Alsace and Lorraine, 185). 100 Howard, The Franco-Prussian War, p. 228. 101 C. Grant Robertson, Bismarck (London: Constable, 1918), 280.

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claim to the simple assertion that a territory had been gained by right of conquest. . . In his brief for Germany's right to the acquired prov­ inces, he proves, to his satisfaction, the point of ancient possession, but he has some sympathy for the bartered human occupants of the lands.102

The European Reaction: The Recognition o f Germany's Annexation o f Alsace-Lorraine Contemporary opinion in Europe on the question of Germany's annexation of Alsace-Lorraine was inevitably coloured by the universal conviction that the moral guilt for the war of 1870 lay with France, and that France had merely got what she deserved. 'In the opinion of the day', writes Wambaugh: France, for purposes of conquest, had entered on an unjustified war of offence against a guileless Prussia. Such, thanks to the universal distrust of Napoleon III, was the sober judgement of neutrals at the time, a judgement not to be amended until the publication of the true story of the Ems dispatch. To the righteous anger of many of these liberals it appeared to be mere justice that France should herself suffer those pains of conquest which she had meant to inflict.. . . Rolin-Jacquemyns, [edi­ tor of the newly instituted Revue de droit international] who a few short months before had written that the people of Schleswig had the right inherent in all men not to be bartered about like beasts, now defended the right of the victor to extort territorial cession as a poena temere litigantis, and in this he reflected the view of many whose resentment had utterly blinded them to the rights of the inhabitants themselves.103

The rights of the inhabitants were not thought, in any case, to have been totally ignored, since Article 2 of the Treaty of Frank­ furt had given to residents of the ceded territories the option of retaining French citizenship, on condition of making their home in France. Yet as public opinion, while still condemning France, regained its balance sufficiently to consider the protests of the people of the conquered provinces, there followed 'a wave of condemna­ tion of such an infringement of a people's right to be consulted'.104 Even Karl Marx, who hoped for a Prussian victory in the war of 1870—as a vehicle for the achievement of German unification 102 Putnam, Alsace and Lorraine, 185-6. 103 A Monograph on Plebiscites, 21, citing Rolin-Jaequemyns in Revue de droit international et législation comparée, 2 (1870), 325. 104 Ibid.

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and the centralization of the German working class, and as a means of establishing the dominance of the German over the French working class— condemned the annexation of the two provinces as an act of aggression against the people of AlsaceLorraine and against the territorial integrity of France, and noted 'the intensity of the crime of reviving, in the second half of the 19th century, the policy of conquest'.'105 For by this time it had come to be thought that The method of annexation by simple transfer was anachronistic. It was the old method, which had appeared normal and natural at the Con­ gress of Vienna. But the doctrine of 'nationality', as expounded and practised by Napoleon III, had made it normal to consult by a prelim­ inary plebiscite the populations whose future it was proposed to alter. This course had been taken during the last ten years in Savoy and Nice, in Italy and Rumania. Bismarck had even allowed such a provision to be inserted in the Treaty of Prague for the benefit of the inhabitants of Northern Schleswig. The refusal to take a similar course in 1871 was diplomatically retrograde and a confession of moral weakness.106

A similar point is made by Michael Howard. Commenting on the impact on European opinion of the cession of Alsace-Lorraine, he writes: A century earlier the transfer of such provinces to the sovereignty of a victorious prince had been commonplace. A century later it would have been completed by the brutal surgery of transfer of populations. To the nineteenth century, with its growing belief in national selfdetermination and plebiscitary voting, the process, carried out in defiance of the wishes of the populations, seemed an open flouting of that public law on whose development Europe was beginning to pride itself.107

Yet the moral disapproval of the German annexation on the ground that it violated the right of its inhabitants to selfdetermination was counterbalanced by the perception that Ger­ many was justified in seeking redress for, and future assurance against, French aggression. As Temperley concludes:

105 'Second Address of the General Council of the International Working Men's Association on the Franco-Prussian War', in Karl Marx and Frederick Engels, Selected Works, ii (Moscow: Progress Publishers, 1969), 195, at 198 (Marx's emphasis). 106 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 163. 107 The Franco-Prussian War, 449.

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Though the wisdom of the annexation was doubted in Europe, few foresaw its future influence on international relations. The Germans were thought to have made a high-handed use of the rights of conquest, but not to have outraged the moral sense of civilized peoples. The Germans pointed plausibly to the numerous invasions by the French during the last two centuries. They claimed to possess 'the key to their house'.108

There was, in any case, no serious challenge of Germany's legal right, as conqueror, to impose cessions on a defeated France— one of the 'rights of conquest' to which Temperley refers; and the annexation of Alsace-Lorraine by the German Empire in 1871 was regarded as legally valid. In the eighteenth and nineteenth centuries, as the examples ex­ amined above serve to illustrate, territorial acquisitions obtained by force regularly gave rise to recognized changes in sovereignty. However, from the middle of the nineteenth century the current of opinion, influenced by the growing belief in national selfdetermination, was moving against the legitimacy of annexation outside the colonial sphere, when effected without the consent of the inhabitants of the conquered territory. Coleman Phillipson summed up the position as he saw it in 1916 as follows: Of all the titles by which sovereigns hold and govern territories, title by conquest is now generally considered the least desirable. Nevertheless, having regard to international practice and to the fact that modern in­ ternational law contains no provision to the contrary, it must be admit­ ted that such a title is juridically valid.. . . It is to be hoped that the society of States will one day so amend its juridical system, and fortify it by such potent sanctions, that it will be impossible for one State to annex the territory of another without the latter's free consent. In the meantime, forcible annexation, however it be deprecated and condemned by international morality, is not forbidden by international law.109 108 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 162. 109 The Termination o f War and Treaties o f Peace, 19, 31.

4 Conditions for the Validity of Title by Conquest Even by the permissive standards of pre-1914 international law, something more than mere seizure of territory by force of arms was required in order to establish a title by conquest. Certain conditions had to be satisfied; but once they were satisfied, other states then recognized the transfer of sovereignty. This chapter aims to clarify the nature of the rules for the acquisition of ter­ ritory by conquest under traditional international law, as reflected in the practice of states in the pre-1914 period. Was Conquest ever Recognized as a Legal Title to Territory? Many leading Continental authorities on the law of nations of the late nineteenth and early twentieth centuries— among whom may be cited Bonfils,1 Despagnet,2 Fiore,3 de Montluc,4 and Pradier-Fodéré5—denied altogether that conquest rendered a legal title under international law. These writers argued that conquest is merely a hard fact; that conquest is force, and force is antithetical to law; and that, therefore, conquest can not give legal title.6 But the claim that there could be no such thing as a 'right of 1 Henry Bonfils, Manuel de droit international public, 4th edn., ed. Paul Fauchille (Paris, 1905), no. 535. 2 Frantz C. R. Despagnet, Cours de droit international public, 4th edn., ed. Charles de Boeck (Paris, 1910), sects. 387-90. 3 Pasquale Fiore, Nouveau Droit international public, 2nd edn., trans. C. Antoine (Paris, 1880), sects. 863, 1693, 1696. 4 L. A. de Montluc, 'Le Droit de conquête', Revue de droit international et législation comparée, 3 (1871), 531. 5 P. Pradier-Fodéré, Traité de droit international public (Paris, 1885-1906), ii, no. 833. 6 See e.g. de Montluc, 'Le Droit de conquête', 532: 'la conquête est la force et il ne saurait y avoir de droit de la force'. But as Paul Fauchille replied: to deny conquest is to deny war; and war has not yet been made illegal (Traité de droit international public, i, 2nd pt. (Paris: Rousseau, 1925), 768).

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conquest7 because the concept involved a logical contradiction overlooked the fact that conquest in the technical sense, as a mode of acquisition of territory recognized by international law, signified not mere force (otherwise everything would be permit­ ted and the distinction between lawful and unlawful means of acquiring territory would dissolve), but a legal institution subject to rules (and limitations) from which, by convention, legal rights could arise. It is true that traditional international law, by allow­ ing states to acquire territory by conquest, effectively sanctioned the operation of the principle that might makes right; but in doing so, it did not purport to leave states subject to the reign of unregulated force—isolated grabbings, for example, as we shall see below in relation to Great Britain's claim to the Falkland Islands, were not recognized as conquest. When we say of a conqueror that it has acquired a piece of territory 'by right of conquest', we imply that some ingredient other than the power of the conqueror was involved in the trans­ action. We imply, first of all, that the action takes place within the context of a society (albeit a rudimentary society) which grants rights to its members and which somehow permits the acquisi­ tion. And since the notion of permission implies the possibility of restriction, it becomes meaningful to speak of the conqueror's right as a 'right' and not merely a power. In the traditional sys­ tem, the function of restricting the right of conquest was per­ formed on the one hand by international law—in the conditions which it laid down for the validity of conquest as a mode of acquisition of territory—and on the other by the balance of power. As Oppenheim remarked in 1905: the conqueror has not in fact an unlimited possibility of annexation of the territory of the vanquished State. When the balance of power is endangered or when other vital interests are at stake, third Powers can and will intervene, and history records many instances of such interventions.7

Moreover, the contention that conquest was not a legitimate mode of acquiring sovereignty over territory in international law is in contradiction with the facts of international practice.8 As 7 International Law, 1st edn,, i. 292. 8 This includes juridical practice. For a survey of cases in which the principle of the validity of conquest as a mode of acquiring territory has received formal recognition in the courts of several states, see McMahon, Conquest and Modern International Law, 58-67.

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John Fischer Williams wrote in 1926: 'To say that force cannot give a good title is to divorce international law from the actual practice of nations in all known periods of history.'9 Thus, in the Island of Palmas case, decided in 1928, an international tribunal of the Permanent Court of Arbitration at the Hague explicitly rec­ ognized the validity of conquest as a mode of acquiring territory when it declared in its decision that: Titles of acquisition of territorial sovereignty in present-day interna­ tional law are either based on an act of effective apprehension, such as occupation or conquest, or, like cession, presuppose that the ceding and the cessionary Power or at least one of them, have the faculty of effec­ tively disposing of the ceded territory.10

That the tribunal's decision in this arbitration should have ad­ mitted conquest as a valid mode by which a state could establish a legal title to territory is not surprising. For conquest was clearly recognized by states as a valid mode of acquisition of territory, and countries still argue today about whether the old rules for conquest were satisfied. An interesting example of this may be found in Spain's dispute with the United Kingdom over the sta­ tus of Gibraltar.11 It is a case which merits brief discussion—in case any lingering doubts as to whether conquest was ever rec­ ognized by states as a legitimate basis of title should need to be dispelled. Gibraltar is a British Crown Colony. In 1704, during the War of Spanish Succession (1702-13), the territory was captured from Spain by a joint British-Dutch expedition. It was later ceded by Spain to Great Britain by the Treaty of Utrecht of 1713, after Spain had lost the war. Article X of the treaty reads: The Catholic King does hereby . . . yield to the Crown of Great Britain the full and entire property of the town and castle of Gibraltar, together with the port, fortifications, and forts thereunto belonging; and he gives up the said property to be held and enjoyed absolutely with all manner of right for ever, without any exception or impediment whatsoever... ,12

9 'Sovereignty, Seisin, and the League', BYBIL (1926), 24, at 35. 10 Island o f Palmas case (Netherlands v. USA) (1928), RIAA 2 (1949), 829. 11 For a detailed discussion of the history of the dispute, see Howard S. Levie, The Status o f Gibraltar (Boulder, Colo.: Westview Press, 1983). 12 Consolidated Treaty Series, 28 (1713-14), 325.

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For the United Kingdom there are thus two possible heads of title to Gibraltar: (1) the cession made by Spain to Great Britain in the 1713 Treaty of Utrecht; and (2) the conquest of 1704.13 In 1963, the question of the status of Gibraltar was raised by Spain before the United Nations Special Committee on Decolon­ ization. In 1964, the Special Committee reached a consensus by which it invited Spain and the United Kingdom to 'begin talks . . . in order to reach a negotiated solution'.14 From the resulting discussions the following positions emerged.15 Whereas the United Kingdom contends that the Treaty of Utrecht transferred sovereignty in the Rock of the Gibraltar to Great Britain,16 Spain argues that it transferred not sovereignty but ownership over the fortifications (establishing a British mil­ itary base in Spain).17 Spain does not, however, contest the pro­ position that a cession, made by a defeated state to a victorious state in 1713, was capable of transferring sovereignty; it questions only the interpretation of the terms of that cession— arguing that the land as such was never ceded under the Treaty of Utrecht. As to the title based on pure conquest, Spain contends that the United Kingdom could have no claim to Gibraltar based on con­ quest because (1) its seizure in 1704 was not in the name of Queen Anne of Great Britain, but on behalf of a possible King of Spain—the Pretender to the Spanish Crown, Archduke Charles of Austria; and (2) the conquest was accomplished by an allied military force, not an exclusively British one. On this score, then, Spain's argument is that Britain did not acquire title by conquest in accordance with the law in 1713. What in Spain's view prevents Britain from claiming a title to Gibraltar by conquest is not that conquest as such could not furnish a legitimate claim to title, but that title could not be acquired as the result of a conquest which was joint. It is not my intention here to enter into an evaluation of the strengths or weaknesses of the Spanish arguments. Whether or not these arguments are convincing, the significant point, for the 13 The claim that Gibraltar belonged to Great Britain by right of conquest, and not merely by cession, was explicitly stated by the British Foreign Secretary, Lord Palmerston, in 1851 (see Levie, The Status o f Gibraltar, 13 and 150 n. 35). 14 See the Consensus on Gibraltar adopted by the Special Committee of the UN on 16 Oct. 1964, GAOR, 19th Session, Annexes, Annex 8 (pt. 1), 314. 15 For a UK record of the discussion, see Cmnd. 3131. 16 Ibid. 53. 17 Ibid. 8.

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present purpose, is that Spain does not argue that conquest or forced cession could not transfer sovereignty. On the contrary, its arguments presuppose that conquest and forced cession were legitimate modes of acquiring territory under traditional inter­ national law, provided that the requisite conditions had been fulfilled. As the Gibraltar dispute shows, then, in controversies over the legal status of territories which had been acquired by force in the pre-1914 period, the question which has been contested by states is not the applicability of the principle that conquest gives valid title to territory,18 but rather whether the recognized conditions for establishing a title by conquest according to international law have been satisfied. It is therefore to this aspect of our subject, namely, the rules governing the acquisition of territory by con­ quest, that our attention must now be turned. In approaching this question I shall take as my starting-point the definition of 'conquest' provided (by Erich Kussbach) in the Encyclopedia o f Public International Law. From this definition the essential features of conquest may be extracted, which will then be amplified and tested by reference to the practice of states and the views of jurists. According to Kussbach, the majority of writers hold that: conquest constitutes an act of force by which, in time of war, a bellig­ erent occupies a part or the whole of the territory of the enemy State with the intention of extending its own national sovereignty over that territory. The control over the conquered land has to be effective and uncontested in the sense that neither the enemy State to which the ter­ ritory belonged, nor any of its allies, continues to fight for the recovery of the lost possession.19

The above definition highlights three essential elements of con­ quest which may be enumerated as follows: (1) that conquest relates to the taking possession of territory during a war; (2) that 18 An important exception to this generalization, however, is to be found in the era of decolonization, when the anti-colonial states tended to deny in principle the validity of the right of conquest as it was historically asserted by European states in their relations with non-European political communities. (See e.g. In­ dia's denial of Portugal's title to Goa (based on the colonial conquest of 1510), discussed below, at pp. 267-8.) 19 'Conquest', 120.

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military occupation of enemy territory cannot transfer sovereignty to the conqueror until the opposition has been subjugated, or the war has been terminated; and (3) that military occupation of territory does not transfer sovereignty to the conqueror, even after subjugation, in the absence of a legal acquisition of the territory of the vanquished state (such as a decree of annexation), which manifests the conqueror's intention to extend its own sovereignty over it. It is the fulfilment of these three conditions which establishes what is known as a 'conquest' or 'completed conquest'; and there are many examples of national boundaries being drawn in this way. Equally, however, there are numerous examples where the rules for conquest have not been followed— where, although territory had been annexed or seized by force, it was impossible to say that a title had been acquired by con­ quest. Several such instances will be encountered in the course of the discussion that follows.

I. CONQUEST EXTENDS ONLY TO THE FORCIBLE TAKING OF TERRITORY IN WAR

It is sometimes assumed—mistakenly, as I shall argue—that ac­ cording to the law in force prior to the developments brought about by the Covenant of the League of Nations and the KelloggBriand Pact, international law placed no limitations on the acqui­ sition of territory by force. This assumption is difficult to sustain in view of the distinction which existed, even in the classical system, between lawful and unlawful uses of force, and given the fact that formal war (as opposed to isolated applications of force) was the only recognized institution for effecting territorial changes by force. Under the classical system—which lasted from the Peace of Westphalia (1648) until the First World War—war was a legal state of affairs which permitted the use of force for any purpose20 20 'Subsequent to the virtual demise of the just war doctrine, the predominant conviction in the 19th (and early 20th) century was that every State had a right— namely, an interest protected by international law—to embark upon war when­ ever it pleased. The discretion of States in this matter was portrayed as unfettered. States could "resort to war for a good reason, a bad reason or no reason at all"' (Dinstein, War, Aggression and Self-Defence, 72, quoting H. W. Briggs, The Law o f Nations (2nd edn., 1952), 976).

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including the acquisition of territory, and in which a series of regulatory conditions was recognized. By calling into operation the laws of war and neutrality, war regularized the use of force as a means of settling disputes or of advancing the interests of the state;21 and it was from this that the right of conquest followed. But the use of force in time o f peace was not a lawful use of force unless falling within the categories of reprisals or justified inter­ ventions, or unless justified by necessity22— a limiting condition which was anyhow incompatible with the object of conquest or annexation.23 Thus the seizure of territory in the absence of war could not give rise to a title by conquest. Traditional interna­ tional law recognized the legality of conquest because it recog­ nized the legality of war;24 but it did not recognize a licence to use, or to acquire territory by, unregulated force. Thus, when Austria, Prussia, and Russia, resolved by the Con­ vention of Cracow of 1846 to annex the Free City of Cracow to the Austrian monarchy without entering into a state of war with the country whose independence they proposed to extinguish, they manifested an awareness that an annexation which might have been lawfully accomplished as a result of victory in war required special pleading to justify in time of peace. In announc­ ing their decision to proceed with the 'restoration' of Cracow to Austria without entering into a state of war, they advanced the following three considerations in their defence: th at. . . these . .. circumstances have constituted, on the part of the State of Cracow, a real State of War, which would have authorized the Courts of Austria, of Prussia, and of Russia, to avail themselves of all the rights given by War; that on this ground alone they would have the right to dispose of a Territory which has taken an hostile attitude towards them; that there is no question for the 3 Powers of causing the City of 21 As Oppenheim wrote: 'war is not inconsistent with, but a condition regulated by, International Law. The latter cannot and does not object to the States which are in conflict waging war upon each other instead of peaceably settling their difference. But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations be­ tween the belligerents and neutral States' (International Law, 1st edn., ii. 56). 22 Brierly, The Law o f Nations, 397-408. 23 Brownlie, International Law and the Use o f Force by States, 40. 24 'En définitive,' wrote Fauchille, 'la conquête n'est qu'une consequence naturelle de la guerre, qui elle-même implique l'usage de la force. Nier la légitimité de ia conquête, c'est dès lors nier la légitimité de la guerre (Traité de droit inter­ national public, i, 2nd pt., p. 768).

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Cracow to submit to the Law of the Strongest, inasmuch as that law cannot be applicable where so great a disparity exists. . P

Whatever may be said of the merits of these arguments, their underlying purpose, it is clear, was to provide a justification for the violation of the rule that war was the only legal way of acquiring the territory of a hostile state by force. The three pow­ ers hoped to circumvent this difficulty by arguing that where a weak state had entered into a state of war with an overwhelm­ ingly strong one and the parties were so unequally matched as to render the outcome of a military contention a virtual certainty, the stronger party was entitled to dispense with the necessity, which would otherwise be applicable, of resorting to formal war with its opponent in order to dispose of its territory by force. However, this argument does not appear to have been accepted as a legal justification for annexation in time of peace. Thus Oppenheim, though he admitted the lawfulness of conquest,26none the less regarded Austria's annexation of Cracow in 1846 as an unlawful act27—that is, as one which failed to comply with the conditions of conquest—just as he characterized the three parti­ tions of Poland by Prussia, Austria, and Russia in the eighteenth century as 'wrongful and unlawful acts'.28 For in neither case was possession, taken by force and without the consent of the weaker state, acquired as the result of war and the subjugation of the armed forces of the state whose territory was annexed, which alone could have vested in the annexing states a good title by conquest. If, as Oppenheim considered, Austria, Prussia, and Russia could be regarded (at the time he was writing in 1905) as rightful owners of the formerly Polish territories in their posses­ sion, this was not by right of conquest, but only through the operation of prescription—which, through long and undisturbed possession and the acquiescence of international society, had cured what would otherwise be an unlawful possession.29 Some writers, it is true, have treated both the annexation of Cracow by Austria in 1846 and the three partitions of Poland in the eighteenth century as instances of the acquisition of title by conquest30— a view which presupposes that the mere seizure of 25 Hertslet, The Map o f Europe by Treaty, ii, no. 201. 26 International Law, 1st edn., i. 287-92. 27 Ibid. 295. 28 Ibid. 29 Ibid. 30 See e.g. Phillipson, The Termination o f War and Treaties o f Peace, 18; and McMahon, Conquest and Modern International Law, 47-9.

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territory by force of arms, even in the absence o f war, was sufficient in the eighteenth and nineteenth centuries to vest a good title in the possessor. This view accords with McMahon's definition of conquest as 'a coercive act whereby territory is acquired by one state from another state through belligerent operations, or by measures short of war, such as a display of force or threat of the use of force'31 and with Jennings's statement that 'there may presumably be a title by subjugation or conquest, even where there has been no war or even hostilities in the technical sense, where the territory has nevertheless been seized by a display of armed force'.32 But there are numerous incidents in the nineteenth century in which states treat the use of force as unlawful, and such uses of force could not, therefore, be claimed as a root of title. As the Permanent Court of International Justice stated in its judgement in the Legal Status o f Eastern Greenland case (1933): Conquest only operates as a cause of loss of sovereignty when there is a war between two States and by reason of the defeat of one of them sovereignty over territory passes from the loser to the victorious State.33

It is an obvious implication of this statement that something more than a threat or use of force was needed to acquire territory by conquest. Indeed, as I propose to show below, contrary to the suggestion of McMahon and Jennings that the position under the traditional law was that territory could be acquired by force without resorting to war and subjugating the armed forces of the state whose territory was being taken, the practice of states in the nineteenth century was rather as stated in the Eastern Greenland case—which represents the conventional view of the nineteenthcentury position—namely, that war was a precondition for the operation of the right of conquest. (a) The Caroline Incident of 1837 The Caroline incident arose out of the 1837 Canadian Rebellion aimed at freeing Canada from British colonial rule.34 On 13 December 1837, the rebel leaders managed to enlist at Buffalo in 31 Conquest and Modern International Law, 14. 32 The Acquisition o f Territory in International Law, 53. 33 Legal Status o f Eastern Greenland (Denmark v. Norway) (1933), PCI}, ser. A /B, no. 53, at p. 47. 34 See R. Y. Jennings, 'The Caroline and McLeod Cases', A]1L 32 (1938), 82.

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the United States the support of a large number of American volunteers, who established a base on Navy Island, in Canadian waters, from which they raided the Canadian shore and attacked passing British ships. This force was supplied from the United States shore by an American steamboat, the Caroline; and the United States authorities, although aware of these activities, did little to prevent them. In response, a British military force, on the night of 29-30 December 1837, seized the Caroline, which was then in the American port of Schlosser, set fire to it, and sent it over Niagara Falls. Two United States nationals aboard the Caroline were shot dead. When Great Britain sought the release of a British subject, McLeod, who had been arrested in the United States on charges of murder and arson arising out of the incident, the legality of the British use of force was discussed in detail in correspondence in 1841-2.35 The British government, upon complaint by the United States, stated that the attack had been justified by the necessity of self-defence and self-preservation.36 However, the United States government, while it accepted the principle that the necessity of self-defence or self-preservation could justify an act of interven­ tion, believed that the British action was at most not warranted at all on this ground, or at least went beyond the narrow bounds of necessity within which such intervention had to be circum­ scribed. The American Secretary of State, Webster, in a letter of 24 April 1841 to the British Ambassador in Washington, Fox (later incorporated in a note to Lord Ashburton of 27 July 1842), thus required the British government to show the existence of: a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of The United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.37

35 'Correspondence between Great Britain and the United States, Respecting the Destruction of the "Caroline"', BFSP 29 (1840-1), 1126-42; 30 (1841-2), 193-202. 36 The two factors cited as giving rise to this necessity were the failure of the US authorities to hinder the illegal infiltration over the Canadian border, and the future threats posed by the Caroline's operations from a port which had lost its neutral character. 37 BFSP 29 (1840-1), 1137-8

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Lord Ashburton, in his letter to Webster of 28 July 1842, insisted that a necessity for the British action could be demonstrated, but did not dispute Webster's statement of principle: 'we are per­ fectly agreed as to the general principles of international law applicable to this unfortunate case. Respect for the inviolable character of the territory of independent nations is the most essential foundation of civilization.'38 Now the first point to be noted about the United States protest over the use of force by Britain in the Caroline incident is that the protest would not have occurred if there had been a state of war between Britain and the United States. If Britain had embarked on a war against the United States, the question of its legality— that is, of Britain's justification for resorting to war—would not have arisen, because war was a lawful use of force before 1919, regardless of its cause.39 (Certainly, the question of adherence to the laws of war would have arisen, but not the question of the legality of the war itself.) Britain was called upon to justify its use of force because the United States and Great Britain were at peace. Secondly, in the ensuing correspondence between the United States and Great Britain both parties agreed that it was lawful to use force in cases of necessity, but that the use of force had to be limited by that necessity and could not affect the territorial rights of the parties. Thus, if British forces, after sending the Caroline over Niagara Falls, had proceeded, say, to occupy the port of Schlosser and annex it in the name of Her Majesty's Govern­ ment, Britain could not have claimed sovereignty over the United States territory by right of conquest. The actual case of Britain's seizure of the Falkland Islands in 1833 provides a useful illustra­ tion of this point. (b) Why Britain did not Claim the Falkland Islands by Right of Conquest In 1833, just four years before the Caroline incident, Great Britain seized the disputed Falkland Islands by force. It did not, however, 38 BFSP 30 (1841-2), 195-6. 39 As Shaw has noted: 'Whether the cause was just or n o t. . . [was] irrelevant in any legal way to the international community (though, of course, important in political term s). . . [T]he basic issue revolved around whether in fact a state of war existed' (International haw, 683).

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purport to have acquired thereby a title to the islands by con­ quest. This, as I shall argue below, drawing on the conclusions reached above in our consideration of the Caroline case, was because a necessary condition of conquest—namely, a lawful use of force in the form of war—did not obtain. The Falkland Islands are a British Crown Colony. Sovereignty over them is also claimed by Argentina, which calls them the Malvinas.40 Both Spain and Britain claimed sovereignty over the islands in the eighteenth century— although in 1774 Britain aban­ doned its settlement there, ostensibly on grounds of cost. A metal plaque claiming sovereignty over the islands for King George III was left behind by the British, but it was removed by the Spanish in 1775. Spain continued to occupy the islands until 1811, when it abandoned them due to the revolutionary situation in Madrid; and with the collapse of Spanish rule in South America, as an indirect consequence of the Napoleonic Wars, Spain never again thereafter asserted a claim to them. In 1820, Argentina (which had declared its independence from Spain in 1816) laid claim to the Malvinas, which Spain had left uninhabited, and in the course of the next decade established a settlement there. Great Britain did not protest at the Argentinian claim in 1820, but did protest at the appointment of a Governor in 1829. In 1833, a small British warship, the HMS Clio, sailed to the Falkland Islands, threaten­ ing force against the Argentinian settlement. Although Britain argued that its measures did not amount to a use of force, there is no doubt that force was used, and that it was Britain's use of force which led to the withdrawal of the Argentine presence from the islands. Ever since, there has been peaceful British oc­ cupation of the islands (until the Falklands War in 1982), except for periodic protests by Argentina, which has never given up its claim to them. That the United Kingdom has never invoked conquest as the basis of its title to the Falkland Islands41 is significant. According 40 On the competing claims to the Falkland Islands, see e.g. Julius Goebel, The Struggle fo r the Falkland Islands: A Study in Legal and Diplomatic History (1927) (New Haven: Yale University Press, 1982); and Lowell S. Gustafson, The Sover­ eignty Dispute over the Falkland (Malvinas) Islands (New York: Oxford University Press, 1988). For a concise presentation of the background to the dispute, see Rudolf Dolzer, 'Falkland Islands (Malvinas)', EPIL 12 (1990), 103. 41 See Michael Akehurst, A Modern Introduction to International Law, 5th edn. (London: Allen and Unwin, 1984), 294.

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to Gustafson, 'Britain did not in fact base her title on conquest in the 19th century because she claimed it on historical right'.42 But since the prior title which Britain claimed was itself contested, one might have expected that an alternative claim to the islands would have been put forward. Gustafson suggests that '[p]erhaps the British could have claimed title to the islands based o n . . . conquest.'43 Now there is no doubt that conquest was an accepted form of territorial acquisition prior to 1919, and a useful supplement to disputed historic claims; for conquest was a recognized means of validating a territorial claim—a way of getting one's claim rec­ ognized internationally. However, while Britain did put forward an alternative claim, it did not argue from conquest, but from prescription—namely, from long and uninterrupted possession.44 But since prescription has to be accompanied by acquiescence on the part of the 'losing' state,45 the validity of this claim, in view of the Argentine protests, is doubtful. It is for this reason that some international lawyers have advo­ cated conquest, rather than prescription, as the root of United Kingdom title in the Falklands.46 For unlike prescription, con­ quest did not require acquiescence on the part of the 'losing' state.47Thus, according to Lindsey: 'Title by conquest remains the simplest foundation for United Kingdom sovereignty, for it does not require any degree of Argentine acceptance.'48 And Harris arrives at the same conclusion: 'Although conquest is not a good basis for title now, it was in 1833.... Argentine protest since 1833 would not affect the British claim based upon conquest.49 42 Lowell S. Gustafson, 'The Principle of Self-Determination and the Dispute about Sovereignty over the Falklands (Malvinas) Islands', Inter-American Eco­ nomic Affairs, 37 (spring 1984), 81, at 83. 43 Ibid. 44 Akehurst, A Modern Introduction to International Law, 5th edn., 294. 45 See Ian Brownlie, Principles o f Public International Law, 3rd edn. (Oxford: Clarendon Press, 1979), 160-3. 46 See e.g. D. J. Harris, Cases and Materials on International Law, 3rd edn. (Lon­ don: Sweet and Maxwell, 1983), 171; Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands, 27-8; John M. Lindsey, 'Conquest: A Legal and His­ torical Analysis of the Root of United Kingdom Title in the Falkland Islands', Texas International Law Journal, 18 (1983), 11, at 32; D. W. Greig, 'Sovereignty and the Falkland Islands Crisis', Australian Year Book o f International Law, 8 (1983), 20, at 42-3; and Shaw, International Law, 306. 47 See below, pp. 126-8. 48 Lindsey, 'Conquest', 32. 49 Harris, Cases and Materials on International Law, 3rd edn., 171.

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The question thus arises: Why did Britain not claim title on this ground? And why, if McMahon and Jennings are right in sup­ posing that effective possession resulting from a mere display or threat of force was sufficient to establish a title by conquest, did the United States,50 for example, or Spain,51 for that matter, not recognize the British seizure of the Falklands as a legitimate case of acquisition by conquest in an era when states clearly recog­ nized titles acquired by force? According to Gustafson, Britain did not wish to base its claim on conquest because '[t]itle by conquest was not popular even in the 19th century.'52 Shaw likewise contends that although con­ quest was a perfectly legal method of acquiring territory in the 1830s, it was for 'political reasons' that Britain did not claim title on this ground.53 But this argument explains, at best, why Britain hoped to avoid reliance on conquest as the basis of its title to the Falklands. It does not explain why other states failed to recognize Britain's seizure of the Falklands as a case of conquest at a time when conquest, however much it may have been disapproved of morally, was recognized legally as a good root of title. The title by conquest was not popular in relation to the Falk­ lands (being neither claimed by, nor recognized in, Britain) for two main reasons. First, it was unpopular because in the absence of war, the British use of force was unlawful—a principle shown in the Caroline case between the United States and Britain, which arose because the two countries were at peace. It is for this rea­ son that Argentina has consistently maintained that Britain's use of force in 1833 was illegal,54 while the United Kingdom has 50 The US position on the status of the Falkland Islands has been, and remains, that the issue of sovereignty is not yet settled (Christoph Bluth, 'Anglo-American Relations and the Falklands Conflict', in Alex Danchev International Perspectives on the Falklands Conflict (London: Macmillan, 1992), 204). As Secretary of State Marcy stated in diplomatic correspondence to the British government in 1854 (regarding the warning notice he had issued to American whaling ships inform­ ing them that the British authorities would proceed against trespassers on the Falklands): 'This notice said nothing about the sovereignty of [the islands]. . . While it claimed no right for the United States, it conceded none to Great Britain or any other power' (letter to Crampton (1 July 1854), quoted in Lindsey, 'Conquest', 28). 51 Spain's position is one of support for the Argentine claim to sovereignty over the Malvinas. See below, p. 279. 52 'The Principle of Self-Determination and the Dispute about Sovereignty over the Falklands (Malvinas) Islands', 83. 53 International Law, 306. 54 See Argentina's justification for its seizure of the Falklands in 1982, dis­ cussed below at p. 277.

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sought to dispel the 'myth' that armed force was used in 1833. Secondly, the use of force in time of peace, whether lawful or not, could not affect the issue of title. Despite popular misappre­ hensions of the norms of the period in question, showing up with a gunboat and threatening force could not affect title even in the nineteenth century (hence Britain's reliance on prior title— it did not, because it could not, rely in international law on the seizure of 1833 as an alternative claim to title; and that is also why the United States has not taken a position on title).55 It is reasonable to suppose that if the mere use or threat of force in the absence of war had been recognized in the nineteenth century as a lawful means of acquiring territory or of establish­ ing a title by conquest, Britain would have appealed to that title as a means of putting an end, once and for all, to the disputed status of the territory. For conquest in the nineteenth century was recognized both as a root of title and as a means of making good a title asserted on other grounds. But Britain—contrary to what would have been the advice of some present-day international lawyers—did not put forward the claim of conquest precisely because it had not been at war with Argentina, and war, in the traditional international system, was the only lawful means of acquiring rights to territory by force, or of deciding by appeal to force between disputed claims to territory. If the seizure of the Falkland Islands in 1833 had occurred in the context of a war between Britain and Argentina in which Britain, by subjugating the armed forces of Argentina, had emerged victorious, then Argentina's claims to sovereignty over the islands, however well founded, would have been ir­ revocably extinguished by reason of its defeat in the war, just as Britain's claim, by reason of its victory in war, would have been indisputably vindicated. For in the nineteenth century the legal position was that the state of war broke off all the rights of peace, including the right to have one's territorial integrity and independence respected. As Georg Schwarzenberger has put it: in the relations between belligerent States the law of peace is replaced by a different set of legal rules . . . Under international customary law, 55 It is significant that the USA did not object to Britain's seizure of the FalkIands on the grounds of the Monroe Doctrine of 1823 (Bluth, 'Anglo-American Relations and the Falklands Conflict, 203-4),

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a belligerent State need not respect the territorial sovereignty of an enemy State. It may occupy the territory of its enemy or eliminate altogether the enemy State by way of debellatio,56

Thus the first essential condition for establishing a title by conquest was the existence of a state of war: 'Unless preceded by war, the unilateral annexation of the territory of another State without contractual consent is illegal.'57 The isolated snatching of territory by force, in the absence of war, was not a recognized basis of title.

II. CONQUEST GIVES TITLE ONLY AFTER THE ENEM Y HAS CEASED TO FIGHT FOR THE RECOVERY OF THE LOST POSSESSION

Under international law as it had evolved by the mid-nineteenth century, the conquest of territory in time of war could not vest sovereignty in the conqueror until the war had been concluded. This principle arose from the rule which had developed to the effect that a belligerent was only permitted to annex conquered territory when its control over the territory was effective, and there was no reasonable chance of the defeated sovereign regain­ ing the land. This second condition for the establishment of title by conquest has been defined by O'Connell as follows: by conquest is meant the effective control of the conquered territory in such circumstances as to warrant the presumption that the control will be permanent. In other words, while there remains the reasonable pos­ sibility of the former sovereign recovering his territory annexation is not permitted by international law. No distinction is here drawn between total and partial subjugation of the enemy. In effect this rule has come to mean that annexation is possible only after war has terminated. . . . Conquest in fact, however, qualifies the conqueror to proceed, sub­ ject to these conditions, to the act of annexation.58

This rule emerged only slowly in international practice. Down to the middle of the eighteenth century, the practice of belliger­ ent states accorded with the theory that enemy territory coming 56 International Law as Applied by International Courts and Tribunals, ii (London: Stevens, 1968), 63. 57 Rudolf L. Bindschedler, 'Annexation', EPIL 3 (1982), 19, at 20. 58 International Law, i. 435, 433.

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into the hands of one of the warring parties vested in him as conqueror immediately and was subject to his absolute disposal, so that he might even alienate or cede the occupied territory while the issue of hostilities remained undecided.59 Thus in ear­ lier times the prevailing theory was that military occupation immediately displaced the sovereignty of the conquered.60 It was not until after the end of the Napoleonic Wars in 1815 that the modern distinction arose between belligerent occupation —a defined legal position which falls far short of sovereignty— which comes into operation as soon as enemy territory is occu­ pied, and subjugation, which signifies that the war has come to a close—as a state of affairs which alone qualifies the victor to substitute itself for the pre-existing sovereign in the conquered territory. The notion that belligerent occupation was a provi­ sional condition wholly different in its legal consequences from conquest made its first appearance, according to Graber, in the eighteenth century, when Vattel argued that possession acquired under occupation was not definite until the treaty of peace. However, it was not until the middle of the nineteenth century that the modern concept became the prevailing one, and not until 1863 that the codification of the modern law of belligerent occupation was first attempted.61 Thus the legal position by about the middle of the nineteenth century was, as Phillipson has put it, that: 59 Hall, A Treatise on International Law, 4th edn. (Oxford: Clarendon Press, 1895), 482 ff.; Oppenheim, International Law, 1st edn., ii. 168; Doris Appel Graber, The Development o f the Law o f Belligerent Occupation 1863-1914: A Historical Survey (New York: Columbia University Press, 1949), 13. 60 See, however, Grotius' insistence that 'territory is not considered as cap­ tured at the moment it is occupied. While it is true that that part of a territory which an army has invaded in great force is temporarily possessed by i t , .. . still, such possession is not sufficient for that effect which we are discussing [i.e. the transfer of 'external ownership'], for which secure possession is required.. . . [0]nly that territory will be regarded as captured which is so surrounded by permanent fortifications that the other party will have no access to it openly unless these have first been taken.' (De Jure Belli ac Pads, bk. Ill, ch. 4, sect. 6). Here we see foreshadowed, some two centuries prior to its acceptance in positive interna­ tional law, the distinction between military occupation in time of war, which is temporary and does not transfer sovereignty to the conqueror, and conquest in the technical sense, which is permanent and requires effective possession. 61' The Development o f the Law o f Belligerent Occupation 1863-1914,14, citing Vattel, The Law o f Nations, bk. Ill, ch. 13, sects. 197-8. See, too, O'Connell, International Law, i. 433; Phillipson, The Termination o f War and Treaties o f Peace, 10-11.

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In conquest alone the military possession was simply de facto, depend­ ing on an actual fact, namely, superior force; after subjugation and an­ nexation, the territorial possession becomes de jure, that is, sanctioned by law.62

If military conquest alone was now no longer sufficient to create de jure possession, this was because— according to the modern doctrine— so long as the state of war had not come to an end (e.g. through subjugation), the status of the conqueror remained that of belligerent occupier, and the sovereignty of the conquered had not been displaced.63 It was only when the state whose ter­ ritory was occupied had ceased to be a belligerent (that is, once it offered no further resistance to the occupier and had no allies fighting to redress the situation, so that the law of belligerent occupation itself ceased to be applicable) that annexation could transform what had previously been a belligerent occupation into a transfer of sovereignty. And it was a logical corollary of this that annexation of occupied territory in time of war constituted an illegal act of the occupying power in relation to the enemy state concerned64— that is, a violation of its right to territorial integrity, which could only be destroyed as the result of defeat in war—which could not vest in the occupant a title by conquest in accordance with the law in the nineteenth century. In assessing the validity of claims to title by conquest asserted in this period, the problem, then, was to determine when the temporary and limited rights of military occupation, which pro­ hibited wartime annexation,65 gave way to the right of conquest, which permitted annexation (once the previous territorial sover­ eign, and such allies as it had, had ceased to fight for recovery of the lost possession). This problem reduced, in effect, to that of determining when the war had been terminated. Now the termination of war, the second condition for the validity of conquest, could be accomplished in one of three ways: (1) through subjugation, when a belligerent had brought the armed contention to an end by reducing the armed forces of its adver­ sary to impotence and submission, or at all events when all the organized resistance of the latter had disappeared; (2) through 62 Ibid. 10. 63 O'Connell, International Law, i. 433. 64 Schwarzenberger, International Law as Applied by International Courts and Tribunals, ii. 166-7. 65 Ibid.

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simple cessation of hostilities, when belligerents at first abstained from further acts of war and glided into peaceful relations without expressly making peace through a special treaty; or (3) through a treaty o f peace, when belligerents formally established the con­ dition of peace between each other by means of a special treaty.66 The termination of war in any one of these three ways, on terms which left the conqueror in uncontested possession of occupied territory, was taken as sufficient evidence of the con­ queror's ability to maintain permanent possession (which in turn authorized him to proceed to the third and final stage in the establishment of title by conquest—namely, annexation, or the legal acquisition of the conquered territory). In each of these three cases, the rationale for this presumption was as follows. In the first case, where the conquest of a defined territory was fol­ lowed by subjugation, it followed by definition that there were no longer forces in the field to free the occupied territory from the control of the annexing power. In the second case, where military conquest was followed by de facto cessation of hostilities and de facto revival of peace relations, the assumption was that the previous territorial sovereign, having voluntarily ceased hos­ tilities,67 had given up hope of regaining the conquered territory, and that the status which existed between the parties at the time when they ceased hostilities—the status quo post bellum (or the uti possidetis)—had been silently recognized and could be upheld as the basis of the future relations of the parties. And in the third case, where military conquest was followed by a treaty of peace of which the effect was to leave the conqueror in possession of conquered territory either through an express clause of cession 66 See Oppenheim, International Law, 1st edn., ii. 275; Phillipson, The Termina­ tion o f War and Treaties o f Peace, passim. 67 Oppenheim, International Law, 1st edn., ii. 276. Not every cessation of hos­ tilities is 'voluntary' in this sense. In the case of the war of June 1967 between Israel and the surrounding Arab states, for example, the parties had ceased hos­ tilities in response to a call for a cease-fire made by the Security Council in its Resolutions 233 (1967) and 234 (1967) which, having been made under Chapter VII of the UN Charter, was mandatory upon the parties. Since the Arab states and Israel were thus legally obliged by their Charter commitments to accept the call for a cease-fire, the resulting cessation of hostilities could not be interpreted as a voluntary act on the part of the ousted government, and there could be no presumption of a tacit abandonment of title in favour of the occupant in posses­ sion (see D. W. Bowett, 'International Law Relating to Occupied Territory: A Rejoinder', LQR 87 (1971), 473, at 474).

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or on the basis of the principle of uti possidetis,68 this, too, was regarded as an express or implied abandonment of title on the part of the former sovereign. To what extent can it be said that the rule in question—that is, that the conqueror may proceed to annex conquered territory only after the enemy has ceased to fight for recovery of the lost possession—has been reflected in the actual practice of states? One interesting example in which the rule clearly was applied was in respect of the French provinces of Alsace-Lorraine con­ quered by the Germans in the Franco-Prussian War of 1870-1 and subsequently annexed to the German Empire. As Phillipson observes: as soon as the Germans invaded Alsace-Lorraine and got possession of these provinces, they established themselves therein and resolved never to restore them again; though conformably to the law of military occu­ pation they did not claim to exercise absolute sovereignty in the territ­ ory until it was delivered to them by the treaty of peace— for here there was no question of annihilating the enemy and simply annexing his territory by a purely unilateral act.69

General von Werder, commanding the army before Strasbourg, issued a proclamation to the local officials on 23 August 1870 stating that the authority of the French government in Alsace had been superseded and that the various departments of the French administration were now under the obligation of carry­ ing out the orders of the General. Another proclamation, pub­ lished on 30 August 1870 by the Governor-General of Alsace, declared that the territories occupied by the German military forces were withdrawn from French authority, and soon there­ after the reconstitution of the Government of Alsace was begun.70 Now Fauchille has argued that implicit in these proclamations was an affirmation of the old theory of the immediate displace­ ment of sovereignty by the sole fact of military occupation.71 But this interpretation is inconsistent with the fact—which rather conforms with the modem doctrine—that shortly before the treaty of peace was drawn up, the Germans permitted the inhabitants 68 On the principle of uti possidetis as a basis for the establishment of new relations between the parties to a treaty of peace, and for examples thereof, see Phillipson, The Termination o f War and Treaties o f Peace, 221-2. 69 Ibid. 20. 70 Ibid. 20-1. 71 Traité de droit international public, i, 2nd pt., p. 767.

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of Alsace-Lorraine to vote for the French National Assembly, as they were still considered to be French subjects de jure.72 Phillipson therefore states the better view when he writes that German conduct in the provinces 'was not fundamentally inconsistent with military occupation'.73 For the Germans did not claim full sovereignty over the provinces from the date of their occupation, by virtue of that occupation alone, but only from the date of the Treaty of Frankfurt, 10 May 1871, which brought the war to a close on terms which left them in de jure possession of AlsaceLorraine. The rule in question also finds strong support in United States practice. This may be shown by quoting several leading decisions of United States courts (arrived at during the early nineteenth century) to the effect that military occupation does not confer sovereignty on the occupant in the absence of subjugation, or a treaty of peace, but only rights of temporary control and administration. In the case of The American Insurance Company v. Canter, de­ cided in 1828, Chief Justice Marshall declared that: The usage of the world is, if a nation be not entirely subdued, to con­ sider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace.74

Similarly, in 1815, in United States v. Hayward, the Court held that when the British conquered and entered into military occupation of Castine, Maine, on 1 September 1814, the latter passed under 'the temporary allegiance and sovereignty of the conqueror', so that the sovereignty of the United States over the territory was 'suspended'. But, it added: a territory conquered by an enemy is not to be considered as incorpor­ ated into the dominions of that enemy, without a renunciation in a treaty of peace, or a long and permanent possession.75

(The 'temporary allegiance and sovereignty' here spoken of are clearly intended to mean temporary control and administration— that is, belligerent occupation, with its limited powers to the occupier, as distinct from sovereignty.)76 72 See above, p. 89; and Phillipson, The Termination o f War and Treaties o f Peace, 21 .

73 Ibid. 74 1 Peters 511 at p. 542 (1828). 75 2 Gallison 485 (1815). 76 This is pointed out by Phillipson, The Termination o f War and Treaties o f Peace, 30-1.

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Yet there are several examples in which states did not adhere to this particular rule for the acquisition of territory by conquest— that is, where the rule that the conqueror was only qualified to proceed to the act of annexation after the war had been termi­ nated was ignored. (a) The Premature Annexation by Great Britain o f the Orange Free State and Transvaal in 1900 during the Boer War, 1899-1902 The British Proclamations of 24 May and 1 September 1900 pur­ porting to annex the Orange Free State and the Transvaal respec­ tively77 declared British sovereignty over the two South African republics before the resistance of the latter had been entirely broken. While the main Boer forces had been effectively beaten by the date on which the proclamations were issued, the rem­ nants of the Boer armies were still engaged in guerilla warfare against the British forces.78 The question of the surrender of the remaining bands was, it is true, only a matter of time.79 But on 1 September 1900, when the proclamation of the annexation of the Transvaal was issued, the Boer forces, as Phillipson points out: had by no means been subjugated; their organized resistance still re­ mained, and was, indeed, very vigorous and effective. Both in the Trans­ vaal and in the Orange Free State the British subsequently met with considerable reverses; and these reverses were inflicted by burghers who could not be considered other than the legitimate combatants of States whose independence was still in existence, and whose Govern­ ments still issued orders which were obeyed. Indeed from 1 September 1900 to 1 September 1901, the British losses amounted to 1,857 officers and 34,531 men; so that it was manifestly impossible to claim that the armed contention was at an end. The position, then, assumed by the British authorities was juridically invalid, because it was unsupported by conditions de facto!® 77 Parliamentary Papers, South Africa, 1900, Cd. 426; BFSP 92 (1899-1900), 548. 78 Lindley, The Acquisition and Government o f Backward Territory in International Law, 161. 79 The formal surrender of the Boer forces in the field occurred with the sig­ nature of the Peace of Vereeniging on 31 May 1902—in which the Boers also formally recognized King Edward VII as their lawful sovereign (Annual Register, 1902 (London, 1903)). Subjugation in fact, however, occurred in 1901, when Boer resistance had become so small as to be negligible (Phillipson, The Termination o f War and Treaties o f Peace, 14). 80 Ibid. 23.

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It was for this reason that the Presidents of the two South African republics, on 11 June and 3 September 1900 respectively, protested against the annexations, which they declared to be null and void and contrary to the law of nations. Their nations, they asserted, remained free and independent, and refused to submit to British authority.81 Nor were the South African Presidents the only ones to protest against the annexations: the premature proclamation of British sovereignty over the Boer republics was generally condemned, on grounds of international law, by other statesmen as well as by jurists.82 As a leading European authority, General Den Beer Poortugael, observed when writing on the subject in 1901: con­ quest was a legal mode of acquisition of territory, and could therefore be recognized, but only when it complied with condi­ tions laid down by international law. And since war was an action between two parties, it was not sufficient to establish the legality of annexation for only one of these parties to declare that the contest with the other had come to an end without the free consent of the other party, or at least a superiority of force which the latter, having been forced in fact to submit to it, was power­ less to deny.83 British statesmen, such as Sir William Harcourt and Mr Bryce, likewise condemned the proclamations of annexation on this ground. Bryce, for example, speaking in the House of Commons, described the proclamation of 24 May 1900 as 'a monstrous pro­ clamation, a proclamation absolutely opposed to the first prin­ ciples of international law, a proclamation based upon a paper annexation made seven days before, which purported to treat the inhabitants of the two republics as rebels—rebels, forsooth, on the basis of this paper annexation'.84 Yet the British authorities in the Boer Republics, notwithstand­ 81 Ibid. 24. 82 Ibid. 23, 24, 27. John Westlake, for example, argued that the proclamation of annexation was, strictly speaking, premature, having been issued before the conquest was legally completed, and could not, therefore, be regarded as turning the local forces still resisting, and their helpers, into rebels against the annexing sovereign (International Law, pt. I (Cambridge: Cambridge University Press, 1910), ch. 4). 83 Revue des deux mondes, Nov. 1901, 42, quoted in French by Phillipson, The Termination o f War and Treaties o f Peace, 23. 84 Parliamentary Papers, 5th ser., House of Commons Debates, 24 May 1900.

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ing the formal proclamations of annexation which they had is­ sued, did not in fact treat the countries concerned as if they had been annexed, or at all events made no attempt to apply in prac­ tice the various principles underlying annexation and change of sovereignty.85 Moreover, though the annexations were clearly premature and juridically invalid at the time at which they were proclaimed, they were validated retroactively in 1901, when subjugation in fact occurred—the military occupation of the Boer territories having by then been rendered effective, and the resist­ ance of the enemy negligible.86 (b) The Premature Annexation by Italy o f Tripolitana and Cyrenaica in 1911 during the Turco-ltalian War, 1911-12 The Italian Royal Decree of 5 November 1911, by which Tripoli­ tana and Cyrenaica (now called Libya) were 'placed under the full and complete sovereignty of the kingdom of Italy',87 was issued before the end of hostilities between Turkey and Italy, at a time when the Italian army was in tenuous occupation of the coastal towns of the provinces, and when the interior of the coun­ try, which remained in the hands of the Turks and Arabs, who from time to time made assaults on the Italian forces near the occupied ports, was still unconquered. The facts of the case being such as to make it clear that there had been no subjugation whatever, the Italian Foreign Office found it necessary to issue a circular justifying the annexation.88 Among the principal considerations advanced was that Italy's occupation of the principal towns of Tripolitana and Cyrenaica, its constant military successes, the forces it had already assem­ bled there, and the reinforcements which it was preparing to send rendered 'any further opposition from Turkey ineffective and useless'. The provinces of Tripolitana and Cyrenaica, it argued, had 'ceased to be a part of the Ottoman Empire', since their conquest was an 'irrevocably accomplished fact'; and the 85 Phillipson, The Termination o f War and Treaties o f Peace, 24. 86 Ibid. 14. 87 Cited in Lindley, The Acquisition and Government o f Backward Territory, in International Law, 161. For full particulars of this case, see ibid. 161-4; and Phillipson, The Termination o f War and Treaties o f Peace, 24-7. 88 The text is given in Phillipson, The Termination o f War and Treaties o f Peace, 25-6.

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decree of annexation had been necessary in order to impress upon the inhabitants the certainty of the conquest, so as to 'avoid the effusion of blood'. By justifying the annexation on the grounds that a completed conquest of the provinces was assured, the Italian government may be said to have indirectly acknowledged that subjugation was a necessary condition for the validity of annexation. But the annexations were in fact declared at a time when there was not even effective occupation— as defined in the 1907 Hague Regu­ lations on Land Warfare89 and the 1885 General Act of Berlin (26 February 1885),90 which prohibited the fictitious annexation of territory.91 It was on this ground that the Turkish government hastened to protest against the proceeding. On 8 November 1911, it issued a reply announcing that it was not prepared to acquiesce either in the annexation or in the reasons by which the Italian government had sought to justify it. In terms similar to those used by the Presidents of the late Boer republics, it pointed out that the de­ cree of annexation was null and void, that it was contrary to international law, and that a state of war still existed between the two belligerent powers: The Sublime Porte protests in the most energetic manner against this proclamation, which it considers null and valueless, both in law and in fact. Such an act is effectively null because it is contrary to the most elementary principles of international law, and equally so because Turkey and Italy are still in a state of war and because the Turkish Government intends to preserve and to defend by force of arms its 89 According to Art. 42 of the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, 'Territory is considered occupied when it is actu­ ally placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised' (Adam Roberts and Richard Guelff (eds.), Documents on the Laws o f War, 2nd edn. (Oxford: Clarendon Press, 1989), 55). 90 By Art. 35 of the General Act of the Berlin Congo Conference of 1884-5, the signatory powers recognized 'the obligation to insure the establishment of authority in regions occupied by them on the coasts of the African Continent sufficient to protect existing rights, and, as the case may be, freedom of trade and of transit under the conditions agreed upon' (Edward Hertslet, The Map o f Africa by Treaty, 2nd and rev. edn. (London: Her Majesty's Stationery Office, 1896), i. no. 17). 91 This point is made by Phillipson, The Termination o f War and Treaties o f Peace, 27.

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sovereign rights, which are imprescriptible and inalienable, over these two provinces.92

It is worth noting that the Turkish government's emphasis on the nullity of the annexation on the grounds that the war between Italy and Turkey was still in progress, involved an indirect ad­ mission that the legal position would have been different if Italy had remained in possession of the provinces and the state of war between the two countries had ceased. The Italian annexation of Libya, like the wartime annexations in South Africa, roused general condemnation.93 On 8 November 1911 (i.e. three days after the Italian decree was published), Sir Edward Grey stated in the House of Commons that the British government regarded the annexation as inoperative.94 Even in Italy objections to it were raised on grounds of international law, whatever justification the decree of annexation may have had on grounds of policy (such as the prevention of further bloodshed). Thus Professor Diena argued that juridically the acts in ques­ tion possessed no international validity, and that Tripolitana and Cyrenaica had ceased in law to form part of the Ottoman Empire not on account of the premature decree of annexation, but only on account of the Imperial Firman addressed by the Sultan to the populations of the provinces and annexed to the treaty of peace, signed at Lausanne on 18 October 1912, which ended the Turco-Italian War.95 The international reactions to the two cases outlined above tend to confirm the proposition with which we started this sec­ tion—namely, that in order to establish a valid title by conquest, international law as it developed by the mid-nineteenth century required, in addition to the fact of military occupation, the end­ ing of the state of war on terms which left the conqueror in 92 Quoted in Lindley, The Acquisition and Government o f Backward Territory in International Law, 162. 93 Phillipson, The Termination o f War and Treaties o f Peace, 27. 94 Ibid. 95 Vita internazionale (Milan), 5 Dec. 1912, 611 ff.; 20 Dec. 1912, 644 ff., cited ibid. For the text of the Treaty of Lausanne, 18 Oct. 1912, see G. F. de Martens, Nouveau recueil général de traites, 3rd ser., 7 (1913), 7. Since the treaty makes no mention of 'ceded territories', Diena's assumption must be that the principle of uti possidetis was allowed to operate. But Lindley, referring to this treaty, writes: 'it is difficult to say that, even then, they [the Turks] formally recognized the Italian annexation' (The Acquisition and Government o f Backward Territory in Inter­ national Law, 162).

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effective and peaceful possession of the conquered territory. In commenting on the development of this aspect of international law, Schwarzenberger has put the point as follows: Since the nineteenth century, a growing determination is noticeable in State practice, strongly supported by an increasing number of writers on international law, to treat wartime annexation as premature and, therefore, not to recognise it unless completed by cession in one form or another.. . . It has produced a rule of international customary law which prohibits unilateral annexation of territories under belligerent occupation.96

III. CONQUEST GIVES TITLE ONLY W HEN THERE IS A MANIFEST INTENTION TO ACQUIRE THE CONQUERED TERRITORY

Another way of putting this requirement is to say that there had to be a legal act of acquisition (such as a decree of annexation) in order to substitute the sovereignty of the victor for that of the vanquished. This third and final condition of conquest is, like the second condition just considered, of relatively recent origin. In the seventeenth and eighteenth centuries, the conqueror's inten­ tion of adding the conquered territory to its own dominions was automatically assumed, and the seizure of territory in war alone formed a basis of title. That is to say, sovereignty was automati­ cally acquired by virtue of military occupation. Two prominent examples of this practice are Louis XIV's occupation of FrancheComté in 1674 and of Savoy in 1691, which were assumed to entail an immediate displacement of sovereignty.97 There being as yet no requirement of subjugation or annexation, it was suf­ ficient to conquer a territory to become its legitimate master: the sovereignty simply changed in step with the army's advance along the enemy territory.98 Such was the theory and practice of the right of conquest up to the time of the French Revolution. The system began to change, however, when France declared that conquest was no longer a 96 International Law as Applied by International Courts and Tribunals, ii. 166-7. 97 Other examples may be found in Fauchille, Traité de droit international public, i, 2nd pt., p. 764. 98 Ibid.; O'Connell, International Law, i. 432-3.

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legitimate means of acquiring sovereignty over a territory and its inhabitants. On 22 May 1790, the National Assembly of France solemnly voted the following declaration, which was subsequently embodied in Title VI of the Constitution of 3 September 1791: 'the French nation renounces the undertaking of any war for the pur­ pose of conquest, and . . . will never employ its forces against the liberty of any people'.99

According to a foremost historian of the French Revolution, the significance of the National Assembly's Declaration of 22 May 1790 was that it represented a new international law .. . . Hitherto only states had possessed legality; men followed the soil as it was conquered or ceded. On May 22, 1790, the Constituent Assembly formally renounced the right of conquest, declaring that man's will, freely expressed, was to determine the destiny of the soil.100

The French revolutionaries had proclaimed the doctrine that sovereignty was vested in the people. It was an elementary 'right of man', they argued, that sovereignty should not be forcibly asserted against a people solely on the basis of decisions reached on the battlefield. Rousseau, the philosopher of the French Revo­ lution, maintained that: 'The right of conquest has no foundation other than the right of the strongest.'101 The victor, he insisted, could claim no right to rule the vanquished 'unless the van­ quished, restored to the full possession of their liberty, voluntarily made choice of the victor for their chief'.102 The upshot of these principles was that conquest alone could no longer be claimed as a legitimate ground for acquiring political rights—the consent of the people had to be obtained to their transfer from one sover­ eignty to another. In short, the 'right of conquest' was to be re­ placed by the right of peoples to determine freely their political affiliations. 99 Art. 4 of the Decree Concerning the Right of Making Peace and War, 22 May 1790, repr. in Wambaugh, A Monograph on Plebiscites, 177-8. 100 Georges Lefebvre, The French Revolution: From its Origins to 1793, trans. Elizabeth Moss Evanson (London: Routledge and Kegan Paul, 1962), 196. 101 'The Social Contract', bk. I, ch. 4, in The Social Contract and Discourses, 1712. 102 'A Dissertation on the Origin and Foundation of the Inequality of Mankind' (1755), pt. 2, in The Social Contract and Discourses, 90-1. See above, p. 9 n. 9.

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But France was soon confronted with the challenge of apply­ ing its principles in practice, when its armies found themselves in possession of new lands. If conquest was now regarded as incapable of substituting legal authority—being inconsistent with the doctrine of popular sovereignty and an infringement of hu­ man rights— annexation by plebiscite was considered an accept­ able substitute.103 And where direct acquisition of territory could not be justified on this ground, indirect means of control might suffice. Thus, in accordance with the principle of 'no conquests' which it had proclaimed in 1790, revolutionary France declined to invoke the right of conquest in the countries to which its arms were supposedly bringing liberty. But if it no longer substituted its own sovereignty directly in the occupied territories, it did do so in an indirect manner. Judging that the people were the sole sovereign, it overthrew the ancient sovereignty of 'usurper' kings, only to establish in their place popular authorities which it placed under the 'revolutionary guidance' of France.104 As O'Connell observes: 'In effect the French invasions of neighbouring states reduced them to puppets, but the theory of local sovereignty was preserved.'105 The fact that the sovereignty of France as conquering power had not been substituted for the sovereignty of the state whose territory was occupied, despite the fact of military occupation, was a new departure in the practice of states. It led to the emer­ gence of a new distinction between conquest in fact and annexa­ tion as two separate stages in the establishment of title by conquest. Since revolutionary France had declined to assume the full sovereignty of territories of which its armed forces were in possession (unless annexation was demanded by plebiscite), it was no longer possible to assume from the mere fact of conquest or subjugation that sovereignty automatically vested in the con­ queror. In order to establish that sovereignty had indeed been acquired by the conqueror, some further act was required—like a treaty of cession, or domestic legislation to annex—which manifested the intention of the conqueror to extend its own sov­ ereignty over the conquest.106 It was thus that 'Substitution of 103 Lawrence T. Farley, Plebiscites and Sovereignty: The Crisis o f Political Legit­ imacy (London: Mansell, 1986), 30. 104 Fauchille, Traité de droit international public, i, 2nd pt., pp. 764-5. 105 International Law, i. 433. 106 Fauchille, Traité de droit international public, i, 2nd pt., p. 765.

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sovereignty became a deliberate and formal action distinguish­ able from mere subjugation in fact.'107 The new theory, however, extended only slowly to the prac­ tice of France's enemies— and even then, as O'Connell points out, this was 'largely through the intervention of treaties, a large number of which settled the Napoleonic distribution of territory at various times'.108 As late as 1814 the British High Court of Admiralty, in The Foltina case, affirmed the old theory of the right of conquest when it held that British jurisdiction extended over Heligoland in virtue of occupation by British forces. Sir William Scott (later Lord Stowell), who gave the decision, cited the case of Campbell v. Hall,109 decided in 1774, when he declared that 'No point is more clearly settled in courts of common law than that a conquered country forms immediately part of the King's dominions.'110 However, after 1815, the modern distinc­ tion between 'belligerent occupation of foreign territory, with its limited faculties to the occupier, and annexation, or the taking possession of territory formally and with the intention of expel­ ling the old sovereign in favour of the new one' was to become firmly established in the practice of states.111 The Modes Whereby Conquest may be Completed Traditional international law recognized three modes whereby conquest could be completed, or the intention to appropriate and retain conquered territory could be evidenced. These were: (1) by compulsory cession in a treaty of peace; (2) by proclamation of annexation; and (3) by other executive and legislative acts, such as a disposition of public lands in the conquered territories, manifesting the conquering state's will to treat the territories as its own. (a) Compulsory Cession in a Treaty o f Peace A common way, historically, by which a victorious state demon­ strated its intention to acquire sovereignty over conquered ter­ ritory was by demanding and obtaining its cession as part of the terms of peace. Although in such a case the defeated state's 107 O'Connell, International Lazu, i. 433. 108 Ibid. 109 1 Cowper 204 (1774). 1,0 1 Dodson 451 (1815). m O'Connell, International Law, i. 433.

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acceptance of the treaty tended to be coerced—inasmuch as the signature of the treaty was generally demanded on pain of the resumption of hostilities in case of a refusal to sign—interna­ tional law has not in the past considered the use of compulsion (directed against a state) to be a ground for declaring a treaty invalid.112 On the contrary, under traditional international law, such forced treaties of cession were accepted as a perfectly legal means of completing an act of conquest—that is, of acquiring sovereignty over the conquered territory. As Lindley writes: A cession is n o t. . . void merely by reason of its having been extorted by force threatened or directed towards the State as a whole— cessions have frequently been made by a defeated State as the price of the ter­ mination of hostilities. Such a forced cession, from the point of view of morality and justice, may differ in nothing from a conquest; its results are recognized by International Law on a similar footing.113

But whereas traditional international law recognized the va­ lidity of forced treaties of cession when the compulsion took the form of threatening, during peace negotiations, to resume hostil­ ities if the peace terms which the victor wished to dictate were not accepted, the position was different if the compulsion was personally directed against representatives of the ceding state. As Phillipson writes: if the plenipotentiaries of one State having in vain demanded certain conditions from those of the other thereupon call into the council cham­ ber an armed force for the purpose of terrorizing them into submission, their consent thus extorted would invalidate the resulting engagement.114

One often-cited instance in which illegal coercion of this sort was employed against the ratifying authorities, whose assent to the conclusion of the treaty of cession had to be obtained, was the surrounding by armed Russian soldiers of the Diet of Poland in 1773, at the time of the first partition of that country, for the purpose of coercing it into acceptance of the treaty of partition.115 112 On the justification of the rule excluding duress as a ground for repudiating treaties of peace, see Phillimore, Commentaries upon International Law, 3rd edn. (London: Butterworths, 1882), ii, sect. 49; and Phillipson, The Termination o f War and Treaties o f Peace, 162-3, referring to Vattel, The Law o f Nations, bk. IV, ch. 4, sect. 37. 113 The Acquisition and Government o f Backward Territory in International Law, 166. 114 The Termination o f War and Treaties o f Peace, 163. 115 See e.g. H. Lauterpacht, Private Law Sources and Analogies o f International Law, 1157.

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In such a case, forced cession could not vest a valid title in the conqueror, since the force used or threatened was not 'the con­ sequence of defeat in open legitimate war'.116 (b) Proclamation of Annexation A second procedure whereby the conquering state could legally manifest its intention to acquire sovereignty over the conquered territory was to dispense altogether with the method of demand­ ing and obtaining a transfer of sovereignty embodied in an ap­ propriate treaty and, instead, formally annex the conquered territory to its own domain. By so doing, explains Hyde: it announces to the outside world both the design to acquire the rights of sovereignty over the area concerned, and the achievement of that end solely by its own a c t.. . . It betokens not only the acquisition of rights of sovereignty by virtue of sheer power, but also unconcern on the part of the conqueror as to the lack of any agreement manifesting acceptance of the change by its foe.117

Thus, after the war with Austria and her allies in 1866, Prussia annexed the subjugated territories of Nassau, Hanover, HesseCassel, and Frankfurt by a decree of 20 September 1866, over the protests of the King of Hanover and the inhabitants of Frank­ furt,118 acquiring thereby the sovereignty of these territories. A number of writers, however, have suggested that interna­ tional law as it developed in the nineteenth century no longer recognized unilateral annexation of conquered territory as a le­ gal mode of acquiring sovereignty over conquered territory— this requiring the consent of the defeated state to the transfer in the form of a treaty of cession (except in the case of total subju­ gation, or debellatio, where the defeated state no longer remained in existence to enter into such an agreement).119 Thus Dolzer, for example, who cites in support of this view the authority of such authors as Saalfield, Schmalz, Kluber, Politz, de Martens, Rayneval, Heffter, Bluntschli, and Pradier-Fodere, argues that while in principle nineteenth-century international law recog­ nized the right to acquire territory by force, 'in the case of a 116 Phillimore, Commentaries upon International Law, 3rd edn., ii, sect. 49. 117 Hyde, International Law Chiefly as Interpreted and Applied by the United States, 2nd rev. edn., i (Boston: Little, Brown, 1947), 357-8. 118 See above, pp. 86-7. 119 See e.g. Fauchille, Traite de droit international public, i, 2nd pt., 765-6.

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partial annexation of foreign territory . . . the consent of the State concerned to the cession of the territory was required'.120 What these writers assert, in effect, is that over and above the third condition for the validity of title by conquest (that the conqueror must, by a legal act of acquisition of the conquered territory, manifest its intention to assume the sovereignty of the conquered territory), a fourth condition had to be fulfilled—namely, that the consent of the losing state to the loss of its territory was required, at least in the case where a portion of its territory was being acquired. However, such a conception of the position of conquest under traditional international law—which in effect denies that there was any such thing as a right of conquest in the nineteenth cen­ tury, but only rights acquired by cession, except in the case of total subjugation—is fundamentally insupportable on several grounds. In the first place, the suggestion is logically incoherent. It makes no sense to argue that international law recognized the right of unilateral annexation where what was being acquired was the whole of the territory of the defeated state (and the victor had proceeded to the last extremity of destroying the ex­ istence of the enemy state), but that the right no longer applied where the victor desired to annex only a portion of the territory of the defeated state. As John Fischer Williams remarked: 'It would be a strange law that would give to the author of a homi­ cide advantages which it denies to a mere highway robber.'121 In the second place, the view rests on the fundamental miscon­ ception that the nineteenth-century rules governing the acquisi­ tion of territory made consent the necessary condition of the validity of a transfer of territory, even in the case of partial con­ quest. As we saw in Section II, the right of annexing conquered territory, irrespective of whether the territory constituted a part 120 'Falkland Islands (Malvinas)', 105. It is interesting to note that Dolzer uses this argument to buttress his claim that Britain did not acquire a valid title by conquest to the Falkland Islands according to the law in force in 1833— a true conclusion arrived at by means of a false premiss and hence, as an argument, invalid. It is true that Britain did not acquire a legal title by conquest to the Falkland Islands. This was not, however, because consent was a necessary re­ quirement in every case of partial annexation, but because the annexation of the territory of another state without the latter's contractual consent was illegal un­ less preceded by war and conquest, and Britain in 1833 was not at war with Argen­ tina. See above, pp. 104-9. 121 'Sovereignty, Seisin, and the League', 27.

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or the whole of the territory of the defeated state, depended only on effective possession or the ability to retain the conquered territory with a reasonable prospect of permanence. One way in which that ability could be demonstrated was through the entire destruction of the enemy state; another was through the simple cessation of hostilities, leaving the conqueror in undisturbed possession of the conquered territory; and a third was through the signature of a treaty of peace, whereby the defeated state recognized the conquest by cession in one form or another. But the validity of an act of annexation of conquered territory follow­ ing its cession in a treaty of peace had nothing to do with the consent of the vanquished state to the annexation—which was, in any case, a legal fiction122—but rather derived from the evidence provided by the treaty that the war had been terminated; that the defeated state had given up the fight to recover its territory; and that the conqueror, having demonstrated the ability to keep the conquered territory, was now qualified to proceed to the act of annexation. But the conclusion of such a treaty was by no means the only source of such evidence.123 Thus, as Phillipson points out: 'Sometimes the conquest and subjugation of territory is fol­ lowed by a treaty of cession. This makes good any defects of title that might otherwise attach to the military possessor; but such a treaty, though desirable, is not indispensable, as a valid title may have been acquired without it.'124 The same point is made by Max Huber as follows: the consent of the state dispossessed is, in law, a matter of indifference; the only relevant fact is [possession]___ Even when in the case of a partial conquest a treaty of cession puts an end to the provisional situ­ ation and establishes a final and legal status, this does not mean that no right has been acquired before the date of the treaty; the treaty is only the recognition by the losing party—a recognition which may never be given or, at any rate, not until after a long period. . .125 122 See Hershey, The Essentials o f International Public Law and Organization, 279. 123 See Hall, A Treatise on International Law, 8th edn., ed. A. Pearce Higgins (Oxford: Clarendon Press, 1924), sect. 204. 124 The Termination o f War and Treaties o f Peace, 12. For a more recent statement of this view, see Anthony Carty, The Decay o f International Law? A Reappraisal o f the Limits o f Legal Imagination in International Affairs (Manchester: Manchester University Press, 1986), 52. 125 From Die Staatensuccession (Leipzig, 1898), as translated by Williams in 'Sovereignty, Seisin, and the League', 40-1.

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That the right of acquisition vested by conquest did not depend on the consent of the dispossessed state was likewise noted by Oppenheim: it must be emphasized that the validity of the title of the subjugator does not depend upon recognition on the part of other Powers. And a mere protest of a third Power is of no legal weight either.126

The reason for this, of course, was that conquest was a legal act —a lawful means of extinguishing the rights of other states with­ out their consent. The situation was otherwise where annexation was the result of an illegal act—such as an unlawful use of force. In this case, if the principle of prescription was to be allowed to operate, title certainly depended upon recognition on the part of other powers. In the third place, to insist on the need for 'consent' of the dispossessed state—as expressed in a treaty of cession, as op­ posed to a mere proclamation of annexation—as the decisive factor in legalizing the acquisition of conquered territory is to overlook the fact that under nineteenth-century international law duress did not invalidate consent (since the victor could exact the consent of the vanquished through armed coercion).127 The fictitious nature of consent in such cases was clearly appreciated by Britain when it condemned Austria's annexation of Holstein and Prussia's annexation of Schleswig in 1865 as acquisitions of title founded on 'violence and conquest',128 notwithstanding Denmark's cession of the conquered duchies by the Treaty of Vienna of 1864. Fourthly, it has been argued in support of the view that partial conquest had to be consecrated in a treaty in order to substitute legal authority that '[t]he examination of State practice in the 19th century. . . does not reveal any instance in which a State succeeded in imposing its will to annex part of a foreign territory 126 International Law, 1st edn., i. 292. 127 Hence, as McMahon observes: 'the distinction between conquest as a mode of acquiring territory on the one hand and cession under compulsion on the other possesses perhaps only a superficial significance. Whatever legal value the distinction may have, it is obvious that both modes in effect describe the practice of nations in acquiring new territory by the use of force. At any rate title or jurisdiction based on compulsory cession is ultimately founded on the fact of conquest or force' (Conquest and Modern International Law, 55). 128 See above, p. 86.

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in the absence of a treaty.'129 However, in the absence of any case of partial annexation which was condemned as unlawful on the grounds that a treaty was the only valid means of acquiring conquered territory, such evidence as may be derived from state practice is only circumstantial. Italy, for example, was censured for its premature annexation of Tripolitana and Cyrenaica not because Turkey had not consented to the annexation in a treaty of cession, but because Turkey had not yet been defeated in war. Had that condition alone obtained—had Turkey, for example, simply ceased hostilities and resumed peaceful relations without formally ceding the territory in a treaty of peace—Italy would have been qualified to annex unilaterally such Turkish territories as remained in its possession. Indeed, so far was it from being the case that a treaty of ces­ sion was a necessary precondition for transferring to the con­ queror sovereignty over the conquered territory, that not even a proclamation of annexation was necessary in order to give rise to this effect. (c) Performance o f State Functions in the Conquered Territories Although the intention to appropriate conquered territory was frequently evidenced by a proclamation of annexation, such a formal mode of conquest was not indispensable. Other acts dem­ onstrating the will of the conqueror to extend its own sover­ eignty over the territory were equally operative. This point was brought out in the case of In re Southern Rho­ desia, decided by the Privy Council in 1919.130 Acting with the approval and assent of the Crown, the British South Africa Com­ pany had made grants of certain lands in Southern Rhodesia, and the question in issue was that of title to the remaining unalienated land. It was accepted that the land under considera­ tion was not terra nullius—that is, that the case raised 'no question of white settlement among aborigines destitute of any recognis­ able form of sovereignty'—since previous to the relevant acts of the Company the native peoples of the area had acknowledged a king who was recognized as such by the British government. As a result of war with the natives, the Company, assisted by 129 Dolzer, 'Falkland Islands (Malvinas)', 105. 130 Appeal Cases (A.C.) (1919), 211.

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Crown forces, overthrew the local king, and the Privy Council held that 'if there was a conquest by the Company's arms, then, by well-settled constitutional practice, that conquest was on be­ half of the Crown. It rested with Her Majesty's advisers to say what should be done with it.' By Order in Council of 1894, pro­ vision had been made for an administration by the Company, and in 1911 a Legislative Council was set up which resolved that the unalienated land was vested in the Crown and not in the Company. However, the Company contended that since the re­ gions concerned had never been formally annexed, they had never belonged to the Crown. On this, the Privy Council pronounced as follows: No doubt a Proclamation annexing a conquered territory is a wellunderstood mode in which a conquering Power announces its will urbi et orbi. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commence­ ment of hostilities.131

In the event, the fact of annexation was held to have been amply proved by the series of executive and legislative acts which the Crown had performed in relation to the territory. Another famous case in which conquest is generally admitted to have been completed although it was not confirmed either by a treaty of cession or by a proclamation of annexation is that of the Elector of Hesse-Cassel.132 In 1806, during the war between France and Prussia, French forces occupied Hesse-Cassel and expelled the Elector. For about a year thereafter Napoleon acted as the sovereign head of state, and then formally added the ter­ ritory to the Kingdom of Westphalia, which he created for his brother Jerome. This newly formed kingdom, incorporating the territory of Hesse-Cassel, was expressly recognized by Prussia and Russia in the Treaty of Tilsit, 1807, and remained in exist­ ence until 1813, whereupon Hesse-Cassel was restored to the Elector. Now as Hall points out, 'Napoleon intended to effect a conquest, he dealt with the territory which he had entered as 131 Ibid., at 239. 132 This case is discussed in Hall, A Treatise on International Law, 2nd edn., sect. 204; Phillipson, The Termination o f War and Treaties o f Peace, 11-12; and McMahon, Conquest and Modern International Law, 55-6.

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being conquered, and was acknowledged by a considerable number of states to have made a definitive conquest/133 One of Napoleon's acts of conquest, before transferring the territory to the Kingdom of Westphalia, was to confiscate the private prop­ erty of the Elector, which, as the latter had taken service in the Prussian army after his expulsion from Hesse-Cassel, was seized apparently as that of a person continuing active hostilities against the legitimate sovereign of the state. After being restored to his dominions, the Elector brought suit before the Mecklenburg courts to recover the property on the grounds that the act of confiscation was illegal—a claim which involved the assertion that the conquest by Napoleon was not complete. The matter was turned over to several German univer­ sities for a decision, which, in the event, was adverse to the Elector's claim and recognized the validity of Napoleon's con­ quest. Since Napoleon, it was argued, had in fact effected a con­ quest, he consequently had a right as sovereign to confiscate the property of an active enemy of the state. The fact that there was neither a treaty of cession nor a proclamation of annexation was not regarded as a material consideration in this case, since Na­ poleon by long and uninterrupted performance of the functions of a ruler had clearly signified the intention of adding that ter­ ritory to his dominions. 133 A Treatise on International Law, 2nd edn., sect. 204.

PART TWO The Demise of the Right of Conquest in the Twentieth Century

Two important developments have taken place in this century which have led to the renunciation or apparent renunciation by states of the right of conquest. The first is the unequivocal adop­ tion by international society, after the First World War, of the principle of self-determination, as the new principle of legitimacy in terms of which the acquisition of territory by states now had to be justified (a principle which was not, however, applied to the colonial territories of Africa and Asia until after the Second World War); and the second is the legal prohibition of the use of force by states, which has rendered conquest, or the forcible acquisition of territory, no longer a valid mode of acquisition of title. These developments will constitute the focus of our enquiry in the chapters which follow.

5 The Moral Turning-Point of the First World War: Self-Determination and the Non-Annexation Principle Before the Russian Revolution of March 1917 had transformed the whole relation of the belligerents to the national question, it was generally assumed that annexations of territory would fol­ low the conclusion of the First World War, as they had followed the conclusion of previous wars, on the basis of the right of con­ quest, without regard to nationality or the wishes of the popu­ lations concerned. On the Allied side, this assumption was reflected in the secret treaties of 1915-17, which provided for the post-war distribution of enemy territory in the event of an Allied victory. The annexationist schemes embodied in these treaties— envisaging the partition of the Ottoman Empire between Russia, Great Britain, France, and Italy, and vast accessions of territory transferring millions of foreigners to the rule of Italy, Romania, Japan, France, and Russia at the expense of the Austro-Hungarian and German Empires—were characteristic of an outlook which saw enemy territory as 'booty', or legally disposable property, to be acquired by the victors as the spoils of war. However, the historic events of the spring of 1917—the revolu­ tion in Russia, the entry of the United States into the war, the en­ suing call for a peace without annexations, and the proclamation of the right of national self-determination— created an entirely new situation; above all, they made the old-style annexationist policies of the belligerents impossible to sustain. For such blatant expansionism (or old-fashioned imperialism) was inconsistent with the new moral tone in which international relations were now being conducted. One of the major factors which contributed to this new climate of opinion was the fall of the Tsar in March 1917. This had led to the establishment of a revolutionary government in Russia,

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which repudiated the imperialist war aims of the Tsarist regime and abandoned the Russian demand for Constantinople. Among the first steps taken by the Russian Provisional Government was the announcement, on 10 April 1917, that Tree Russia does not aim at dominating other nations, at depriving them of their na­ tional patrimony, or at occupying by force foreign territories; . . . its object is to establish a durable peace on the basis of the rights of nations to decide their own destiny.'1 This was the first official public pronouncement by one of the Allies on the issue of national self-determination. And it was one which, by dis­ claiming the intention of acquiring foreign territories by force, may be said to have constituted an open renunciation of the right of conquest. An urgent priority of the new Russian government, in view of the intense war-weariness of the Russian masses, was to create the conditions for a general peace, not only by revising Russia's war aims, but also by attempting to secure the revision of the coalition's aims as primarily embodied in the secret treaties. Further pressure in this direction was exerted by the All-Russian Conference of Soviets, on 25 April 1917, which called on both enemy and Allied peoples 'to bring pressure on their Govern­ ments to give up their plans of conquest. . . [and] to make a general renunciation of annexation and indemnity'.2 President Wilson, for his part, had already announced to the United States Senate, in a celebrated speech of 22 January 1917, that 'no right exists anywhere to hand peoples about from sover­ eignty to sovereignty as if they were property'3 (a principle which was manifestly inconsistent with the annexationist schemes em­ bodied in the secret treaties). And in his message to Congress of 2 April 1917, calling for a declaration of war, Wilson disclaimed on America's behalf any expansionist national ambitions: 'We desire no conquest, no dominion; We seek no indemnities for ourselves.'4 In bringing the United States into the war, Wilson's overriding ambition, as he conceived it, was not national but international. 1 Quoted in Temperley (ed.), A History o f the Peace Conference o f Paris, i. 183. 2 Quoted in Arno J. Mayer, Political Origins o f the New Diplomacy, 1917-1918 (New Haven: Yale University Press, 1959), 77. 3 The text of the speech is printed in Ray Stannard Baker and William E. Dodd (eds.), The Public Papers o f Woodrow Wilson, ii (New York: Harper, 1926), 407-14. 4 Quoted in George F. Kennan, Russia and the West under Lenin and Stalin (Bos­ ton: Little, Brown, 1961), 34.

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After securing the defeat of Germany in co-operation with the Allies, he intended to exploit the latter's dependence in order to carry through his grand design for the reform of the interna­ tional order, the principal ingredient of which was a post-war association of democratic nations that would punish violations of territorial integrity.5 It was clear that the liberal programme which Wilson personified repudiated the right to acquire terri­ tory by force without the inhabitants' consent, along with the theory of the balance of power that was often used to justify it. As such, it posed a fundamental challenge to the old-fashioned, imperialist war aims of the Allies contained in the secret treaties. The Allies were thus confronted with the task of reconciling their territorial ambitions with the support for self-determination and non-annexation which, after March 1917, was emanating simultaneously from Petrograd, Washington, and their own do­ mestic Left. The task became all the more urgent with the victory of the Bolshevik Revolution in Russia on 7 November 1917 and the launching by Lenin, in an effort to appeal to world opinion over the heads of governments, of a propaganda peace offensive in which the principles of self-determination and non-annexation were the central elements. And on 22 November 1917, the secret treaties became a distinct embarrassment to the Allies, both do­ mestically and in their effort to persuade the German people to overthrow their military rulers, with Trotsky's publication and denunciation of the secret treaties as egregious specimens of the secret diplomacy of 'Imperialism, with its dark plans of conquest and its robber alliances and deals'.6 But it was the announcement by the Germans on 25 December 1917 of their acceptance of the Bolshevik demand for a 'peace of no annexations and no indemnities' as a basis for negotiating a separate peace at Brest-Litovsk which finally challenged the Allies to respond in kind. The result was the speech on war aims to the Trade Unions delivered by the British Prime Minister, Lloyd George, on 5 January 1918;7 the rival address to Congress 5 David Stevenson, The First World War and International Politics (Oxford: Ox­ ford University Press, 1988), 171. 6 Statement by Trotsky on the publication of the secret treaties, 22 Nov. 1917, in Jane Degras (ed.), Soviet Documents on Foreign Policy (New York: Octagon Books, 1978), i. 8. 7 The text of the speech is given in David Lloyd George, War Memoirs (London: Ivor Nicholson and Watson, 1933- 6), v. 2515-27.

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of 8 January 1918 by the United States President, Woodrow Wilson, announcing Fourteen Points as a basis for an acceptable peace, denouncing the practical proposals put forward by the Germans at Brest-Litovsk as proposals for a conqueror's peace which lacked moral validity, and declaring that 'The day of con­ quest and aggrandizement is gone by';8 and the eventual repu­ diation of the secret treaties by the Allies. Ultimately (i.e. by the end of October 1918), it led to the announcement by the United States and the belligerent powers associated with it of a readi­ ness to make peace with Germany on the basis of Wilson's Four­ teen Points and subsequent addresses of the President—including that delivered at New York on 27 September 1918, in which Wilson announced that one of the issues of the existing war was whether the military power of any nation or group of nations should be allowed to determine the fortunes of peoples over whom they had no right to rule except the right of force.9 Thus, towards the close of the First World War, the Allies pro­ fessed to embrace the Wilsonian principles of self-determination and non-annexation as the principles which ought to be applied in the peace settlement—an acceptance which committed them in large measure to a qualified renunciation of the right of con­ quest. As Lloyd George expressed it, the Allies' goal in the future peace was to establish a 'settlement of territories and sovereign­ ties generally on the basis, not of conquest and the might of the strong hand, but of the self-determination of their population'.10 This was a far cry from the old principles which had consti­ tuted the basis of the secret treaties, in which the right of selfdetermination had hardly figured, and in which the signatories had agreed, in the event of victory, to carve between themselves the spoils of the vanquished in accordance with the requirements of the balance of power and imperial interests, the principle of compensations, and, above all, the efforts expended by the vari­ ous states in the actual conquest of the territories in question.11 8 Wilson's address is printed in Temperley (ed.), A History o f the Peace Confer­ ence o f Paris, i. 431-3. 9 Foreign Relations o f the United States (1918), supp. 1, i. 316. 10 The Truth about the Peace Treaties (London: Gollancz, 1938), i. 59. 11 See e.g. the analysis of the Turkish provisions of the Treaty of London of 26 Apr. 1915 in René Albrecht-Carrié, Italy at the Paris Peace Conference (Hamden, Conn.: Archon Books, 1966), 201-2. (For the text of the treaty, of which Arts. 8, 9, and 10 are relevant, see BFSP 112 (1919), 937.)

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The adoption of Wilsonian principles marked a revolution in the moral stance adopted by the Allies, from one which regarded the territory of the enemy as legitimate spoils of war to one which claimed to view that territory in the context of the selfdetermination of its inhabitants; from one which relied upon the operation of the right of conquest to one which apparently repu­ diated its validity. But to what extent was this new profession of principles matched by a readiness to put those principles into practice?

I. THE TERRITORIAL SETTLEM ENT OF 1919

It was noted earlier12 that the principle of self-determination runs directly counter to the suggestion that states may acquire rights of sovereignty merely by virtue of conquest. It was natural, there­ fore, that when, in the closing stages of the First World War, the call came for a peace based on the self-determination of peoples, it came with the joint demand that the peace must be one which involved 'no annexations'. Thus Lenin, in his celebrated 'Decree on Peace' of 8 November 1917, insisted that the peace must be 'an immediate peace without annexations (i.e., without the seiz­ ure of foreign territories and without the forced incorporation of peoples)'. And if 'annexation' was now a discreditable concept, then this was because, in the very terms of its definition, it con­ flicted directly with the principle of self-determination: Under annexation or the seizure of foreign territories the Government understands . . . any incorporation into a large or powerful state of a small or weak people without the precise, clear and voluntarily ex­ pressed concurrence and desire of that people.13

These same views were later expressed by Woodrow Wilson in his famous speech of the Four Principles on 11 February 1918: There shall be no annexations, no contributions, no punitive damages. Peoples are not to be handed about from one sovereignty to another by an inter­ national conference or an understanding between rivals and antagonists. 12 See above, pp. 36-7. 13 Document in George F. Kennan, Soviet Foreign Policy, 1917-1941 (Westport, Conn.: Greenwood Press, 1960), 116-19, at 117.

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National aspirations must be respected: peoples may now be dominated and governed only by their own consent.14

The specific principle to be applied in the peace settlement was, according to Wilson: — that peoples and provinces are not to be bartered about from sover­ eignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now for ever discredited, of the Balance of Power; but that — every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as part of any mere adjustment or compromise of claims amongst rival States.15

Now if indeed these principles had been applied by the victors —if, that is to say, every territorial settlement arising from the war had been made in accordance with the wishes of populations and without regard either for the national interest of the victors or for the balance of power to be maintained amongst them­ selves and against the vanquished—then it would have been possible to claim that the victors had in fact renounced the right of conquest. For in that case the facts of conquest, and the fact of the inequality of power between the victors and the vanquished, would have had no bearing whatever on the final shape of the settlement. The fact was, however, that the victors applied the principle of self-determination only where the interests of national and imperial policy permitted, but not where the principle came into conflict with those interests. Thus, to take an example, although self-determination requires that no transfer of sovereignty be effected without plebiscitary consent, the victors did not hold a plebiscite in Alsace-Lorraine, which France was intent on regain­ ing, because there was some doubt as to whether a plebiscite would give a clear majority for reunion with France.16 The justi­ fication advanced by France, or by the victors on her behalf, was that fifty years previously a wrong had been done by Prussia to France which 'consisted in the annexation of a French country against the will of the inhabitants .. .'17. But to right that wrong now, when the present inhabitants might well prefer to stay with 14 Text in Temperley (ed.), A History o f the Peace Conference o f Paris, i. 437. 15 The second and third of the Four Principles, ibid. 439. 16 Cobban, The Nation State and National Self-Determination, 72. 17 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 281.

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Germany, was not to insist upon upholding the rights of people, but was rather to assert the historic rights of states to 'integrity of national territory' regardless of the wishes of the populations concerned.18 It was not intended, furthermore, that the principle of selfdetermination should apply in the colonial territories, whose native inhabitants were not as yet thought to enjoy rights of popular sovereignty. As General J. C. Smuts wrote of the native inhabitants of the African and Pacific colonies of the German Empire: The German Colonies in the Pacific and Africa are inhabited by barbar­ ians, who not only cannot possibly govern themselves, but to whom it would be impracticable to apply any idea of political self-determination in the European sense. They might be consulted as to whether they want their German masters back, but the result would be so much a foregone conclusion that the consultation would be quite superfluous.19

The fifth of Wilson's Fourteen Points, while it did refer to 'the interests' of the native inhabitants, insisted that these should be balanced against the legitimate interests of the colonial powers. Moreover, while the settlement was in theory to be based upon an 'absolutely impartial adjustment of all colonial claims'—with equal weight given to the interests of the populations concerned— in practice (as the Germans were quick to point out) it was only the colonial claims of the victors that were taken into account.20 Thus the Allied victory seemed merely to represent a new peak of imperial expansion conducted by the victors at the expense of the vanquished. But the colonial territories which had been conquered from Germany and from the Ottoman Empire were not, all the same, simply annexed by the victors as would have been the standard practice in former times, and as had been envisaged by the secret treaties. For this would still have been to hand people about from sovereignty to sovereignty as if they were property. It was with this problem in mind that the League of Nations Mandates System was invented. The Mandates System had been created to 18 In another sense, however, the retrocession of Alsace-Lorraine in 1918 was the repairing of a breach in the principle of self-determination which had been committed within living memory. 19 The League o f Nations: A Practical Suggestion (Dec. 1918), quoted in David Hunter Miller, The Drafting o f the Covenant (New York: Putnam 1928), ii. 28. 20 Temperley (ed.), A History o f the Peace Conference o f Paris, ii. 295, 297.

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reconcile the determination of the victors to detach colonial ter­ ritories from the vanquished, the principle that territories should not be annexed to any of the victorious states, and the require­ ment that the interests of the inhabitants must be taken into account in every change of sovereignty that occurs.21 Under Article 22 of the Covenant of the League of Nations, which provided for the Mandates System, 'the advanced nations' would exercise 'tutelage' on behalf o f the League over the native inhabitants who had not yet reached a standard of civilization that would enable them 'to stand by themselves in the strenuous conditions of the modern world' and would dedicate themselves to the promotion of the 'well-being and development of such peoples'. Thus, even if the victorious powers who administered these territories did acquire a kind of limited sovereignty over them, it was not their own selfish national or imperial ambitions that were thereby being advanced so much as the 'sacred trust of civilization' of which these powers would be the bearers on behalf of the international community as a whole. With the establishment of Mandates over the colonial territor­ ies detached from the vanquished, and with the placing of them under the nominal international supervision of the League of Nations, the victors were able to avert the charge that they had acquired or annexed conquered territory as 'booty' with which they were free to do as they pleased.22 In other words, the concept of the League of Nations Mandates provided a means whereby it could be claimed that it was not conquest that had conferred upon the victors the right to rule over the inhabitants of the conquered territories, but rather the League o f Nations itself—that is, a legally constituted international body which had taken upon itself (amongst other matters of international concern) the guardi­ anship of the welfare and interests of those peoples who were not yet ready to govern themselves. 21 See Lindley, The Acquisition and Government o f Backward Territory in Interna­ tional Law, 247-8; C. E. Toussaint, The Trusteeship System o f the United Nations (New York: Praeger, 1956), 249. Only in regard to the conquered Middle Eastern territories of the Ottoman Empire did the Covenant of the League of Nations state that the wishes of the communities must be a principal consideration in the allocation of Mandates. But at the San Remo Conference of 1920, where the final Middle Eastern settlement was reached, an old-fashioned imperial bargain was struck between France and Britain which paid no attention to this principle, and Syria was forced under France against the wishes of the inhabitants. 22 Rudolf von Albertini, Decolonization (New York: Africana Publishing Com­ pany, 1982), 7.

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On the other hand, the Mandates System served as a new method for carrying out the old practice of stripping the de­ feated states of their colonial territories. Inis L. Claude has aptly characterized this aspect of the conduct of the victorious powers as follows: they distributed those confiscated possessions among themselves, sub­ stantially in accordance with the pattern which they had agreed upon in secret treaties during the war and with the realities of military occupa­ tion which prevailed at the end of the war; they gave to the League the shadow of supervisory authority over their administration of the newly-acquired colonies while retaining for themselves the substance of sovereign control; they ostensibly became agents of the League, albeit self-appointed agents, but in fact they created the League as an in­ strument of their purposes and, in particular, designed it to serve as an agency for bestowing ideological legitimacy upon their colonial conquests.23

The Mandates System appears, then, to have served as a kind of surrogate for the right of conquest, whereby the fruits of con­ quest were still reaped by the victors but according to means more sensitive to the ideological needs of the twentieth century. In a number of important respects, however, the territorial settlement resulting from the First World War did register the Wilsonian commitment not to determine the fortunes of peoples over whom the victors had no right to rule except the right of conquest. Thus, in the treaty of peace with Germany, concluded at Versailles on 28 June 1919,24 there were, appended to numer­ ous Articles providing for the renunciation by Germany of its rights and titles over specified areas, arrangements for a pleb­ iscite to determine whether the inhabitants desired that the ter­ ritory concerned should remain under German sovereignty or pass to a foreign state.25 On the western frontier of Germany, 23 Swords into Plowshares: The Problems and Progress o f International Organization, 3rd edn. (London: University of London Press, 1964), 323. 24 Treaty of Peace between the Allied and Associated Powers and Germany (Versailles Treaty), BFSP 112 (1919), 1. 25 See, however, the German renunciations in favour of Japan with respect to Shantung (contained in Arts. 156-8); and the retrocession of Alsace-Lorraine to France, where there was no provision for a plebiscite, the transfer being justified on the grounds of 'the moral obligation to redress the wrongs done to France and to the wishes of the population of Alsace and Lorraine, which were separated from their country in spite of the solemn protests of their representatives at the Assembly of Bordeaux' (Art. 51 and the clause prefatory to it).

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provisions for plebiscites were made with respect to Eupen and Malmedy,26 and at the termination of fifteen years from the com­ ing into force of the treaty, the Saar Basin.27 On the eastern fron­ tier, provisions for plebiscites were made with respect to a portion of Upper Silesia28 and two specified areas of East Prussia.29 The frontier between Germany and Denmark was likewise to be fixed 'in conformity with the wishes of the population',30 and to that end provision was made for a plebiscite in a definite area of Schleswig. Nor were these provisions, when put into practice, in every case merely confirmatory of the fait accompli achieved by conquest. An important instance in which the conqueror's right to claim the spoils of victory was restrained by the countervailing moral claim of the inhabitants to self-determination was the refusal of the United States, France, and Great Britain to accede to the demand for the acquisition of northern Dalmatia which Italy had put forward at the peace conference in the hope of realizing its imperial ambition of achieving the mastery of the Adriatic. Al­ though the territory had, in fact, been promised to Italy by the secret Treaty of London of 1915 (as 'payment' for entering the war on the side of the Allies), the transfer was now refused on the ground that it would be at variance with the commitment of the powers to apply to the territory of the defeated states the principle of self-determination. Thus, in a joint memorandum of 9 December 1919 from the governments of the United States, France, and Great Britain to the government of Italy, it was de­ clared that the broad principle remains that it is neither just nor expedient to annex, as the spoils of war, territories inhabited by an alien race, anxious and able to maintain a separate national State. From this point of view the inclusion in Italy of purely Yugo-slav territories where neither security nor geographical nor economic considerations compel annexation, is not in itself a commendable policy. It would be bound to create within the Italian borders a compact body of irredentism exactly analogous in kind to that which justified the demand of Italia irredenta for union with the Italian State.31 26 Arts. 3 4 -5 . 27 Ch. 3 of Annex following Art. 50, 28 Art. 88, and Annex. 29 Arts. 94-7. 30 Art. 109. 31 This extract is quoted in Temperley (ed.), A History o f the Peace Conference o f Paris, iv. 432.

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Further evidence of the rejection of the right of conquest on both moral and practical grounds— as a cause of future wars for the recovery of lost territories— was the refusal of the United States and Great Britain to accede to France's demand to annex the Saar valley in satisfaction of French claims to reparation, or to detach the Rhineland province from Germany on the ground that such separation was an indispensable requirement of French security. Both of these French aims ran counter to the principle of national self-determination; and it was on this ground that they were rejected by Wilson and Lloyd George, who acted to pre­ serve the national integrity of Germany against French demands. Whereas Wilson rejected the French proposals primarily be­ cause they violated 'the moral criteria of impartial justice', Lloyd George rejected them chiefly because he feared the practical con­ sequences of their implementation—namely, the danger to inter­ national peace inherent in the creation of a new 'Alsace-Lorraine' in reverse. Both considerations were crucial, however, in the determination of the United States and Great Britain to rule out French proposals for the Rhineland and the Saar valley, which were contrary to Anglo-American concepts of a just and stable settlement of Germany's western frontiers.32 The compromises reached in both cases are chiefly significant for their demonstra­ tion of the need, in an era dominated by Wilsonian principles, to find new ways of satisfying the legitimate claims of a state which has been the victim of attack (or which has suffered the hardships of a war provoked by the defeated enemy) without resorting to forcible territorial changes against the wishes of the inhabitants. The French claim to annex the Saar valley— a heavily industri­ alized, coal-producing, but German-populated district—was put forward both on historical grounds (which the British and Amer­ icans rejected)33 and on grounds of reparation for the wanton 32 Seth P. Tillman, Anglo-American Relations at the Peace Conference o f 1919 (Princeton: Princeton University Press, 1961), 176-7. 33 As Lloyd George argued, in speaking out against the French claim to annex the Saar valley to redress the injury of 1815: 'Remember that when the Germans took Alsace in 1871, their cry was that it had been taken away from them in 1648. But the resentment aroused by the annexation of Alsace was justified, for after 1648 the Alsatians had become French at heart. We must not make the same mistake. The English people are haunted by the fear of creating new AlsaceLorraines' (Council of Four, 28 Mar. 1919, 4 p.m., in Paul Mantoux, Paris Peace Conference 1919: Proceedings o f the Council o f Four (24 M arch-18 April) (Geneva: Librairie Droz, 1964), 49).

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destruction by Germany of the French coalmines in the north of France (which the British and Americans considered sound).34 There was complete agreement that France was entitled to re­ ceive the rich coalmines of the Saar on the principle of compen­ sation; but the United States and Great Britain did not regard the annexation of the Saar as either necessary to achieve that end or justifiable in the light of the fundamental principles on which the peace was to be based: 'The problem was to give France the coal without giving her the German population.'35 Lloyd George claimed that 'territorial annexations' were a 'violation of our engagements', but was willing to accept a compromise whereby the territory would be detached from Germany and erected into an autonomous, neutralized Saar state under French suzerainty, with full ownership of the mines passing into French hands, as part of reparations.36 Wilson, on the other hand, opposed such a regime on the ground that 'to grant people an independence they do not request is as much a violation of the self-determination principle as forcibly handing them over from one sovereignty to another'. He declared that he recognized only one principle—the principle of self-determination37—and insisted on upholding the right of the Saarlanders to remain part of Germany. The final Saar settlement did not compromise on this Wilsonian point; for the German population of the Saar was not placed under an alien sovereignty.38 While Germany ceded to France the full ownership of the Saar coalfields, the administration (but not the sovereignty) of the Saar Basin was renounced by Germany in favour of the League of Nations, in the capacity of 'trustee' of the Saar population, for a period of fifteen years. During this period German sovereignty over the Saar would be retained in theory but suspended in practice (although at Clemenceau's insist­ ence the treaty clause did not specifically state that German sov­ ereignty would be maintained);39 and at the end of it a definitive 34 Ibid. 41-9. 35 Tillman, Anglo-American Relations at the Peace Conference o f 1919, 184. 36 Council of Four, 28 March 1919, 4 p.m., in Mantoux, Paris Peace Conference 1919, 44. 37 Ibid. 49. 38 For the terms of the Saar settlement, see Arts. 45-50 and Annex thereto of the Treaty of Versailles. 39 Tillman, Anglo-American Relations at the Peace Conference o f 1919, 188; Council of Four, 10 Apr. 1919, 11 a.m., in Mantoux, Paris Peace Conference 1919, 164.

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plebiscite would be held to determine the sovereignty under which the inhabitants desired to be placed.40 Thus by the device of a temporary administration of the Saar by the League of Nations, France's legitimate demands for economic compensation were satisfied without violating the principle that the victors should not acquire the territory of the vanquished without the inhabit­ ants' consent. A similar application of Wilsonian principles to the problem of the security requirements of France may be seen in the treatment of France's claim to detach the Rhineland from German sover­ eignty. A deep fear of Germany had prompted Marshal Foch to demand the Rhine frontier for the safety of France against her far larger neighbour. In advocating this policy, it is interesting to note, the strategic argument employed by Foch—that Germany had twice within half a century invaded France from the lower Rhine—strongly resembled the strategic argument used fifty years previously by Von Moltke and Bismarck for Germany's seizure of Alsace-Lorraine—that control of Alsace would deprive France of the historic route of French invasion employed to keep Ger­ many dismembered and helpless.41 But the fact that this time the claim of the victorious victim of aggression to detach a province of the vanquished aggressor, as security against future attack, did not command general approval and was not conceded by the Great Powers— on the grounds that it violated the national rights of the inhabitants, and might serve as the cause of future wars for the recovery of the lost territory—was a measure of the ex­ tent to which opinion on the wisdom of exercising the right of conquest as a means of satisfying the just claims of the victor to safety against future aggression had changed since the days of the Franco-Prussian War. The French claim to fix Germany's western frontier at the Rhine—by achieving the political separation of the Rhenish Re­ publics from the German Federation and establishing an Allied occupation in the Rhineland for an indefinite period—was put forward partly on historical grounds, but chiefly on grounds of military security. The validity of the French demand for military 40 In the event of a vote for union with Germany, France's rights of ownership in the mines were to be repurchased by Germany. 41 Paul Birdsall, Versailles Twenty Years After (Hamden, Conn.: Archon Books, 1962), 196-7.

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security was fully admitted by both Wilson and Lloyd George; but the French scheme for detaching the Rhineland—an area populated by five and a half million ethnic Germans42 who had no desire to be severed from their homeland—clashed with their avowed determination to apply the principle of self-determination impartially to victors and vanquished alike. Thus the problem with which Wilson and Lloyd George were faced was to provide for French security against future German aggression, but by means other than the territorial mutilation of Germany. The compromise eventually reached between the French de­ mand for a territorial guarantee against German attack (through the creation of a buffer Rhenish Republic) combined with a mil­ itary guarantee in the form of an indefinite Allied occupation of the Rhineland on the one hand, and the Anglo-American deter­ mination not to deprive Germany of any German-populated ter­ ritory (in accordance with the Fourteen Points and the principle of self-determination on which the peace was to be based) on the other, was France's abandonment of plans for the detachment of the Rhineland in return for, first, a joint Anglo-American milit­ ary commitment to guarantee French security in case of German attack;43 second, a demilitarized zone to a line fifty kilometres east of the Rhine; and third, an Allied occupation of the Rhine­ land for a period of fifteen years, with a phased withdrawal de­ pending upon German compliance with the peace treaty. It was further agreed (in view of French fears that the United States might not ratify the treaty of guarantee) that, at the end of fifteen years, the occupation might be extended if Germany showed signs of embarking on an aggressive policy.44 By these means the re­ quirements of French security were met without violating the principle of self-determination as a criterion of legitimacy in the disposition of the defeated enemy's territory. (In practice, how­ ever, the arrangement was useless, because the United States Senate refused to ratify the treaty, and the joint Anglo-American guarantee for the defence of France never came into being.) In legal terms, the historical significance of the Rhineland 42 Tillman, Anglo-American Relations at the Peace Conference o f 1919, 177. 43 This commitment was to be embodied in treaties of guarantee which would be terminated once the League of Nations could itself afford sufficient protection against German aggression. 44 Tillman, Anglo-American Relations at the Peace Conference o f 1919, 190-1.

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compromise was that it involved the substitution for the tradi­ tional title by conquest of a new category of military occupation, namely, 'post-surrender occupation', whereby sovereignty over the conquered territory remained in the hands of the defeated state, despite the fact that the latter had surrendered, that peace had been established between the belligerents, and that the ter­ ritory itself remained in the possession of the victors. As Allan Gerson remarks: Historically, conquest of enemy territory would be followed by annexa­ tion at the end of the war. The Allied occupation of Germany's Rhineland after World War I provides the first important exception.45

That the Rhineland remained an integral part of Germany—in spite of the facts of surrender and occupation—has led one writer to conclude 'that the Allied Occupation of the Rhineland entailed "the [first] application of Wilsonian principles to the field of milit­ ary occupation." '46 For although a fully successful conquest had been established, sovereignty over the occupied territory was not acquired by the victors or alienated from the defeated state, on the grounds that such a step would have been contrary to the principle of national self-determination.47 In addition to the use of plebiscites in the establishment of Germany's western and eastern frontiers, the refusal of Italy's demand for the forcible acquisition of northern Dalmatia, and the rejection of France's demand to annex the Saar valley and detach the Rhineland from Germany, a fourth element of the post-First World War territorial settlement—which we have al­ ready touched upon—in which Wilson's insistence on the non­ annexation principle served to restrain the victors in the exercise of the right of conquest, was the acceptance of the institution of Mandates as an alternative to the traditional practice of annexing the conquered colonies of the enemy. While the acceptance of this alternative (as I shall presently argue) was not based on the admission that the victors had no moral or legal right to claim by right of conquest sovereignty over the colonial territories they 45 'War, Conquered Territory, and Military Occupation in the Contemporary International Legal System', HILJ 18 (1977), 525, at 530-1. 46 A. Gerson, 'War, Conquered Territory, and Military Occupation', 531 n. 15, quoting E. Fraenkel, Military Occupation and the Rule o f Lam: Occupation Govern­ ment in the Rhineland 1918-1923 (1943), 4. 47 A. Gerson, 'War, Conquered Territory, and Military Occupation', 531.

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had conquered, it was based on the assumption that a new and better basis could be found for the administration of the con­ quered territories than outright annexation. As Inis Claude points out, an important element in the thinking which motivated the Allied and Associated Powers to accept the institution of Man­ dates was the belief that: European conflict over colonies ought to be eliminated in the future; hence Allied nonannexation pledges should be respected, so as to avoid providing a pretext for a new war to reconquer lost colonies, and to establish the precedent that war should not be used as an instrument of colonial rivalry.48

Thus the primary significance of the institution of Mandates as an alternative to annexation was not that it constituted a repu­ diation of the right of conquest in the sense of the denial of the right of the conqueror to alienate territory from the sovereignty of the vanquished, but rather that it placed new limitations on the right of the conqueror to exercise its sovereign will in that territory. As Lord Balfour, the British Foreign Secretary, put it: 'a mandate was a self-imposed limitation by the conquerors on the sovereignty which they exercised over the conquered territory'.49 The acceptance of this limitation stemmed, at least in part, from the belief that Mandates—since they would not be the colonial possessions of the Mandatory—would help to reduce the rivalry of the Great Powers in Africa, the Middle East, and Asia, and to eliminate 'imperialism' as a cause of war.50 In all these respects, the territorial settlement arising from the First World War reflected a new attitude towards the right of con­ quest, which stemmed from a revolutionary change in attitudes towards war caused by the unprecedented suffering of the First World War. There was now a new awareness that forcible an­ nexations of territory should be avoided as far as possible, so as to prevent occasions for future wars. This was the thinking behind the non-annexation of the colonial territories of the defeated 48 Swords into Plowshares, 328. 49 LNOJ 3 (1922), 547. 50 Wm. Roger Louis, Great Britain and Germany's Lost Colonies, 1914-1919 (Oxford: Clarendon Press, 1967), 117. As Robert Tucker observes: 'The guiding principle behind the League's mandate system was not the promotion of selfdetermination but the orderly division of the defeated state's colonial posses­ sions among the victors' (The Inequality o f Nations, 2 2-3 n.).

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empires, as it was also the thinking behind efforts to restrain the annexationist ambitions of some of the victorious powers (where annexation was opposed by the inhabitants) in order to avoid irredentist claims to recover national territory as a pretext for waging new wars. Thus, whereas in the nineteenth century, cessions of territory were frequently demanded by victorious powers in lieu of indem­ nities, or as redress for wrongs, or with a view to re-establishing a balance of power (as in the Congress of Vienna), taking no account of the wishes of the inhabitants, the wisdom and justice of this practice was now seriously called in question. After the First World War, the victorious Great Powers, no longer regarding war as part of the settled order of things,51 sought to lessen the temptations to aggression by making the post-war settlement con­ form more closely to the principle of national self-determination —thereby establishing at once a more stable international order, and one more solidly based in justice. There was a conscious sense that thinking had advanced since the nineteenth century; that states had to learn the lessons of the nineteenth century, and that one of those lessons was that violat­ ing the national rights of others on the grounds of the right of conquest was a cause of instability and a standing invitation to war. The historical lesson of Alsace-Lorraine, Poland, and other cases, it was argued, was that alienating national territory on strategic grounds, or in the name of the balance of power, was ultimately destabilizing and a cause of future wars, which should not be repeated. Emphasis was now laid on the point that se­ curity should not be sought through expansion (when expansion meant violating the right of peoples to self-determination), how­ ever much such expansion might accord with the requirements of the balance of power. The alternative, championed most strongly by President Wilson—whose faith in the efficacy of the League of Nations as an organ of collective security enabled him to dis­ miss the expansionist concept of security—was a post-war world based on the co-operation of nations through an international organization, which would suffice to ensure security for every one of its member states. 51 Except for Italy, which remained a revisionist power and hoped to change the territorial status quo, by force if necessary.

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In other respects, however, the attitudes of the victorious powers reflected the persistence of the traditional assumption that the victors were entitled to dispose of enemy territory by right of conquest. This may be seen from the settlements embodied in the Treaty of Versailles with Germany of 28 June 191952 and in the treaties of Saint Germain-en-Laye with Austria of 10 Septem­ ber 1919,53 of Neuilly-sur-Seine with Bulgaria of 27 November 1919,54 of Trianon with Hungary of 4 June 1920,55 of Sèvres with Turkey of 10 August 1920 (notwithstanding the fact that this treaty did not come into force),56 and of Lausanne with Turkey of 24 July 1923,57 in which the Allied and Associated Powers were manifestly not constrained by any sense of obligation not to make use of their military victory to compel the defeated foe to transfer or relinquish territory on terms of their own devising. Thus, as one writer observes, by the decree of the victors as ex­ pressed in these treaties, areas were lopped from the country of which they were a part in order to afford ample domain for new entities coming into statehood, such as Poland or Czechoslovakia.58 Others were ceded to the victors for subjec­ tion to the mandate system.59 Still, again,. . . territories [were] detached in order to enlarge the domain of others. . ,60 In the course of such action the victors commonly acknowledged no legal right on the part of their enemies, as they stood before the peace treaties were perfected, to thwart territorial deprivations. The defeated States, as such,. . . were not deemed to possess a right to continue to maintain their territorial integrity.61

Now it is true that the Allied and Associated Powers were not unwilling, in the case of the Treaty of Versailles, to ascertain and heed the wishes of the populations of particular areas detached 52 BFSP 112 (1919), 1. 53 UKTS (1919), no. 11. 54 UKTS (1920), no. 5. 55 UKTS (1920), no. 10. 56 UKTS (1920), no. 11. 57 LNTS 28 (1924), 11. 58 See e.g. Art. 27 (pt. 6) and Art. 47 of the Treaty of Saint Germain-en-Laye, with Austria, in relation to Czechoslovakia; and Art, 27 (pt. 4) and Art. 49 of the Treaty of Trianon, with Hungary, in relation to Czechoslovakia. See also Art. 27 (pt. 7) and Art. 87 of the Treaty of Versailles with Germany in relation to Poland. 59 See Art. 119 of the Treaty of Versailles, and also the relinquishment by Turkey in Art. 16 of the Treaty of Lausanne. 60 See Art. 27 (pt. 2) and Art. 36 of the Treaty of Saint Germain-en-Laye in relation to Italy. 61 Hyde, International Law Chiefly as Interpreted and Applied by the United States, i. 370-1.

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from Germany— at least when the inhabitants were not classed as a 'backward' people. But the self-determination principle, while it was applied to certain territories which Germany was forced to relinquish, was not applied to all the territories so relinquished (for example, in relation to Shantung62 and the Free City of Danzig63). And while the use of plebiscites was contemplated, in certain situations, in the Treaty of Sèvres with Turkey (which failed to be consummated),64 there was little concern or provision for determining and heeding the wishes of the inhabitants, through the operation of plebiscites, in the Treaty of Saint Germain-en-Laye with Austria (by which the South Tyrol was ceded to the Kingdom of Italy against the known will of its 250,000 ethnic German inhabitants), and none at all in the Treaty of Neuilly with Bulgaria65 or in the Treaty of Trianon with Hungary (whose boundaries were restricted in such a way as to exclude on every frontier a Magyar population).66 Wilson's avowed intention had been to make self-determination the guiding principle of the peace; but as he gradually discovered, 'other principles needed to be considered in the peacemaking, and these sometimes seemed to clash with the requirements of self-determination'.67 Thus, in the extension of the frontiers of Italy and Romania, and in the definition of the frontiers of Poland and Czechoslovakia (the latter incorporating three million Germans)68 beyond the bounds which could be justified by reference to the wishes of the inhabitants, the principle of self-determination was subordinated to economic, geographic, and strategic considera­ tions in a manner which tended overwhelmingly to operate to 62 Arts. 156-8 of the Treaty of Versailles. 63 Arts. 100-9 of the Treaty of Versailles. 64 See Arts. 6 2-4 respecting Kurdistan, and Arts. 65-83 respecting Smyrna. 65 See Art. 27 which fixed the frontiers of Bulgaria; also the renunciations in favour of Yugoslavia (Art. 37), in favour of Greece (Art. 42), and in favour of the Principal Allied and Associated Powers in relation to certain territories in Thrace (Art. 48). 66 See the frontiers of Hungary laid down in Art. 27; the renunciations in favour of Italy (Art. 36), Yugoslavia (Art. 42), Romania (Art. 45), and Czechoslo­ vakia (Art. 49); the relinquishment of Fiume (Art. 53); and the renunciations in favour of the Principal Allied and Associated Powers (Art. 75). 67 Michla Pomerance, Self-Determination in Law and Practice: The New Doctrine in the United Nations (London: Nijhoff, 1982), 4. 68 A fact observed by the British and French governments in their memor­ andum of 17 Feb. 1920 to President Wilson, quoted in Hyde, International Law Chiefly as Interpreted and Applied by the United States, i. 360 n. 5.

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the disadvantage of the defeated Germans and Hungarians. Consequently, although the creation of Czechoslovakia and the resurrection of independent Poland were in themselves a dra­ matic repudiation of the validity of rights originally acquired by force in favour of the principle of self-determination, the incon­ sistent application of the self-determination principle—that is, the fact that it did not govern all post-World War I settlements— makes it impossible to argue that in the territorial settlement arising from the First World War the right of conquest had actu­ ally been supplanted by the principle of self-determination. For in practice, wherever a strong conflicting strategic, economic, or political interest of the victors was deemed to be apparent, the principle of self-determination was not applied. More importantly, perhaps, the principle of self-determination was not made generally applicable to victors and vanquished alike, but was confined almost exclusively to the territories of the defeated powers.69 Thus while Germany, Austria, and Hungary were required to surrender territory to the Italians, Romanians, Yugoslavs, Poles, and Czechoslovaks, in accordance with the right of self-determination of the latter, Romania was not compelled to relinquish southern Dobrudja (to which she lacked even a pass­ ing ethnic claim, since it was predominantly populated by Bul­ garians), nor was Serbia made to relinquish Macedonia (where pro-Bulgarian sentiment was similarly strong),70 despite the fact that Romania and Serbia had originally acquired these territories by conquest (that is, by means of their victory over Turkey in the First Balkan War, the results of which were registered in the Treaty of Bucharest of 1913). Britain and France declared that 'they could not force a wartime ally to surrender territory to a wartime foe'71— a declaration which acknowledged that the principles of the peace settlement were to be applied selectively against the defeated powers and in favour of the victors. This attitude lent weight to the accusation that the principle of selfdetermination was being used as a weapon in the hands of the victors, to be applied against the vanquished, as the Germans 69 Britain did, however, apply a version of self-determination to its partition of Ireland. 70 Temperley, A History o f the Peace Conference o f Paris, iv. 433, 71 Michael L. Dockrill and J. Douglas Goold, Peace without Promise: Britain and the Peace Conferences, 1919-23 (London: Batsford Academic and Educational, 1981),

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had themselves applied it against the Russians (in the Treaty of Brest-Litovsk) when their position was reversed. It was these features of the peace settlement which cast doubt on the claim of the Allied and Associated Powers that they had transcended 'the doctrine that might was right in international affairs', which they accused the rulers of Germany of having taught and practised prior to the war.72 For implicit in this claim was the suggestion that the Allies had renounced the right of conquest, which, as a right deriving from the superior power of the victor, operated by its very nature in the interests of the stronger. So long as Wilson was able to suggest that the function of the Peace Conference was to remodel the map of the world on the lines of self-determination ('What we are striving for', he had declared, 'is a new international order based upon broad and universal principles of right and justice—no mere peace of shreds and patches'),73 and that the hallmark of the peace settlement would be 'impartial justice in every item without regard to whose interests may be crossed by it',74 the Allied claim that they had abandoned the principle that might is right in international pol­ itics appeared to be justified. But such a claim could not be up­ held once Wilson was forced to confess, as he did in 1919, that 'It was not within the privilege of the conference of peace to act upon the right of self-determination of any peoples except those which had been included in the territories of the defeated em­ pires.'75 For such an admission 'was equivalent to an acknow­ ledgement that a moral principle was being enforced on the defeated states which the victors refused to apply to themselves'.76 From this fact it necessarily followed that the right of the vic­ tors to enforce the principle of self-determination in the territory of the defeated powers derived not from the universal applica­ bility of the principle of self-determination, as a norm of the society of states applicable in the territory of the victors as much as in that of the vanquished, but from the traditional entitlement of victors qua victors to dispose of the territory of the vanquished 72 See the letter of the Allied and Associated Powers of 16 June 1919, quoted in Temperley, A History o f the Peace Conference o f Paris, ii. 259. 73 Speech of 11 Feb. 1918, quoted ibid. i. 437. 74 President Wilson's address to the Mexican journalists on 9 June 1918, quoted ibid. ii. 256. 75 Speech of 17 Sept. 1919, in Baker and Dodd (eds.), The Public Papers o f Woodrow Wilson, ii. 244. 76 Cobban, The Nation State and National Self-Determination, 66.

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by right o f conquest. This is not to say that the manner in which the victors disposed of that territory was not just or necessary, only that their authority so to dispose of it was founded on the arbitrary fact of military victory or conquest. One may cite, in confirmation of this judgement, the verdict of Temperley in re­ lation to another question which arose at the Peace Conference: the right of the victorious Great Powers to insist upon the signa­ ture of the Minorities Treaties both by the new states (i.e. Poland and Czechoslovakia) and by the small powers which were re­ ceiving large accessions of new territory (i.e. Romania, Yugosla­ via, and Greece):77 it will be seen that, on grounds both of necessity and of right, the Great Powers had grounds for insisting upon these Treaties. Their ultimate right to do so consisted in the fact that the territories which they were

handing over to the Small Powers belonged to the Great Powers by right of conquest. In ceding them to the Small Powers they therefore considered themselves authorized to demand safeguards for those inhabitants of a race or religion different from the predominant one.78

That the currency of Wilsonian principles did not, when it came to practice, serve to eliminate conquest as a source of right in the territorial settlement arising from the First World War derives its strongest proof from the explicit acknowledgement of this fact by the Allied Powers themselves. One of the clearest examples of such an acknowledgement is to be found in the exchange between the British and Turkish delegations at the Lausanne Conference in 1923, where the former claimed to be competent to dispose of Iraq by right of conquest, and the latter disputed that such a right still existed. The British delegation justified their refusal to restore the Vilayet of Mosul to Turkey by arguing that, 'as the British armies defeated the Turkish armies during the great war and conquered Mosul and the whole of Irak, England can claim the possession of these countries by right of conquest'.79 The Turks, on the other hand, based their counter­ argument on the moral force of Wilsonian principles: 77 Most of these states bitterly resented the compulsory signature as 'a mark of inferiority of status', perceiving it as an infringement upon the sovereignty of small powers which was not being equally imposed the great (ibid. 87). 78 Temperley, A History o f the Peace Conference o f Paris, iv. 138 (my emphasis). 79 'Records of Proceedings of the Lausanne Conference on Near Eastern Af­ fairs, 1922-1923', Cmd. 1814 (1923), 344.

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The right of conquest, which is invoked as justifying the seizure of Irak and Mosul by England, has no validity in the present century. The Turkish delegation are not afraid to appeal on this subject to the public opinion of all countries. They are convinced that they will have the support of all true democrats when they meet an argument so foreign to the spirit of modern times with the contrary argument, namely, that the people of a country may not be transferred against their will from the sovereignty of one State to that of another. During the great war, was not our argument that of the Allied Powers, and did not President Wilson when he proclaimed it aloud make it the basis of the future peace?80

What the Turkish argument failed to notice, however, was that despite the pronouncements of Wilson, and several remarkable instances in which the map of Europe was indeed redrawn in accordance with the principle of self-determination, the settle­ ment arising from the Great War was not in fact such as to warrant the conclusion that the right of conquest had been superseded by the principle that peoples should not be bartered about from sovereignty to sovereignty without their consent. For one thing, plebiscites were not used to determine all territorial changes arising from the war. And even where plebiscites were granted by the Allied and Associated Powers, they were 'granted as an act of conquerors, rather than as a matter of right'.81 It was not surprising, therefore, that when the Turks demanded that a pleb­ iscite should be held in Mosul in accordance with Wilsonian principles, in order to ascertain the wishes of the inhabitants and to determine the disposal of the territory on the basis of the right of the inhabitants to self-determination, Lord Curzon, writing on behalf of the British delegation, should have replied: 'it is both a novel and a startling pretension that a Power which has been vanquished in war should dictate to the victors the manner in which they are to dispose of the territories which they have wrested from the former'.82 It would appear, then, that by the close of the First World War the claim of a right of conquest was not yet so 'foreign to the spirit of modem times' as the Turks would have liked to believe. 80 Ibid. 347-8. 81 Clyde Eagleton, International Government (New York: Ronald Press, 1932), 92. 82 'Memorandum on Mosul', 14 Dec. 1922, in Cmd. 1814 (1923), 370.

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It did not, for example, prevent the British from urging the Arabs to accept the French occupation and control of Syria—which meant, in effect, accepting the partition of the Arab lands be­ tween Britain and France, to which the Arabs were strongly opposed as a violation of their right to self-determination83—by arguing that: 'In so far as the occupation by France of the rest of Syria is concerned, they [the British government] would ask Your Highness [Emir Feisal] to remember that the Arabs owe their freedom in a large measure to the supreme sacrifices made by the French people in the late War'84— an argument which im­ plied that responsibility for the achievement of general military victory was of greater weight in the establishment of a claim to territory than the wishes of the populations themselves. Nor did the French deny the weight of conquest when they were forced to agree that Britain was entitled to acquire control over Mosul and Palestine 'in view of the fact that the British Empire had practically alone overthrown Turkey'85 (although the SykesPicot Agreement of 16 May 1916 had promised French control over Mosul, and international control over Palestine).86 Nor did the British, in opposing Italian claims to southern Anatolia and Smyrna, refrain from citing as one ground for the abrogation of the St Jean de Maurienne Agreement of 19 April 1917,87 which had promised these territories to Italy, the fact that 'Turkey had been conquered by British armies without any assistance from Italy'88—an argument which suggested that Italian participation in the conquest of Turkey would have enhanced Italy's claim to acquire the territories it coveted. 83 As Emir Feisal had put it to President Wilson at the Peace Conference: any solution other than Arab unity which would involve French and British control of separate parts of the Arab lands 'would be regarded by the Arabs in the light of a division of spoils after a battle' (Lloyd George, The Truth about the Peace Treaties, ii. 1043-4). 84 Ibid. 1096. 85 Ibid. 1091. 86 The Sykes-Picot Agreement— one of the secret agreements concerning the partition of the Ottoman Empire in the event of an Allied victory—proposed to divide the Arab regions of the Ottoman Empire between France and Britain, in the name of compensation for Russia's promised gains in Constantinople. 87 The St Jean de Maurienne Agreement— another secret agreement concerning the partition of the Ottoman Empire—had been concluded in pursuance of Art. 9 of the Treaty of London of 1915, which admitted in principle Italy's right to a share of the Mediterranean region of the Ottoman Empire. 88 Lloyd George, The Truth about the Peace Treaties, ii. 783.

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Nor, indeed, had the United States government itself repudi­ ated the doctrine of conquest. This is shown by the fact that the United States maintained its claim to a voice in the disposition of all the League Mandates— after the US Senate's decision not to ratify the League of Nations Covenant or the Treaty of Versailles— on the ground that sovereignty in the Mandates resided not in the League of Nations (of which the United States was not a member), but in the Principal Allied and Associated Powers, as joint conquerors or joint victors. As Quincy Wright has charac­ terized the position of the United States in putting forth its claim to participation in the assignment and formulation of the terms of the League Mandates: 'the Principal Allied Powers gained title to the German colonies by conquest and, since it assisted in the defeat of the Central Powers, although never at war with Tur­ key, it was entitled to a share in all the spoils of victory'89— an assertion which acknowledged the continuing applicability of the title by conquest in the territorial settlement arising from the First World War. To quote directly from a United States note of 24 August 1921: The Government of the United States adheres to the position. . . that the right to dispose of the overseas possessions of Germany was acquired only through the victory of the allied and associated powers, and that there can be no valid or effective disposition of these territories without the assent of the United States as one of the participants in that victory. . . . With respect to mandates other than those which were formerly possessions of Germany, while it is true that the United States did not declare war against Turkey, still the opportunity of the Allied powers to secure the allocation of mandates and the administration of territories formerly under Turkish rule was made possible only through victory over Germany.90

The American Secretary of State, Mr Hughes, further amplified the position of his government in a note to the American Charge at Tokyo, communicated to the Japanese Foreign Ministry on 5 April 1921, which stated: 89 Mandates under the League o f Nations (Chicago: University of Chicago Press, 1930), 502. 90 Quoted ibid. 492 n. 185. The British, it may be observed, responded to this note by declaring that they had 'never desired to deprive the United States of the fruits of a victory to which it contributed so generously' (British note to the US government, 22 Dec. 1921, quoted ibid. 492 n. 187).

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[the] failure to ratify the Treaty of Versailles does not detract from the rights of the United States which accrued prior thereto [namely, by conquest or military victory], and, moreover, that treaty expressly pro­ vides that Germany renounces in favour of the Principal Allied and Associated Powers all her rights and title over her oversea possessions, which confirms the position of the United States.91

The American claim that sovereignty over the League of Nations Mandates resided in the Allied and Associated Powers thus rested ultimately on the right of conquest, as was, indeed, recognized by the international lawyers of the time. As one jurist observed in 1921: 'The argument which he [Mr Hughes] advances . . . is very logical and apparently incontrovertible. "To the victors belong the spoils". If they have conquered by joint action, they own the spoils as joint owners.'92 For this same reason, another writer, drawing upon the assumptions prevailing at the time, defended the allocation of Mandated territories exclusively to the victorious powers by arguing that 'the Allied Powers were fully entitled to retain what they had won by conquest since Germany had surrendered un­ conditionally'.93 In other words, the decision of the Allied Powers to retain these territories not as colonial acquisitions, but rather as Mandates, did not alter the fact that the right to Mandates itself derived from conquest or military victory—a proposition emphasized by Curzon, who (as Thornton notes) 'always took pains to point out that mandates were supervised by, but did not originate with, the League of Nations. The gift of a mandate, he explained, rested with the Powers who had conquered the territories, which it then fell to them to distribute.'94 Seen in this context, the British delegation's defence of their refusal to surrender Mosul to Turkey, or to submit to the Turkish demand that a plebiscite should be held in the territory in order to determine its disposal, was not so radically out of tune with the times as the Turks had suggested for having taken its stand on the right of conquest. Such a claim was, on the contrary, a 91 Quoted in Charles Noble Gregory, Editorial Comment ('The Mandate over Yap'), AJIL 15 (1921), 424. 92 Ibid. 426. 93 A. L. C. Bullock, Germany's Colonial Demands (London: Humphrey Milford, 1939), 204. 94 Thornton, The Imperial Idea and its Enemies, 174.

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manifestation of the continuing conviction on the part of the victorious powers that the fact of military victory entitled the victors no less in this war than it had in previous wars to dispose of the territory of the vanquished by right of conquest. It cannot be concluded, therefore, that the distinguishing fea­ ture of the territorial settlement of 1919 was the abandonment of the legal doctrine of the right of a victor to dispose of the territ­ ory of the vanquished by right of conquest. Seen, however, from the perspective of the evolution of attitudes towards the right of states to acquire territory by conquest or military victory, the First World War undoubtedly marked a moral turning-point, particu­ larly when one considers the proclivity of the Allies before March 1917 to regard the territory of the enemy as legitimate spoils of war, rather than in the context of the self-determination of its inhabitants, and the extent to which this attitude was transformed by the events of the spring of 1917. For the principles of self-determination and non-annexation which the Allies later proclaimed, though admittedly imperfectly and unevenly applied in the hour of victory, did operate as a moral limit on the exercise of the right of conquest, and did serve to curtail to a substantial degree the annexationist schemes em­ bodied in the secret treaties which the Allies had earlier con­ cluded on the assumption of the right of the victors to carve between themselves the spoils of the vanquished, without regard to the wishes of the inhabitants. This revision in the war aims of the Allies, or at least in the aims which the Allies now regarded as realizable, was a measure of the extent to which the previous assumption of the applicability of the right of conquest, if not altogether abolished, had, at any rate, been undermined. The proclamation of Wilsonian principles may not have served to abolish the title by conquest, but public opinion was undoubtedly moving in that direction.

II. SOME POINTS OF COMPARISON WITH THE POST-SECOND WORLD WAR TERRITORIAL SETTLEM ENT

A somewhat similar pattern to that followed by the Allied and Associated Powers after the First World War was followed by

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the victorious powers after the Second World War. Thus, the Allies had proclaimed as the principles for which they were fighting those which were jointly declared by Roosevelt and Churchill in the Atlantic Charter of August 1941, which, in keep­ ing with Wilsonian tradition, had included the popular call for a peace without annexations based upon the principle of selfdetermination: First, [our] countries seek no aggrandizement, territorial or other. Second, [we] desire to see no territorial changes that do not accord with the freely expressed wishes of the people concerned.95

But while these principles had a neat simplicity about them on paper, they would obviously prove difficult to apply in practice when after the war the interests of order would have to be bal­ anced against the requirements of justice. The problem was evid­ ently appreciated by the British Foreign Office, which commented at the time that it was doubtful whether American opinion understood the complexity of the political and geographical problems involved in the question of 'self-determination' in Europe.. . . If, for instance, the U.S.S.R. decided, after the war, to absorb the Baltic States, we might be compelled to recognize the facts, and, for the sake of the peace of Europe and our own wider interests, to maintain friendly relations with Russia. The United States would also tolerate the facts, but might refuse to give them formal recognition on moral grounds while accusing us of a selfish surrender of principle.96

Apart from the problem posed by the fact of Soviet annexa­ tions, there was the additional dilemma posed by the fact that the United States was itself intent on making acquisitions, at the expense of defeated Japan, for the purpose of setting up Amer­ ican bases in the Pacific. The problem of reconciling on the one hand the declaration in the Atlantic Charter that no territorial aggrandizement was sought, and on the other the desire of the United States to acquire exclusive rights to the conquered Pacific 95 The first and second points of the Atlantic Charter. Text in Llewellyn Woodward, British Foreign Policy in the Second World War (London: Her Majesty's Stationery Office, 1970-6), ii. 202-3. These principles were subsequently reaf­ firmed in the Preamble of the loint Declaration of the United Nations of 1 Jan. 1942, signed by all the governments at war with Germany. 96 Ibid. 205.

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Islands, was solved by the unilateral transformation by the United States of the Pacific Islands Mandate, which it had taken over from Japan, into a 'strategic trust territory' to be administered by itself under nominal international supervision. The 'strategic trust territory' differed from other trust territor­ ies, however, in that all the functions of the United Nations with regard to it were to be exercised by the Security Council. From this fact it might seem that 'strategic' in this case meant strategic from the point of view of the United Nations as a whole. But the concept of strategic trusteeship was an American concept invented by and for the United States,97 and was meant as a compromise between the general principles of the Atlantic Charter, which excluded annexation, and the particular security requirements of the United States, which required exclusive rights to territory con­ quered from the enemy. In practice, the territory provided naval and military bases for the United States—the administering authority— as well as a field for testing nuclear weapons. As one writer remarks: 'More of a national strategic area than this trust territory would be hard to imagine.'98 Furthermore, it was clear that the requirements of the Atlantic Charter would not be applied to the treatment of Germany. The clause against territorial changes never restricted the authors of the Charter in their consideration of the peace they would im­ pose upon Germany; and the promise to respect the right of all people 'to choose the form of government under which they will live' obviously applied to the victims of Nazi Germany and not to the people of Germany itself.99 Thus, despite the avowed com­ mitment of the Allies to principles which entailed the renuncia­ tion of the right of conquest, an examination of their practice would suggest a continued acceptance of the rule whereby the right to dispose of territory could be gained by means of military victory or conquest. A straightforward illustration of the continuing assumption of a right of conquest may be found in the statement made by the American Secretary of the Navy, Frank Knox, to the House For­ eign Affairs Committee on 9 March 1944, regarding the claim of 97 Toussaint, The Trusteeship System o f the United Nations, 120. 98 Ibid. 250. 99 John L. Snell, Wartime Origins o f the East-West Dilemma over Germany (New Orleans: Hauser Press, 1959), 15.

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the United States to retain the Pacific islands of Micronesia (i.e. the Marshall, Caroline, and Mariana Islands), which had been mandated to Japan after the First World War: 'those mandated islands have become Japanese territory and as we capture them they are ours/100 For it was a clear implication of this argument that since Japan had exercised effective sovereignty over the man­ dated islands, those islands had reverted to the status of Jap­ anese territory, and that the United States by conquering them could claim to succeed to the sovereignty of Japan by right of conquest. This view was not limited to the Secretary of the Navy: it was shared by a considerable body of American opinion, both inside and outside official circles, as one writer commenting on Rnox's statement was to note at the time: This thesis has been supported by Senator Chandler, by various publi­ cists, and by certain correspondents with our forces in the Pacific. It represents the easiest and most convenient solution. We can claim the islands by right of conquest.. ,101

It was on the basis of this claim—that is, on the assumption of the continuing validity of the right of conquest—that the Chief of Staff to the President, Admiral Leahy, informed Secretary of State Hull on behalf of the Joint Chiefs of Staff that 'the Japanese Mandated Islands should be placed under the sole sovereignty of the United States. Their conquest is being effected by the forces of the United States,' he argued, 'and there appears to be no valid reason why their future should be the subject of discussion with any other nation.'102 This assumption was mirrored in the general attitude of the American public; for newspapers like the Chicago Daily News and Chicago Tribune had spoken loudly in favour of annexation, and a Gallup Poll published on 23 May 1944 indicated that nearly 70 per cent of the American people desired to 'keep' Micronesia and also the islands owned or controlled by Britain and Australia which the United States had captured.103 So 100 Quoted in Huntington Gilchrist, 'The Japanese Islands: Annexation or Trus­ teeship', Foreign Affairs, 22 (1944), 635, at 641. 101 Ibid. 102 18 Jan. 1944, quoted in Christopher Thorne, Allies o f a Kind: The United States, Britain and the War against Japan, 1941-45 (London: Hamish Hamilton, 1978), 490. 103 Ibid.; Gilchrist, 'The Japanese Islands', 642 n. 12.

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far as the United States' British allies were concerned, Churchill had made it clear that if the United States wished to hoist its flag over the Japanese mandated islands, that would be entirely ac­ ceptable to the United Kingdom.104And the South Africans would certainly have welcomed such an outcome as a good precedent for the outright annexation of South-West Africa which was still mandated to them. Although the first clause in the Atlantic Charter—that we 'seek no territorial aggrandizement, territorial or other'— and the state­ ment in the Cairo Declaration issued by Roosevelt, Churchill, and Chiang Kai-shek on 27 November 1943—that' [t]he three Great Allies . . . covet no gain for themselves and have no thought of territorial expansion'105—were regarded by Roosevelt and the State Department as obstacles to outright annexation that would have to be (and were) circumvented,106 the underlying doctrine that conquest, and the sacrifices endured in wresting the Pacific Is­ lands from Japan, entitled the United States permanently to retain the islands (if not necessarily to annex them) was itself generally accepted.107 For the general feeling was that 'These atolls, these island harbours will have been paid for by the sacrifice of Amer­ ican blood.'108 As Feis aptly observes in commenting on this way of thinking: 'in every war the idea develops that a country has a valid right to keep what it has conquered by death and suffer­ ing, that this ought to be regarded as a principle.'109 Stalin too considered it axiomatic that forcible acquisitions of territory were an appropriate recompense for wartime losses. In his view, the principles of the Atlantic Charter were directed against those who were attempting to achieve world domina­ tion, not against those who were struggling to defeat them.110 104 Minutes of 9 May 1944, cited in Thorne, Allies o f a Kind, 490. 105 por text ^ (2airo Declaration, see William Hardy McNeill, America, Britain, and Russia: Their Co-Operation and Conflict, 1941-1946 (New York: Johnson Re­ print Corporation, 1970), 347-8. 106 i.e. by the acquisition of rights short of full sovereignty (see Wm. Roger Louis, Imperialism at Bay, 1941-1945: The United States and the Decolonization o f the British Empire (Oxford: Clarendon Press, 1977), 85, 373). 107 Ibid. 84. 108 Statement by Admiral Ernest King, Apr. 1945, quoted ibid. 109 Herbert Feis, Churchill, Roosevelt, Stalin: The War they Waged and the Peace they Sought (Princeton: Princeton University Press, 1957), 22. 110 See Eden's conversation with Stalin and Molotov, 17-18 Dec. 1941, in Woodward, British Foreign Policy in the Second World War, ii. 226-31.

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Thus Stalin had frankly admitted to Churchill that 'the Russians did not want anything belonging to other people, although they might have-a bite at Germany';111 and at the Teheran Conference in December 1943, his claim to annex the strategic and ancient German port of Königsberg was put forward in the following revealing terms. 'He said that the acquisition of that part of Eastern Prussia would not only afford the Soviet Union an ice-free port but would also give to Russia a small piece of German territory which he felt was deserved.'112By so stating his claim, Stalin both recognized that Königsberg was a piece of German territory and demonstrated his conviction that the Soviet Union was entitled to acquire it as a reward for its efforts in the military struggle against Germany. Nor did the Western Allies appear to reject this par­ ticular application of the notion that conquest entitled the victor permanently to retain a portion of the defeated state's territory. For the terms in which Stalin put forward his claim at Teheran 'provoked no demur from either Churchill or Roosevelt';113 and at the Potsdam Conference in July-August 1945, where the three great Allies approved in principle the transfer of Königsberg to the Soviet Union, 'the Western Powers made little or no objec­ tion to endorsing Russian claims to part of East Prussia, includ­ ing the city of Königsberg'.114 This was perhaps a reflection of the fact that '[t]he western powers generally acknowledged that the U.S.S.R. had suffered terribly in the war and should receive [ter­ ritorial] compensation from the common enemies.'115 It may thus be argued that the Allied approval of Soviet acquisitions at the expense of both Germany and Japan reflected the persistence of the assumption that the acquisition of enemy territory by right of 111 Conversation between Churchill and Stalin, Teheran, 28 Nov. 1943, in Antony Polonsky (ed.), The Great Powers and the Polish Question, 1941-1945: A Documen­ tary Study in Cold War Origins (London: London School of Economics and Polit­ ical Science, 1976), 164. 112 Foreign Relations o f the United States: The Conferences at Cairo and Teheran (1943), 604. 113 McNeill, America, Britain, and Russia, 365. 114 Ibid. 626, See the Protocol of the Proceedings of the Berlin Conference, 2 Aug. 1945 (sect. entitled 'City of Koenigsberg and the Adjacent Area'), repro­ duced in Marjorie M. Whiteman, Digest o f International Law, iii (Washington, DC: Department of State, 1964), 345. 115 Forrest C. Pogue, 'The Big Three and the United Nations', in John L. Snell (ed.), The Meaning o f Yalta: Big Three Diplomacy and the New Balance o f Power (Baton Rouge, La.: Louisiana State University Press, 1956), 205.

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conquest could be put down to legitimate reparation for wartime losses. The Soviet annexation of the Königsberg area of East Prussia was not the only case of acquisition by conquest arising from the Second World War; for at the Teheran Conference, Stalin, Church­ ill, and Roosevelt had also approved the Soviet acquisition of Eastern Poland up to the Curzon Line.116 The Soviet annexation of Eastern Poland was not, it is true, a case of victors acquiring territory at the expense of the vanquished; for Poland was an Allied power under German military occupation. But it was, none the less, a case of territorial acquisition by a great power at the expense of a weak one, effected by conquest under the guise of liberation. Its relevance to the issue of the right of conquest is therefore clear, and is highlighted by one of the arguments em­ ployed by Churchill in the attempt to justify the Allies' acceptance of the Soviet annexation of Eastern Poland to the representatives of the Polish government in London: the liberation of Poland from Germany's grip is being achieved mainly by the enormous sacrifices of the Russian armies. Therefore, the Allies had a right to ask that Poland should be guided to a large extent [by Russia] about the frontiers of the territory she [i.e. Poland] should have.117

It was the unstated premiss of this argument that a state's con­ tribution to military victory was of greater weight in determin­ ing the frontiers of states than the claim to territorial integrity of the state whose territory was to be acquired.118 That Poland was an Allied power and therefore on the winning 116 The Curzon Line, which was the Soviet-Polish border proposed by the British Foreign Secretary in 1920, was essentially the same as the Nazi-Soviet Demarcation Line provided for in the German-Soviet Friendship and Frontier Treaty of 28 Sept. 1939, which formally partitioned Poland between Germany and the USSR (Norman Davies, Heart o f Europe: A Short History o f Poland (Oxford: Clarendon Press, 1984), 75). For the text of the German-Soviet Frontier Treaty, see Degras (ed.), Soviet Documents on Foreign Policy, iii. 377. 117 As related to Stalin in a letter of 28 Jan. 1944, printed in Polonsky, The Great Powers and the Polish Question, 1941-1945, 177. 118 Note, however, that the Soviet annexation of Eastern Poland was also jus­ tified on ethnic grounds. Since Polish territory east of the Curzon Line was pre­ dominantly populated by Ukrainians and Byelorussians, not Poles, the Russians were able to claim that these people were merely being reunited with their 'blood brothers' in the Soviet Union. (See note from Molotov to the Polish Ambassador on the Soviet invasion of Poland, 17 Sept. 1939, in Degras (ed.), Soviet Documents on Foreign Policy, iii. 374.)

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side did, however, mean that Poland was regarded by the Great Powers as entitled to compensation at the expense of defeated Germany for the loss to the Soviet Union of more than one-third of her territory in the east. To this end, it was proposed that Poland should expand northwards by receiving East Prussia (ex­ cept for the Königsberg area which the Soviet Union demanded for itself), and westwards by incorporating all German territory up to the Oder-Neisse Line.119 At the Yalta Conference in Febru­ ary 1945, where the British, the Americans, and the Russians had endorsed the acquisition by the Soviet Union of Eastern Poland up to the Curzon Line, the principle of territorial compensation for Poland at the expense of Germany was also accepted (i.e. Poland's right to annex lands from Eastern Germany was recog­ nized, although the extent of these lands was not defined) and was subsequently confirmed by the 'Big Three' at Potsdam.120 This, it may be argued, provides convincing proof of the persist­ ence of the assumption that conquest or military victory entitled the Allies to dispose of conquered territory, without regard to the wishes of the people concerned. Further proof of this same assumption may be found in the terms of the secret Far Eastern Agreement signed by Roosevelt, Churchill, and Stalin at Yalta on 11 February 1945, which sanc­ tioned the Soviet acquisition of South Sakhalin and the Kurile Islands in return for Soviet participation in the war against Japan.121 119 These proposals were put forward by Churchill and Stalin at the Teheran Conference (see Robert M. Slusser, 'Soviet Policy and the Division of Germany, 1941-1945', in Susan J. Linz (ed.), The Impact o f World War II on the Soviet Union (Totowa, NJ: Rowman and Allanheld, 1985), 113). 120 The Protocol of Proceedings of the Yalta Conference, 11 Feb. 1945, stated that: 'The three Heads of Government consider that the Eastern frontier of Po­ land should follow the Curzon Line . . . It is recognized that Poland must receive substantial accessions of territory in the North and West' (repr. in Whiteman, Digest o f International Law, iii. 263). For the relevant provision in the Protocol of the Proceedings of the Berlin Conference, which specifically mentioned the OderNeisse Line as the proposed western frontier of Poland, see ibid. 347. 121 According to the terms of the this agreement, 'The leaders of the three Great Powers— the Soviet Union, the United States of America and Great Britain— have agreed that in two or three months after Germany has surrendered .. . the Soviet Union shall enter the war against Japan on the side of the Allies on con­ dition th at:. . . 2. The former rights of Russia violated by the treacherous attack of Japan in 1904 shall be restored, viz: (a) the southern part of Sakhalin as well as all the islands adjacent to it shall be returned to the Soviet Union. . . 3. The Kuril Islands shall be handed over to the Soviet Union.. . . The Heads of the three Great Powers have agreed that these claims of the Soviet Union shall be unques­ tionably fulfilled after Japan has been defeated' (document repr. ibid. 479).

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For the moral basis of this agreement was that the Soviet Union was to be awarded parts of the Japanese Empire not in accord­ ance with the wishes of the populations concerned (who, if con­ sulted, would certainly have opposed such annexation), but in accordance with the Soviet Union's military contribution to the war in the Far East,122 just as the United States itself intended to acquire the Japanese mandated islands (albeit disguised as a 'stra­ tegic trusteeship') as a reward for its own contribution to the defeat of Japan. The terms of the Far Eastern Agreement, although in flagrant violation of the principles of the Atlantic Charter,123 were ac­ cepted by Roosevelt as a legitimate 'payment' (if sacrificing the rights of others may be regarded as 'paying')124 for the saving of American lives which Soviet entry into the war against Japan would entail;125 while from the Soviet point of view, by entering the war against Japan and so achieving the conquest of South Sakhalin and the Kurile Islands, the islands would have been paid for with the sacrifice of Soviet blood. The opportunity of making such a claim which belligerency presented seems, in­ deed, to have been part of the Soviet calculation. For despite the fact that the Soviets had been offered substantial concessions by the Japanese (of virtually the same order as those they had won from the Americans and the British at Yalta, on condition that they entered the war against Japan) as an inducement to keep them neutral,126 Stalin chose to fight for what he might have obtained by doing nothing. As John Stephan remarks: 'Perhaps the Marshal preferred to use force because force alone would legitimize his gains, paying for them in blood [would] achieve unambiguously what diplomacy was apt to complicate .. .'127 In these different ways, then, the assumption of a right of conquest appears to have persisted as a factor in the thinking of the three great Allies. 122 Louis, Imperialism at Bay, 1941-1945, 74. 123 John Wheeler-Bennett and Anthony Nicholls, The Semblance o f Peace: The Political Settlement after the Second World War (London: Macmillan, 1972), 351. 124 John J. Stephan, The Kuril Islands: Russo-Japanese Frontier in the Pacific (Ox­ ford: Clarendon Press, 1974), 152. 125 Louis, Imperialism at Bay, 1941-1945, 375; Thorne, Allies o f a Kind, 529. 126 See George A. Lensen, 'Yalta and the Far East', in Snell (ed.), The Meaning o f Yalta, 156-7. The Soviet-Japanese Neutrality Pact had been signed on 13 Apr. 1941, and was supposed to run for five years (until 13 Apr. 1946). 127 The Kuril Islands, 157.

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In the settlement arising from the Second World War, even more than in the territorial settlement arising from the First World War, the argument from defensive conquest, or the notion that states which had been the victim of attack had a right to acquire secure boundaries by force, was frequently allowed to override the claims of the inhabitants of the territory concerned to selfdetermination, or, for that matter, the claims of enemy states to territorial integrity. Thus, the right of defensive conquest was accepted by the Allies as a legitimate defence of Soviet acquisi­ tions effected at the expense of Poland, Finland, Germany, and Japan; of Polish acquisitions effected at the expense of Germany; and of the United States' acquisition of exclusive control over the Japanese mandated islands in the Pacific. A notable illustration of the employment of the strategic argu­ ment in justification of the acquisition of territory by force may be found in Churchill's statement to the House of Commons on 22 February 1944, in which he defended the Soviet Union's west­ ward expansion at the expense of Poland in the following terms: I have an intense sympathy with the Poles, that heroic race whose na­ tional spirit centuries of misfortune cannot quench, but I have also sym­ pathy with the Russian standpoint. Twice in our lifetime Russia has been violently assaulted by Germany. Many millions of Russians have been slain and vast tracts of Russian soil devastated as a result of re­ peated German aggression. Russia has the right of reassurance against future attacks from the West, and we are going all the way with her to see that she gets it, not only by the might of her arms but by the ap­ proval and assent of the United Nations.. . . I cannot feel that the Rus­ sian demand for reassurance about her Western frontiers goes beyond the limits of what is reasonable or just.128

This same argument was employed by Stalin in defence of the Soviet Union's annexation of Eastern Poland at the conference of the 'Big Three' at Yalta: It was a question of strategic security not only because Poland was a bordering country but because throughout history Poland had been the corridor for attack on Russia. We have to mention that during the last thirty years Germany twice has passed through this corridor.. .129 128 Repr. in Whiteman, Digest o f International Law, iii. 233. 129 Repr. ibid. 260.

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The Soviet acquisition of vast stretches of Finnish territory was ultimately accepted by Churchill and Roosevelt on grounds of strategic security— although this acceptance had not been forth­ coming initially, so long as Finland was perceived to have been the victim of Soviet aggression.130 But when Finland joined Ger­ many in the attack on the Soviet Union on 21 June 1941 in order to recoup itself for its losses in the Winter War, and when Fin­ land rejected an offer transmitted in mid-August by the United States government on behalf of the Soviet Union to restore the old frontiers if Finland would make peace— on the ground that Finland intended to fight on until an assured strategic position of security against the Soviet Union was achieved—Finland for­ feited American sympathy and brought on itself a declaration of war by Great Britain on 5 December 1941.131 The attitudes there­ after of Churchill and Roosevelt to the Soviet annexation of Finn­ ish territory were essentially sympathetic. Thus, on 20 December 1941, Churchill telegraphed to Eden at Moscow: 'The strategic security of Russia on her western border will be one of the ob­ jects of [the] Peace Conference. The position of Leningrad has been proved by events to be of particular danger.'132 And on 8 January 1942, Churchill informed Eden that 'Russia could, upon strategical grounds, make a case for the approaches to Lenin­ grad, which the Finns have utilised to attack her/133 (Indeed, Churchill went on to note that '[strategical security may [also] be invoked at certain points on the frontiers of Bukovina or Bessarabia.134 In these cases the population would have to be offered evacuation and compensation if they desired it.' But, he continued, '[i]n all other cases transference of territory must be 130 Note, however, that the cessions imposed upon Finland by the Soviet Union in the Peace of Moscow of 12 Mar. 1940 following the Soviet Union's victory in the Winter War—the launching of which had led to the expulsion of the USSR from the League of Nations on 14 Dec. 1939—had not ‘given rise to any statements of non-recognition on the part of third Powers or on the part of the agencies of the League, whose member Finland continued to be' (R. Langer, Seizure o f Territory, 262). 131 Wheeler-Bennett and Nicholls, The Semblance o f Peace, 462. 132 Winston S. Churchill, The Second World War (London: Cassell, 1948-54), iii. 560. 133 Ibid. 615-16. 134 In June 1940, the USSR, threatening force against Romania, had demanded and obtained from that country the retrocession of Bessarabia and the transfer of North Bukovina.

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regulated after the war is over by freely and fairly conducted plebiscites.. .'135 This, however, was a frank admission that in cases where forcible acquisitions of territory could be justified on grounds of strategic security, territorial changes would not have to accord with 'the freely expressed wishes of the peoples con­ cerned', as required by the principles of Atlantic Charter.) In discussions in Washington between Roosevelt and Eden in March 1943, both were agreed that the Soviet Union would insist on re-establishing the boundary line that had been drawn at the end of its war with Finland, and, as Feis records, 'both thought this reasonable. Eden forecast that the Soviet government would also demand Hangoe as necessary for the security and defense of Petrograd. They both also seemed to think that it would be hard to dispute this claim since the war had shown how dangerously exposed the city was to capture.'136 And when, at Teheran, Stalin told Roosevelt and Churchill that Soviet conditions for an end to the war with Finland included the restoration of the frontier drawn by the treaty of 1940—made after the Soviet victory over Finland in the Winter War— as well as certain portions of addi­ tional Finnish territory—either Hangoe or Petsamo—in order to protect Leningrad against such assault as had been made upon it, they did not dispute this justification.137 As Churchill put it to Stalin: 'in the days of the Russo-Finnish War I had been sym­ pathetic to Finland, but I had turned against her when she came into the war against the Soviets. Russia must have security for Leningrad and its approaches.'138 In the event, the Soviet demands for a strategic frontier against Finland were incorporated in the Armistice Agreement signed on 19 September 1944 between the Soviet Union and the United Kingdom on the one hand, and Finland on the other, whereby the frontier of 1940 was re-established with the exception of the far north, where Finland ceded to the Soviet Union the region of Petsamo—which included valuable nickel mines and the warmwater Barents Sea port of Petsamo, an important harbour for trade with Atlantic Ocean countries— as well as certain naval bases.139 These arrangements were subsequently confirmed in 135 Ibid. 616. 136 Churchill, Roosevelt, Stalin, 123. 137 Ibid. 269. 138 The Second World War, v. 352. 139 For the text of this agreement, see Whiteman, Digest o f International Law, iii. 170.

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the Peace Treaty with Finland signed at Paris on 10 February 1947.140 Proposals for creating a truncated Germany as a result of the war were likewise put forward and accepted by the Allies chiefly on grounds of military security—the assumption being that ter­ ritorial expropriation was a legitimate means of preventing fu­ ture German aggression. Thus at the Teheran Conference—where various proposals were put forward for weakening Germany by transferring parts of German territory to other states, and by splitting Germany itself into a number of independent states— Stalin told Churchill that Königsberg should be annexed to the Soviet Union because this would leave Russia 'on the neck of Germany',141 and Churchill advocated the separation of Prussia from the rest of Germany on the ground that Prussia had consti­ tuted 'the evil core of German militarism'.142 In determining the territorial limits of post-war Germany, the priority accorded to strategic considerations over the ethnic fac­ tor, or the principle that all territorial changes arising from the war must accord with the freely expressed wishes of the people concerned, was also evident in American thinking. Thus, in the briefing book prepared by the State Department in January 1945 for the use of President Roosevelt at Yalta, the acquisition by Poland of East Prussia (except for the Königsberg area), the former Free City of Danzig, German Upper Silesia, and the eastern por­ tion of Pomerania was recommended on grounds of military security—it being noted that these acquisitions, in addition to increasing Polish territory by an area of 21,000 square miles, would significantly straighten and shorten the Polish-German frontier to Poland's strategic advantage.143 It was also recognized in this same document that the moving of the Polish-German frontier westwards was of strategic importance to the Soviet Union: 'If it should not prove possible to establish a world security organiza­ tion and the Soviet Union should thus be forced to rely on its 140 UNTS 48 (1950), 203 ff. 141 'What he did not point out, because it was plain to see, was that the pro­ posed annexation would also leave the Soviet colossus astride the shoulders of Poland' (Snell, Wartime Origins o f the East-West Dilemma over Germany, 47). 142 The phrases used by Stalin and Churchill are quoted by Slusser in 'Soviet Policy and the Division of Germany, 1941-1945', 113. 143 Repr. in Whiteman, Digest o f International Law, iii. 254-5.

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own resources for its security, the advantages are obvious of having the Polish frontier as far West as possible .. ,'144 With regard to the disposition of German territory between the Oder and lower Neisse rivers, which Poland was determined to acquire, it was pointed out in the briefing book prepared by the State Department in July 1945 for the use of President Truman at Potsdam that the '[c]ession of this area to Poland, in addition to East Prussia, Upper Silesia and other German territory east of the Oder, would reduce the Polish-German frontier to 250 miles and provide Poland with its most defensible frontier in the west.'145And Molotov supported the Polish claim to this territory by noting that if the Polish demands were met, 'Germany would be weakened from the point of view of her aggressive inten­ tions'.146 That this view was ultimately accepted by the United States government is indicated by President Truman's radio broadcast to the American people on 9 August 1945 on the out­ come of the Potsdam Conference. For Truman justified the deci­ sion reached by the three Great Powers regarding Poland's western frontier—i.e. that all the German territories east of the Oder-Western Neisse Line (including Danzig and East Prussia with the exception of the Königsberg area) 'shall be under the administration of the Polish State'—by noting that ' [t]he terri­ tory the Poles are to administer . . . will provide a short and more easily defensible frontier between Poland and Germany.'147 The acceptance by the Allies of the Oder-Neisse Line as the post-war Polish-German frontier148— a frontier which in the course of the war the Russians had established by conquest— provides a striking illustration of the way in which considerations of military security, as a justification for territorial acquisition by conquest, took precedence in practice over the principle of selfdetermination enshrined in the Atlantic Charter, which implied that rights tosovereignty could not be acquired by conquest,but 144 Ibid. 256. 145 Ibid. 309. 146 Ibid. 329. 147 Ibid. 348-9. 148 It is truethat the Oder-Neisse Line was not determined atPotsdam as Poland's final western boundary, since the final delimitation of frontiers was reserved for the German peace treaty. In practice, however, the Western powers had accepted the fait accompli with which the Russians had presented them by unilaterally transferring all the German territory east of the Neisse river to Po­ land for administration (James F. Byrnes, Speaking Frankly (London: Heinemann, 1947), 79-80, 105).

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only by consent of the inhabitants. For the establishment of the Polish-German border on the Oder-Neisse Line involved the transfer to Poland of territories normally populated by nearly nine million people, the overwhelming majority of whom were German,149 and the actual expulsion of some seven million Ger­ mans who had not fled in the face of the invading Red Army.150 In a similar fashion, the Russians sought to portray the Soviet acquisition of South Sakhalin and the Kurile Islands at the ex­ pense of Japan as a case of 'defensive conquest'—by appealing both to the previous attacks carried out by Japan on Russian territory in the Far East (in the Russo-Japanese War and the Si­ berian Intervention) and to the need to prevent Japanese aggres­ sion in the future. Thus, in a speech delivered by Stalin to the Soviet people on 2 September 1945 to celebrate victory over Ja­ pan, it was the strategic significance and the defensive nature of the Soviet acquisitions in the Far East which were emphasized: Today Japan has acknowledged her defeat and signed the act of uncon­ ditional surrender. This means that southern Sakhalin and the Kurile Islands will pass to the Soviet Union and from now on will not serve as a means for isolating the Soviet Union from the ocean and as a base for a Japanese attack on our Far East, but as a means of direct communica­ tion of the Soviet Union with the ocean and as a base for the defence of our country against the Japanese aggression.151

From the Soviet point of view, the Kuriles and Sakhalin were essential outposts for protecting the Maritime Provinces, which— as the Japanese intervention of 1919-21 had shown—were excep­ tionally vulnerable to invasion and occupation.152But seen against the background of the Second World War itself (and the specific circumstances surrounding the Soviet entry into the war against Japan), the Soviet Union's conquest of South Sakhalin and the Kurile Islands was not conquest carried out in self-defence, even if there were strategic arguments for retaining these territories once they had been conquered, since the Soviet Union had not been attacked by Japan. On the contrary, at the time of the Soviet invasion, the Soviet-Japanese Neutrality Pact was still in force, 149 150 151 152 244.

Ibid. 30, 80. A. J. P. Taylor, How Wars End (London: Hamish Hamilton, 1985), 106. Printed in Whiteman, Digest o f International Law, iii. 481. Diane Shaver Clemens, Yalta (New York: Oxford University Press, 1970),

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The Demise o f the Right of Conquest

and Japan was a crippled power pleading for peace on any terms short of a complete capitulation. The truth of the matter was that it was not in order to defeat any present Japanese aggression that the Soviet Union had entered the war against Japan, but for the specific purpose of effecting territorial annexations—however they might be justified—with American and British approval, in ac­ cordance with the Far Eastern Agreement reached at Yalta.153 The United States, on the other hand, had been the victim of Japanese aggression in December 1941; and its claim to retain the Japanese mandated islands was regarded by most Americans as self-evidently legitimate in view of the Japanese attack on Pearl Harbour. Christopher Thorne has emphasized 'how great was the pressure from the press and from Congress for the United States to obtain outright not only the Carolines, Marshalls and Marianas, but other Pacific territories which might be needed in order to ensure that Pearl Harbour would never occur again'154— a fact indicating the general American consensus that the secur­ ity requirements of the United States, and not the claims of the native inhabitants, should dictate the ultimate disposition of the conquered territories in the Pacific. As a useful indication of the mood of public opinion at the time one may note the view asserted by the New York Herald Tribune—which applauded the efforts of Representative Carl Vinson, the Chairman of the House Naval Affairs Committee, to ensure American control of the Japanese-held islands—that the principle of self-determination was irrelevant when 'the security of the United States and the stability of the Pacific world' were at stake.155Similarly, when the American Secretary of War, Stimson, argued that the Marshalls, Carolines, and Marianas, which 'must belong to the United States with absolute power to rule and fortify them', would not be colonial possessions but 'outposts',156 he expressed the widely 153 The USSR did, however, seek to justify its invasion of Japan by reference to Japanese 'aggression' and 'provocation'— as evidenced by the supply of 'vital stra­ tegic information' about Soviet defences to Nazi Germany, and alleged prepara­ tions for a Japanese attack on the Soviet Far East—whilst the Americans thought the invasion could be justified as an action conducted in collective defence against a source of aggression which constituted a common danger to the United Nations (John J. Stephan, Sakhalin: A History (Oxford: Clarendon Press, 1971), 146; Byrnes, Speaking Frankly, 208-9). 154 Allies o f a Kind, 664. 155 24 and 25 Jan. 1945, quoted ibid. 156 Quoted in Thorne, Allies o f a Kind, 665.

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held belief that the defensive nature of the conquests—as op­ posed to the mere lust for dominion—would legitimize these acquisitions, in spite of the principles of the Atlantic Charter. Even more significant, however, than the various justifications for the acquisition of territory by force which the Allies had advanced in the course of the Second World War was the fact that despite the unconditional surrender of Germany and Japan, the bulk of German and Japanese territory which the Allies had conquered was not annexed by the victors. Instead, the Allied Powers established a special occupation regime which fell short of annexation or the complete transfer of sovereignty, whether by cession or by conquest. Whereas in previous times annexation by the victor would have been regarded as a normal consequence of the surrender and subjugation of the vanquished, the influence in the twentieth century of the principles of self-determination and non-annexation—that is, of the liberal outlook expressed in such documents as the Fourteen Points and the Atlantic Charter— meant that conquest was no longer regarded as granting entitle­ ment to territory, or as a legitimate claim to rule. Indeed, in its treatment of the colonial territories of the de­ feated enemy states, the post-Second World War settlement, which had inaugurated the trusteeship system of the United Nations, marked a notable advance on the settlement arising from the First World War, which had established the League of Nations Mandates System to deal with the colonial territories detached from the defeated powers. After the First World War, as Franck points out:157 The victors not only did not dimmish, but actually increased the size of their overseas empires without making a serious commitment to giving the people of the acquired territories control of their future. After World War II, however, the self-determination principle came to be applied far more generally and vigorously. The United Nations, in a marked contrast to the League's practice, actively supervised and enforced the 'sacred trust' by cajoling the administering nations speedily to 'develop selfgovernment, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions. .. .'I5S Former German, Japanese, and Italian colonies were 157 Thomas M. Franck, The Power o f Legitimacy among Nations (Oxford: Oxford University Press, 1990), 160. 158 UN Charter, Art. 73.

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closely scrutinized by U.N. organs and committees in order 'to promote . . . progressive development towards self-government or independ­ ence . . in accordance with 'the freely expressed wishes of the peoples concerned'.159

In this respect, the right of self-determination clearly operated as a moral limitation on the exercise of the right of conquest, mark­ ing a significant departure from practice in previous centuries. 159 UN Charter, Art. 76(b).

6 Legal Developments Regarding the Acquisition of Territory by Conquest I. THE ILLEG A LITY OF THE USE OF FORCE BY STATES: IM PLICATIONS FOR THE TITLE BY CONQUEST

The most compelling argument for the claim that in our own times conquest no longer provides legal title to territory is the fact that the use of force as an instrument of state policy is today regarded as illegal. As Lauterpacht wrote in his 1955 edition of Oppenheim's International Law: The recognition of the title by conquest was, prior to the Covenant of the League, the Charter of the United Nations, and the General Treaty for the Renunciation of War, the necessary result of the admissibility of the right of war as an instrument both for enforcing the law and for changing existing rights.. . . The position has, it is submitted, under­ gone change as the result of the Covenant of the League of Nations, the Charter of the United Nations, and, in particular, of the General Treaty for the Renunciation of War. Insofar as these instruments prohibit war, they probably render invalid conquest on the part of the State which has resorted to war contrary to its obligations. An unlawful act cannot nor­ mally produce results beneficial to the law-breaker.1

The history of legal limitations on the right to use force began with the Hague Convention of 1907 respecting the Limitation of the Employment of Force for the Recovery of Contract Debts. This was followed up, after the First World War, by the more comprehensive restrictions contained in the Covenant of the League of Nations. 1 Oppenheim, International Law, 8th edn., i, ed. H. Lauterpacht (London: Longmans, Green, 1955), 574.

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(a) The Covenant of the League of Nations, 1919 The Covenant of the League of Nations prohibited member states from resorting to war in disregard of certain procedures which it laid down in the terms of three articles. The general procedure to be followed in cases of imminent armed conflict was outlined in Article 12, which obligated members to submit to arbitration, judicial settlement, or enquiry by the League Council 'any dis­ pute likely to lead to a rupture', and in no case to resort to war until three months after the award by the arbitrators, the judicial decision, or the report by the Council. Under Article 13, parties to a conflict were to submit suitable disputes to arbitration or adjudication, to carry out any award or decision rendered, and not to resort to war against a member state complying with the award or decision. And under Article 15, any dispute likely to lead to a rupture which was not submitted to arbitration or adjudication was to be dealt with by the League Council. If a report recommending terms for the settlement of the dispute was unanimously agreed to by the members of the Council, exclusive of the parties to the dispute, members of the League were obligated not to resort to war against a member state which complied with the recommendations of the report. The League Covenant, while imposing these restrictions on resort to war by states, at the same time made provision for collective coercion of a state which resorted to war in default of its obligations. Thus, under Article 16, any state resorting to war in disregard of the provisions of Articles 12,13, and 15 'shall, ipso facto, be deemed to have committed an act of war against all other Members of the League, which hereby undertake immedi­ ately to subject it to the severance of all trade or financial rela­ tions.' While member states were thus automatically obliged to contribute to economic or financial sanctions, the contribution of military, naval, and air forces was to be a matter for recom­ mendation by the Council. By making the formal criterion of compliance or non-compliance with the procedures for peaceful settlement of disputes laid down in Articles 12,13, and 15 the basis for a distinction between legal and illegal wars, the League Covenant had necessarily implied the illegality of the acquisition of territory as the result of unlawful war—a rule which, as we have seen, was to be enforced through

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collective sanctions against unlawful belligerents under Article 16. Yet a more blanket prohibition of the acquisition of territory by force seems explicitly to be contained in Article 10, which provides that The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League/ In case of any such aggression or threat of aggression, the Council was to 'advise upon the means by which this obligation shall be fulfilled'.2 The extent of the limitation on acquisition of territory by con­ quest implied by Article 10—and, consequently, the scope of the obligation to preserve the territorial integrity of states whose territory was in danger of being annexed—has been a subject of some dispute among international lawyers and statesmen. For under the Covenant of the League of Nations, resort to war was still permitted (1) if the procedures and delays required by Article 12 had been followed; (2) if the Council was unable to arrive at a unanimous report—that is, if procedures for peaceful settlement had failed (under Article 15(7) );3 and (3) if it were waged against a state which had not accepted the unanimous report of the Coun­ cil.4 Since the Covenant did not therefore outlaw all 'aggressive' wars in the technical sense, that is, wars waged by individual states other than in self-defence or in response to an attack, the question arose whether territorial acquisition following a war waged legitimately under the Covenant was still permissible, or whether, on the contrary, the League's pledge to respect and preserve the territorial integrity of members of the League pro­ hibited altogether the acquisition of territory by force or the tol­ eration of such acquisition on the part of the League of Nations. It was clear, at the very least, that Article 10 prohibited the acquisition of territory by force in cases of unlawful aggression— that is, as the result of a war initiated by a member of the League contrary to the terms allowed by the Covenant. But did it pro­ hibit annexation in cases of lawful aggression, that is, as the result 2 As provided in the second sentence of Art. 10. 3 Art. 15(7) provided that if the Council failed to arrive at a unanimous report, not counting the votes of the parties to the dispute, 'the Members of the League reserve to themselves the right to take such action as they shall consider neces­ sary for the maintenance of right and justice'. 4 Julius Stone, Aggression and World Order: A Critique o f United Nations Theories o f Aggression (London: Stevens, 1958), 27.

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of an invasion initiated within the terms permitted by the Cov­ enant? Assuming, as it seems safe to do (since Article 10 ex­ pressly states the obligation of members to respect and preserve as against external aggression the territorial integrity of member states), that annexation was not permitted even to a lawful ag­ gressor, was it, then, open to the defending state, if it should win the war, to seize territory from the vanquished aggressor, or was the territorial integrity of the lawful aggressor itself to preserved? This aspect of the problem was highlighted by a Canadian critic of Article 10 at the time of the drafting of the Covenant: Subsequent articles contemplate the possibility of war between two or more of the Signatories under such conditions that the other Signatories are not called upon to participate actively therein. If, as a result of such war, the nation attacked occupies and proposes to annex (possibly with the consent of a majority of the population) a portion of the territory of the aggressor, what is to be the operation of this Article?5

Finally, was the territorial integrity of the unlawful aggressor to be preserved, following a war of sanction against it under Article 16, or were sanctions against the aggressor permitted to take the form of annexation, by way of punishment for its aggression? At least four different answers have been put forward to these questions.6 One view was that Article 10 abolished the right of conquest—even after a legitimate war, including a war of selfdefence. This followed, it was argued, from the use of the word 'integrity' in the article.7 On this interpretation, then, the general effect of the Covenant's provisions concerning war and conquest was as follows: while war was permitted by the Covenant under the circumstances noted above, acquisition by conquest was not— not even to a lawful belligerent, and not even to a lawful bellig­ erent acting in self-defence. Thus any acquisition of territory by force, irrespective of the circumstances of its occurrence, was to be regarded as a consequence of aggression which activated the obligation of all member states under Article 10 to preserve as against external aggression the territorial integrity of all mem­ bers of the League. 5 Miller, The Drafting o f the Covenant, i. 358. 6 See Alfred Zimmern, The League o f Nations and the Rule o f Law, 1918-1935 (London: Macmillan, 1936), 273-4. 7 Ibid. 273.

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On this reading of Article 10, then, the effect of the article was to prohibit absolutely the acquisition of territory by force, and to pledge the League members to prevent such acquisitions or to reverse them when they occurred. Thus David Hunter Miller argues that in general the theory of Article 10 of the Covenant is that 'the status quo may not be changed by war but only by agreement'. As such, he writes, Article 10 protects the territorial integrity not only of the attacked state, but also of the aggressor.8 Eagleton similarly concludes that '[generally speaking, the prin­ ciple which it consecrates is that title by conquest is to be de­ nied.' As he later notes: 'there may be wars under the Covenant, but not wars of conquest'; for the general effect of Article 10 is to forbid territorial changes 'accomplished by violence'.9 Accord­ ing to McMahon, the legal effect of Article 10 is that 'no territ­ orial changes can be recognized as legal between the members if obtained by the use of force'.10 And Brownlie notes that 'Article 10 of the Covenant provided cogent evidence that the right of conquest no longer existed', since it prohibited the use of force with the motive of acquiring territory, even where a state had legal claims to that territory: 'there is no very clear distinction between conquest and resort to war as the ultimate means of settling legal disputes over territory. This latter distinction was, however, made by the draftsmen of Article 10 of the League Covenant. . . , and self-help would seem to have been prohibited in regard to territorial disputes.'11 In this sense, 'external aggres­ sion' within the terms of Article 10 was inclusive of any war aiming at or resulting in the forcible transfer of territory; for all such transfers were prohibited under Article 10. Continental interpretations of Article 10 have also tended to support this line. As Quincy Wright points out: continental jurists have been inclined to hold that [Article 10] conse­ crates legal titles and forbids League members from recognizing mere conquest as giving any title. 'The aim in view', wrote Belgium in response to the Canadian proposal for amendment of art. 10, 'is to 8 9 tion 10 11

The Geneva Protocol (New York: Macmillan, 1925), 35 and n. b, 85. International Government, 441, 442, 443. Art. 10, he argues, creates an obliga­ which, 'if strictly enforced, would make conquest impossible' (p. 92). Conquest and Modern International Law, 103. International Law and the Use o f Force by States, 217.

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render it impossible for the states to increase their territory by acts of violence'.12

This argument was supported by reference to the Peace Confer­ ence debates, which recognized a distinction between 'integrity' protected from all external aggression under Article 10 and 'in­ violability' protected only from unlawful aggression in later ar­ ticles.13 On this interpretation, then, the aim of Article 10 was not to prevent invasions which were permitted under Article 15(7), but to prevent violence resulting in a transfer of title. McMahon14 finds support for this conclusion in the outlook of President Wilson, the chief protagonist of the League of Nations, who considered Article 10 to be the 'backbone' of the League, without which 'it could hardly be more than an influential de­ bating society',15 and who intended that one of its chief purposes should be to abolish the title by conquest. Woodrow Wilson, McMahon recalls, had denounced the principle of the balance of power on account of the periodic wars of conquest, forced ces­ sions, and annexations, which were among the chief methods of regulating the European balance—methods which Wilson de­ plored both on moral grounds, as inimical to the principle of self-determination, and on practical grounds, as a source of im­ perial rivalries and territorial conflicts. His own approach to the territorial problems addressed in the Fourteen Points implied the need to repudiate the title by conquest (as did his proclamation: 'The day of conquest and aggrandizement is gone by').16 And his proposed mechanism for realizing the abolition of conquest as a 12 Mandates under the League o f Nations, 371 n. 64. According to John Fischer Williams, however, what Art. 10 consecrated in calling for the protection of 'ter­ ritorial integrity' was 'existing territorial integrity, however acquired—twin brother of "existing political independence": the actual seisin'— in other words, not legal title but definitive possession. This, he argues, is proved by the fact that Art. 10 forbids forcible annexation even where a state claims legal title to the territory which it seeks to annex. Thus the primary aim of Art. 10 was not to sanctify legal titles or promote just settlements of territory as might be determined by a court of law, but rather to promote peace and stability of possession— to make the prospect of war less attractive by making the acquisition of territory as the result of war impossible ('Sovereignty, Seisin, and the League', 35-40). 13 Wright, Mandates under the League o f Nations, 371 n. 64. 14 Conquest and Modern International Law, 98-100. 15 See Wilson's exposition of the League to the Senate Foreign Relations Com­ mittee, in Baker and Dodd (eds.), The Public Papers o f Woodrow Wilson, i. 330. 16 See above, p. 138 n. 8.

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mode of acquisition of title was contained in the last of the Four­ teen Points: 'A general association of nations must be formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike/ Since the mutual guarantee envis­ aged here by Wilson was designed to bring about the demise of the title by conquest, and since that vision was translated into the guarantee of territorial integrity provided for in Article 10 of the League Covenant, the latter, so it is argued, was likewise intended to abolish wars of conquest, and to prevent cessions of territory made under duress or annexations resulting from war.17 As McNair has commented: 'President Wilson himself seems to have regarded. . . the expression "territorial integrity" as meaning "immunity not from armed invasion but from forcible annexation".'18 The view that Article 10 pledged the League to prevent all territorial changes imposed by force is supported by Lauterpacht not only by reference to the outlook of President Wilson, but also by reference to other sources (although, as we shall see below, in a later work he seemed to support a different conclusion): The repudiation of the principle of conquest was one of the main fea­ tures of President's Wilson's addresses in which he formulated the foun­ dations of the coming international order. Article 10 of the Covenant of the League of Nations . . . which, to use President Wilson's expression, constitutes the backbone of the Covenant, is essentially a prohibition of acquisition of territory by force. The discussions within the Assembly of the League, the opinion of writers, and the plain meaning of the Article itself show clearly that, at least so far as the Members of the League are concerned, the title by conquest has been abolished. It seems that even the aggressor state against whom the League proceeds with sanctions is safe from conquest.19

The opinion that Article 10 protects even an aggressor against loss of territory as a penalty for its aggression is explicitly en­ dorsed in Article 15(2) of the 1924 Geneva Protocol for the Pacific Settlement of International Disputes, which states: 17 McMahon, Conquest and Modern International Law, 98-9. 18 Oppenheim, International Law, 4th edn., i, ed. Arnold D. McNair (London: Longmans, Green, 1928), 341 n. 2, citing Baker, 'The Making of the Covenant' in Munch, Les origines et I'ceuvre de la Societe des Nations, ii (1924), 58. 19 H. Lauterpacht, Private Law Sources and Analogies o f International Law, 106-7.

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in view of Article 10 of the Covenant, neither the territorial integrity nor the political independence of the aggressor State shall in any case be affected as the result of the application of the sanctions mentioned in the present Protocol.20

The rationale behind this rule was the recognition that forcible changes of frontier, whether effected by the attacked state or by the aggressor, rarely correspond to the requirements of jus­ tice, and as such tend to sow the seeds of future conflict. Change should be possible, but only by peaceful agreement, or general consent; and the point of Article 10 was to ensure that it was not achieved by conquest. As Miller argued, war and conquest were not rational means of effecting just change, since 'the frontier would not move to any theoretical point of justice, but would move to the point dictated by the new treaty'.21 This, then, was the first and perhaps prevailing view of the implications of Article 10 for the title by conquest. A second view was that the article abolished the right of conquest as a general principle, but that, seen in relation to other articles of the Covenant, there were exceptional cases in which the article did not forbid violation of territorial integrity—although the excep­ tional cases in which conquest was legitimate could not be laid down in a general rule. This was the view put forward by Balfour in 1925, and by the British government in an official commun­ ication to the League of Nations in 1928.22 It has been character­ ized by Zimmern as follows: If, it [was] argued, a state may be invaded and otherwise punished, in conformity with the Covenant, for recognised misdeeds, why should it be protected from the particular form of punishment or correction in­ volved in the alteration of its frontiers?23

Thus John Fischer Williams, for example, argued that 'a State may by its own conduct lose the right to the protection of its neighbours under Article 10': 20 The Geneva Protocol, signed by the leading states of the world on 2 Oct. 1924, was intended to supplement the Covenant of the League of Nations but was never ratified. For text see Miller, The Geneva Protocol, 133-55. 21 Ibid. 3 4 -5 . 22 'His Majesty's Government', the communication stated, 'regard the Article, whilst of great sanctity, as the enunciation of a general principle the details for the execution of which are contained in other articles of the Covenant' (quoted in Zimmern, The League o f Nations and the Rule o f Law, 1918-1935, 273-4). 23 Ibid. p. 273.

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in the event of military measures being taken under Article 16 against a Power which has wrongfully 'resorted to war', such a covenant-breaking Power could not rely upon Article 10, should it appear reasonable or should it be desirable, in the general interest of the peace, order, and good government of the world, that it should suffer loss of territory.24

Another example offered by Williams of a case in which con­ quest would be tolerated under Article 10—even if under other articles it would be illegal—is the following. If the Assembly under Article 19, or the Council under Article 15, were to recom­ mend that boundaries should be readjusted, then it would be 'very difficult to contend' that forcible measures taken by a state to effect the readjustment 'would constitute aggression within the meaning of Article 10'. Such measures might be illegal under other articles of the Covenant—but that, he says, is a different point. For '[i]t is inconceivable . . . that States would be prepared to intervene forcibly either by economic or by military measures to prevent the very readjustment which they have recom­ mended.'25 A similar interpretation is endorsed by Baker, who states with regard to Article 10 that 'its real meaning is that it abolishes the right of conquest. It is directed against the violent transference of territory from one sovereignty to another without the consent o f the members of the League.'26 In other words, where the League members do assent to the violent transfer of territory— or at least assent to the transfer if not to the violence—say, on grounds of justice, title may still be acquired by the conqueror. A third view was that Article 10 allowed annexation under certain definite conditions, namely, 'when one state invades and seizes the territory of another in the execution of an arbitral award or a judgement of the Permanent Court of International Justice'. In such a case, however, title would not be acquired by conquest, since 'there is no question of a violent change but merely of the securing of a legal right'.27 A fourth view was that Article 10 did not exclude the acqui­ sition of title by conquest in a war waged legitimately under the 24 Some Aspects o f the Covenant o f the League o f Nations (London: Oxford Uni­ versity Press, 1934), 120-1. 25 Ibid. 120. 26 Baker, 'The Making of the Covenant' in Munch, Les origines et l'œuvre de la Société des Nations, ii. 58, quoted in Oppenheim, International Law, 4th edn., i. 341 n. 2 (my emphasis). 27 Zimmern, The League o f Nations and the Rule o f Law, 1918-1935, 274.

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The Demise of the Right of Conquest

Covenant (for example, within the terms allowed under Article 15(7) of the Covenant).28 This followed, it was argued, from the use of the word 'aggression' in the article. Since wars permitted under the Covenant did not constitute aggression in the sense of unlawful wars, their occurrence, when resulting in annexation, did not activate the obligation under Article 10 to respect and preserve 'as against external aggression' the territorial integrity or political independence of members of the League. Lauterpacht— in the fifth edition of Oppenheim's International Law—appears to endorse this view when he argues that 'the title by conquest remains a valid title in those cases in which the conquering State is not bound by the Covenant of the League. . . or when, al­ though so bound, the resort to war on its part is not, in the particular case, unlawful'.29 The difficulty with this view is that, by construing 'aggression' in Article 10 to mean simply 'unlawful war' rather than any use of force resulting in the impairment of the territorial integrity of a state (as suggested by the first interpretation considered above), it deprives Article 10 of any function beyond that which is al­ ready fulfilled by Article 16. Since the application under Article 16 of effective collective sanctions against an unlawful belligerent would itself prevent the latter from gaining effective possession of the victim's territory, what was the purpose of providing an additional guarantee of territorial integrity under Article 10, merely in order to achieve the same end? What, that is to say, was Article 10 intended to prevent that was not already to be prevented by the operation of Article 16? This difficulty disappears once it is recognized that the in­ tended purpose of Article 10 was precisely to place limits on the objects which even lawful wars could be permitted to achieve. This point has been succinctly put by Williams in his analysis of Article 10: Article 10 in the Covenant derived much of its importance from the fact that the Covenant admitted the possibility of w a r.. . . It was therefore very important, when the Covenant was drafted, to secure that a war thus permitted did not produce territorial gains to the conquerors. It 28 Ibid. 29 Oppenheim, International Law, 5th edn., i, ed. H. Lauterpacht (London: Long­ mans, Green, 1937), 454.

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was desirable to make the prospect of war less attractive even than it is already to ordinary sensible men by making impossible the acquisition of territory as the result of war.30

It seems reasonable to conclude, therefore, that Article 10, as an essentially Wilsonian article of international order (founded on the twin assumptions that territorial aggrandizement, whether as a policy or as an accomplished fact, is a frequent cause of war to be avoided; and that the security of states is best achieved by means of universal guarantees of territorial integrity, rather than through the acquisition of strategic frontiers by conquest) was, indeed, intended to abolish the right of conquest absolutely, ir­ respective of the lawfulness of the use of force. In this connec­ tion, it may be recalled that Wilson in 1918 had exhorted the victorious Allies to refrain from annexations of territory, despite his belief that Germany was the aggressor. This attitude was based on a rejection of the doctrine of the balance of power, and the conviction that international order must be achieved through a system of collective security (or a preponderance of power of the 'community' against the individual aggressor) which it was the chief function of the territorial guarantee contained in Article 10 of the Covenant to provide. As to the issue of whether an­ nexation was permissible in self-defence, it was an essential part of Wilson's outlook, which finds its imprint in the Covenant of the League of Nations, that the problem of security against fu­ ture aggression was to be met by collective security, and not by annexation. This interpretation of the implications of Article 10 for the title by conquest does not, however, exclude the sceptical variant of that view elaborated, inter alia, by Charles Cheney Hyde.31 On this view, Article 10 did not provide evidence of the renuncia­ tion of the right of conquest so much as a determination to hold onto conquests already acquired as a result of victory in war. As Hyde sees it, the practical effect of Article 10 of the Covenant, far from denying the legitimacy of territorial acquisition by con­ quest, was to provide a guarantee of conquests undertaken by the victorious powers in the war of 1914-18.32 30 Some Aspects o f the Covenant o f the League o f Nations, 122-3. 31 'Conquest Today', AJ1L 30 (1936), 471, at 471-2. 32 Ibid. 472.

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The Demise o f the Right o f Conquest

Hyde affirms the thesis argued in Chapter 5 of this study that the victors of the First World War did not demonstrate a sense of legal obligation to refrain from effecting forcible transfers of territory. This, he argues, may be seen from the treaties of peace which the victorious powers concluded with the defeated states, which, notwithstanding the provisions for plebiscites in particu­ lar areas, 'show in varying degree and form the broad extent to which the victorious Powers sought to avail themselves of mili­ tary achievements in order not only to retain control but also to obtain the transfer of rights of sovereignty over portions of enemy territory'.33 Seen against this background: the undertaking contained in Article X of the Covenant of the League of Nations whereby the members undertook 'to respect and preserve as against external aggression the territorial integrity' of all members of the League, expressed a determination to safeguard what had been won by the sword; for the final text as incorporated in the Covenant, even when coupled with that of Article XIX,34 afforded a State that had been definitely deprived of territory through the peace settlement, frail sup­ port for the contention that it was entitled as of legal right to demand a revision that would restore what had been taken from it. In a word, the Covenant, despite the hopes of some who were responsible for it, became an instrument that in effect registered respect for conquest and deference for the successes of the victor.35

Seen, then, against the background of the practice of the vic­ tors in the First World War (rather than the lofty pronounce­ ments of President Wilson), the effect of Article 10 was not to register any new respect for the principle that title by conquest was to be denied, since no such respect was in fact demonstrated, but, on the contrary, to insist that the fruits of conquest regis­ tered in the peace treaties constituted the basis of legal claims to territory which members of the League were bound to respect. As Hedley Bull explains: 'the Versailles powers purported to stand for international law and the peaceful settlement of dis­ putes, but these principles protected a distribution of territory 33 Ibid. 471-2. 34 Art. 19 empowered the Assembly of the League to advise the reconsidera­ tion of treaties and conditions which, although legally in force, had come to endanger peace on account of the passage of time, and to make recommenda­ tions for revision. But the recommendations had to be unanimous; and they were not binding on the members. 35 Hyde, 'Conquest Today’, 472.

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that they had just brought about by their victory in war'.36 It is true that Article 19, which addressed the problem of peaceful change, did provide for treaty revision recommended by the Assembly on political or moral grounds; but it did not acknowl­ edge that a state which had been forcibly deprived of territory by the post-war treaties had a legal claim to demand its restora­ tion on the ground that territorial acquisitions obtained by force were inadmissible. On the other hand, Article 10 'was not in origin, whatever it may since have become, an attempt to perpetuate the particular Peace Settlement reached in 1919'.37 It was not devised in Paris in 1919, but went back at least to January 1915 (when no one knew what the outcome of the war would be), the time of the first meeting of American supporters of the League idea, at which it was agreed that the functions of the League should include 'guaranteeing the territorial integrity and sovereignty of a mem­ ber of the League as against outside parties'.38 It was not, there­ fore, Article 10 which served to register 'respect for conquest', but rather the post-war treaties themselves, in so far as they provided for cessions of territory obtained as a result of victory in war. As McMahon has put it, Article 10 itself 'can not be presumed to include such an interpretation.. . . The point is that future territorial changes brought about by members of the League as among themselves are contrary to Article 10 if obtained by violence or force.'39 The restrictions on the right of states to resort to force contained in the Covenant of the League, and their implications for the title by conquest, may thus be summarized as follows. The Covenant of 1919 had stopped short of making all aggressive war illegal: its provisions were intended to prevent war by providing means for the peaceful settlement of international disputes, but war was still acknowledged as a legitimate means of settlement when modes of peaceful settlement had failed. However, the freedom 36 'Introduction: The Challenge of the Third Reich', in Hedley Bull (ed.), The Challenge o f the Third Reich: The Adam von Trott M emorial Lectures (Oxford: Clarendon Press, 1986), 13. 37 Williams, Some Aspects o f the Covenant o f the League o f Nations, 104. 38 Ibid. 10 4 -5 , quoting Marburg, Development o f the League o f Nations Idea (New York, 1932), i. 7, ii. 704. 39 McMahon, Conquest and Modern International Law, 102-3.

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The Demise of the Right of Conquest

of states to resort to war in certain circumstances did not imply a freedom to alter the territorial status quo by force, since mem­ bers of the League were obliged, under Article 10, to respect and preserve the territorial integrity of all members of the League. This protection was extended even to the unlawful aggressor, who was also entitled to have his territorial integrity respected. Thus, if aggressive war was in certain circumstances permitted under the Covenant, the title by conquest was not, since war as a method of changing the status quo was ruled out by Article 10. (b) The Kellogg-Briand Pact, 1928 With the General Treaty for the Renunciation of War (otherwise known as the Kellogg-Briand Pact or Pact of Paris), signed in 1928, almost all the powers of the world, including all the Great Powers, renounced the right to resort to war as an instrument of state policy. By Article 1, '[t]he High Contracting Parties sol­ emnly declare, in the names of their respective peoples, that they condemn recourse to war for the solution of international contro­ versies, and renounce it as an instrument of national policy in their relations with one another.' By Article 2, the Parties 'agree that the settlement or solution of all disputes or conflicts, of what­ ever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means'.40 In the restrictions which it placed on the right of states to resort to war, the Kellogg-Briand Pact was thus more sweeping than the League Covenant. Whereas the Covenant had merely placed conditions on self-help, that is, on resort to war as a legit­ imate instrument for the redress of wrongs (or the defence of rights), the Kellogg-Briand Pact emphasized that self-help was illegal,41 since all wars fought to settle the grievances or advance the interests of states were now prohibited. Though the Pact was not linked to any system of collective security (i.e. to any system of economic or military sanctions organized on a community basis and to be applied against aggressors), the sanction for the instrument, set out in the preamble, was that any state which violated the Pact would lose the benefit of it. The treaty was 40 LNTS (1929), 57. 41 Brownlie, International Law and the Use o f Force by States, 90-1, 240.

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independent of the Covenant of the League and thus did not expire with the League in 1946; and it was, moreover, immune from denunciation.42 However, the General Treaty for the Renunciation of War, despite the impression created by its title, did not 'outlaw' war by making all war illegal. In the first place, war remained legiti­ mate in self-defence—an exception not included in the text of the treaty, but understood in the reservations set out in the diplo­ matic exchanges prior to its signature.43 A minority of states claimed that the right of self-defence reserved under the Pact included not only the right to defend attacks on national territ­ ory, but also the right to defend vital interests and policies in regions outside the state's own jurisdiction. Thus the United States claimed that self-defence covered the Monroe Doctrine; Britain, that it covered 'interference' in the Suez Canal; and Japan later claimed that it undertook the conquest of Manchuria in selfdefence, pointing out that Manchuria was no less vital to Japan's self-defence than the Panama Canal to the United States or the Suez Canal to Britain.44 Italy, too, justified its military action against Ethiopia partly on the basis that war to protect the vital interests and security of a state was a legitimate measure of selfdefence.45 Such claims sought, in effect, to widen the principle of self-defence to cover 'self-preservation'—a common tendency in nineteenth-century thought and practice, when self-defence thus loosely defined was applied to action which was not a reaction to any threat of attack.46 However, these broad interpretations of the right of self-defence were rejected by the majority of states in the inter-war years. The verdict of the Lytton Commission Re­ port, adopted by the Special Assembly of the League of Nations on 24 February 1933, was that Japanese operations in Manchuria 42 Oppenheim, International Law, 7th edn., ii, ed. H. Lauterpacht (London: Longman, 1952), 193. 43 According to Brownlie, the exception of the right of self-defence was kept out of the text of the treaty 'to deceive public opinion' (International Law and the Use o f Force by States, 90). The documents containing the said reservations are reprinted in J. W. Wheeler-Bennett, Information on the Renunciation o f War, 19271928 (London: Allen and Unwin, 1928), 69-187. 44 F. P. Walters, A History o f the League o f Nations (London: Oxford University Press, I960), 385-6). 45 See generally the Report of the League Council adopted on 7 Oct. 1935, LNOJ (1935). 46 Brierly, The Law o f Nations, 404.

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The Demise o f the Right of Conquest

were not measures of legitimate self-defence;47 and in 1934, the British and United States governments denied that Japan had the right to take action in China by virtue of its special interests in the area—thereby defeating their own earlier claims that defence of vital interests was a legitimate ground for resort to war.48 Similarly, Italy's claim of a right to protect its vital interests was disregarded by the League of Nations; and the Council declared on 7 October 1935 that Italy had acted in violation of the Pact.49 Thus the right of self-defence reserved under the Pact was not a synonym for the right of self-preservation,50 which was broader than self-defence as understood by states after 1920 and which, since it clearly permitted war as an instrument of national policy, was repugnant to the provisions and main purpose of the Pact. What self-defence meant, as a general rule, was a necessary re­ action to the threat or use of force against the territory of a state— that is, a reaction against aggression, the common meaning of which in 1928 'was attack or invasion or threat thereof'.51 This, then, was the first exception to the broad renunciation of war proclaimed in the Kellogg-Briand Pact. The second was that, in forbidding war as an 'instrument of national policy', the Pact did not forbid recourse to war as an instrument of international policy, as in collective action under the Covenant,52 or collective action not authorized by a com­ petent international organ as in a war of sanction against an aggressor.53 The concept of a war of sanction has been defined as collective action based on a general consensus as to which state is the aggressor, whose object is 'to extirpate the source of ag­ gression and to impose measures intended to prevent further breaches of the peace by the aggressor state.'54 It has been said that the Second World War involved a war of sanction against the Axis, which did not therefore conflict but rather conformed with the terms of the Kellogg-Briand Pact: 47 LNOJ (1933), spec, suppl. no, 112, 22, 71, 72. 48 Documents on International Affairs (1934), 476, 477. 49 Report of the League Council adopted on 7 Oct. 1935, LNOJ (1935), 1223-6. 50 See e.g. Brownlie, International Law and the Use o f Force by States, 240-1. 51 Ibid. 52 Walters, A History o f the League o f Nations, 385; Martin Wight, Power Politics, 2nd edn., ed. Hedley Bull and Carsten Holbraad (Harmondsworth: Penguin Books, 1986), 111. 53 Brownlie, International Law and the Use o f Force by States, 332-3. 54 Ibid. 332, 443.

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By 1942 the war against Germany and her allies was regarded by many governments as a war of collective defence and sanction against a source of aggression and lawlessness which constituted a common danger.. . . In effect a majority of states vindicated the Pact by taking action against a minority of aggressor states.55

That the war of 1939-45, although outside the framework of the Covenant of the League, was none the less legally grounded in the Kellogg-Briand Pact, has been argued by Brownlie as follows: During the Second World War the majority of states entered the war against the Axis Powers on the basis of the United Nations Declaration of 1942 and the Moscow Declaration of 1943. The proclaimed object of the concerted action was to remove the danger to world peace: this action was therefore something more than collective defence.. . . There is thus no application of the principle of proportionality.. . . Some legal basis for action of this sort can be derived from the statement in the preamble to the Kellogg-Briand Pact that there would be freedom of action against a state violating the Pact.56

Of the wars which were outlawed by the Pact the most obvi­ ous were wars fought for expansionist ends, or wars of conquest involving the seizure of territory under the sovereignty of other states. That such wars constituted aggressive wars outlawed by the Pact was reflected in the judgements of the International Military Tribunals at Nuremberg and Tokyo which tried and punished representatives of Germany and Japan—as signatories of the Kellogg-Briand Pact—for waging offensive wars of ag­ grandizement in violation of the Pact. In relation to Germany, the Nuremberg War Crimes Tribunal quoted passages from Mein Kampf and referred to the doctrine of Lebensraum to stress the fact that the objective of Nazi policy was the forcible acquisition of territory.57 And the judgement of the Tokyo Tribunal emphas­ ized that a war of aggression had as its object the acquisition of territory or the domination (i.e. de facto control) of foreign states.58 Thus of Japan's attacks on the United Kingdom, the United States, and the Netherlands, the Tokyo Tribunal stated: 'They were 55 Ibid. 109, 114. 56 Ibid. 332. 57 Judgement o f the International Military Tribunal fo r the Trial o f German Major Criminals, Cmd. 6964 (1946), 13-14, 16-17, 35, 42-3, cited ibid. 208. 58 The concept of 'domination', as opposed to 'acquisition', covered cases where the aggressor operated through puppet administrations rather than outright annexation (ibid.).

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The Demise o f the Right of Conquest

unprovoked attacks prompted by the desire to seize the posses­ sions of these nations. Whatever may be the difficulty of stating a comprehensive definition of "a war of aggression", attacks made with the above motive cannot but be characterized as wars of aggression.'59 On this basis, however, a case could be made that the Soviet Union's attack on Japan in August 1945 should also have been classed as a case of aggression, since the acquisition of territory under recognized Japanese sovereignty was the prime motive and condition of the Soviet Union's entry into the Pacific war. But the Soviet Union was not denounced for aggression because it was participating in a war of sanction against Japan; and the United States and Great Britain had formally agreed at Yalta to the transfer to the Soviet Union of Japanese territories on the ground (or, in the case of the Southern Kuriles, on the mistaken assumption) that these territories had formerly belonged to it and constituted the fruits of past aggression.60 This suggests that the Kellogg-Briand Pact was not seen by the major powers to ex­ clude, in a successful war of sanction, the acquisition of territory by conquest, provided that the acquisition was a necessary meas­ ure of security against future aggression or could be portrayed as a 'reconquest' of territory gained by previous aggression. To what extent, then, did the Kellogg-Briand Pact limit con­ quest as a mode of acquisition of title? In so far as the Pact declared certain wars illegal, it followed that victory in a war resorted to in violation of the Pact was not a valid means of acquiring territory. This was confirmed by the fifth of the seven Budapest Articles of Interpretation of the Paris Pact, adopted in 1934 by the International Law Association, which stated: 'The signatory States are not entitled to recognise as acquired de jure any territorial or other advantages acquired de facto by means of a violation of the Pact.'61 McMahon maintains that the limitation on conquest contained in the Pact was not, however, absolute, 'since territorial changes may result from a defensive war in the form of redress or indemnity to the victorious belligerent. Hence conquest as a mode whereby a state may acquire territory, 59 Quoted ibid. 60 See above, pp. 168-9, 175-6. 61 International Law Association, Report o f the Thirty-Eighth Conference Held at Budapest, September 1934 (London: Eastern Press, 1935), 67-8.

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although decidedly limited by the Pact, still remains a legal method of acquisition in international law.'62 A more restrictive view of the consequences of the KelloggBriand Pact for the title by conquest was put forward by Herbert Wright, who considered that the Pact placed an absolute bar on the acquisition of territory by conquest, even as a result of vic­ tory in a defensive war: Although the word 'conquest' is nowhere mentioned in the pact, its repudiation is clearly to be inferred from its very terms. For how can there be room for conquest when war is only to be employed in defence against an actual aggressor, and international difficulties are to be set­ tled only by pacific means, that is, by means which are satisfactory to both sides?63

Wright's suggestion that the Kellogg-Briand Pact leaves no room for conquest, since all international conflicts are to be set­ tled by peaceful means, appears too restrictive. It ignores the fact that war is permissible under the Pact not only in defence against an aggressor, but also as a sanction for violation of the Pact, and that violators are deprived of the benefits of the treaty as against other contracting parties. Now it is clear that these benefits in­ clude not only immunity from attack, but also the right to insist that all changes in the relations between signatories, including territorial changes, must be reached by peaceful means. The in­ tention of the signatories to deprive aggressors not only of the former benefit but also of the latter—that is, of the benefit of immunity from forcible changes of frontier—may be inferred from the fact that the statement of this particular benefit, and the dec­ laration that violators of the Pact should be denied the benefits of it, are juxtaposed within the same sentence of the preamble as follows: [The signatory States are:] Convinced that all changes in their relations with one another should . . . be the result of a peaceful and orderly pro­ cess, and that any signatory Power which shall hereafter seek to pro­ mote its national interests by resort to war should be denied the benefits furnished by the Treaty.

62 Conquest and Modern International haw, 119. 63 Herbert Wright, The "Right" of Conquest', The Commonweal, New York, 19 Oct. 1932, quoted ibid. 117.

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The Demise o f the Right of Conquest

The express threat that powers acting in breach of the Pact would be deprived of the protection of the Pact as against other contract­ ing parties extends, therefore, to the protection which the treaty provides against all changes of frontier which are not 'the result of a peaceful and orderly process', that is, which are the result of war. This provides some support for McMahon's conclusion that lawful belligerents may, if victorious, acquire territory at the expense of the aggressor as a penalty for the latter's aggression. But since another state's aggression does not relieve the victim of the obligation to refrain from resorting to war as an instrument of national policy (i.e. violation of the Pact does not give it licence to convert a war of defence into a war of aggrandizement, by satisfying its own designs on the aggressor state's territory), for­ cible acquisition of territory is permissible under the Pact only to the extent that it is seen by other signatories as an instrument of international policy (i.e. as a necessary measure for the mainten­ ance of international peace and security). And if territorial changes imposed by the lawful belligerent on the defeated aggressor require the consent of the international community, then it is not conquest as such, but the will of the international community, which provides the legal sanction for such changes. The implications of the Kellogg-Briand Pact for the acquisition of territory by force as a result of victory in a lawful war against violators of the Pact has been summed up by Brownlie as fol­ lows: 'Lawful belligerents conducting and winning a war of sanc­ tion may impose restrictions intended to prevent recrudescence of aggression and use force to ensure observance of the restric­ tions imposed.'64 Whereas Article 10 of the League Covenant had prohibited any forcible acquisition of territory, even as the result of collective action taken against an unlawful aggressor, This prohibition would n o t. .. apply to a war of sanction leading to the imposition of measures of security on the aggressor by states acting in the name of the international community. Measures of security intended to prevent future threats to the peace may include movement of popu­ lations and frontier changes.. . . On the hypothesis that the Second World War involved a war of sanction against the Axis States, the territorial provisions relating to East Prussia and the Oder-Neisse territories in the Potsdam Agreement provide an example of measures of this sort.65 64 International Law and the Use o f Force by States, 336. 65 Ibid. 409 and n. 3.

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It may be observed that territorial changes of the kind im­ posed by the victorious Allies on the defeated Axis would have had no legal basis had the war been an organized community action conducted under Articles 10 and 16 of the Covenant against members of the League. But the Second World War was not conducted within the framework of the Covenant of the League (after December 1939, during the currency of the war, the organs of the League had ceased to be of any practical significance); and the Kellogg-Briand Pact contained no provision comparable to Article 10 of the Covenant implying the duty to respect the ter­ ritorial integrity of aggressors. This yields the paradox that whereas the Kellogg-Briand Pact was more restrictive than the League Covenant in its prohibition of the use of force by states, it was less so in the allowance it made for forcible territorial changes when resulting from victory in a war of sanction against an aggressor. This calls for some qualification of the proposition expressed by Shawcross that the General Treaty for the Renunciation of War 'abolished war as a legally permissible means of enforcing the law or of changing it'.66 For while this opinion holds true so far as private wars (or wars not waged collectively, as an instrument of international policy) are concerned, it is evident, as the territorial results of the Second World War demonstrate, that rights to territory could be changed as a result of victory in a war of sanction against violators of the Pact; and that such changes in the law, although effected by war, were not legally excluded by the Pact. (c) The Charter o f the United Nations, 1945 Article 2(3) of the United Nations Charter restates the commit­ ment contained in the Kellogg-Briand Pact that only peaceful means may be employed for the settlement of international dis­ putes. And Article 2(4) obligates all members to 'refrain in their international relations from the threat or use force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations'. Chapter VII of the Charter—concerning 'Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts 66 As reported by Brownlie, ibid. 168, citing the speech by Sir Hartley Shawcross, UK Chief Prosecutor (International Military Tribunal), in The Trial o f German Major War Criminals, Opening Speeches o f the Chief Prosecutors (HMSO, 1946), 5 3 -6 .

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The Demise o f the Right of Conquest

of Aggression'—provides only two exceptions to this compre­ hensive prohibition of the use or threat of force: (1) collective military action as authorized by the Security Council in fulfil­ ment of the United Nations' own collective-security procedures67 (in this connection Article 39 states that 'The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommenda­ tions, or decide what measures shall be taken in accordance with Articles 41 [sanctions short of war] and 42 [military action], to maintain or restore international peace and security'); and (2) the right of individual and collective self-defence (Article 51) against an 'armed attack', which may be exercised, however, only 'until the Security Council has taken measures necessary to maintain international peace and security'. The interim character of the right is underlined by the further provision that '[m]easures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council' and shall not in any way affect the authority of the Security Council to take such action as it deems necessary to restore international peace and security. The stipulation in Article 2(4) of the Charter that force shall not be used or threatened against the territorial integrity or political independence of any state recalls the similar phrase used in Article 10 of the League Covenant that members undertake to respect and preserve as against external aggression the territorial integrity and existing political independence o f all Members o f the League. It seems logical to suppose, therefore, since the effect of Article 10 of the Covenant was to forbid all territorial changes imposed by force— even where the resort to force had been lawful in origin— that the effect of Article 2(4) of the Charter is likewise to prohibit all acquisitions of territory by force, irrespective of the lawful­ ness of the cause of war. As this interpretation is not universally accepted by interna­ tional legal writers,68 however, I shall state the contrary position 67 UN Charter, Art. 39-50. 68 See e.g. Oppenheim, International Law, 8th edn, i, ed. Lauterpacht, 574-5; Schwarzenberger, International Law as Applied by International Courts and Tribu­ nals, 3rd edn., i (London: Stevens, 1957), 297; Brownlie, International Law and the Use o f Force by States, 408-9; G. I. Tunkin, Droit international public: Problèmes théoriques (Paris: Éditions Pédone, 1965), 218-19; Rosalyn Higgins, 'The June War:

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below. An attempt will then be made to argue the case for the proposition favoured by the present study, which is that it is a corollary of Articles 2(4), 51, and 24(2) of the United Nations Charter that the acquisition of territory by the use of force— whether effected by unilateral annexation or through a treaty of peace imposed upon the defeated state—is inadmissible, even as the result of a lawful use of force. This, it should be stressed, is what the rule would seem to be in principle—on the basis of an analysis of the Charter regime on the use of force. Whether or not states have heeded the rule in particular cases and the extent to which the rule may have been modified in practice are differ­ ent questions to be examined in the following chapter. The permissive view of the consequences of the Charter re­ gime on the use of force for the forcible acquisition of territory may be stated as follows. International law forbids acquisition of territory by unlawful force—for example, when force is initiated for the purpose of acquiring territory—but not, or not obviously,69 The United Nations and Legal Background', Journal o f Contemporary History, 3 /3 (July 1968), 253, at 270; Morris Greenspan, 'The Protection of Human Rights in Time of Warfare', IYHR 1 (1971), 228, at 242-4; Elihu Lauterpacht, 'Jerusalem and the Holy Places', repr. in John Norton Moore (ed.), The Arab~Israeli Conflict (Princeton: Princeton University Press, 1974), i. 975-6; Yoram Dinstein, 'The Legal Issues of "Para-War" and Peace in the Middle East', repr. ibid. i. 173-4; Stephen M. Schwebel, 'What Weight to Conquest?', repr. ibid. ii. 315-18; Julius Stone, Conflict Through Consensus: United Nations Approaches to Aggression (Baltimore: Johns Hopkins University Press, 1977), 61-5, 125-7; id., Israel and Palestine: As­ sault on the Lam o f Nations (Baltimore: Johns Hopkins University Press, 1981), 526; Crawford, The Creation o f States in International Lam, 329; Bindschedler, 'Annexation', 21-2; Michael Bothe, 'Belligerent Occupation', EPIL 4 (1982), 64, at 66; Malvina Halberstam, 'Recognition, Use of Force, and the Legal Effect of United Nations Resolutions under the Revised Restatement of the Foreign Relations Law of the United States', ILR 19 (1984), 495, at 503-8; Dinstein, War, Aggression and Self-Defence, 157, 159. 69 Rosalyn Higgins adopts what may be termed the agnostic position on this question in 'The June Wax'. As against the remark made by the British Foreign Secretary, George Brown, before the General Assembly on 21 June 1967, that 'from the words ["territorial integrity"] in [Art. 2] of the Charter, war should not lead to territorial aggrandisement', Higgins argues that Art. 2's 'prohibition against "territorial aggrandisement" was directed against the old, pre-1939 practice, of an aggressor being allowed to retain the fruits of his aggression. It provides no clear guidance on the problem o f a state which has responded to a threat o f annihilation, and in so doing has taken the fight into the enemy's own territory. . . . [I]t may well be . . . that there are compelling policy reasons why, even in these circumstances, the victo­ rious state should not be permitted permanently to retain these territories: but we cannot pretend that it is Article 2 of the Charter which answers this problem' (p. 270, my emphasis).

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The Demise of the Right of Conquest

when force is used to stop an aggressor. Rudolf Bindschedler's article on 'Annexation' (published in 1982) contains a succinct statement of this view: It is only the unauthorized use of force which confers no legal title. What is the situation in the case of a war of self-defence, permitted under Article 51 of the Charter, or in the case of military sanctions? Logically, a right of annexation should be acknowledged if the territory affected belongs to the aggressor.70

This view is arrived at by placing primary emphasis not on the words 'territorial integrity' in Article 2(4) (which suggest that any violation of territorial integrity as a result of the use of force is a use of force 'inconsistent with the Purposes of the United Nations') but rather on the Charter's exceptions to the prohibi­ tion of the use of force—namely, those contained in Chapter VII (which, it is argued, do not expressly prohibit the violation of the territorial integrity of the aggressor for the purpose of prevent­ ing future aggression). On this construction, then, it is only when force is used by states for unlawful purposes—that is, for non­ defensive purposes, or without authorization from the Security Council—that the acquisition of territory by the use of force is inconsistent with the purposes of the United Nations. Thus the central question at issue, which it will be necessary to consider below, is whether the stipulation in Article 2(4) of the Charter that 'all members shall refrain from the threat or use of force against the territorial integrity . . . of any state' protects the right to territorial integrity of all states, including aggressor states (as we have seen was the intended purpose of Article 10 of the League Covenant), or whether the 'inherent right of self-defence' saved under Article 51 and the powers of the Security Council under Chapter VII provide not merely exceptions to the general prohibition of the use of force by states, but exceptions to the specific prohibition of the threat or use of force against the territ­ orial integrity of any state. The key question, in short, is whether in the era of the United Nations lawful force may be used to change rights to territory. 70 pp. 21-2. Bindschedler admits, however, that such a conclusion would not be compatible with Art. 15(2) of the Geneva Protocol of 1924, which expressly protects the territorial integrity of the aggressor state (p. 22).

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(i) The Limited Right o f Self-Defence (Article 51) and the Limited Powers o f the Security Council (Article 24(2)) Preclude the Imposition o f Territorial Changes on the Aggressor It has been argued by Jennings that the idea that a state that re­ sorts to war in self-defence may still acquire a title by conquest— whether through annexation of conquered territory or by forcing a treaty of cession upon the defeated state—'rests upon a mis­ taken understanding of the limits of self-defence': Force used in self-defence. . . must be proportionate to the threat of immediate danger, and when the threat has been averted the plea of self-defence can no longer be available. It is true that it may not be easy to say when this point is reached and that to some extent at least it is a matter for the judgement of the actor. But when all allowance is made for the 'rough jurisprudence of nations', it must still be said that it would be a curious law of self-defence that permitted the defender in the course of his defence to seize and keep the resources and territory of the attacker.71

Similarly, according to Bowett: it is impossible to conceive of self-defence as justifying the acquisition of title to territory. One can conceive of self-defence justifying the tem­ porary occupation of territory but never the permanent acquisition of title.72

But to states which in recent times have been the victims of attack, or of threats of annihilation—such as the Soviet Union and Poland in relation to Germany, or Israel in relation to its Arab neighbours—the notion that a state that acts in self-defence is entitled to acquire a portion of the territory of the aggressor (especially when that territory has been used as a base for at­ tacks against it) is not at all 'curious', but constitutes rather a just and fitting response to the crime of aggression, which provides the victim with the reassurance against future attacks to which it is clearly entitled. Nor could a law of self-defence that ac­ knowledged the defender's right of conquest be described as in any way 'curious' when viewed in historical perspective. For historically, states as well as writers have considered that self­ 71 The Acquisition o f Territory in International Law, 55. 72 'International Law Relating to Occupied Territory', 475.

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The Demise of the Right of Conquest

defence might justify the acquisition of title to territory. Thus Germany's annexation of Alsace-Lorraine in 1871 was widely viewed, at the time, as a fitting penalty for the conquest which France by its aggression had intended to inflict; and the Allies during the Second World War supported the acquisition of de­ fensible frontiers by the Soviet Union and Poland on the grounds that these countries had a right of assurance against future attacks from the West. This same kind of moral perception is reflected in Vattel's assertion that a just victor, if he has to do with a perfidious, restless, and dangerous enem y,. . . will, by way of punishment, deprive him of some of his towns or provinces, and keep them to serve as a barrier to his own dominions. Nothing is more allowable than to weaken an enemy who has rendered himself suspected and formidable. The lawful end of punishment is future security.73

And the notion that a right of conquest may legitimately arise from victory in a war fought in a just cause, especially a war fought in self-defence to repel aggression, has always been a basic tenet of natural-law doctrine embraced by the classical international legal thinkers, such as Vitoria and Grotius. In the light of these considerations, such blanket assertions as those enunciated by Jennings by Bowett appear, with respect, too sweeping. For they seem to take insufficient account of pol­ itical realities—that is, of the need which may exist for the for­ cible adjustment of frontiers against a state which repeatedly uses its territory as a base for attacks against others; of historical attitudes which bear on this question, and of the reasoning which underlies them; or, indeed, of the moral case which may be ar­ gued for making aggressors pay for the crime of aggression in the form of territorial compensation to their victims. This is all the more surprising since the idea that an aggressor should be punished for its aggression (and the victim compensated for its sufferings) is a peculiarly legal one, whatever arguments may be adduced against the infliction of the particular form of punish­ ment involved in the alteration of its frontiers. Of course one could argue that a law which allowed a state that acts in selfdefence to acquire a title by conquest would be a thoroughly bad law—that it would, for example, be subject to grave dangers of 73 The Law o f Nations, bk. Ill, ch. 13, sect. 194.

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abuse.74 But such a law of self-defence is not altogether curious; and it is certainly not inconceivable. Yet the view urged by Jennings and Bowett does appear ten­ able if it is argued that it is not the notion of self-defence as such (whose corollaries have varied historically according to the legal regime in which the right of self-defence has been embedded) but rather the singularly limited scope of that concept in the con­ text of the United Nations Charter, which precludes the acquisition of territory by conquest as a result of action taken under Article 51. As one writer has summarized the consequences of Article 51 for the acquisition of territory by the state using force in selfdefence: The limitation of the right of self-defence by the principle of proportion­ ality had already been well established under general international cus­ tomary law and has to be regarded as implicit in the very notion of self-defence. Though it is not specifically mentioned in Art. 51, propor­ tionality is to be maintained even more strictly under the Charter. The status of self-defence as an exception to the fundamental prohibition of the use of force asks for a construction of Art. 51 that restricts the per­ missible use of force to a necessary minimum. Self-defence is therefore restricted to the preservation or restoration of the status quo ante (pro­ portionality as to the end).75

That a policy based on self-defence within the terms of Article 51 would, in principle, seek the restoration (or preservation) of the status quo rather than territorial gain, follows, then, from the meaning of self-defence as forcible action taken in response to the initiation of an armed attack, which is to be distinguished from a use of force designed to provide safety against future attacks. Whereas defensive action would thus be consistent with a belligerent occupation resulting from a continuing act of selfdefence and the inability to negotiate or enforce a permanent end to hostilities, it would not be consistent with the imposition of permanent territorial changes as a measure designed to en­ sure that the aggression will not be repeated. This is not to say that a situation in which a state has been the victim of attack, or of threats of annihilation, can never be satis­ factorily resolved on the basis of territorial changes. Nor is it to 74 See Jennings, The Acquisition o f Territory in International haw, 55. 75 Brun-Otto Bryde, 'Self-Defence', EPIL 4 (1982), 212, at 213-14.

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The Demise of the Right of Conquest

deny that a reasonable measure of protection against future ag­ gression may in some cases require such changes. What it does say, rather, is that such measures are beyond the competence of individual states, acting within the confines of Article 51, to impose on a defeated aggressor by the threat or use of force. It is this reasoning which underlies Brownlie's remark that 'lawful belligerents should not be permitted to act ultra vires by acquir­ ing territory as a result of a lawful war'.76 A second argument has been advanced by Jennings in support of the position that lawful belligerents may not acquire territory as a result of a lawful war, so that 'conquest as a title to territor­ ial sovereignty has ceased to be a part of the law.'77 Whereas the first argument holds that victorious states may not permanently retain territories occupied in the course of self-defence since such action would exceed the limits of the principle of self-defence, the second arrives at the same conclusion on the basis of consid­ erations of policy, by pointing out that even if it were admitted that conquest carried out in self-defence might in principle give to the victor a title to retain the conquered territory (since victory in that case would not be an injuria from which no jus can arise), there are overriding practical reasons why this rule has not been and cannot be admitted.78 As Jennings points out, to admit the existence of a rule whereby title to territory may still be acquired as a result of victory in a lawful war would have the effect of making questions of title depend upon the determination of such controversial issues as the identification of the aggressor and the limits and meaning of self-defence. But '[q]uestions of title', he argues, 'ought not to depend upon the resolution of questions of such dubiety, and which moreover have a large political content':79 On this basis, Jennings concludes, 'any attempt to draw a legal distinction be­ tween situations where conquest can nowadays confer a title and those where it cannot is unrealistic and unworkable in a society where there are as yet no courts with compulsory jurisdiction to decide so nice an issue'.80 76 International Law and the Use o f Force by States, 409. For a similar argument, see Nathan Feinberg, 'On the Right of Annexation' (in Hebrew), in Essays on Jewish Issues o f our Time (Jerusalem: Dvir, 1980), 172-5. 77 Jennings, The Acquisition o f Territory in International Law, 56. 78 Ibid. 5 5 -6 . 79 Ibid. 56. 80 Ibid. 55.

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It is true that under Article 39 of the Charter, the Security Council is vested with the authority to determine in a binding way the existence of any act of aggression. But in many conflicts, no such binding determination of the aggressor is ever made (in which case each belligerent feels free to charge that its opponent has committed aggression), and in some cases both sides bear equal responsibility for the conflict. Hence the question with which international society has generally been confronted in prac­ tice is not whether the state that resorts to war in self-defence may still acquire territory by conquest (since ex hypothesi, in the absence of an authoritative determination of the aggressor, it is uncertain which state has resorted to war in self-defence and which has not), but rather whether acquisition by conquest per se, irrespective of which state is the aggressor, should or should not be recognized as lawful. Now since every victor, in the ab­ sence of an authoritative determination of the aggressor, would seek to assert title over conquered territory on the basis of its own determination of the aggressor, which the other party would reject, the dangers of attempting to save certain kinds of con­ quest as lawful have led states to abolish absolutely the right of conquest, by declaring that conquest today, aggressive or defen­ sive, does not confer title. Thus the same considerations of policy—i.e. the problem of passing legal judgement on the justice of the cause of war— which led Vattel in the eighteenth century, in an era which ac­ knowledged the right of sovereign states to resort to war, to argue that all conquest, irrespective of the justice of the cause, confers valid title have led writers such as Jennings in the twen­ tieth to argue that in a society which prohibits the use of force by states except in self-defence, but in which there is often no con­ sensus as to which side in a given conflict is the aggressor and which side the victim, no conquest, irrespective of the justice of the cause, gives title to territorial sovereignty. This point, however, is primarily of theoretical interest. For even if the Security Council were able in practice to identify the aggressor in every conflict, this would not broaden the scope of the right of self-defence under Article 51—which, as we have seen, is limited to the necessities of defence and by the principle of proportionality, and as such does not include the right to deprive the attacker of its territory with a view to preventing

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The Demise of the Right o f Conquest

future aggression. The determination of the aggressor does not, in any case, relieve other states of their duty under Article 2(4)— namely, the obligation to refrain from the threat or use of force against the territorial integrity of any state, or in any other man­ ner inconsistent with the purposes of the United Nations. Nor is the Security Council itself at liberty to act contrary to Article 2(4), since its powers do not include the right to diminish the legal rights of a state on the grounds that action has been taken by that state contrary to international law. As Judge Fitzmaurice has argued, the powers of the Security Council in relation to interna­ tional peace and security, though extensive, do not impinge on the territorial rights of states: Even when acting under Chapter VII of the Charter itself, the Security Council has no power to abrogate or alter territorial rights, whether of sovereignty or administration.. . . The Security Council might, after making the necessary determinations under Article 39 . . . order the oc­ cupation of a country or piece of territory in order to restore peace and security, but it could not thereby, or as part of that operation, abrogate or alter territorial rights;. . . It was to keep the peace, not to change the world order, that the Security Council was set up.81

This opinion would seem to accord with Article 24(2) of the Charter, which prescribes that the Security Council, in discharg­ ing its duties with respect to the maintenance of international peace and security, 'shall act in accordance with the Purposes and Principles of the United Nations'—including by implication the principle that force shall not be used against the territorial integrity of any state. Similarly, Article 25 makes clear that 'de­ cisions' of the Security Council under Chapter VII are legally binding on the parties only if they are 'in accordance with the present Charter'. Thus, to the extent that the violation of the territorial integrity of any state is contrary to the purposes and principles of the Charter, neither the victim of aggression acting 81 Legal Consequences fo r States o f the Continued Presence o f South Africa in Na­ mibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1C] Reports (1971), 16, at 294. But for a contrary view, see Crawford, The Creation o f States in International Law, 329, who submits that the Security Council would be competent to require and enforce transfers of territory if it regarded such transfers as necessary to 'maintain or restore international peace and security'; and to the same effect, Brownlie, International Law and the Use o f Force by States, 409.

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under Article 51, nor the Security Council in the exercise of its powers under Chapter VII, is at liberty to violate the territorial integrity of the aggressor state—say, by unilateral annexation of its territory or by forcing it to cede portions of its territory in an imposed treaty of peace. However, since the validity of this argument depends on the truth of the premiss that the violation of the territorial integrity of any state, including the aggressor state, is indeed contrary to the purposes and principles of the Charter, it is this proposition which it will now be necessary to establish. (ii) Article 2(4) Precludes the Dismemberment o f the Territorial Integrity o f any State Including the Aggressor In the view of the great majority of states, it is a corollary of Article 2(4) of the Charter that territorial acquisition by any use or threat of force is illegal and invalid, irrespective of whether the resort to force was lawful in origin, so that a use of force in self-defence, that is, a lawful use of force, does not fall outside the prohibition of the acquisition of territory by force implied by that article. Strong evidence for this proposition may be found in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by consensus by the General Assembly in 1970.82 The first section of the Declara­ tion, which concerns the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations, shows, in paragraph 10, how states interpret the Charter's prohibition of the use of force and its consequences for belligerent occupation and acquisition of territory: The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal. 82 GA Resolution 2625 (XXV), 24 Oct. 1970.

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As Akehurst observes: 'In these words, the Declaration makes a significant distinction between military occupation and acquisi­ tion of territory. Military occupation is unlawful only if it results from the use of force in contravention of the Charter; any threat or use of force, whether it is in contravention of the Charter or not, invalidates acquisition of territory.'83 Moreover, paragraph 15 of the preamble to the Friendly Relations Resolution proclaims that 'any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country . . . is incompatible with the purposes and principles of the Charter'. Now since, under Article 24(2), the Security Council is obliged to 'act in accordance with the Purposes and Principles of the United Nations', it follows that the Security Council is not empowered to authorize any forcible frontier changes as measures of secur­ ity, since such action, by disrupting the territorial integrity or national unity of a state, would be contrary to the purposes and principles of the Charter. This confirms our earlier contention that the right to use force in self-defence does not imply a licence to acquire territory as the result of a defensive use of force; and that the prohibition of aggression and of the use of force against the territorial integrity of any state have put an end to conquest as a title to territorial sovereignty in contemporary international law. Additional evidence for the proposition that it is a corollary of Article 2(4) that all acquisitions of territory resulting from the use or threat of force are illegal, regardless of whether the use of force was aggressive or defensive, may be found in the preamble to the Security Council's Middle East Resolution 242 of 22 No­ vember 1967, which emphasizes 'the inadmissibility of the acqui­ sition of territory by war' without drawing a distinction between lawful war and unlawful war. As Quincy Wright has noted: This principle goes beyond the principle 'no fruits of aggression'. It says that there shall be no territorial fruits from war, using the latter term in the material sense of a considerable use of armed force. Its application, therefore, does not depend on determining who was the 'aggressor'. . . It was assumed by the League of Nations as a necessary implication of the Covenant's guarantee of the territorial integrity of all Members . . . [and the] principle has been considered an implication of the obligation in 83 A Modern Introduction to International Law, 6th edn., 149.

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Article 2, paragraph 4, of the U.N. Charter to refrain from the use or threat of force against the territorial integrity of any state.84

Yet Resolution 242, while proclaiming the inadmissibility of the acquisition of territory by force, at the same time calls for a settlement which appears to envisage at least minor acquisitions of territory by Israel. Thus, paragraph l(i) of the operative part of the Resolution, which calls for '[withdrawal of Israeli armed forces from territories occupied in the recent conflict', does not call upon Israel to withdraw from all territories occupied in the June 1967 War;85 and paragraph l(ii), which affirms the right of every state in the area to live within 'secure and recognized boundaries', also appears to leave open the possibility of legit­ imate territorial change by suggesting that Israel would be re­ quired to withdraw only to such boundaries as are secure and recognized, which the old, pre-war boundaries (or provisional boundaries) were not. The effect of this qualification, however, is not to defeat the principle of the inadmissibility of the acquisi­ tion of territory by force. For even if it is agreed that some acqui­ sitions of territory would in principle be admissible as part of an overall peace settlement, they would not be admissible if Israel were to effect them by force—that is, through unilateral annexa­ tion or by dictating treaties of cession under threats to renew hostilities.86 This is made clear in paragraph 3 of the Resolution, which calls for the achievement of 'a peaceful and accepted settle­ ment in accordance with the provisions and principles in this resolution'. Since such a settlement would not be a settlement imposed or dictated under threats or acts of force, it follows that the qualification contained in the Resolution is not to deny the 84 'The Middle East Problem', in J. N. Moore (ed.), The Arab-lsraeli Conflict, ii. 828-9. 85 The absence of the definite article before the word 'territories' was a delib­ erate omission (Arthur Lall, The UN and the Middle East Crisis, 1967 (New York: Columbia University Press, 1968), 253-4). See Yehuda Z. Blum, Secure Boundaries and Middle East Peace in the Light o f International Law and Practice (Jerusalem: Hebrew University of Jerusalem, Faculty of Law, 1971), 72-4. 86 Under Art. 52 of the 1969 Vienna Convention on the Law of Treaties, a treaty concluded under the threat or use of force is void (see below, pp. 230-4). Note, however, that it is only 'the acceptance of the treaty that must be coerced. A treaty, such as the 1979 Egyptian-Israeli Treaty of Peace, that is signed as a matter of choice, is not invalid under Art. 52, even though its terms may have been dictated or influenced by a prior use of force' (Harris, Cases and Materials on International Law, 3rd edn., 615).

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inadmissibility of acquiring territory by force, but is rather to assert or suggest the following: (1) that a state which has been the victim of attack may be recognized as having a legitimate claim to border adjustments on grounds of military security; (2) that the Security Council would, in this case, approve of border modifications to the extent deemed necessary for security; but (3) that such changes could not be enforced by the state whose claim is admitted, but could only be effected in the context of a freely negotiated settlement, and only to the extent compatible with 'a just and lasting peace'87—the essential point being that a peace treaty incorporating frontier changes must have some prospect of permanence: that is, it must not impose or dictate territorial arrangements which the party dictated to would seek to reverse as soon as the next opportunity offered.88 Thus Security Council Resolution 242, while it does not deny the validity of territorial changes which it has itself acknow­ ledged to be necessary on grounds of security, does not support the right of the victim of attack to annex conquered territories or to impose a treaty of cession on the defeated state. As such, it provides strong evidence for the existence of the rule that all acquisitions of territory obtained by force, without qualification as to lawfulness, are inadmissible. In the light of the evidence adduced above, it is difficult to accept the opinion expressed by the Soviet jurist G. I. Tunkin that the doctrine of the inviolability of the territorial integrity of the aggressor state forms no part of contemporary international law.89 Tunkin argues that the prohibition of aggressive war en­ tails discrimination against the aggressor state, not, it is true, in the application of the rules of the jus in hello, but in the applica­ tion of sanctions post bellum to the guilty state, which may in­ clude not only penalties inflicted on individuals recognized as guilty of 'crimes against peace', and reparations for damage caused by the aggressor state, but also the amputation of a part of its territory with a view to preventing an aggression in the 87 The phrase used in par. 2 of the preamble. 88 For a contrary view, see Greenspan, 'The Protection of Human Rights in Time of Warfare', 243-4, who argues that Security Council Resolution 242 con­ sidered in toto does not assert 'a blanket denial of any territorial acquisition in war' but lends weight to the proposition that international law does not protect an aggressor's territory. 89 Droit international public, 216-19.

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future.90 While he admits that the institution of conquest ('le droit de conquête') as a legal mode of acquisition of territory founded on the sole fact of victory disappeared when the principle pro­ hibiting the use of force by states was established,91 he insists that the contemporary prohibition of aggressive war does not exclude annexation or forced cession as a form of punishment for aggression: Que le droit international contemporain interdise aux États de recourir à la guerre dans leur relations et qu'elle ne soit pas un moyen d'acquisition d'un territoire national, ne veut pourtant pas dire que l'on ne puisse pas appliquer des sanctions à l'agresseur, notamment sous form e d'annexion d'une portion de son territoire. L'impunité de l'État agresseur ne corre­ spond pas au droit international contemporain qui prévoit une respons­ abilité sévère pour la rupture de la paix.92

As an example of such sanctions against the aggressor, imposed in the form of territorial dismemberment, Tunkin points to the amputation of certain German and Japanese territories following the Second World War, which he distinguishes from the earlier usurpations effected by Japan, Italy, and Germany. Whereas the latter, he argues, were based on the right of the victor ('le droit du vainqueur'), the Allied actions were based on the interna­ tional responsibility of states for the crime of aggression.93 However, as a comment on the state of the law with regard to the acquisition of territory by force in the era of the United Nations, this argument is not convincing. For the territorial changes brought about as a result of the Second World War took place before the Charter came into force, and were thus not sub­ ject to the Charter's ban on forcible acquisitions of territory or the violation of a state's territorial integrity94—a point stressed in Article 107 of the Charter, which stipulates that 'Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an en­ emy of any signatory to the present Charter, taken or authorized 90 For a similar view, see Brownlie, International Law and the Use o f Force by States, 408-9. 91 Tunkin, Droit international public, 213. 92 Ibid. 218 (my emphasis). 93 Ibid. 219. 94 As noted earlier, the Kellogg-Briand Pact appears to have been more lenient than the Charter on this score, as it did not extend protection to the territorial integrity of an aggressor (see above, pp. 196-9).

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The Demise of the Right o f Conquest

as a result of that war by the Governments having responsibility for such action/ In a similar way, and for the same reason, the paragraph concerning the illegality of acquisition of territory resulting from the threat or use of force, contained in the 1970 Declaration on Principles of International Law,95 is immediately followed by the statement that 'Nothing in the foregoing shall be construed as affecting. . . any international agreement prior to the Charter regime and valid under international law.' This sav­ ing was also intended to prevent attempts to reopen pre-Charter territorial settlements by applying the contemporary prohibition of forcible acquisitions of territory retroactively to the settlements arising from the Second World War—an attempt which would serve to invalidate those settlements precisely on the grounds of the inadmissibility of the acquisition of territory by war. Hence the territorial mutilation of Germany and Japan, which Tunkin cites as evidence against the doctrine of the inviolability of the territory of the aggressor, does not in fact indicate that the principle regarding the inadmissibility of acquisition of territory by war applies only to unlawful wars. For the principle in ques­ tion is an extension of the Charter principle prohibiting the use or threat of force against the territorial integrity of any state (Article 2(4)), and as such is not applicable to the territorial changes of the immediate post-war period (which cannot, there­ fore, be cited as evidence against the principle).96 (in) A Reply to the Argument that the Rule Forbidding Territorial Acquisition by Lawful Force Encourages Aggression It has been argued by Julius Stone (who, it may be noted, does not accept that there is any rule forbidding territorial acquisition as a result of lawful force) that the acceptance of a rule which protects the territorial integrity of aggressor states 95 GA Resolution 2625 (XXV). 96 As a further objection to Tunkin's argument, it may be noted that the an­ nexations of territory and compulsory transfers of population of the kind that took place at the end of the Second World War would today be ruled out not only by Art. 2(4) of the UN Charter— of which a corollary is the inviolability of the territorial integrity of all states, including aggressor states—but also by the provisions of the 1949 Geneva Conventions for the Protection of War Victims— which apply irrespective of which state is the aggressor (see below, pp. 218-25).

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would be disastrously undesirable. It would assure every prospective aggressor that if he fails, he will be entitled to restoration of any ter­ ritory he has lost.. . . In short, it would underwrite unconditionally the risks or loss from any proposed aggression. By such a rule an interna­ tional law which sets out by the ex iniuria [non oritur ius] principle to discourage aggressors, would end with a rule encouraging aggressors by insuring them in advance against the main risks involved in case of defeat. To offer such a rule de lege ferenda would sanctify a new and cynical legal maxim which might run: 'If you cannot stop the aggressor, help h im !'. . ,97

The principal difficulty with this argument is the assumption it makes that international law in the era of the United Nations does, in fact, set out to deter potential aggressors by threatening territorial loss in case of defeat. This assumption is neither con­ sistent with the purposes and principles of the United Nations, nor does it accord with international practice—as demonstrated in the enforcement action authorized by the Security Council in November 199098 and carried out the following year to reverse and punish Iraq's aggression against Kuwait. The means by which the United Nations in fact seeks to dis­ courage aggressors is set out in Article 1(1) of the Charter, which promises 'effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace'. This suggests that the chief deterrent against aggression is intended to be the collectivesecurity system itself—that is, the prospect of certain defeat at the hands of the international community if aggression is ever threatened or attempted. There is no suggestion here that the prospect of territorial mutilation of the aggressor is conceived to be a legitimate factor in deterring potential aggressors, particu­ larly since such mutilation is itself considered to be contrary to the purposes and principles of an international organization which 97 No Peace—No War in the Middle East (Sydney: Maitland Publications, 1969), 33. A similar argument has been advanced by Greenspan: 'The aggressor is . . . not allowed to enjoy the fruits of his aggression. But what if the aggressor does not succeed in his aggression and loses territory to his intended victim. Is the aggres­ sor then to be insured against the consequences of his aggression and have his territory returned to him in all circumstances? Such a doctrine would provide little deterrent to an aggressor and, indeed, might encourage him in a persistent course of aggression' ('The Protection of Human Rights in Time of Warfare', 243). 98 SC Resolution 678 (1990), 29 Nov. 1990, ILM 29 (1990), 1565.

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The Demise of the Right of Conquest

is based on respect for the territorial integrity of all states. This argument is reinforced by the recent case of the UN-authorized action against Iraq in 1991, in which, despite the magnitude of Iraq's aggression—namely, its unprovoked invasion and annexa­ tion of the whole of Kuwait—Iraq was at no time threatened by the Security Council with permanent conquest or territorial dis­ memberment as a punishment for its aggression, but only with forcible ejection from the territory which it had itself conquered, and with warnings of 'its liability under international law for any loss, damage, or injury arising in regard to third States, and their nationals and corporations, as a result of the invasion and illegal occupation of Kuwait by Iraq'.99 It might, of course, be argued that the law ought to be other­ wise; that international law is not improved by positing the ter­ ritorial integrity of all states as sacrosanct; and that potential aggressors would be more effectively deterred by threats of con­ quest and dismemberment than they are by the threat of military defeat, even allowing for such legitimate post-bellum punitive measures as reparations, enforced disarmament, or even the trial of war criminals. But just as potential criminals in most civilized national societies are not threatened with robbery as punishment for robbery, or with the death penalty as punishment for mur­ der, so international society in the era of the United Nations, by abolishing conquest or territorial dismemberment as a legitimate punishment for the crime of aggression, seeks to transcend the morals of an earlier and barbarous age reflected in such primit­ ive principles as the lex talionis—'an eye for an eye, a tooth for a tooth'—or the title by conquest. Of course, in so far as the United Nations seeks to abolish conquest—even in a lawful war—as a title to territory, it is not merely aspiring to establish a civilized international morality. For the policy is also rooted in practical considerations of great weight—namely, the recognition that a rule which allowed for­ cible territorial changes to result from a lawful war would not only be contrary to the principles of the Charter, but would also tend to undermine international order by setting the stage for future wars. One need only consider the self-defeating nature of a rule which would have allowed the Security Council to 99 Par. 2(b), SC Resoultion 686 (1991), adopted 2 Mar. 1991.

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authorize the dismemberment of Iraq—for example, by forcing it to cede portions of its territory to Kuwait—as a punishment for its aggression. Not only would this have undermined the prin­ ciple that the acquisition of territory by force is a wrong regard­ less of who commits it, but also, by nourishing the sense that an injustice had been done to Iraq by forcibly depriving it of indis­ putably Iraqi territory, it would have provided that country with new and more convincing grounds for renewing its designs on Kuwait, this time in the name of recovering its national territory. In Sections II and III—in which additional evidence is adduced for the proposition that in our own times, territorial acquisition by the use or threat of force is prohibited—I propose to subject to further critical examination the view that in the era of the United Nations conquest remains a valid title in those cases where the resort to force is not itself unlawful. It is useful to begin, however, by pointing out what is not implied by this view. It is a long-established principle of customary international law—which emerged well before the prohibition of war, and which applies regardless of which state is the aggressor—that mere conquest or military occupation of territory cannot produce a transfer of title to the conqueror, this requiring some further legal act, such as formal annexation or cession under a treaty of peace. As Oppenheim put it in 1917: 'There is not an atom of sovereignty in the authority of the occupant'100—a principle reaf­ firmed in the 1977 First Geneva Protocol, Article 4, which states that the occupation of a territory does not affect its legal status.101 The point has been elucidated in Oppenheim's International Law as follows: Conquered enemy territory, although actually in the possession and under the sway of the conqueror, remains legally under the sovereignty of the enemy until through annexation it comes under the sovereignty of the conqueror. Annexation turns the conquest into subjugation. . . [Thus] it is conquest followed by subjugation, and not conquest alone, which gives title and is a mode of acquiring territory. It is, however, 100 'The Legal Relations between an Occupying Power and the Inhabitants', LQR 33 (1917), 363, at 364. 101 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 12 Dec. 1977, repr. in Roberts and Guelff (eds.), Documents on the Laws o f War, 389-446.

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The Demise o f the Right of Conquest

quite usual to speak of 'title by conquest', and everybody knows that subjugation after conquest is thereby meant.102

Thus the contention of those writers who hold that the acqui­ sition of territory by force is lawful in those cases where the resort to force is not itself unlawful, is not that successful viol­ ence, when lawful, as such transfers title to the victor, but rather that it qualifies the victor either (1) unilaterally to annex such territory of the defeated aggressor as is under his effective con­ trol, following the termination of hostilities, or (2) to demand and obtain the cession of conquered territory in a treaty of peace imposed on the aggressor. The two sections that follow will deal with each of these claims in turn. II. THE ILLEG A LITY OF FORCIBLE ACQUISITION BY U N ILATERAL AN NEXATIO N

There are two kinds of case in which the lawful belligerent, if victorious, has been said to have a right of annexation with re­ spect to conquered territory: first, when the aggressor state has been totally subjugated, giving rise to a situation of debellatio whereby 'armed conflicts are terminated unilaterally by the destruction of a party to the conflict as an independent and organized entity';103 and second, when the aggressor state whose territory is occupied remains in existence, but ceases to offer any armed resistance to the occupation of part of its territory. In the latter case, refusal to negotiate a treaty of peace, or the aggres­ sor's doubtful title over the occupied territory have been cited as occasioning a right of annexation.104 (a) The Law o f Belligerent Occupation as a Bar to Annexation in Cases of Partial or Total Conquest We may begin by dismissing the claim—which is in any case almost universally rejected, even by those who admit the legality 102 8th edn., i, ed. Lauterpacht, 567. 103 Schwarzenberger, International Law as Applied by International Courts and Tribunals, ii. 730. 104 See e.g. the section entitled 'Right of Annexation on Refusal to Negotiate Peace' in Stone, Israel and Palestine, 120-1, where the author derives support for this 'right', on the cited grounds, from Schwebel's article 'What Weight to Con­ quest?', repr, in J. N. Moore (ed.), The Arab-Israeli Conflict, ii. 315-18.

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of forcible appropriation in other circumstances—that, in the event of a lawful use of force resulting in the effective occupation of territory belonging to the aggressor, there is, even in the absence o f subjugation, a right of annexation with respect to that territory. This position is unsustainable in view of the rules and conditions of applicability of the law of military occupation.105 For leaving aside, for the moment, the more difficult case of debellatio,106 the only rights in respect of occupied territory to which military occupation or conquest give rise—so long as a treaty of peace or armistice terminating the state of war has not been concluded— are those rights (and duties) for which provision is made in the law of belligerent occupation. This law precludes, however, an­ nexation or the acquisition of sovereignty by the belligerent oc­ cupant, which constitutes an illegal act of an occupying power in relation to the enemy state concerned.107 That the rights of the occupying power do not include the right of annexation—or the right to exercise sovereignty over the occupied territory—is made clear in Articles 47 and 49 of the Fourth Geneva Convention of 1949.108 Article 47, while it takes account of the possibility, if not the legality, of annexation of the whole or part of the occupied territory, guarantees, in such a case, that protected persons are not deprived of their rights under the Convention—an indication that sovereignty may not, even in the event of a purported annexation, be acquired by the occupant in respect of the inhabitants (and hence, in the case of inhabited territory, in respect of the territory). And Article 49, which forbids the occupying power to 'deport or transfer parts of its own civilian population into the territory it occupies', likewise prohibits with respect to occupied territory an important expression of territorial sovereignty—in this case, the right to establish permanent civil­ ian settlements. The basis of these rules is that military occupa­ tion, being a temporary rather than a permanent state of affairs,109 105 On the conditions of applicability of the law of military occupation, see Adam Roberts, 'What is a Military Occupation?', BYBIL (1984), 249. 106 This case is more difficult because, in signifying the destruction of the enemy state, it is said to indicate the end of the state of war. 107 Schwarzenberger, International Law as Applied by International Courts and Tribunals, ii. 166-7. 108 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, repr. in Roberts and Guelff (eds.), Documents on the Laws o f War, 272-326. 109 Adam Roberts, 'Prolonged Military Occupation: The Israeli-Occupied Ter­ ritories since 1967', AJIL 84 (1990), 44, at 47.

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The Demise o f the Right o f Conquest

gives to the occupant a provisional right of administration only, pending the final peace settlement, and does not displace the sovereignty of the conquered. Moreover, by Article 6(3) of the Convention, the provisions of Articles 47 and 49 continue to ap­ ply even after the general close of military operations, for the duration of the occupation. Thus under contemporary inter­ national law, the fact that a belligerent has ceased to fight for the recovery of the conquered territory is no longer sufficient to qualify the conqueror to proceed to the act of annexation, as a means of establishing title by conquest. Nor does the possibility that territory hitherto in the de facto possession of the aggressor, but now occupied by the lawful belligerent, may be territory whose legal status is in dispute appear to affect the basic point that the law on occupations is none the less applicable and annexation, as a result, precluded. For if, under Article 4 of the 1977 Geneva Protocol I, the applica­ tion of the law on occupations does not affect the legal status of the territory, then the fact that the legal status of the occupied territory is uncertain or disputed should not affect the applicabil­ ity of the law.110 Thus, as Dinstein has stated: 'No territory under belligerent occupation can be validly annexed by the occupying Power acting unilaterally.'111 It must be emphasized that this rule applies irrespective of which state is the aggressor, since the laws of war, or the jus in bello of which the law of belligerent occupation is a part, apply equally to both parties in any armed conflict. This doctrine is enshrined in the four Geneva Conventions of 1949 for the Protec­ tion of War Victims, which, under common Article 2, apply in 'all cases' of war or of any other armed conflict, including by implication in a war of sanction against an aggressor. It may be remarked that the Geneva Conventions do not discriminate be­ tween the aggressor and other states in referring to the applic­ ability of their provisions—including those concerning occupied territories (Geneva Convention IV, Section III)—despite the fact that the Conventions were drafted after the United Nations 110 This reasoning would appear to underlie Roberts's remark that Art. 4 of the Geneva Protocol I 'confirms that the law [on occupations] is applicable even in cases where there is doubt about the legal status of the territory in question' ('What is a Military Occupation?', 283). 111 War, Aggression and Self-Defence, 158.

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Charter and the Nuremberg Trial—that is, subsequent to the prohibition of the use of interstate force and the criminalization of aggressive war.112 As noted earlier, the law of belligerent occupation is based on the principle of territorial integrity or the inalienability of sover­ eignty by force—that is, on the doctrine that military occupation does not displace the sovereignty of the conquered. But what about the case where the sovereignty of the state whose territory is occupied has already been extinguished by debellatio? In such cases, the following conditions are said to obtain: (i) the territory of the former belligerent is occupied in its entirety, no remnant being left for the exercise of sovereignty; (ii) the armed forces of the erstwhile belligerent are no longer in the field (usually there is an unconditional surrender), and no allied forces carry on the fighting by proxy; and (iii) the Government of the former belligerent has passed out of existence, and no other Government (not even a Government in exile) continues to offer effective opposition.113

Since in such cases the extinction of the former belligerent has the effect of terminating the war in fact, some writers have ar­ gued that the law of belligerent occupation itself ceases to oper­ ate,114thereby rendering inapplicable the principle that no territory under belligerent occupation may be validly annexed by the conqueror. As Schwarzenberger has put it: The freedom of a State under international customary law unilaterally to annex the territory of an enemy State extinguished by debellatio is but an apparent exception to [the rule of international customary law which prohibits the unilateral annexation of territories under belligerent occu­ pation]. In this case, the enemy State has ceased to exist as a subject of international law. Therefore, in relation to this defunct entity, neither 112 Texts of the four Conventions are reprinted in Roberts and Guelff (eds.), Documents on the Laws o f War, 171-337. On the highly controversial nature of any attempt to deny the relevance of the concept of equality to the jus in hello by applying the ex injuria jus non oritur principle to the conduct of war, see Henri Meyrowitz, Le principe de l'égalité des belligérents devant le droit de la guerre (Paris: Éditions Pédone, 1970), 106-40. 1,3 Dinstein, War, Aggression and Self-Defence, 49. 114 See e.g. Y. Dinstein, 'The International Law of Belligerent Occupation and Human Rights', IYHR 8 (1978), 104, at 105, who writes: 'Belligerent occupation continues as long as the occupant remains in the area and war goes on. That is to say, it is terminated if the occupant withdraws from the area or the war comes to a close (either with the occupant's victory or his defeat).'

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The Demise o f the Right o f Conquest

the rules of land warfare nor any other rules of international customary law any longer apply.115

On this basis, Schwarzenberger concludes that '[i]f, as a result of legal, as distinct from illegal, war, the international personality of one of the belligerents is totally destroyed, victorious Powers may. . . annex the territory of the defeated State or hand over portions of it to other States.'116 More recently, the right of an­ nexation in cases of debellatio or subjugation has been supported by Michael Bothe, who contends that '[i]n this situation, annexa­ tion would no longer be unlawful',117 since once the defeated state has ceased to exist the law of belligerent occupation (which prohibits annexation by the occupying power of the whole or part of the occupied territory) is no longer applicable. Similarly, Dinstein discusses the case of post-debellatio annexation, and points out that while such annexation would not be reconcilable with basic contemporary tenets if the annexation were to expand the territory of the aggressor state—since 'the upshot would be that might creates rights in defiance of the legal system in which these rights are embedded'—'[a]s long as the annexation is ac­ complished by the victim of aggression, benefiting at the ex­ pense of the former aggressor State, the process is not without its legal logic: let the aggressor pay for his crimes.'118 The claim that there is a right of annexation in cases of debellatio or post-surrender occupation depends, then, on the contention that the law of belligerent occupation, which prohibits wartime annexation, ceases to be applicable in occupied territory once the war has been terminated through debellatio or unconditional sur­ render of the aggressor state—that is, following the final defeat and occupation of the territory of that state. It is on this ground that the Allied occupation of Germany after 1945 was widely taken to be beyond the scope of the law on occupations,119prompt­ ing Lauterpacht's remark that 'But for the disclaimer of the intention of annexation the assumption of full authority over 115 Schwarzenberger, International Law as Applied by International Courts and Tribunals, ii. 167. 116 Ibid. i. 297. 1,7 'Belligerent Occupation', 66. 118 War, Aggression and Self-Defence, 159. 119 See e.g. Gerhard von Glahn, The Occupation o f Enemy Territory: A Comment­ ary on the Law and Practice o f Belligerent Occupation (Minneapolis: University of Minnesota Press, 1957), 281.

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Germany would have been indistinguishable from subjugation' and would have conferred on the Allies a title by conquest.120 Today, however, the situation with regard to post-surrender occupations appears to have substantially changed, in virtue of the four Geneva Conventions of 1949.121 For Article 2 common to the four Conventions, which states that 'The Convention^] shall also apply to all cases of partial or total occupation of the ter­ ritory of a High Contracting Party, even if the said occupation meets with no armed resistance', does not distinguish between 'post-surrender' and other types of occupation, in spite of the precedent set by the 1945 occupations and the claim of the vic­ torious Allies to have powers commensurate with sovereign powers in virtue of the unconditional surrender of Germany.122 As Adam Roberts has argued, the Geneva Conventions would seem to be applicable to post-surrender occupations 'at least for as long as a state of war between the parties continues—i.e. until there is a proper treaty of peace'.123 Thus the old doctrine that unilateral annexation—whereby the occupying power extends 120 Oppenheim, International haw, 8th edn, i, ed. Lauterpacht, 568, 567. During the post-surrender occupation of Germany, the victorious Great Powers jointly issued the Berlin Declaration of 5 June 1945, which stated that the assumption of supreme authority with respect to Germany 'does not effect the annexation of Germany' but that the Great Powers would 'hereafter determine the boundaries of Germany or any part thereof and the status of Germany or of any area at present being part of German territory' (AJIL 39 (1945), suppl., p. 171). Thus the occupying powers themselves assumed that they had a right of annexation, even if they chose not to exercise it in regard to the whole of German territory. On this basis, K. Skubiszewski has argued that: 'Having the right to annex and partition the whole of Germany the Great Powers ipso jure possessed the competence to decide the fate of merely some portions of German territory. This is what they did when they concluded the Potsdam Agreement on the Western Frontier of Poland' ('Administration of Territory and Sovereignty: A Comment on the Potsdam Agreement', Archiv des Völkerrechts, 23 (1985), 3, at 32-3, quoted in Otto Kimminich, 'Oder-Neisse Line', EPIh 12 (1990), 267, at 269). For an analysis of the post-World War II territorial settlement, including the territorial arrangements approved in the Potsdam Agreement, which highlights the Allied presumption of a right of annexation, see above, pp. 161-77. 121 Roberts, 'What is a Military Occupation?', 270. 122 See the Berlin Declaration of 1945, issued jointly by Great Britain, the USA, France, and the USSR after the unconditional surrender of the German forces and the abolition of the German government, in which the victorious great powers announced that they 'hereby assume supreme authority with respect to Ger­ many, including all the powers possessed by the German Government, the high command, and any State, municipal or local government or authority' (AJIh 39 (1945), suppl., p. 171). 123 'What is a Military Occupation?', 270.

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The Demise of the Right o f Conquest

its own civil administration over the conquered territory, incor­ porating it into the body of its own state territory—serves to bring a war which is materially over, legally or formally to a close, has today been officially repudiated. For the laws of war—or that aspect of them which constitutes the law of belligerent oc­ cupation, and which forbids the alienation of sovereignty through annexation—continue to apply in the occupied territory even after the achievement of military victory, until either the occupant withdraws or a treaty of peace is concluded which transfers sovereignty to the occupant. Since the Geneva Conventions, in virtue of common Article 2, apply, then, to all cases of occupation of territory, even in situ­ ations of complete victory or debellatio—that is, even when war in the material sense is over—until there has been a legitimate transfer of sovereignty through a treaty of peace; and since, as we have seen, Articles 47 and 49 of the Fourth Geneva Conven­ tion have the effect of denying sovereignty to the occupant (and these articles, in virtue of Article 6(3) of the Convention, con­ tinue to bind the occupant for the duration of the occupation), it follows that in our own times there is no right of unilateral an­ nexation even when the enemy has been completely subjugated, and even when the victor has fought a lawful war against ag­ gression.124 And if annexation following victory in a lawful war is not permissible even in situations of debellatio (i.e. when the enemy state has ceased to exist as an independent and organized entity), then it follows a fortiori that there can be no legal annexa­ tion of conquered territory when the aggressor state whose ter­ ritory is occupied remains in existence, though it ceases to offer any armed resistance. But the notion that the final defeat and occupation of the ag­ gressor state qualifies the victor in a lawful war unilaterally to annex and thereby to acquire title to the conquered territory is today widely rejected not only on the ground of the continuing applicability in cases of post-debellatio or post-surrender occupa­ tion of the law on occupations—which protects the territorial integrity of the defeated state by forbidding annexation or any 124 The only exception to this rule might be the case where annexation or incorporation of the conquered territory is in accordance with the will of the local population, as determined by internationally agreed procedures (see below, pp. 225-9).

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other alteration in the legal status of the conquered territory, or the assumption of sovereignty over its inhabitants—but also on the basis of the modern right of self-determination which has been widely recognized since 1960 as a right in international law.125 This second contemporary legal obstacle to the right of unilateral annexation in cases of post-debellatio occupation will now be examined. (b) The Right o f Self-Determination as a Bar to Annexation on Grounds o f Lawful Conquest The proposition advanced above, that unilateral annexation of conquered territory is not any longer a legal option for the victor in a lawful war even when the aggressor state has ceased to exist, is reinforced, today, by the right of self-determination vested in the people or peoples inhabiting the conquered territory, which is incompatible with the title by conquest as a principle which operates without regard to the wishes of the populations con­ cerned. An important exception to this generalization would arise, however, where the inhabitants of the conquered territory actu­ ally wished to be brought under the jurisdiction of the occupying state—provided that the conquest had not resulted from an ille­ gal aggression against the state whose territory is occupied. In such a case the right of self-determination might actually lead to annexation in accordance with international law, since it would not violate the rights of the aggressor state—which ex hypothesi had ceased to exist—or the rights of the inhabitants—who ex hypothesi had consented to the annexation. The first authoritative legal document to uphold the principle of self-determination is the United Nations Charter. This specifi­ cally mentions the principle in two places (Articles 1(2) and 55), and, through the International Trusteeship System established under Chapter XII, provides for the eventual granting of selfgovernment or independence to colonial peoples on the basis of this principle. It is true that in this context self-determination is 125 For an illuminating discussion of the development of the principle of selfdetermination as a right in international law, see Rosalyn Higgins, Problems and Process: International Law and How we Use it (Oxford: Clarendon Press, 1994), ch. 7. See, too, Heather A. Wilson, International Law and the Use o f Force by National Liberation Movements (Oxford: Clarendon Press, 1988), ch. 4.

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The Demise o f the Right of Conquest

held up only as a goal of the Charter126 rather than as a legal right that could be invoked as such or as an object of a definite obligation to be fulfilled immediately.127 Since 1945, however, and especially since 1960, with the changing composition of the United Nations reflecting the process of decolonization, numer­ ous General Assembly resolutions passed with Third World majorities have come to interpret the Charter references to and provisions for self-determination128 in such a way that 'its gen­ eral exhortations have become prescriptive standards for State conduct'.129 In the movement towards the acceptance of self-determination as a legal right (and not merely a political principle), an impor­ tant milestone was the 1960 Declaration on the Granting of Inde­ pendence to Colonial Countries and Peoples, which stated in its second operative paragraph: All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their eco­ nomic, social and cultural development.

This Declaration was adopted by the General Assembly without any opposing votes and with very few abstentions130—largely on the part of Western states, who consistently abstained on resolu­ tions recognizing a right to self-determination until 1970. 126 Self-determination of peoples is listed as a 'purpose' in Art. 1(2) and is mentioned in Art. 55 in a preamble to a list of social, economic, and political rights which the UN 'shall promote'. This is in contrast to the principles listed in Art. 2 (sovereign equality, the obligation to refrain from the threat or use of force, and non-interference in matters within the domestic jurisdiction of states) in accordance with which the UN 'shall act' (Michla Pomerance, 'Self-Determination Today: The Metamorphosis of an Ideal', ILR 19 (1984), 310, at 316-17). 127 Yehuda Z. Blum, 'Reflections on the Changing Concept of Self-Determination', ILR 10 (1975), 509, at 511; Antonio Cassese, 'Political Self-Determination—Old Concepts and New Developments', in Antonio Cassese (ed.), UN Law/Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn: Sijthoff and Noordhoff, 1979), 138. 128 The provisions for decolonization contained in Chapters XI and XII of the Charter—the Declaration Regarding Non-Self-Governing Territories and the In­ ternational Trusteeship System respectively— were (or in the former case came to be seen as) provisions for the application of the self-determination principle in respect of colonial peoples. 129 Wilson, International Law and the Use o f Force by National Liberation Move­ ments, 60. 130 GA Resolution 1514 (XV), 14 Dec. 1960, 89-0:9. Abstaining were Australia, Belgium, the Dominican Republic, France, Portugal, Spain, South Africa, the UK, and the USA.

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The first departure from this policy came with the General Assembly's adoption of the 1970 Declaration on Principles of Inter­ national Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Na­ tions.131 Here the General Assembly for the first time proclaimed, by consensus, that self-determination was a right in international law: By virtue of the principle of equal rights and self-determination of peo­ ples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.132

A crucial aspect of the duty of states to respect the right of peoples to self-determination is highlighted in the first section of the Declaration, which concerns the principle that states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. The fifth paragraph of this section provides: Every State has the duty to refrain from any forcible action which de­ prives peoples . . . of their right to self-determination and freedom and independence.

Thus Article 2(4) of the Charter is itself understood by states to entail the duty to refrain from the use of force in any manner which deprives peoples of their right to self-determination. In that case, however, the fact that force has been resorted to law­ fully (as in self-defence or with the authorization of the Security Council) is no justification for depriving peoples of their right to self-determination. Of pre-eminent importance in the establishment of the right of peoples to self-determination in international law are the two 1966 International Covenants on Human Rights,133 of which com­ mon Article 1(1) provides: 131 GA Resolution 2625 (XXV). 132 First par. in the elaboration of principle (e): The principle of equal rights and self-determination of peoples. 133 The International Covenant on Civil and Political Rights and the Interna­ tional Covenant on Economic, Social, and Cultural Rights, adopted by the UN General Assembly, Resolution 2200A (XXI), 16 Dec. 1966.

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All peoples have the right of self-determination. By virtue of that right they freely determine their political status . . .

Now if self-determination is today not only a moral or political principle, but also a right in international law, in virtue of which all peoples have the right freely to determine their political sta­ tus, then the right to sovereignty over territory, being vested in the inhabitants, cannot legally pass from government to govern­ ment by virtue of conquest, but only by virtue of the consent of the inhabitants. As Dinstein has argued: If the local people is truly at liberty to determine its political status, a post-debellatio annexation by the victorious State must clearly be pre­ cluded. The obliteration of the sovereignty of the defeated State does not extinguish the right of self-determination conferred on the indig­ enous people. On the contrary, this is the most appropriate moment for that right to assert to itself.134

In other words, the fact that the debellated state has ceased to exist as a subject of international law does not affect the status of the people as a subject of international law, since, according to the doctrine of the sovereignty of the people, now recognized in international law, it is the people, and not the state, which is the ultimate repository of sovereignty. This second argument against the victor's purported right of annexation following the unconditional surrender or complete subjugation of the enemy (aggressor) state has been formulated by Eyal Benvenisti as follows: [T]he greater deference given in modern times to the principle of selfdetermination has severely weakened, even extinguished, the claim to debellatio. The notion of debellatio is a vestige of that outdated RousseauPortales doctrine which conceived war as a duel between governments. This vestige has no place in today's world. For the same reason, the 'post-surrender' occupant should no longer have the discretion whether to annex or to wield absolute authority over the territory he controls. As sovereignty lies in the people and not in their government, the fact that their army has been totally defeated cannot divest them of their entitlement.135 134 War, Aggression and Self-Defence, 159. 135 'Conflict of Laws and Belligerent Occupation: A Study in Comparative and International Law' (JSD dissertation, Yale University, 1990), 209. See also E. Benvenisti, The International Law o f Occupation, 9 4 -5 .

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Regardless, therefore, of whether the occupant has legally or il­ legally gained control of the conquered territory, the effect of the right of peoples to self-determination enshrined in the Interna­ tional Covenants on Human Rights is that the disintegration of the enemy state does not, or not legally, expose its territory to annexation. On the other hand, if the population should wish to unite with the victorious state, then the right of self-determination would not exclude annexation. In that case, however, it would not be the fact of military victory in a lawful war which justifies the annexation, but rather the fact that self-determination is thereby exercised. Thus the right of self-determination interacts with and affects the right of unilateral annexation: there may be cases where the destruction of the enemy state is followed by an exercise of self-determination which accords to the victor a right of annexa­ tion. But in such cases it would not be the fact of completed conquest or debellatio which qualifies the victor to annex, but the wishes of the people themselves which provides the legal sanc­ tion for annexation. Contrary, then, to the view of those who argue that under inter­ national law today, conquest in a lawful war against aggression confers title in the sense that it entitles the victor unilaterally to annex the conquered territory of the defeated state, we have established that there is no such right of annexation, in virtue on the one hand of the contemporary law on occupations—which preserves the territorial integrity of the state whose territory is occupied until the conclusion of a treaty of peace—and on the other of the modem right of peoples to self-determination—which neither conquest nor annexation may lawfully extinguish. (On the other hand, when annexation following a post-debellatio occupation of the territory of the aggressor state accords with the freely ex­ pressed wishes of the inhabitants, the right of self-determination may itself prescribe annexation.) These contemporary obstacles to the purported right of annexation of lawful belligerents in cases of post-surrender occupation provide convincing grounds for the conclusion that in our own times, conquest followed by unilat­ eral annexation, whether or not it is the result of a lawful use of force—particularly when it involves the imposition of foreign rule on a hostile population—is no longer a legal method of acquisi­ tion of title.

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The Demise of the Right of Conquest

However, even if we accept that there is no right of unilateral annexation following victory in a lawful war, the question re­ mains: May the victor in a lawful war today make use of the fact of military victory to obtain in a treaty of peace the transfer of rights of sovereignty over the conquered territory?

III. THE ILLEGALITY OF ACQUISITION BY FORCED CESSION: THE 1969 VIEN NA CONVENTION ON THE LAW OF TREATIES

In considering this question, we must begin by noting the changes which have taken place in recent times in the law of treaties. Whereas under traditional international law, which prevailed before 1920, treaties were valid even if they were concluded under duress (i.e. the fact that a state had been coerced into signing a treaty did not affect its validity), Article 52 of the 1969 Vienna Convention on the Law of Treaties now states: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.136

That Article 52 is an accurate statement of the modern law was affirmed by the International Court of Justice in 1973 in the Fish­ eries Jurisdiction case, in which the Court held: There can be little doubt, as is implied in the Charter of the United Nations and recognized in Article 52 of the Vienna Convention on the Law of Treaties, that under contemporary international law an agree­ ment concluded under the threat or use of force is void.137

It will immediately be obvious that this must affect the validity of peace treaties imposed at the end of a war upon the defeated party—that is, where the defeated state is forced to accept the conditions of peace dictated by the victor, on pain of renewal of hostilities—which have constituted the chief historical examples of treaties concluded under duress. But Article 52 of the Vienna Convention does not state or imply that all treaties concluded under the threat or use of force are 136 UNTS 1155 (1980), 331. 137 Fisheries Jurisdiction case (UK v. Iceland), ICJ Reports (1973), 3, at 14.

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void. In the first place, the stigma of invalidity which it places upon treaties procured by the threat or use of force—and which extends to peace treaties entered into on the conclusion of hos­ tilities—applies only to treaties concluded in the period since the use of force has been prohibited under international law. As the International Law Commission explained in its Commentary on the draft of Article 52, the clause does not operate retroactively by invalidating peace treaties procured by coercion prior to the development of the modern law banning the use of force by states. In the opinion of the Commission, the provision is appli­ cable, however, to all treaties concluded at least since 1945 (when the Charter of the United Nations entered into force).138 Secondly, even within the period of the new rule's applicabil­ ity, that is, since 1945, Article 52 does not deny the validity of all treaties concluded under duress. As Ian Sinclair has noted: 'it follows from the use of the phrase "in violation of the principles of international law embodied in the Charter of the United Na­ tions" that it is only the unlawful use of force which can bring about the nullity of a treaty.'139 It is, in other words, solely those peace treaties which are imposed by an aggressor state on the target of aggression which are invalid under Article 52, and not those imposed by a use or threat of force which is not unlawful under the Charter. This point is established in Article 75 of the Vienna Convention, which states: The provisions of the present Convention are without prejudice to any obligation in relation to a treaty which may arise for an aggressor State in consequence of measures taken in conformity with the Charter of the United Nations with reference to that State's aggression.

As the International Law Commission's commentary to this ar­ ticle makes clear, 'a treaty provision imposed on an aggressor State would not. . . infringe [Article 52]'.140 138 Report of the International Law Commission, 18th Session, 1LC Ybk, 2 (1966), 172, at 247. 139 The Vienna Convention on the Law o f Treaties, 2nd edn. (Manchester: Man­ chester University Press, 1984), 180. 140 ILC Ybk, 2 (1966), 268. Thus, even under contemporary international law, it is the illegality of the use of force, and not the fact of duress as such, which vitiates treaties under Art. 52— otherwise treaties concluded as a result of lawful force would not be valid either. As Sinclair writes: the 'coercion of a State by the threat or use of force does not, strictly speaking, vitiate consent; it rather involves

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The Demise of the Right of Conquest

At first sight, this might suggest that a treaty of peace imposed by the lawful belligerent on the aggressor may dismember the territorial integrity of the aggressor state by including within its terms clauses of territorial cessions. This is the conclusion reached by Yoram Dinstein, who argues, on the basis of Articles 52 and 75 of the Vienna Convention, that the validity of a territorial change brought about by an imposed treaty of peace depends solely 'on who the beneficiary is. If the cession is from the ag­ gressor to the victim of aggression, there is nothing inherently wrong in the transaction, whereas if the reverse happens, the treaty is null and void.'141 However, it is not the case that any treaty provision imposed on an aggressor state would not infringe Article 52, simply be­ cause it is a measure that is imposed on an aggressor, since Article 75 stipulates that it is only 'measures taken in conformity with the Charter of the United Nations with reference to that State's aggression' which are binding on the aggressor. The question, therefore, is whether the imposition of territorial changes on the aggressor would constitute a measure taken in conformity with the Charter—and the answer (arrived at on the basis of our ear­ lier analysis of Article 2(4) of the Charter, and its corollary for the acquisition of territory as the result of the use or threat of force) is that it would not. Indeed, Article 52 of the Vienna Convention itself proclaims the nullity of treaties procured by 'the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations'. Thus if an aggressor state is coerced by the lawful belligerent into signing a treaty of peace providing for territorial cessions—either on pain of renewal of hostilities or when the aggressor has already been utterly de­ feated—such a treaty would ipso facto be procured by a threat or use of force in violation of the principles of international law the commission of an international delict with all the sanctions attaching thereto' (The Vienna Convention on the Law o f Treaties, 180). There is a sense, then, in which the old discrepancy between the international law of treaties and the domestic law of contract remains even under the reformed international law of the present day. For while in domestic law, duress vitiates consent as a condition of validity of contracts, in international law, the principle pacta sunt servanda applies even to treaties extorted by force—disregarding the vitiating effect of duress— so long as the force used or threatened is not itself unlawful. 141 War, Aggression and Self-Defence, 157.

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embodied in the Charter (and as such would be invalid under Article 52—even if the resort to force had been lawful in origin), since any attempt to disrupt the territorial integrity of a state by the threat or use of force is incompatible with the principles of international law embodied in the Charter. We may thus conclude that Article 52 of the 1969 Vienna Convention on the Law of Treaties confirms the proposition that the acquisition of territory by means of an imposed treaty of peace is illegal and invalid—irrespective of whether the treaty has been imposed by the aggressor, by the state victimized by aggression (assuming it has prevailed militarily), or, indeed, by the Security Council acting on the latter's behalf. For this article is itself based on the principles of international law embodied in the Charter, which include the principle prohibiting the use or threat of force against the territorial integrity of any state, with all the recognized corollaries of that principle. But while the issue of legal principle may be clear and impor­ tant, reality is often more complex.142 For the precept embodied in Article 52 of the 1969 Vienna Convention, while it has the appearance of legal directness and simplicity, does not allow for the variety of circumstances that can arise when states dispense with the mechanism of treaties to acquire permanent control over conquered territories. Thus, for example, when the Soviet Union invaded and occupied Czechoslovakia in 1968, it wanted the Czechoslovak government to abandon its liberal reforms of the Prague Spring and accept a Soviet type of administration. This aim, although accomplished by coercion, was registered not in a treaty but in a political agreement with the Communist Party.143 Now if the agreement had been a treaty, it would have been illegal under Article 52 of the Vienna Convention on the Law of Treaties. But since it was not a treaty, it was not invalidated by Article 52. Thus states have invented numerous ways round the rule which nullifies treaties induced by illegal coercion, leaving 142 For a penetrating critique of the approach to the problem of the legal effect of treaties concluded under duress embodied in Art. 52 of the 1969 Vienna Con­ vention on the Law of Treaties, see Julius Stone, 'De Victoribus Victis: The Inter­ national Law Commission and Imposed Treaties of Peace', Virginia Journal o f International Law, 8 (1968), 356. 143 No authoritative version of this secret agreement has been published (see Philip Windsor and Adam Roberts, Czechoslovakia, 1968: Reform, Repression and Resistance (London: Chatto and Windus, 1969), 133).

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The Demise of the Right of Conquest

unsolved the basic problem of international policy with which Article 52 was intended to deal—namely, how to prevent a con­ queror from keeping the fruits of his conquest. As Julius Stone has put it: Ts the policy which strikes down a treaty imposed on the surviving victim of unlawful aggression satisfied if the unlawful coercer can swallow up the victim without need of any treaty?'144

IV. NON-RECOGNITION OF TITLE BY CONQUEST: APPLYIN G THE PRINCIPLE EX IN JU R IA JU S N O N O RITU R

The conclusion that conquest or the acquisition of territory by force cannot provide legal title is explicitly arrived at by the application of the principle ex injuria jus non oritur (that from an illegal act no legal result can arise) to the illegal act of the use of force. That is, if by the special provisions of the Covenant of the League, the Kellogg-Briand Pact, and the United Nations Char­ ter, the use of force by states in a manner which disrupts the territorial integrity of any state is illegal, then any result such as the acquisition of territory arising from the illegal use of force cannot itself be legal. Otherwise international law would be re­ quired to sanction the consequences of illegal action. Ever since the proclamation of the Stimson Doctrine (in 1932) on the non-recognition of the results of conquest, states have sought to apply the ex injuria jus non oritur principle by not rec­ ognizing the legality of territorial acquisitions obtained by force.145 However, substantial efforts had already been made in this di­ rection on the American continent well before the promulgation of the Stimson Doctrine. (a) Nineteenth and Early Twentieth-Century Attempts to Establish the No-Conquest Principle on the American Continent Perhaps the earliest attempt to establish the no-conquest prin­ ciple in international relations—at least within the limits of the 144 'De Victoribus Victis', 373. 145 As Bin Cheng writes: 'the Stimson doctrine . . . may be regarded as an ap­ plication of the principle ex injuria jus non oritur in the orbit of international law' (General Principles o f International Law (London: Stevens, 1953), 187).

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Western hemisphere—may be traced back to the second decade of the nineteenth century, when the Spanish colonies of Central and Southern America proclaimed their independence and adopted the rule of colonial uti possidetis as a means of regulating their common boundaries. By virtue of this principle, the admin­ istrative divisions of the Spanish Empire as they existed in Cen­ tral and South America at the time of independence were deemed to constitute the basis for the frontiers of the new states.146 The adoption of the principle of uti possidetis of 1810 'implied that the Spanish American states committed themselves to a reciprocal respect of their territorial status and thus abolished among them­ selves the legitimacy of a right of conquest, which was then accepted in international law'.147 However, the rule of uti possidetis was not only meant to exclude the right of conquest in the relations between the Latin American states themselves; it was also meant to forbid recognition of ‘territorium nullius or titles jure belli. . . which non-American states might desire to acquire on the American continent'.148 In this respect, the rule of uti possidetis was an anticipation of the Monroe Doctrine—articulated by President Monroe of the United States in his message to Congress of 2 December 1823—which declared that 'the American continents are . . . henceforth not to be con­ sidered as subjects for future colonization by any European powers'.149 There was an obvious similarity of purpose between Monroe's objectives and the aspirations of the South American republics, in so far as both sought to prevent future European conquests or colonization in Latin America by declaring that territorial expansion in Latin America on the part of Europe would henceforth be prohibited. The main difference, however, was that while the Southern republics sought to place a prohibition on territorial aggrandizement from whatever source, 'the United States did not wish to place any self-limitation upon its own ter­ ritorial ambitions vis-à-vis still existing Spanish colonies to its immediate south and on the western seaboard, nor in relation to those which had passed into Mexican hands'.150 146 E. J. De Aréchaga, 'Boundaries in Latin America: Uti Possidetis Doctrine', EPIL 6 (1983), 45. 147 Ibid. 46. 148 Schwarzenberger, International Law as Applied by International Courts and Tribunals, i. 304-5. 149 Text in J. B. Moore, A Digest o f International Law, vi. 401-3. 150 Greig, 'Sovereignty and the Falkland Islands Crisis', 51 (my emphasis).

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The Demise o f the Right of Conquest

During the century that preceded the outbreak of the First World War provisions attempting to circumscribe the 'law of conquest' were repeatedly written into treaties concluded among Latin American states. Though none of these treaties was able to secure ratification, they are part of the history of the non­ recognition idea in the Americas prior to 1932, and thus bear mentioning below. At the first Inter-American Conference, held in Panama in 1826, several American states signed a treaty providing for the collective guarantee and protection of their boundaries. Similar provisions were written into a treaty concluded in 1848 at the Inter-American Congress of Lima; and the first treaty attempting to establish a legal duty of non-recognition of territorial changes was signed by seven American republics in 1856 at the InterAmerican Conference of Santiago de Chile.151 Despite the efforts of the Latin American world to outlaw the right of conquest, the Pacific War between Chile, Peru, and Bo­ livia (1879-83) ended with Chile depriving Bolivia of its entire sea coast and Peru of valuable provinces. The United States gov­ ernment, which had hitherto held aloof from disputes between the Latin American states, was alarmed at the annexationist tendencies manifested by Chile in the course of war, and in December 1881, Secretary of State Blaine issued the following statement: This government feels that the exercise of the right of absolute conquest is dangerous to the best interests of all the republics of this continent; that from it are certain to spring other wars and political disturbances; and that it imposes, even upon the conqueror, burdens which are scarcely compensated by the apparent increase of strength which it gives. This government also holds that between two independent nations hostilities do not, from the mere existence of war, confer the right of conquest until the failure to furnish the indemnity and guarantee which can be rightfully demanded. Nor can this government admit that a cession of territory can be prop­ erly exacted far exceeding in value the amplest estimate of a reasonable indemnity.152

151 R. Langer, Seizure o f Territory, 34 -5 . 152 Foreign Relations o f the United States (1881), Blaine to Trescott, no. 108, 1 Dec. 1881, p. 143, at pp. 147-8.

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However, when victorious Chile imposed on its defeated oppon­ ents the treaties which dismembered their territories, no action was taken by the United States government.153 Notwithstanding this failure to give practical effect to the no­ conquest principle, the representatives of several Latin American republics, at a meeting in Caracas in 1883, issued a declaration, known as the Caracas Protocol, which emphasized the duty to uphold the territorial integrity of Latin American states and to ignore 'the so-called right of conquest'.154 Further steps in this direction were taken at the first Pan-American Conference in Washington in 1890, where the United States sponsored a pro­ posal for the abolition of the title by conquest in the Americas. The recommendation adopted by the Conference (simultaneously with a treaty of arbitration) declared: (1) That the principle of conquest shall not, during the continuance of the treaty of arbitration, be recognized as admissible under Amer­ ican public law. (2) That all cessions of territory made during the continuance of the treaty of arbitration shall be void if made under threats of war or in the presence of an armed force. (3) Any nation from which such cessions shall be exacted may de­ mand that the validity of the cessions so made shall be submitted to arbitration. (4) Any renunciation of the right to arbitration, made under the con­ ditions named in the second section, shall be null and void.155

However, since this recommendation was contingent on the operation of the treaty of arbitration which was not ratified, the recommendation lapsed. In 1925 a draft on the problem of conquest, known as Project 153 R. Langer, Seizure o f Territory, 35. 154 Ibid. 36. 155 Reproduced ibid. It will be noticed that this recommendation would have abolished the title by conquest only upon the duration of the treaty of arbitration. Argentina and Brazil, however, having in mind the large accessions of Bolivian and Peruvian territory which Chile had recently gained by war, had originally proposed a resolution which would have declared 'acts of conquest, whether the object or the consequence of war', to be a violation of 'the public law of America'. This draft resolution, broader and more sweeping than the recommendation sub­ sequently adopted, was, however, rejected because it had threatened to lead to the withdrawal of Chile from the Congress (John Bassett Moore, 'Fifty Years of International Law', HLR 5 0 /3 (1937), 395, at 434-6).

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The Demise of the Right of Conquest

No. 30, prepared by the American Institute of International Law, was presented to the Pan-American Union.156 This stated: The American Republics . . . solemnly declare as a fundamental concept of American international law that, without criticizing territorial acqui­ sitions effected in the past, and without reference to existing controversies, In the future territorial acquisitions obtained by means of war or under the menace of war or in the presence of an armed force, to the detriment of any American Republic, shall not be lawful; and that Consequently territorial acquisitions effected in the future by these means cannot be invoked as conferring title; and that Those obtained in the future by such means shall be considered null in fact and in law.

The Committee of American Jurists to whom this project was presented in 1927 decided, however, to suppress it, and the Sixth Pan-American Congress held in 1928 consequently did not act upon it.157 (b) Non-Recognition of Title by Conquest and Declarations of the Illegality o f Conquest since 1928 The signing of the Kellogg-Briand Pact gave further impetus to the development of the principle of non-recognition, which came to be applied by the majority of members of the international community, in close association with the obligations of the League Covenant and the Kellogg-Briand Pact, in response to Japanese military operations in Manchuria in 1931 and 1932 and the estab­ lishment by Japan of the puppet state of Manchukuo. Following the Stimson Declaration of 1932, the doctrine of non-recognition of conquests has been repeatedly reaffirmed in a number of in­ ternational legal and political instruments, which it is the pur­ pose of this section to mention. It was while the matter of the Japanese seizure of Manchuria in 1931 was being considered by the League of Nations that the American Secretary of State, Henry Stimson, made his famous declaration of non-recognition of the results of conquest in Man­ churia. The Stimson Doctrine of Non-Recognition (as it later came to be known)—articulated in a note addressed to Japan and China on 7 January 1932—stated that the United States government 156 Reproduced in R. Langer, Seizure o f Territory, 38.

157 Ibid.

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'cannot admit the legality of any situation de facto nor does it intend to recognize . . . any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Pact of Paris of August 27th, 1928'.158 In Stimson's view, the principle of non-recognition would be of value in establishing the illegality of situations unlawfully ar­ rived at, and in promoting the eventual restoration of rights to states which had been unjustly deprived of them: If a similar decision should be reached and a similar position taken by the other governments of the world, a caveat will be placed upon such action [i.e. conquest, in violation of treaty] which, we believe, will effec­ tively bar the legality hereafter of any title or right sought to be ob­ tained by pressure or treaty violation, and which, as has been shown by history in the past, will eventually lead to the restoration to China of rights and titles of which she may have been unjustly deprived.159

The non-recognition doctrine was likewise approvingly referred to by Castle, the American Under-Secretary of State, as a 'new dictum of international law', as 'the strongest moral sanction the world has ever known', as a powerful sanction which 'involves no war to prevent war', and as a means of depriving a conqueror of the fruits of his conquests.160 Following the enunciation of the Stimson Doctrine, the members of the League Council other than Japan addressed a note to the Japanese government, dated 16 February 1932, which linked non­ recognition with Article 10 of the Covenant and stated that 'no infringement of the territorial integrity and no change in the poli­ tical independence of any Member of the League brought about in disregard of this article ought to be recognized as valid and effectual by the members of the League'.161 (As Hersch Lauterpacht notes, non-recognition of a conquest in violation of the Covenant probably constituted the minimum of the obligation to respect and preserve the territorial integrity of other League members.162) 158 Documents on International Affairs (1932), 262. 159 Letter to Senator W. E. Borah, 23 Feb. 1932, quoted in Herbert W. Briggs, 'Non-Recognition of Title by Conquest and Limitations on the Doctrine', PASIL 34 (1940), 72, at 73. 160 US Dept, of State Press Releases, no. 136 (7 May 1932), 418, 446, 419, 446, quoted in Briggs, 'Non-Recognition of Title by Conquest', 73-4. 161 LNOJ (1932), 383. 162 'Règles générales du droit de la paix', Recueil des cours (Hague Academy of International Law), 62 (1937), 99, at 293.

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The Demise o f the Right of Conquest

This note was a prelude to the League Assembly Resolution of 11 March 1932, which, after recalling the provisions of the Cov­ enant, the appeal to Japan by the twelve members of the Council, and the Kellogg-Briand Pact, declared 'that it is incumbent upon the Members of the League of Nations not to recognize any situ­ ation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris'.163 The principle of non-recognition of forcible territorial changes subsequently became the subject of a series of declarations and treaties, especially between the American states within the frame­ work of the Pan-American system, but not confined to American states. The war over the Gran Chaco between Bolivia and Para­ guay caused the other nineteen American republics to issue, on 3 August 1932, the Chaco Declaration, which was specifically ad­ dressed to the governments of the warring parties. The Declara­ tion read in part: The American nations further declare that they will not recognize any territorial arrangement of this controversy which has not been obtained by peaceful means nor the validity of territorial acquisitions which may be obtained through occupation or conquest by force of arms.164

The non-recognition principle and the illegality of conquest were proclaimed in Article 2 of the Saavedra Lamas Pact165 of 10 October 1933 (to which, in addition to the twenty-one American republics, eleven European states also adhered),166 in which the high contracting parties declared: that as between the high contracting parties territorial questions must not be settled by violence, and that they will not recognize any territor­ ial arrangement which is not obtained by pacific means, nor the validity of the occupation or acquisition of territories that may be brought about by force of arms.167 163 LNO] (1932), spec, suppl. no. 101, pp. 87-8. 164 US Dept, of State Press Releases, no. 149 (6 Aug. 1932), 100-1, quoted in Briggs, 'Non-Recognition of Title by Conquest', 74. 165 Named after the Argentine Minister of Foreign Affairs; its full title was the Anti-War Treaty of Non-Aggression and Conciliation. 166 The European signatories were Bulgaria, Czechoslovakia, Finland, Greece, Italy, Norway, Portugal, Romania, Spain, Turkey, and Yugoslavia, 167 LNTS 163 (1935-6), 393.

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Successive meetings of Pan-American Conferences subsequentlyadopted resolutions or treaties incorporating pronouncements on the illegality of conquest and the obligation of non-recognition of conquests. Article 11 of the Montevideo Convention on the Rights and Duties of States, signed at the Seventh Pan-American Con­ ference on 26 December 1933, stipulated that: The contracting States definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force.. . . The territory of a State is inviolable and may not be the object of military occupation nor of other measures of force imposed by another State directly or indi­ rectly or for any motive whatever even temporarily.168

Commenting on the provisions quoted above from the two trea­ ties of 1933, Hyde notes that these 'mark the beginnings of a Pan American conventional law that is obviously defiant of the inter­ ests of a conqueror and challenges the freedom of the victor to make accessions of territory through the sword'.169 At the 1936 Inter-American Conference for the Maintenance of Peace, the states represented approved a Declaration of Principles of Inter-American Solidarity and Co-operation. This stated that among 'the principles . . . accepted by the American community of Nations' was: 'Proscription of territorial conquest and that, in consequence, no acquisition made through violence shall be rec­ ognised.'170The Eighth Pan-American Conference at Lima in 1938 adopted a Declaration on Non-Recognition of the Acquisition of Territory by Force which, as stated in the preamble to the reso­ lution, set out to 'define the scope of the continental doctrine of the non-recognition of the conquest or acquisition of territory by force', and noted that the 'geographical, historical and political conditions of the American nations preclude, on this continent, all territorial acquisitions by force.' The resolution declared: That it reiterates, as a fundamental of the Public Law of America, that the occupation or acquisition of territory or any other modification or territorial or boundary arrangement obtained through conquest by force or non-pacific means shall not be valid or have legal effect. 168 LNTS 165 (1936), 19. 169 'Conquest Today', 474, 170 R. Langer, Seizure o f Territory, 78.

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The Demise o f the Right o f Conquest

The pledge of non-recognition of situations arising from the foregoing conditions is an obligation which cannot be avoided either unilaterally or collectively.171

The repeated reaffirmations of the principle of non-recognition of forcible territorial changes permitted the Inter-American Con­ ference of Problems of War and Peace at Mexico on 6 March 1945 to assert in the Preamble to its declaration, known as the Act of Chapultepec, that non-recognition had been incorporated into the international law of American States since 1890.172 Article 17 of the Charter of the Organization of American States (1948) accordingly stipulated that 'No territorial acquisitions or special advantages obtained either by force or by other means of coer­ cion shall be recognized.' Article 5 declared that 'The American States condemn wars of aggression: victory does not give rights'. And the no-conquest principle was at the heart of the collective security undertakings in Articles 24 and 25 of that instrument.173 Moving to the wider forum of the United Nations, the Charter, it will be noticed, does not incorporate any specific obligation of non-recognition,174 nor does it expressly stipulate that the acqui­ sition of territory by force cannot provide legal title. This might perhaps be explained by the fact that sterner sanctions than mere non-recognition of conquests were envisaged against states guilty of aggression. The more likely explanation, however, in view of the appeasements of 1936-9 and the acquiescence of many Al­ lied nations in the Soviet annexations in Europe of 1939-40, is that those responsible for the drafting of the Charter appreciated the difficulty of establishing a rule of non-recognition that would be operative on all occasions and regardless of political realities. For the Italian conquest of Abyssinia in 1936 was generally recognized by members of the League once the collective effort at sanctions—sanctions much stronger in their nature than non­ recognition—had failed. And with regard to the German con­ quests of Austria and Czechoslovakia in 1938-9, 'most countries 171 AJIL 23 (1940), suppl., p. 197. 172 AJIL 39 (1945), suppl., p. 108. 173 UNTS 119 (1952), 48. 174 As Brownlie wrote (in 1963): 'Since 1945 [apart from the two American instruments just mentioned] the principle of non-recognition of title by conquest has not been prominent in state practice' (International Law and the Use o f Force by States, 418). Since 1970, however, the principle has been repeatedly reaffirmed both by the General Assembly and by the Security Council.

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of the world accepted the/«its accomplis of those years, and non­ recognition was a subject discreetly avoided/175 The forced incor­ poration of the Baltic states into the Soviet Union (which in form were 'voluntary' unions or cessions carried out after Red Army occupation) was at first not recognized either de jure or de facto by Great Britain, but the exigencies of alliance with the Soviet Union in 1942 prompted a series of British actions which ended in de facto recognition. The United States, on the other hand, denied recognition to the changes.176 The Soviet seizures from Romania were accorded implicit recognition by the Allies in the armistice agreement of September 1944, which restored the Soviet-Romanian frontier established in June 1940,177 as were the forced transfers from Finland to the USSR.178 Furthermore, the Allies were a party to the Yalta agreements of February 1945, which provided for future 'substantial accessions' of territory to Poland (although Polish sovereignty over these was not specifi­ cally recognized), as well as the Soviet acquisition of the Kurile Islands and Southern Sakhalin; and at Potsdam the Allies de­ finitely agreed to the transfer of Königsberg to the USSR.179 It may be argued, however, that the ex injuria jus non oritur prin­ ciple was not applicable to the territorial changes imposed by the Allies on the Axis powers, since the Kellogg-Briand Pact, unlike the League Covenant and the United Nations Charter, did not guarantee the territorial integrity of aggressors.180 But the illegality of forced transfers of territory, and the obli­ gation of non-recognition of forced acquisitions, is expressly as­ serted in the 1970 Declaration on Principles of International Law,181 which provides, in paragraph 10, that '[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition result­ ing from the threat or use of force shall be recognized as legal.'182 175 O'Connell, International Law, i. 145. 176 R. Langer, Seizure o f Territory, 263-5. 177 Ibid. 281. 178 Ibid. 281-2. 179 O'Connell, International Law, i. 146. 180 See above, pp. 196-9. 181 GA Resolution 2625 (XXV). 182 Note that what is here prohibited is the de jure recognition of conquests. While the Afro-Asian and Latin American advocates of the non-recognition prin­ ciple in the Special Committee on Friendly Relations had favoured a proposal which would have prohibited recognition either de jure or de facto of forcible territorial acquisitions, objections to this proposal were raised by the Western states, whose representatives stressed the meagre results seen in the past from the application of the Stimson Doctrine in the absence of effective collective

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The Demise o f the Right o f Conquest

And the 1974 Definition of Aggression,183 which includes, as part of that definition, 'any annexation by the use of force of the territory of another state or part thereof',184 affirms in Article 5(3) both the illegality of forced acquisitions and the obligation of non-recognition: 'No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.' The duty not to recognize illegal situations (such as territorial acquisitions obtained by force) was affirmed by the International Court of Justice in the 1971 Namibia Opinion on the duties of states arising from the continued occupation of Namibia by South Africa, in which the Court held that a binding determination by the Security Council that a situation is illegal imposes a duty of non-recognition with respect to that situation on all members of the United Nations.185 Thus non-recognition by decision of the United Nations has become a form of action to thwart the acqui­ sition of title by conquest which is among the options open to the Security Council. The principle of non-recognition of territorial acquisitions ob­ tained by force has since been collectively applied by the United Nations in response to Israel's assertion of complete jurisdiction over East Jerusalem (1980) and the Golan Heights (1981). But these and other applications (or non-applications) of the non­ recognition principle in the post-1945 period will be investigated in the final chapter of this study, which highlights contemporary responses to the acquisition of territory by force through the exam­ ination of a number of case-studies. measures to deprive the conqueror of his conquest, and the difficulty of applying the principle in practice—since the views of states as to the lawfulness of a particular situation may differ. A compromise solution was therefore reached by splitting the two parts of the principle—de jure and de facto recognition—which the Third-World states considered to be indissolubly linked, so that the final text required states to withhold only de jure recognition from titles acquired by force (Antonio Tanca, 'The Prohibition of Force in the U.N. Declaration on Friendly Relations of 1970', in A. Cassese (ed.), The Current Legal Regulation o f the Use o f ■Force (Dordrecht: Nijhoff, 1986), 403). 183 GA Resolution 3314 (XXIX), 14 Dec. 1974, adopted by consensus. 184 Art. 3(a). 185 Legal Consequences for States o f the Continued Presence o f South Africa in Na­ mibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion (upon request by the Security Council of the United Nations), 1CJ Reports (1971), 16, at 52-8.

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V. THE LIMITATIONS OF NON-RECOGNITION AS A MEANS OF ENFORCING THE PROHIBITION OF CONQUEST

If the contemporary legal prohibition of the use of force by states and the principle of non-recognition of conquest have served to establish or assert the illegality of force and conquest, they have not served to eliminate the actual use of force by states,186nor the acquisition of territory by conquest. As one international legal writer remarks: 'A modification of this state of affairs would involve a major reform of international society: and a reform which implied, precisely, a far greater effectiveness of the "community" 's reaction to the illegal use or threat of force.'187 In the absence, then, of effective collective procedures for en­ forcing the prohibition of war, contemporary international law has had to build itself upon the outcomes of war no less than traditional international law which did not prohibit war—al­ though, by virtue of the contemporary illegality of war and con­ quest and the consequent exclusion of claims to title by conquest, it no longer does so automatically. As Hans Kelsen observes: Under general international law, the states are obliged to respect the territorial integrity of the other states; but a violation of this obligation does not exclude the change of the legal situation. The principle advoc­ ated by some writers— ex injuria jus non oritur ('a right cannot originate in an illegal act')— does not, or not without important exceptions, apply in international law.188

For states may and do recognize that illegal acts, once effecting a firmly established situation, give rise to new legal rights and duties; and that by the operation of the rule of effectiveness the 186 'Since World War II local wars— civil, revolutionary, and between the or­ ganized armies of states—have been as pervasive and decisive an instrument of international politics as in any modern period' (Robert E. Osgood and Robert W. Tucker, Force, Order, and Justice (Baltimore: Johns Hopkins Press, 1967), 25). 187 Gaetano Arangio-Ruiz, 'The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations', Recueil des cours (Hague Academy of International Law), 137 (1972), 431, at 533. 188 Principles o f International Law, 2nd edn., rev. and ed. Robert W. Tucker (New York: Holt, Rinehart, and Winston, 1967), 316-17.

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The Demise o f the Right o f Conquest

principle of ex injuria jus non oritur may eventually have to give way to the rival principle ex factis jus oritur.189 The operation of the principle of effectiveness means that as long as the international community is not determined to pre­ vent aggressors from enjoying the fruits of their crimes, mere declarations of non-recognition that are not matched by serious steps to contest the acquisition and to prevent a situation origin­ ating in a violation of law from becoming firmly established are of little weight in the long run in giving effect to the principle that rights shall not arise from conquest. As Brierly remarks: If non-recognition should leave unchanged the facts of which it marks disapproval, it would result in a discordance between the law and the facts which in the long run would merely advertise the impotence of the law .. . . The truth is that international law can no more refuse to recog­ nize that a finally successful conquest does change the title to territory than municipal law can a change of régime brought about by a success­ ful revolution. What have hitherto been the legal consequences of suc­ cessful war cannot in the long run be avoided by any change in the law, or any well-intentioned convention of states which does not also regis­ ter a change in their practice in respect of war.190

It is of course true that non-recognition is of value inasmuch as it constitutes evidence that states regard the use of force for the acquisition of territory as illegal.191 But the mere declaration of non-recognition, in the absence of a more effective response to the unlawful act, is not 'of itself sufficient to prevent acts illegal in origin from acquiring those law-creating effects they would have if not involving a violation of law'.192 Thus the refusal to 'validate' a conquest, adopted as an alternative to more effective action to reverse the conquest, cannot be said to demonstrate a serious intention to ensure that the results of an illegal conquest remain a legal nullity, since this requires more effective action to bring the facts into line with the law. As the British government commented with regard to Article 11 of the Draft Declaration on 189 See Robert W. Tucker, 'The Principle of Effectiveness in International Law', in George A. Lipsky (ed.), Law and Politics in the World Community: Essays on Hans Kelsen's Pure Theory and Related Problems in International Law (Berkeley: University of California Press, 1953), 44. 190 The Law o f Nations, 172-3. 191 Brownlie, International Law and the Use o f Force by States, 92. 192 Kelsen, Principles o f International Law, 424 n. 122.

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the Rights and Duties of States of 1949 prepared by the Interna­ tional Law Commission of the United Nations, which provided that '[i]t is the duty of every State to refrain from recognizing territ­ orial acquisitions obtained through force or the threat of force': In this connexion His Majesty's Government consider that the primary question here is that of the duty of the international community to pre­ vent acquisitions by illegal force, or restore any so obtained. To the extent that the community of nations do not fulfil this function, it is more than questionable whether any purpose is served by a barren duty of non-recognition.. . . Mere non-recognition, when the community of States do not fulfil the function of preventing or restoring acquisitions by illegal force, has not appeared to serve any useful purpose but has, instead, tended to create innumerable legal fictions, under which at times States have acted in a manner really inconsistent with any other basis than that of recognition of the acquisition, whereas at the same time they purport not to have done so.193

The point is that if the contemporary prohibition of conquest is to have a greater meaning in practice than the mere conversion of de jure conquests into de facto conquests—until the conquests are recognized de jure by other states—sterner sanctions than mere non-recognition of conquest will have to be adopted by the international community, which would have the effect of revers­ ing conquests when they occur. Non-recognition, in so far as it indicates a refusal on the part of states to acquiesce in acquisi­ tions obtained by force, may be regarded as a step forward in establishing the invalidity of titles based on force. But '[i]t is an illusion that non-recognition can be a substitute for other more vigorous measures in upholding the law.'194 For unless there is some prospect of the wrongdoer being compelled to abandon his unlawful success—that is, unless other states are able and will­ ing to use means more effective than this 'somewhat symbolic instrument for upholding the challenged authority of interna­ tional law'195—non-recognition becomes little more than a pious fiction—which cannot, moreover, be maintained indefinitely, as 193 'Preparatory Study Concerning a Draft Declaration on the Rights and Duties of States', memorandum submitted by the Secretary-General, UN Doc. A /C N .4/2, 15 Dec. 1948, p. 111. 194 f i - C h i a n g Chen, The International Law o f Recognition (London: Stevens, 1951), 441. 195 Hersch Lauterpacht, Recognition in International Law (Cambridge: Cambridge University Press, 1947), 433.

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The Demise o f the Right of Conquest

'[t]here comes a point at which the international legal system has "to capitulate" to facts/196 Thus the effectiveness of the law against force and conquest depends in the long run not upon the denial of title to the con­ queror, but on the effectiveness of procedures for reversing the aggression before it produces its fruits. For conquest to disappear, the international community must establish effective measures of collective security; for while the operation of a comprehensive collective system is not a necessary precondition for the existence of the rule prohibiting the acquisition of territory by force, it is a necessary precondition for the effectiveness of that rule: in its absence, the chances of the conquest becoming firmly established, and of the ex injuria jus non oritur principle being defeated, are increased; and conquest, in so far as it is tolerated, will continue to give rise to rights. 196 Dinstein, War, Aggression and Self-Defence, 161.

7 International Reactions to the Acquisition of Territory by Force after 1945: Five Case-Studies Since the founding of the United Nations there have been nu­ merous instances in which states have sought to acquire territory by force. These episodes have posed a challenge both to the en­ forceability of the rule against such acquisitions and to the con­ tinuing vitality of the principles which underlie it.11 propose in this chapter to investigate, through a number of case-studies, the extent to which the international community has reinforced the rule prohibiting the acquisition of territory by force in the face of contemporary challenges to it. In relation to the cases discussed below, three principal questions will be considered: 1. Have the claims advanced by states in an effort to overcome the prohibition against territorial acquisition by conquest been accepted as lawful by the international community? 2. Has conquest continued to give rise to recognized rights of sovereignty in the era of the United Nations? 3. Where conquest has resulted in the acquisition of sovereignty, has this been due primarily to the failure of international so­ ciety to enforce a prohibition which it none the less continues to recognize—in which case the prohibition may be said to have survived these discontinuities—or does it cast doubt on the continued existence of the norm itself?

1 i.e. the principles that only peaceful means shall be used in the settlement of territorial disputes (Art. 2(3) of the UN Charter); that territory must not be ac­ quired by force (a corollary of Art. 2(4) of the UN Charter, as elaborated by the 1970 Declaration on Principles of International Law); that military occupants must refrain from annexing occupied territory (the law of belligerent occupa­ tion); and that rights to territory cannot be acquired by conquest, but only by consent of the inhabitants (the principle of self-determination of peoples).

250

The Demise o f the Right o f Conquest I. ISRAEL'S AN NEXATIO N OF EAST JERUSALEM AND THE GOLAN HEIGHTS

Does the international community accept the claim that force used in self-defence entitles a state to annex territory hitherto in the established de facto possession of other states for the purpose of preventing a future aggression against it, or in respect of which it claims to have better title? An important case from the post1945 period which provides an opportunity for studying this question (and which is not subject to the broad exception con­ tained in the United Nations Charter in respect of action against ex-enemy states) is Israel's annexation of East Jerusalem and the Golan Heights. During the Six Day War of 5-10 June 1967, as the result of military action which many states at the time supported as ac­ tion taken in legitimate self-defence,2 Israeli armed forces cap­ tured the Golan Heights from Syria, the West Bank and the Old (eastern) City of Jerusalem from Jordan, and the Gaza Strip and Sinai Peninsula from Egypt. Although Israel did not formally extend its law to most of these territories, it did do so in respect of East Jerusalem in 1967, and the Golan Heights in 1981. In examining the international community's response to this action, I shall treat each of these cases in turn. (a) Israel's Incorporation o f East Jerusalem (1967, 1980) The status of East Jerusalem under international law is uncertain.3 During the period of the British Mandate of Palestine, Jerusalem 2 As Allan Gerson notes: 'The international community in its formal considera­ tion of "aggression" in the 1967 War has in fact favoured Israel's action as a legitimate and proper exercise of its rights of self-defence' (Israel, the West Bank and International taw (London: Cass, 1978), 73). See draft resolutions of the Gen­ eral Assembly condemning Israel for aggression and voting patterns in UN Docs. A /L519, A /L52, A /2524, and L/525. The majorities refusing to condemn Israel for aggression (including in each case abstentions) were: 88 against 32, 98 against 22, 81 against 36, and 80 against 36, respectively. The USSR was alone among the permanent members of the Security Council which had voted in favour of similar resolutions. See UN Docs. S/7951, S/7951/R ev. 1, S/7951/R ev. 2, S/PV.1360 (1967). 3 For an analysis of alternative views as to the present status of East Jerusalem under international law, see Melinda Crane, 'Middle East: Status of Jerusalem', HIL} 21 (1980), 784,

International Reactions after 1945

251

formed an integral part of Palestine and served as its administra­ tive capital. The United Nations General Assembly, in its Reso­ lution 181 (II) of 29 November 1947, recommended that the British Mandate be terminated, and that Palestine be partitioned into an independent Jewish state, an independent Arab state (to which was allocated territory including what is now called the West Bank and the Gaza Strip), and the city of Jerusalem as a corpus separatum (or an internationalized territory belonging to no state or people, with the United Nations itself as the administering authority). This solution was adopted by the General Assembly as a compromise between the conflicting national aspirations of Jews and Arabs, each claiming the right to establish an inde­ pendent state throughout the whole of Palestine. However, the Palestinian Arabs and the Arab states were viol­ ently opposed to the establishment of a Jewish state in Palestine, and, in the face of this opposition, the United Nations failed to implement its Partition Resolution. In the event, the problem of the future of Palestine was settled by armed force, in the first of the Arab-Israeli wars, starting on 15 May 1948, the date on which Britain unilaterally relinquished its Mandate in Palestine. During the hostilities of 1948 to 1949, Jordan (citing in justification of its intervention in Palestine the need to protect the Palestinian Ar­ abs and to restore peace and order in the territory)4 assumed control of East Jerusalem, with its mainly Arab inhabitants, to­ gether with the rest of the West Bank, while Israel assumed con­ trol of Jewish-inhabited West Jerusalem. Both states treated the respective sectors of Jerusalem under their effective control as forming an integral part of their state territory between 1948 and 1967;5 and each recognized the other's de facto control in their respective sectors by the signature of the 1949 Jordan-Israel General Armistice Agreement, which had been concluded at 4 See UN Doc. S/748 of 17 May 1948, cable from King Abdullah of Transjordan to the Secretary-General of the UN. 5 On 23 Jan. 1950, the Israeli Knesset adopted a government resolution declar­ ing that Jerusalem had resumed the status of the capital of the Jewish state (Israel Parliamentary Protocol, 1st Knesset, 2nd session, 108th meeting (1950), 602-3 (in Hebrew)). On 24 Apr. 1950, a newly elected Jordanian parliament representing both banks of the Jordan River approved a resolution proclaiming the union of Jordan, the West Bank, and the Old City of Jerusalem (see Hassan bin Talal, Pales­ tinian Self-Determination: A Study o f the West Bank and Gaza Strip (London: Quartet Books, 1981), 40-1).

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The Demise o f the Right o f Conquest

the behest of the Security Council and with United Nations mediation.6 On 27 June 1967, in the wake of the Six Day War and the conquest by Israel's armed forces of all the remaining territory (i.e. East Jerusalem, the West Bank, and the Gaza Strip) which had formed part of Mandatory Palestine in 1947-48 but which had been captured by Jordan and Egypt in the 1948-9 ArabIsraeli war and had been administered by these states under the 1949 armistice agreements, the Israeli Knesset passed a law pro­ viding that 'the law, jurisdiction and administration of the State shall extend to any area of Eretz Israel [i.e. Mandatory Palestine] designated by the Government by order.'7 On the same day, a further law was passed enabling the Minister of Interior to en­ large the area of any municipality by the inclusion within it of an area designated under the first measure.8 On 28 June 1967, pur­ suant to these provisions, the Israeli government proclaimed that Israeli law was extended to East Jerusalem, with new expanded boundaries, which was now included under one municipality with West Jerusalem. Sizeable parts of the West Bank to the north and south of the eastern sector of Jerusalem, as well as the Old City itself, were thus formally incorporated into Israel. This area was inhabited by some 70,000 Arabs,9 who were also thereby incorporated into Israel, but who were not automatically granted Israeli citizenship and remained Jordanian citizens. Successive Israeli governments have encouraged the dense Israeli civilian settlement of the extended boundaries of Jerusalem, as a means of increasingly integrating the territory into the State of Israel. Israel's policy of incorporating considerable portions of the West Bank into the State of Israel by the circuitous means of extending the boundaries of Jerusalem provides an interesting case of a legal fiction apparently motivated by the contemporary denial of the right of conquest. That the application of Israeli law to East Jerusalem with extended boundaries was, in part, a means of annexing portions of the West Bank under another name is highlighted by Meron Benvenisti's observation that: 6 Hashemite Kingdom of Jordan-Israel General Armistice Agreement, Rhodes, 3 Apr. 1949, UNTS 42 (1949), 303. 7 Law and Administration Ordinance (Amendment No. 11) Law, 27 June 1967, Laws o f the State o f Israel, 21 (1967), 75. 8 Municipalities Ordinance (Amendment No. 6) Law, 27 June 1967, ibid. 9 Meron Benvenisti, The Shepherd's War: Collected Essays (1981-1989) (Jerusalem'. Jerusalem Post, 1989), 131.

International Reactions after 1945

253

the city limits after the annexation encompassed an area whose size was a hundred times larger than that of the Old City, an area which became the 'Holy City' though it could not have been regarded as 'Jerusalem' according to any religious, urban or topographic criteria.10

Since Israel's status in East Jerusalem is slightly less problematic than it is in the West Bank—the West Bank having been ear­ marked by the United Nations in 1947 for an independent Arab state, whereas Jerusalem (including East Jerusalem) had not—it is easy to see why Israel should have resorted to the device of extending the boundaries of East Jerusalem, rather than openly annexing the affected portions of the West Bank as such. It indi­ cates the notable tendency of states which in recent times have engaged in the forcible acquisition of territories to avoid reliance on conquest as a basis of title, by asserting or inventing claims of pre-existing title to territory over which jurisdiction is in fact acquired by force.11 Israel, in the face of United Nations protests, denied that the extension of its jurisdiction over East Jerusalem by placing the entire city under a common civil jurisdiction constituted annexa­ tion. As Israel's Foreign Minister, Abba Eban, put it to the United Nations Secretary-General, U Thant: 'The term "annexation" used by supporters of the resolution is out of place. The measures adopted relate to the integration of Jerusalem in the administra­ tive and municipal spheres, and furnish a legal basis for the protection of the Holy Places in Jerusalem.'12 But the measures used by Israel to incorporate East Jerusalem were strongly con­ demned as 'invalid' by both the Security Council13 and the Gen­ eral Assembly14 of the United Nations, on the ground that they purported to alter the status of Jerusalem.15 10 Ibid. 132-3. 11 Thus China claimed ancient title when it annexed Tibet in 1950, as did India in Goa in 1961, and Morocco in the Western Sahara in 1976 and 1978. 12 Letter of 10 July 1967, UN Docs. A /6798, S/8052 (1967). 13 SC Resolutions 252 (1968), 267 (1969), 271 (1969), 298 (1971), 446 (1979), 465 (1980). 14 GA Resolutions 2253 (ES-V) (1967), 2254 (ES-V) (1967), 31/106A (1976), 33/ 113 (1978). 15 The UN's contention derives support from the statement made by the Israeli Supreme Court that, from the date of the 1967 Order, 'united Jerusalem became an inseparable part of Israel' (Hanzalis v. Greek Orthodox Patriarchate Religious Court, International Law Reports, 48 (1969), 93, at 98). On the collective refusal of the UN to recognize Israel's annexation of East Jerusalem, and on the grounds given for non-recognition, see John Dugard, Recognition and the United Nations (Cambridge: Grotius Publications, 1987), 111-15.

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The Demise of the Right o f Conquest

While the Israeli government in 1967 had sought to deny that the extension of its jurisdiction over East Jerusalem had in fact purported to effect an annexation of the territory, the intention to incorporate the territory fully was rendered unequivocal on 30 July 1980, when the Knesset enacted a 'basic law' declaring that 'Jerusalem united in its entirety is the capital of Israel'.16 This instrument was clearly intended to serve as a symbolic act of annexation, since the capital of a state cannot be situated outside the territory of a state, but must be an integral part of it.17 However, in an era which has repudiated the 'right of con­ quest', the term 'annexation' is discreetly avoided by all states effecting acquisitions of territory by force. As Israel's Prime Minister, Menachem Begin, explained in advocating the choice of words used in the Basic Law on Jerusalem of July 1980: 'I propose that we do not use the term "annexation", which sug­ gests the seizure of land we do not have a right to. The solution is to enact "the law of Jerusalem, the capital of Israel" which will determine that united Jerusalem is the capital of Israel.'18 The enactment of this law prompted the passage by the Se­ curity Council of Resolution 478 (1980) on 20 August 1980, which condemned the piece of legislation as 'a violation of interna­ tional law' and a threat to peace and security. It determined that 'all legislative and administrative measures and actions taken by Israel, the occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem, and, in particular, the recent "basic law" on Jerusalem, are null and void and must be rescinded forthwith.' The resolution was adopted by a vote of fourteen in favour, none against, with the United States abstaining. The United States, by withholding its veto power as a permanent member of the Council, effectively made possible the passage of the resolution—thus implicitly join­ ing in the condemnation of Israel's act of annexation, while ex­ pressing reservations on other points. Explaining the United States' abstention, the American representative said after the vote 16 Basic Law: Jerusalem, Capital of Israel, 30 July 1980, Laws o f the State o f Israel, 34 (1980), 209. See further on this law, Shlomo Slonim, 'The United States and the Status of Jerusalem, 1947-1984', ILR 19 (1984), 179, at 2 43- 4. 17 As Crane points out: 'Implicit in the Israeli law of July 30, 1980 is a claim to exclusive Israeli sovereignty over Jerusalem' ('Middle East: Status of Jerusalem', 789). 18 Quoted in M. Benvenisti, The Shepherd's War, 130.

International Reactions after 1945

255

that while the United States government remained opposed to any unilateral change in the status of the Israeli-occupied terri­ tories, the Jerusalem issue could be finally determined only in direct peace negotiations, and not by resolutions of the Security Council such as this one which had referred to East Jerusalem as 'Arab territory'.19 In an initial attempt to act upon its determination, the Security Council in Resolution 478 took punitive measures against Israel by (1) deciding 'not to recognize the "basic law" and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem' and calling upon all members of the United Nations to do the same; and (2) calling for the withdrawal of all diplomatic missions located in Jerusalem.20 A move by Muslim countries to incorporate economic sanctions against Israel into the resolution was dropped, however, when it became clear that such a text would be vetoed by Western per­ manent members.21 The General Assembly has subsequently given its endorsement to Security Council Resolution 478 (1980) on several occasions;22 and no state has recognized Israel's unilat­ eral annexation of East Jerusalem. Grounds for Non-Recognition o f Israeli Sovereignty over East Jerusalem In the case of Israel's incorporation of East Jerusalem it is clear that conquest has not given rise to recognized of rights of sover­ eignty. Instead, the United Nations has resorted to collective non­ recognition of a claim to territory acquired, in its view, in violation of certain fundamental principles of international law. A survey of United Nations resolutions on this question reveals that three main grounds have been advanced for the non-recognition of Israel's claim to sovereignty over East Jerusalem as a matter of its present status, each of which serves to reaffirm the continuing 19 Keesing's Contemporary Archives (1983), 31911. 20 In response to this provision, thirteen states maintaining embassies in Jeru­ salem withdrew them from the city, although Costa Rica and El Salvador subse­ quently returned their embassies to Jerusalem (Slonim, 'The United States and the Status of Jerusalem, 1947-1984', 244). 21 Keesing's Contemporary Archives (1983), 31911. 22 See GA Resolutions 36/120E of 10 Dec. 1981; 37/123C of 16 Dec. 1982; 3 9 / 146C of 14 Dec. 1984.

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The Demise o f the Right of Conquest

relevance of the norms underlying the principle of non­ acquisition by force, identified in Chapter 6 of this study. The first reason advanced for the non-recognition of Israeli sovereignty over East Jerusalem is that Israel acquired jurisdic­ tion over East Jerusalem by the use of force in the course of the Six Day War. Resolutions on Jerusalem of both the Security Council23 and the General Assembly24 repeatedly reaffirm 'that the acquisition of territory by force is inadmissible' and—in line with the 1970 Declaration on Principles of International Law, which states that 'no territorial acquisition resulting from the use or threat of force shall be recognized as legal'—draw no distinc­ tion between territory acquired by the lawful use of force and territory acquired by the unlawful use of force. Indeed, the proposition that Israel's annexation of East Jerusa­ lem should not be recognized on the grounds that the acquisition of territory by force is inadmissible has also been accepted by those states—such as the United States—which supported Israel's action in the Six Day War as one of self-defence. Thus the inter­ national community expressly refuses to accept the argument that the provisions of the United Nations Charter are consist­ ent with the acquisition of sovereignty in virtue of defensive conquest. Nor has the international community accepted the argument that Israel may annex East Jerusalem unilaterally on the grounds that its title to the city, 'based on action taken in self-defence, is better founded than that of Jordan, which acquired control over the city in an aggressive operation in 1948, and that Israel may therefore fill the sovereignty vacuum in Jerusalem arising from the termination of the Mandate' and the failure of the Arab in­ habitants of Palestine to establish an independent Arab state, in accordance with the 1947 Partition Resolution.25 The position taken on this question by the United States— 23 SC Resolutions 242 (1967), 252 (1968), 298 (1971), 476 (1980), 478 (1980). 24 e.g. GA Resolutions 34/70 (1979), ES/72 (1980), 37/123A (1982). 25 Dugard, Recognition and the United Nations, 113-14. For an elaboration of this argument, see Y. Z. Blum, 'The Missing Reversioner: Reflections on the Status of Judea and Samaria', ILR 3 (1968), 279; Stone, Israel and Palestine, 118, 190 n. 22; E. Lauterpacht, 'Jerusalem and the Holy Places', 971; Schwebel, 'What Weight to Conquest?', 317. The authors in each case refer to the principle ex injuria jus non oritur as precluding the acquisition by Jordan of sovereign rights to the West Bank and East Jerusalem.

International Reactions after 1945

25 7

which, like all other states, has refused to recognize the applica­ tion of Israeli law to East Jerusalem—reveals an important un­ derlying reason for this refusal. Unlike many other states whose opposition to Israel's annexation of East Jerusalem is motivated largely by the perception that East Jerusalem is 'Arab territory' to which victory in war cannot give Israel a valid title, the United States does not adhere to the view that East Jerusalem is selfevidently 'Arab territory', thereby admitting that Israel may well have a valid claim to it, independently of its annexation of the territory in 1967 and 1980. Yet the United States has repeatedly stressed that the final status of East Jerusalem must be settled through negotiation, and on this ground has opposed unilateral annexation by Israel. The United States' rejection of Israel's argument would seem to be based on the perception that to accept the idea— advanced by Israel as its legal rationale for annexing East Jerusalem—that conquest resulting from a defensive use of force entitles the vic­ tor unilaterally to annex occupied territory, when the occupant claims to have a better title to it, would effectively be to licence the transformation of a lawful use of force in self-defence into an unlawful use of force for the purpose of settling disputes over territory. Whereas Article 2(3) of the Charter requires that all disputes, including territorial disputes, must be settled by peace­ ful means, defensive conquest followed by unilateral annexation as a means of vindicating a claim to territory cannot be regarded as falling within that category. It is no doubt for this reason that Security Council Resolution 478 (1980) referred to Israel's actions in East Jerusalem as a threat to international peace and security. In addition to the argument that Israel acquired jurisdiction over East Jerusalem by the use of force, and force, even when used in self-defence, cannot change rights to territory or be al­ lowed to settle disputes over territory, the second ground ad­ vanced for the non-recognition of Israeli sovereignty over East Jerusalem is that the law of belligerent occupation forbids the unilateral annexation of occupied territory. Both the Security Council26 and the General Assembly27 maintain that Israel is in 26 SC Resolutions 271 (1969), 465 (1980), 476 (1980), 478 (1980), and 672 (1990) all refer to the provisions of the Fourth Geneva Convention as being relevant to the legality of Israeli measures affecting East Jerusalem. 27 See e.g. GA Resolutions 36/120E (1981) and 39/146A (1984).

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The Demise o f the Right of Conquest

belligerent occupation of East Jerusalem and thus bound to com­ ply with the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, an obligation which is irreconcilable with the exercise of complete jurisdiction over the city in terms of the Israeli 'basic law' of 1980. The law of belligerent occupation has traditionally had two purposes: the protection of the inhabitants of the occupied territory, and the protection of the reversionary interests of the legitimate sover­ eign. While the applicability of the latter consideration in the present case is rendered more complex by the fact that the status of East Jerusalem is disputed (Jordanian sovereignty over the West Bank was recognized only by Britain and Pakistan, and that over the Old City of Jerusalem by Pakistan only),28 Israel is none the less regarded as obligated to refrain from prejudicing the issue of the status of East Jerusalem by measures which exceed the bounds laid down by the law of belligerent occupation. But the former consideration at least, concerning the protection of the inhabitants, is universally regarded as being straightforwardly applicable in this case. This is reflected in the Security Council's condemnation as contrary to international law of the measures taken by Israel in East Jerusalem, 'including expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section' of Jerusalem 'which may purport to change the status of the City, or which would prejudice the rights of the inhabitants and the interests of the inter­ national community, or just and lasting peace',29 as it is in the United Nations' condemnation of Israel's policy of establishing civilian settlements in the occupied territories, including East Jerusalem.30 The resolutions passed by the Security Council in this connec­ tion reaffirm the principle that while occupation itself is not ille­ gal (when resulting from a lawful use of force in self-defence, or when the Security Council has not demanded an unconditional 28 On Jordan's annexation of the West Bank and the reactions thereto, see Blum, 'The Missing Reversioner', 289-93. For text of the British government's statement of recognition of Jordanian sovereignty over the West Bank, which expressly excludes recognition of Jordanian sovereignty over any part of Jerusa­ lem 'pending a final determination of the status of this area', see Whiteman, Digest o f International Law, ii (1963), 1167-8. 29 SC Resolution 298 (1971). Emphasis added. 30 See e.g. SC Resolution 465 (1980).

International Reactions after 1945

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withdrawal of the armed forces of the occupying power from the territory which it has occupied), an occupant may act only within certain parameters established by the Fourth Geneva Convention and general international law. In so far as Israel has sought to integrate East Jerusalem into its own state territory by applying Israeli law to the territory, and establishing Israeli civilian settle­ ments in East Jerusalem for the clearly intended purpose of en­ suring that its incorporation into Israel is 'irreversible', Israel is considered to have overreached its rights as an occupying power and altered the status of East Jerusalem— contrary to the require­ ments of the law of belligerent occupation. The international community thus refuses to accept the argument that the uncer­ tain status of an occupied territory frees the occupant from the obligation to observe the rules of belligerent occupation, includ­ ing the requirement that an occupant abstain from measures tending to alter the status of occupied territory. The third reason which has been advanced for the non­ recognition of Israeli sovereignty over East Jerusalem is one which, though enjoying widespread support in the United Nations, has not been universally accepted—namely, that East Jerusalem forms part of a Palestinian self-determination unit embracing East Jeru­ salem, the West Bank, and the Gaza Strip, and that, as such, Israel's annexation of the territory violates the right of the Pales­ tinian people to self-determination within it.31 The fact that the proclamation of the State of Palestine 'with its capital at Jerusa­ lem', issued by the Palestine National Council on 15 November 1988,32 has been widely acknowledged by the international com­ munity may be said to reflect this perception. The international response to Israel's forcible acquisition of East Jerusalem clearly reaffirms the no-conquest principle by emphasizing the norms—identified in Chapter 6—which under­ lie it. Thus, there has been widespread support for the view that 31 See e.g. GA Resolution 39/146A of 14 Dec. 1984, which declared that a just and lasting solution of the Middle East problem required 'the complete and unconditional withdrawal of Israel from the Palestinian and other territories occupied since 1967, including Jerusalem', enabling the Palestinian people to exer­ cise its 'right to self-determination, national independence and the establishment of an independent sovereign State in Palestine' (emphasis added). 32 The Declaration of Independence of the Palestine National Council was communicated to the General Assembly and the Security Council of the UN in A /4 3 /8 2 7 , S/20278, 18 Nov. 1988.

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The Demise of the Right of Conquest

Israel's incorporation, of East Jerusalem is illegal on the grounds that (1) the acquisition of territory by war, whether defensive or aggressive, is inadmissible— since, under the United Nations Charter (Art. 2(4)), as elaborated in the 1970 Declaration of Prin­ ciples of International Law Concerning Friendly Relations, the right of a state to acquire territory by force is no longer recog­ nized and is in breach of the obligation to settle territorial dis­ putes through peaceful means rather than forcible annexation (Art. 2(3)); (2) the law of belligerent occupation does not entitle a state to substitute itself for the pre-existing authority by force, whether or not it recognizes that authority as legal or as sover­ eign or as entitled to pass laws; and (3) it violates the right of the Palestinians of East Jerusalem to self-determination. It may be argued, with regard to the latter consideration, that East Jerusa­ lem does not or should not form part of a territorial unit in which the Palestinians are entitled to exercise their right of selfdetermination. But this is not the point at issue in the present context. Rather, what concerns us is that in the case of East Jeru­ salem, it has been argued that the Palestinians are entitled to self-determination, and the principle has been reaffirmed that where a people are entitled to self-determination, rights to sov­ ereignty cannot be acquired by conquest, but only by consent of the inhabitants. (b) Israel's Incorporation of the Golan Heights, 1981 The Golan Heights lie outside the territory of what was Palestine in 1947-8,33 and the territory was under undisputed Syrian sov­ ereignty until its occupation by Israel in 1967. Israel had previ­ ously made no claim to the territory and, until 1981, had recognized the Golan Heights as lying beyond its international borders. After fourteen years of ruling as a belligerent occupant, the Israeli government, on 14 December 1981, secured the parlia­ mentary passage of a bill extending Israeli Taw, jurisdiction and 33 Although originally forming part of British-mandated Palestine, in 1923 the Golan Heights were ceded by Britain to French-mandated Syria (see Ya'akov Meron, 'The Golan Heights 1918-1967', in Meir Shamgar (ed.), Military Govern­ ment in the Territories Administered by Israel 1967-1980: The Legal Aspects, i (Jeru­ salem: Hebrew University, 1982), 85).

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administration' to the Golan Heights,34 thus effectively annexing the territory to Israel. Israel's Prime Minister, Mr Begin, in pre­ senting the measure to the Knesset, justified the step on the grounds of the increasingly 'extremist' positions being adopted by the Syrian government, and stated that the move had been inevitable for many years in view of the Golan Heights' strategic importance for Israel. (It should be noted that between 1948-9 and June 1967, Syria had continually exploited the topographic advantage which the Golan Heights had given to it to bombard Israeli settlements in the north.) He also asserted that the Golan Heights had been an integral part of the Land of Israel for many generations and had been separated from it only by the arbitrary decision of the colonial powers after the First World War.35 As in the case of East Jerusalem, the Israeli law on the status of the Golan Heights did not use the word 'annexation' and did not extend Israeli citizenship to the local population. But it was widely regarded within the international community as consti­ tuting an act of annexation36— and hence as an attempt to ac­ quire the territory by force.37 In fact, a statement released by the Israeli Foreign Ministry on 15 December 1981, a day after the 34 Golan Heights Law, 14 Dec. 1981, Laws o f the State o f Israel, 36 (1982), 7. The significance of this law, however, was 'mainly political, since the Israeli admin­ istrative and legal systems had effectively been introduced in the Golan area through military enactments in 1970' (E. Benvenisti, The International Law o f Occupation, 114). 35 See above, n. 33. For details of Begin's speech to the Knesset, see Keesing's Contemporary Archives (1983), 31913. 36 Measures which have been held to constitute annexation, as distinct from occupation, include the incorporation of the territory in question into the annex­ ing state; the expression of an intention to retain the territory permanently; and the exercise of rights incidental to sovereignty (Whiteman, Digest o f International Law, ii. 1111-18, 1120-4, 1155, 1162-8; x (1968), 547-9). 37 Reinforcing this perception was the fact that after the passage of the Golan Heights Law, Israel took steps to consolidate its takeover of the Golan: the au­ thorities moved quickly to establish Israel's civilian administration and legal procedures in the territory; in mid-January 1982, the existing military checkpoint on the western outskirts of Kuneitra (which had been returned to Syria under the 1974 Israeli-Syrian disengagement agreement) was converted into an interna­ tional border post; and on 6 January 1982, the authorities announced that an ad­ ditional 20,000 Israelis would be settled in the Golan Heights over the next four years, bringing the Jewish population of the area to some 27,000, and thus to a substantial majority position. (In 1982, the 15,000 Druse inhabitants of the Golan Heights formed the largest population group of the territory, after the flight of almost all the Syrian Arabs during the 1967 war) (Keesing's Contemporary Archives (1983), 31914).

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The Demise of the Right of Conquest

passage of the Golan Heights Law, makes clear that by formally extending Israeli jurisdiction to the Golan Heights, the Israeli government was indeed exercising what it perceived to be a right of defensive conquest in the face of Syria's refusal to negotiate a treaty of peace: Modem history is full of examples of nations altering their borders as a result of victory in war. Usually, the change is ratified in the peace treaty that normally follows a war. Syria, in the 14 years that have elapsed since the Golan changed hands in 1967 (as in the 19 years pre­ ceding that event), has persisted in its refusal to acknowledge Israel's right to national existence and has refused to negotiate peace with Is­ rael. This intransigence bestows no right on Syria to prevent Israel from acting as any other nation would act under such circumstances. On the contrary, the open and continuing threat posed by Syria, not merely to Israel-held Golan, but to Israel's very existence, in effect left Israel no choice but to do unilaterally what, in international custom and practice, is generally done in peace treaties.38

However, the international community—including Israel's staunchest ally, the United States—was not prepared to accept that the nineteenth-century rules governing the acquisition of territory by states remained applicable in the era of the United Nations Charter, which had ruled out conquest as a lawful mode of acquisition of sovereignty. Almost universal condemnation of the move was expressed by the international community, and in particular by the United States government, which on 18 Decem­ ber 1981 announced its decision to suspend discussions with Israel on the implementation of a strategic cooperation agreement signed by the two countries on 30 November 1981 with the aim of coun­ tering any Soviet threat to the Middle East.39 Condemnation by the UN Security Council and General Assembly In response to an immediate formal complaint from the Syrian government, the United Nations Security Council convened on 16 December 1981, and on 17 December unanimously adopted Resolution 497 (1981). Reaffirming 'that the acquisition of territory 38 Israel Ministry of Foreign Affairs, Information Division, The Golan Heights (Jerusalem, 15 Dec. 1981). 39 Keesing's Contemporary Archives (1983), 31913.

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by force is inadmissible, in accordance with the United Nations Charter, the principles of international law, and relevant Security Council resolutions', the resolution condemned Israel's decision to impose its laws, jurisdiction, and administration in 'the occu­ pied Syrian Golan Heights' as 'null and void' and 'without inter­ national legal effect'; demanded that 'Israel, the occupying Power', should rescind its decision forthwith; determined that all the provisions of the 1949 Fourth Geneva Convention continue to apply to the Syrian territory occupied by Israel since June 1967; and called upon the Council to meet again not later than 5 Janu­ ary 1982 to consider 'appropriate measures' in accordance with the United Nations Charter if Israel did not comply. In the meantime, largely because of the outcry against the Is­ raeli measure in the United States—which had joined with the other fourteen members of the Security Council in voting in fa­ vour of Resolution 497—Israeli officials began to suggest that the extension of Israeli law to the Golan Heights should not be read as an act of annexation or permanent incorporation of the ter­ ritory into the state of Israel, since Israel remained, in principle, prepared to negotiate its return to Syria in accordance with Se­ curity Council Resolution 242 (1967). Thus when the SecretaryGeneral of the United Nations, Kurt Waldheim, transmitted the contents of Security Council Resolution 497 to Israel's representa­ tive to the United Nations, Yehuda Blum, the latter responded on 1 January 1982 by stating: 'The government of Israel wishes to reiterate that it is willing now as always to negotiate uncon­ ditionally with Syria as with its other neighbours for a lasting peace in accordance with Security Council 242 (1967) and 338 (1973). The Golan Heights Law does not preclude or impair such negotiations.'40 This statement was in large measure designed to assuage the United States government and enable it to veto the adoption by the Security Council of the threatened 'appropriate measures' in case Israel did not comply with Security Council Resolution 497 (1981), on the ground that Israel continued to regard the future of the Golan Heights as open to negotiation. The reconvening of the Security Council on 5 January 1982 was followed by protracted negotiations in which the Syrian 40 Repr. in Israel's Foreign Relations: Selected Documents, vii (Jerusalem: Ministry of Foreign Affairs, 1988), 246-7.

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The Demise o f the Right of Conquest

representatives and their allies sought to overcome Western re­ luctance to support a resolution calling for mandatory sanctions against Israel. Various attempts to find a compromise text failed, and the resolution, proposed by Jordan, which was put to the vote on 20 January, failed to secure adoption, because the United States vetoed it. The draft resolution had described the Israeli action of 14 December 1981 as 'annexation', which together with earlier Israeli measures in 'the occupied Golan Heights' consti­ tuted 'an act of aggression under the provisions of Article 39 of the Charter of the United Nations'. It continued that the Security Council had decided (1) 'that all member states should consider applying concrete and effective measures in order to nullify the Israeli annexation of the Golan Heights and to refrain from pro­ viding any assistance or aid to and co-operation with Israel in all fields in order to deter Israel in its policies and practices of an­ nexation'; and (2) 'to call upon all member states of the United Nations to carry out this decision of the Security Council in ac­ cordance with Article 25 of the Charter of the United Nations'.41 The resolution was rejected by the United States on the ground that while it opposed any unilateral change in the status of Israeli-occupied territories, it did not regard the application of Israeli law to the Golan Heights as an 'annexation'. Furthermore, it was argued, the adoption of such a resolution 'would become a source of aggravation' and would only 'sow suspicions and feed hostilities' in the Middle East, whereas the very purpose of the Security Council was to prevent threats to peace.42 Accord­ ingly, the United States urged the resumption of negotiations on this and other outstanding Middle East issues, rather than the application of sanctions, as a means of promoting peace in the region and resolving, amongst other things, the future of the Golan Heights. On the basis of a Security Council decision taken on 28 Janu­ ary 1982, by thirteen votes to none, with the UK and USA ab­ staining, an emergency special session of the General Assembly opened on 29 January to consider the Israeli action. The session 41 The figures for the vote on this draft resolution held on 20 Jan. 1982 were 9 1:5 (the USA opposed, while the UK, France, Ireland, Japan, and Panama ab­ stained). See Keesing's Contemporary Archives (1983), 31913. 42 Statement of Mrs Kirkpatrick, the US permanent representative at the UN, following the vote on the resolution on 20 Jan. 1982, ibid. 31914.

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concluded on 5 February with the adoption of a resolution defin­ ing the action as 'an act of aggression' and calling on all states to cease forthwith, individually and collectively, all dealings with Israel in order to isolate it totally in all fields. The resolution asserted that the Golan Heights measure 'is null and void and has no legal validity and/or effect whatsoever', and should not be recognized.43 Appraisal Whether or not Israel's action in extending its law to the Golan Heights is interpreted as amounting to an act of annexation, it is clear that its conquest of the Golan Heights has not given rise to recognized rights of sovereignty. United Nations resolutions on the question have all reaffirmed that the acquisition of territory by force is inadmissible; and Israel's legitimate security concerns have not been regarded by any state (except Israel) as furnishing an exception to the applicability of this principle. The continued occupation of the Syrian Golan Heights is re­ cognized by many states as valid and consistent with the provi­ sions of the United Nations Charter, on a self-defence basis. Israel, on this view, would be entitled to exact as a condition of with­ drawal from the territory the imposition of security measures of an indefinite character—such as perpetual demilitarization, or the emplacement of a United Nations force—which would ensure, or tend to ensure, that the territory would not be used against it for aggression on future occasions. But the notion that Israel is entitled to claim any status other than that of belligerent occu­ pant in the territory which it occupies, or to act beyond the strict bounds laid down in the Fourth Geneva Convention, has been universally rejected by the international community—no less by the United States than by any other state. Nor does the reluctance of many Western states, particularly the United States, to apply economic sanctions against Israel for violating the provisions of the Fourth Geneva Convention neces­ sarily qualify the propositions advanced above, or indicate a surreptitious acceptance of a right of conquest. It is true that 43 GA Resolution 37/123A (1982), adopted on 5 Feb. 1982 by 86-21:34. Those voting against the resolution included the USA, the European Community mem­ ber countries except Greece (which voted in favour), and a number of other Western states. See, too, GA Resolutions 36/226A (1981) and 39/146A (1984).

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The Demise of the Right of Conquest

Security Council Resolution 242 (1967)—made binding by Secur­ ity Council Resolution 338 (1973)— emphasized the inadmissibil­ ity of the acquisition of territory by war. But it also called for negotiations based on an exchange of territory for peace which would recognize the right of all states in the region to live within secure and recognized boundaries. By refusing on the one hand to accept as lawful Israel's actions in violation of the Fourth Geneva Convention, or to recognize Israeli measures in the con­ quered Golan Heights as bestowing on Israel any legal rights of sovereignty with respect to that territory, while refusing on the other to take any measures (such as economic sanctions against Israel) which might encourage Syria and its allies in their equally unlawful determination not to recognize Israel's right to exist­ ence or enter into peace negotiations with it, the United States, it could be argued, was striking a balance which, from the per­ spective of the legal principles applicable to the settlement of the Arab-Israeli conflict, was by no means unwarranted. Indeed, Syria's long-standing refusal to negotiate a peace treaty with Israel, in the knowledge that it would not thereby forfeit its legal right to the Israeli-occupied Golan Heights—since the con­ temporary law of belligerent occupation appears to protect in­ definitely the sovereign right of the legitimate government of the occupied territory, and conquest is no longer recognized as a basis of title—raises the question whether the absolute denial of the right of conquest in the post-1945 period has not actually contributed, in some cases, to conditions of international dis­ order. For whatever criticisms may be levelled at the nineteenthcentury rule which recognized a right of conquest, it had, at least, the virtue of aiding the termination of wars by encouraging the processes of bargaining for a political settlement once the main military struggle was over. But the fact that Syria, under the new dispensation, has been able for some thirty years to escape the consequences of its refusal to arrive at a peace settle­ ment which would involve recognition of Israel's right to exist— let alone the kind of settlement which would reflect the legitimate security needs of Israel—suggests that the current legal regime may be one which, far from promoting international peace and stability, rather promotes deadlock. For it provides the state which does not wish to accept any change in the status quo with a means of bypassing the necessity of entering into serious negotiations

International Reactions after 1945

267

for peace—by enabling it to insist on its legal rights to sovereignty over occupied territory while refusing to address legitimate griev­ ances which led to the occupation in the first place.

II. IN DIA'S AN N EXA TIO N OF GOA, 1961

On 18 December 1961, some 30,000 Indian troops invaded the enclave of Goa— a non-self-governing territory under Portuguese administration with a population of 650,000, consisting mostly of ethnic Indians who were Portuguese citizens. India's aim was to annex the territory and population of Goa, which it considered ethnically, geographically, historically, and legally one with the rest of India and the Indian people. On the same day, Portugal brought a complaint to the Security Council, accusing India of aggression because it had occupied the Portuguese enclave. In the Security Council debate which followed, the Indian delegate justified India's action on the ground that the question of Goa was a colonial question, in the sense that part of our country is illegally occupied— occupied by right of conquest by the Portuguese.. . . Portugal has no sovereign right over this territory.. . . If any narrow-minded, legalistic considerations— considerations arising from international law as written by European law writers— should arise, those writers were, after all, brought up in the atmosphere of colonialism. I pay all respect due to Grotius, who is supposed to be the father of international law, and we accept many tenets of international law. They are certainly regu­ lating international life today. But the tenet. . . quoted in support of colonial Powers having sovereign rights over territories they won by conquest in Asia and Africa is no longer acceptable.. . . We cannot ac­ cept the position that there is any legal frontier, that there can be any legal colonial frontier in our country or, for that matter, any country. India is one; Goa is an integral part of India.44

The essence of India's argument in defence of its invasion and annexation of Goa was that, since Goa was ethnically and geo­ graphically an integral part of Indian territory, it was not legally possible for India to commit aggression against it: 'there can be no question of aggression against your own frontier: there can be 44 SCOR, 16th year, 987th meeting, 18 Dec. 1961, pars. 46-7, 60.

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The Demise o f the Right of Conquest

no question of aggression against your own people, whom you want to bring into freedom/45 On the contrary, India claimed a right of self-defence in the enclave on the grounds that Portu­ gal's presence in Goa constituted an aggression, commenced 450 years before but still continuing, to which India was entitled to respond in self-defence.46 India recognized that the Charter re­ quires a respect for territorial integrity; but it contended that this could only refer to territory to which there was a good title, and not to territory which was illegally occupied. Portugal had no valid title to Goa, because colonial conquest did not give title: 'we cannot in the twentieth century accept that part of interna­ tional law . . . specifying that colonies in Asia and Africa which were acquired by conquest conferred sovereignty on the colonial Power.'47 As India's Defence Minister, Krishna Menon, put it to the Indian Society of International Law in New Delhi, on 20 January 1962: 'Portugal had claimed sovereignty over Goa by right of conquest, but India had never accepted this claim.. . . India had not violated any one's integrity—Portugal had not been conquered nor had her independence been challenged.'48 Furthermore, India, it was argued, was only acting in accord­ ance with General Assembly Resolution 1514 (XV)—which had condemned colonialism and had called for the speedy decoloniza­ tion of non-self-governing territories49— and Resolution 1542 (XV) —which had classified Goa as a Non-Self-Governing Territory 45 Ibid., par. 46. 46 Ibid. 47 SCOR, 16th year, 988th meeting, 18 Dec. 1961. 48 Quoted in Wright, 'The Goa Incident,' 622 n. 20. For a succinct statement and rebuttal of India's argument in the Goa case, see Rosalyn Higgins, The De­ velopment o f International Law through the Political Organs o f the United Nations (London: Oxford University Press, 1963), 187, who writes: 'The Charter reference in Article 2(4) to "territorial integrity" must be taken to refer to well established de facto possession, and not to de jure title. Were this not so, attacks would be permitted in every boundary dispute, in every dispute to territorial title. Conse­ quently, even if the Portuguese title to Goa was in doubt, an attack against its de facto possession is not justifiable under the Charter.' On the wider question of title to Goa and the other Portuguese Indian territories, see the judgement of the International Court of Justice in the Right o f Passage over Indian Territory case (Portugal v. India), ICJ Reports (1960), 6, which was decided in 1960 on the tacit assumption that a state administering a colony, although under a legal duty to allow the inhabitants of that colony to exercise their right of self-determination, did not automatically lose sovereignty over the colony if it failed to carry out that duty. 49 The Declaration on the Granting of Independence to Colonial Countries and Peoples.

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269

under Article 73 of the Charter.50 Since the General Assembly itself had recognized that Portugal had no sovereign right over Goa and had obligated Portugal, as the administering power, to emancipate its colonies forthwith; and since Portugal had re­ fused to comply with these resolutions by insisting that Goa was not a 'colony', but an 'overseas province' (that is, an integral part of its national territory and as such non-negotiable), Portugal had committed an aggression against the people of Goa. In this way the Indian delegate sought to justify India's intervention as a defence of the population of Goa against Portuguese aggres­ sion, pointing out that '[t]he Charter itself does not completely eschew force, in the sense that force can be used in self-defence, for the protection of the people of a country, and the people of Goa are as much Indians as people of any other part of India.'51 Now it is plain that these arguments, if accepted by the inter­ national community as a legal justification of India's invasion and annexation of Goa, would have constituted a decisive chal­ lenge to the status of the prohibition of the acquisition of territ­ ory by means of the use of force. For India was in fact presenting a case in favour of a right of reconquest—that is, a right of recov­ ering by force what was once national territory—in respect of colonial territory. The Indian argument was not, however, accepted by the Secur­ ity Council. A draft resolution submitted by three anti-colonial members (Ceylon, Liberia, and the United Arab Republic) in support of India's action, received the votes of its sponsors and that of the USSR only, and was opposed by the seven remaining members of the Council. On the other hand, a second draft reso­ lution introduced by France, Turkey, the UK, and the USA, which recalled the terms of Article 2(3) and (4) of the Charter, 'deplored' the use of force by India, and called for a cease-fire and with­ drawal of Indian forces from the territory to clear the way for a peaceful settlement of the question, received seven affirmative votes (including those of Nationalist China, Chile, and Ecuador), 50 This resolution listed the Portuguese territories in Africa and Asia as NonSelf-Governing Territories, thus officially recognizing their right to self-determination. See SCOR, 16th year, 987th meeting, 18 Dec. 1961, paras. 30-62, and 988th meeting, 18 Dec. 1961, pars. 67-87. 51 SCOR, 16th year, 988th meeting, 18 Dec. 1961, par. 77. For a fuller discussion of the Goa incident and doctrine, see Wright, 'The Goa Incident', 617-32; Pomerance, Self-Determination in Law and Practice, 49-51.

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The Demise o f the Right of Conquest

but was not adopted because the resolution was vetoed by the negative vote of the Soviet Union.52 Consequently, although a majority of the Council took the view that India's annexation of Goa was illegal, on the ground that the territory had been ac­ quired by action contrary to Articles 2(3) and (4) of the Charter, the Security Council failed to condemn it. The General Assembly, because of the anti-colonial majority there, did not condemn India's action either. On the contrary, the day after the debate of the question of Goa in the Security Coun­ cil, the General Assembly condemned Portugal for its colonialist policy—that is to say, for not complying with General Assembly Resolution 1542 (XV) and failing to transmit information on its Non-Self-Governing Territories.53 More importantly, a large ma­ jority of states immediately acquiesced in India's annexation of the former Portuguese territory. This was demonstrated in the Eighteenth Session of the General Assembly, when the Trustee­ ship Committee confirmed that Goa no longer fell in the category of Non-Self-Governing Territories whose right to independence or other self-governing status was yet to be achieved through an act of self-determination.54 Thus the forcible incorporation of Goa by India was regarded by the General Assembly as having set­ tled the question of the status of Goa. The rapid acceptance of the fait accompli of the Indian annexa­ tion by a majority of members of the United Nations raises the question whether the claims advanced by India in an effort to overcome the prohibition against the acquisition of territory by the use of force were accepted as lawful by the international community. Did India in the case in point, and do former col­ onies in general, as India seemed to suggest, have the right to acquire by force colonial territory to which they believe them­ selves to have lawful title? Or is the acquiescence of international 52 UN Docs. S/5032, S/5033; SCOR, 16th year, 988th meeting, 18 Dec. 1961, pars. 128-9. 53 See GA Resolution 1699 (XVI), 19 Dec. 1961, adopted by 90-3:2 (Portugal, Spain, and South Africa opposed, while France and Bolivia abstained). 54 GAOR, 18th session, 4th committee, cited in Muhammad Aziz Shukri, The Concept o f Self-Determination in the United Nations (Damascus: A1 Jadidah Press, 1965), 219. Goa was made a centrally governed territory and was incorporated within the Indian Union one year after India's invasion of the territory on 17-18 Dec. 1961 (Evan Luard, A History o f the United Nations, ii: The Age o f Decolonization, 1955-1965 (Oxford: Oxford University Press, 1963), 323).

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society in India's seizure of Goa better understood as an isolated case of acquiescence in illegality—a decision not to prosecute, as it were, based on the perception that the annexation, though unlawful, had effected a just change? The opinions expressed by a majority of members of the Secur­ ity Council on this occasion would appear to warrant the latter conclusion, namely, that India's forcible acquisition of Goa was not regarded as lawful— although it was acknowledged by most members to have rectified an injustice, by eliminating a 'vestige of colonialism'.55 As John Dugard has noted: 'there was little support in the Security Council for India's argument that she had acted in lawful self-defence against a colonial aggression commenced some 450 years before'—since the acquiescence of the people of a territory over a period of time would indicate that the right of self-defence had lapsed.56 Nor was there much support for the contention that Portugal's refusal to decolonize Goa had constituted an aggression for the purposes of Article 2(4) of the Charter—which India had adduced as an additional justification of its action. As Quincy Wright observed in 1962: The United Nations undoubtedly recognizes the duty of administering Powers to emancipate their colonies and the moral right of the inhabit­ ants of these colonies to self-determination, but it has never suggested that an outside state, on its own initiative, could invade a colony and annex it.57

Thus, a majority of members of the Security Council (seven out of eleven), including four of the permanent members, did not accept the view that former colonies had the right to disregard the ban on force contained in Article 2(4) when reclaiming parts of their territory and population still under foreign rule; and the obligation to settle disputes peacefully was stressed as taking priority over specific claims to territory—irrespective of whether the territory was a colonial area or not.58 55 This interpretation is supported by Akehurst in A Modern Introduction to International Law, 6th edn., 153-4. 56 Recognition and the United Nations, 116; id., 'The Organization of African Unity and Colonialism: An Inquiry into the Plea of Self-Defence as a Justification for the Use of Force in the Eradication of Colonialism', ICLQ 16 (1967), 157, at 168-9. 57 'The Goa Incident', 625-6. 58 See SCOR, 16th year, 987th and 988th meetings, 18 Dec. 1961.

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The Demise of the Right o f Conquest

Moreover, among the states which condemned India's military invasion of Goa were three states—Nationalist China, Chile, and Ecuador—which sympathized with India's position that colonial possessions were illegal under the present-day international law, and that Portugal therefore did not have a valid title to Goa. These members, as Thomas M. Franck points out, 'seemed to understand that both disputants were guilty of violating funda­ mental norms of the Charter: Portugal, by denying the populace self-determination; and India, by taking the law into its own hands'.59 Thus the Chinese representative declared: 'Colonialism is an evil, but war is an even greater evil. Every warmaker has declared his particular war just, righteous or even holy.'60 The Chilean delegate likewise emphasized that 'the use of force is not lawful, even in defence of the lawfulness of a given case'. While the Portuguese were in his view illegally perpetuating 'historical vestiges of a colonial past', that injustice should not, he argued, be rectified by another. 'In the present case, we think the parties should take into consideration the wishes of the inhabitants of Goa.. . . Neither historical possession (Portugal) nor violent pos­ session (India) should prevail, but the freely expressed wishes of the inhabitants of the disputed territories.'61 Similarly, Ecuador's ambassador called for the dispute to be settled 'according to the principle of self-determination',62 applicable in this case to the people of Goa. However, a majority of members of the United Nations con­ sidered that 'colonial enclaves', if ethnically and geographically linked with the claimant state, were an exception to the funda­ mental principle of self-determination, and that Goa should be thought of as falling within this category. In such cases, the claim of the enclaving state to national unity and territorial integrity was considered to override the claim of the inhabitants of the enclave to self-determination;63 or, to put it another way, selfdetermination for the inhabitants of the enclave was defined in terms of—was simply seen as meaning—unity with the adjacent territory. Exceptions of this sort had been covered by paragraph 59 Thomas M. Franck, Nation against Nation: What Happened to the UN Dream and What the US can Do about It (Oxford: Oxford University Press, 1985), 55. 60 SCOR, 16th year, 988th meeting, 18 Dec. 1961, p. 4. 61 Ibid. 6. 62 Ibid. 4. 63 See Crawford, The Creation o f States in International Law, 384; Akehurst, A Modern Introduction to International Law, 6th edn., 295.

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6 of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,64 which qualified the right of peoples to self-determination proclaimed in paragraph 2 by stat­ ing that '[a]ny attempt aimed at the partial or total disruption of the national unity or territorial integrity of a country is incom­ patible with the purposes and principles of the Charter of the United Nations/65 The political separation of the enclave of Goa from the rest of India was widely held to be an arbitrary disruption of the na­ tional unity and territorial integrity of India by a colonial power in the sixteenth century; and most members of the United Na­ tions did not regard Goa as constituting in any legitimate sense a separate territorial unit entitled to consultation by plebiscite as to its future status. Regardless of the wishes of the inhabitants, the proper destiny of that particular non-self-governing territory was generally considered to be absorption by India.66 While this is not to say that India's forcible acquisition of Goa was therefore regarded as legally justified,67 what it does say is that the outcome of India's action was generally considered to be in accordance with the requirements of self-determination, despite the fact that the wishes of the Goans themselves had not been ascertained. The United Nations' acquiescence in India's annexation of Goa68 need not, then, be attributed merely to the effect of the Soviet veto, or to the failure of the Security Council to take enforcement measures against a state attempting to acquire territory by force. For the conviction of many of the new states, as well as the 64 Approved by the General Assembly in Resoution 1514 (XV). 65 Thus Goa was integrated with India on grounds of national unity rather than self-determination (Crawford, The Creation o f States in International Law, 370). 66 As the International Court of Justice recognized in the Western Sahara Case, although the principle of self-determination was to be considered valid in all cases and required 'a free and genuine expression of the will of the peoples concerned', in certain cases 'the General Assembly has dispensed with the re­ quirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a "people" entitled to self-determination, or on the conviction that a consultation was totally unnecessary, in view of special circumstances' (Western Sahara Advi­ sory Opinion, ICJ Reports (1975), 12, at 21, 33). 67 The argument in favour of India's annexation of Goa 'was, in fact, more political and moral rather than legal' (Wright, 'The Goa Incident', 629). 68 The gradual recognition of India's sovereignty over Goa culminated in Por­ tugal's recognition of the situation in a treaty of 31 Dec. 1974, in which Portugal recognized Indian sovereignty over the former Portuguese territories in India (Keesing's Contemporary Archives (1975), 26922).

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The Demise of the Right o f Conquest

Soviet Union, that India's annexation of Goa was a legitimate act in the anti-colonial and anti-imperialist struggle, and that coloni­ alism was such an evil that the use of force to eliminate it should be tolerated, was such that even had the Security Council con­ demned India's action, the General Assembly would not have supported an effort to put India out of Goa.69 Appraisal India's successful annexation of Goa in 1961 seems prima facie difficult to reconcile with the existence of a norm prohibiting territorial acquisition by conquest, since in this case the interna­ tional community has clearly accorded legitimacy to the results of conquest. However, it is the colonial context of the Goa case— and the fact that India's action was viewed as being in accord­ ance with the requirements of self-determination—which explains why India had little difficulty in securing recognition of its con­ quest, and not the erosion of the norm against acquiring territory by force as such. As John Dugard has admirably explained, the Goa case 'represented a conflict between two fundamental norms —the prohibition on the use of force [as a means of settling ter­ ritorial disputes] and the advancement of decolonization. While the former norm was viewed as the overriding norm by most States in the United Nations', the sympathies of most states lay with India (particularly in view of 'Portugal's intransigence as a colonial power and her refusal to contemplate the decolonization of her overseas possessions').70 The tendency in contemporary practice to acquiesce in con­ quest when its results are in accordance with self-determination has been noted by Crawford: modern practice establishes a distinct connection between [the principle of self-determination and the rules relating to the illegal use of force], such that, even where a particular use o f force is illegal, its effects may be treated as valid provided that they are consistent with the principle o f selfdetermination in its application to the territory in question.71

69 Wright, 'The Goa Incident', 629-31. 70 Recognition and the United Nations, 116. See also Dugard's article 'The Organ­ ization of African Unity and Colonialism', 168. 71 The Creation o f States in International Law, 364-5 (my emphasis).

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Thus, as Brownlie points out, the principle of self-determination appears to have the corollary that 'if force is used to seize ter­ ritory and the object is the implementation of the principle, then title may accrue by general acquiescence and recognition more readily than in other cases of unlawful seizure of territory'.72 It must, however, be stressed, that in such cases the original sei­ zure of territory remains unlawful, even if most states may, on such occasions, be prepared to turn a blind eye to the illegality. 'The significance of self-determination in this context', explains Crawford, 'is not so much that it cures illegality as that it may allow illegality to be more readily accommodated through the processes of recognition and prescription, whereas in other cir­ cumstances aggression partakes of the nature of a breach of jus cogens and is not, or not readily, curable by prescription, lapse of time or acquiescence.'73 It may therefore be argued that the rec­ ognition of India's annexation of Goa involved the bending of a principle (the inadmissibility of the acquisition of territory by the use of force) to accommodate a reality which was regarded as being, on the whole, beneficial, even if this situation originated in illegality. But it did not involve the abandonment of the legal principle prohibiting the acquisition of territory by force—even in respect of territories defined as colonies. The conclusion that India's successful annexation of Goa can­ not be taken to indicate the existence of a legal right of reconquest in cases where a former colony seeks to recover what it considers to be its pre-colonial frontiers is reinforced— even more strongly and conclusively—by the practice of states in connection with Argentina's attempted conquest or reconquest of the Falkland Islands.

III. ARG EN TIN A'S ATTEM PTED CONQUEST OF THE FALKLAN D ISLANDS, 1982

Although Argentina's military defeat by Britain in the Falklands War meant that the question of recognition of the results of con­ quest did not in this case arise, the Security Council debate on 72 Principles o f Public International haw, 4th edn. (Oxford: Clarendon Press, 1990), 597-8. 73 The Creation o f States in International Law, 113.

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The Demise o f the Right o f Conquest

the Falklands issue was notable for its reinforcement of the prin­ ciple that states suffering from territorial amputations as a result of colonial conquest do not have a right to reconquer colonial territory in respect of which they may have a valid claim to sovereignty. Background The dispute between the United Kingdom and Argentina regard­ ing sovereignty over the Falkland Islands dates back to 1833, when the British, claiming historic title dating back to the eight­ eenth century, seized the Falkland Islands, which Argentina claimed it had formally inherited from Spain on its independ­ ence in 1816.74 The Argentine authorities and inhabitants which had been established in the Falklands (Malvinas) since 1820 (when Argentina officially claimed sovereignty over the islands) were expelled by British troops in 1833, and a new English settlement was established. After almost 150 years of British rule in the islands, during which time Argentina had never recognized Brit­ ish sovereignty over the territory, Argentina invaded the Falk­ lands on 2 April 1982, took possession of them, and expelled the British authorities, with a view to recovering Argentine sover­ eignty over the islands. Since 1965, the General Assembly has implicitly endorsed, or at least favoured, the claim of Argentina to the Falkland (Malvinas) Islands,75 in two ways: first, by characterizing the existing situa­ tion as 'colonial', and one which must therefore be terminated in accordance with Resolution 1514 (XV), and second, by refusing to accept the British argument that the inhabitants of the Falk­ land Islands, who wish to remain linked with Britain, constitute a 'people' entitled to self-determination—either because the 1,800 British settlers on the island are too few to constitute a 'people', or, as Argentina would also argue, because they are an 'imported' (i.e. non-indigenous) colonial population whose wishes should not be invoked as an excuse for maintaining Britain's colonial presence in the islands.76 Thus the Assembly recommended, as 74 On the question of title to the Falkland Islands, see Akehurst, A Modern Introduction to International Law, 5th edn., 291-6. 75 See GA Resolutions 2065 (XX), 16 Dec. 1965; 3160 (XXVIII), 14 Dec. 1973; 31/ 49, 1 Dec. 1976. 76 For Argentina's arguments to this effect, see the remarks of Mr Costa Mendez (Argentina) made during the Falklands debate in the Security Council (UN Doc. S/PV.2350, 3 Apr. 1982, pp. 7-8).

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the appropriate method of decolonization, 'the peaceful solution of the conflict of sovereignty' between Argentina and Britain through bilateral negotiations in which the 'interests', but not the 'wishes', of the population should be taken into account.77 In the view of the Soviet Union, China, and most Third World states, Argentina's bid to recover the Falkland (Malvinas) Islands by force represented a conflict between the imperative of 'extin­ guishing a vestige of colonialism' and the prohibition of the use of force as a means of settling territorial disputes. The Falklands case thus raised a similar question to that posed by the Goa incident twenty years previously: namely, whether former colo­ nies had a right to recover by force territory of which they them­ selves had been forcibly deprived in the colonial era. The Security Council Debate Argentina's justification of its conquest of the Falkland Islands in 1982 and India's justification of its annexation of Goa in 1961 proceeded on a remarkably similar basis— except for the fact that there was no population in the Falklands on behalf of which a claim to national unity could be asserted by Argentina. Thus Argentina claimed that its armed intervention in the Falkland Islands did not constitute aggression, because Britain had no right to the Falkland Islands. As the Argentine Foreign Minister, Mr Costa Mendez, declared before the Security Council: The Republic of Argentina has never consented to that act of usurpation of its national territory, usurpation carried out by unacceptable and illegal m eans.. . . No provision of the Charter can be taken to mean the legitimation of situations which have their origin in wrongful acts, in acts carried out before the Charter was adopted and which subsisted during its prevailing force... ,'78

The 'Goa Doctrine' that colonialism was permanent aggression— and hence that Argentina's action to remove the British colonial presence was an act of self-defence—was also invoked by Argentina.79 The Security Council, however, refused to accept Argentina's claims as constituting a sufficient justification for the use of force to seize territory in the established de facto possession of another 77 See GA Resolution 2065 (XX). 78 UN Doc. S/PV.2350 (1982), 3 -5 , 11. 79 For Argentina's explicit invocation of the 'permanent aggression' argument, see UN Docs. S/PV.2366 (1982), 56; and S/PV.2371 (1982), 28-30.

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The Demise of the Right o f Conquest

state; and Britain succeeded in securing the adoption by the Council of Security Council Resolution 502 (1982), demanding an immediate withdrawal of all Argentinian forces from the islands and thereby implicitly condemning Argentina's use of force. This was all the more remarkable in view of the changed composition of the Security Council in the twenty years since the Goa debate —namely, the increase in the number of Third-World, decolonized countries bearing a natural sympathy for any state with anti­ colonial claims and the replacement of Nationalist China, with its pro-Western outlook, by Communist China as one of the permanent members. Resolution 502 was actively opposed by only one member of the Security Council (Panama). Ten states voted in favour of the resolution (Eire, France, Guyana, Japan, Jordan, Togo, Uganda, the UK, the USA, and Zaire), and four states abstained (China, Poland, the Soviet Union, and Spain). The three Western perma­ nent members who supported the resolution confirmed the po­ sition they had held at the time of the Goa incident, that territorial disputes must be settled by peaceful means, and that the colonial status of a territory did not permit any derogation from this principle;80 and in this they were generally supported by Japan, Eire, Togo, and Guyana, who also unequivocally condemned Argentina's use of force, though the latter three did so in more conciliatory tones.81 Especially significant, however, were the positions of Jordan, Uganda, and Zaire, whose representatives explicitly stated that they thought that Argentina had a better title to the Falkland Islands than the United Kingdom, but that the use of force to recover territory was illegal.82 Speaking on behalf not only of his own government but also of the NonAligned Movement, the Jordanian representative declared: As a member of the Non-Aligned Movement, Jordan associates itself with what the Non-Aligned Movement regards as the just, historical claims of Argentina.. . . But it has always been the position of the NonAligned Movement that the use or threat of force is inadmissible and is a violation of the Charter as well as of the principles of the Non-Aligned Movement.83 80 UN Doc. S/PV.2350 (1982), 27-8. 82 UN Chronicle (1982), no. 5, pp. 5-10. 83 UN Doc. S/PV.2350 (1982), 26.

81 Ibid. 61, 96, 23.

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Spain, which abstained on the resolution— and therefore refused to associate itself with an explicit condemnation of Argentina's action—took the view that Britain's possession of the Falkland Islands constituted a disruption of Argentina's territorial integ­ rity. None the less, it did not vote against the resolution, on the ground that force was not an acceptable means of settling dis­ putes between states: The Spanish have a well-known and constant position as regards the substantive problem of the archipelago of the Malvinas to the effect that its decolonization should be carried out by restoring Argentine territor­ ial integrity and safeguarding the interests and well-being of the popula­ tion . . . but the Spanish Government has also constantly maintained before the U.N. its position of opposition to the use of force as a means of settlement of disputes among countries.84

The same position was taken by Poland and China; and the Soviet Union not only acknowledged Argentina's rights to the Falklands, but also condemned the UK for its colonialist policy.85 However, China and the USSR, as permanent members of the Council, had by their abstentions made possible the adoption of Security Council Resolution 502, notwithstanding their expres­ sions of solidarity with Argentina. This showed implicitly, and with the above-mentioned reservations, their disapproval of Argentina's violation of Article 2(4). It is equally clear that the adoption of this resolution would not have been possible had much of the Third World not agreed with the Western powers that conquest was an unacceptable form of 'decolonization'.86 This agreement is not surprising since there was a fear, especially among the small and weak states, of set­ ting a dangerous precedent which might leave them vulnerable to states coveting their own territory. As the Ugandan repre­ sentative put it: 'Uganda regrets this latest development [the use of force by Argentina] because we are conscious of the fact that there are similar, though not identical disputes in other parts of the world. It would be a dangerous precedent if the impression were to be given that the use of force is acceptable as a method 84 Ibid. 86. 85 Ibid. 96. 86 For a discussion of this assertion of principle over politics, see Thomas M. Franck, 'Dulce et Decorum est: The Strategic Role of Legal Principles in the Falklands War', AJIL 77 (1983), 109, at 114-22.

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The Demise of the Right of Conquest

of settling those disputes.'87 Similarly, in the words of the Bel­ gian representative: 'if the use of force were to be rewarded this would encourage any state with territorial ambitions to follow suit.. . . The reaction of many small countries in the world to the Argentine invasion demonstrates . . . that this danger has been understood.'88 The attitude of a majority of Third World states on this occa­ sion confirms the proposition advanced earlier, that the recogni­ tion of India's annexation of Goa should not be read as proof of the abandonment of the principle prohibiting the acquisition of territory by force when the acquisition is portrayed as a reconquest of colonial territory to which the annexing state has better title, but rather as a function of widespread moral or political sym­ pathy with India's position at that time. Some of the extra-legal considerations which help to account for the inconsistency in the Third World's reaction to the Goa and Falklands cases have been isolated by Thomas Franck as follows: Goa was ruled with an authoritarian hand by the Salazar dictatorship in Lisbon, a government which, because of its more egregious colonial policies in Africa, had become among the world's most unpopular. By contrast, the British by 1982 had divested themselves of virtually their entire empire with considerable grace. India, at least at the time of its Goan invasion, was the recognized and admired leader of the Third World, while Argentina, in the early 1980s, was ruled by a semi-fascist junta. Moreover, up to that point, the junta, although taking its place among the NAMs, conspicuously distanced Argentina from the NAM campaign against South Africa. Of course, such factors made a differ­ ence; the U.N. is not the only human institution to interpret principles pragmatically.89

To these considerations must, of course, be added the absence of an Argentinian population in the Falklands on behalf of which a right to self-determination could be asserted; and Britain's effec­ tive military response by way of self-defence to Argentina's ag­ gression. While these factors made it easier for states to affirm the relevant Charter principles prohibiting the acquisition of ter­ ritory by force, the fact of their affirmation is not the less signifi­ cant for that. 87 UN Doc. S/PV.2350 (1982), 91. 88 UN Doc. S/PV.2363 (1982), 48-50.

89 Nation against Nation, 228-9.

International Reactions after 1945

281

IV. IN DO N ESIA'S SEIZURE OF EAST TIMOR, 1976

Indonesia's annexation of (Portuguese) East Timor in July 1976, following its invasion of the territory in December 1975, is a case of annexation in violation of self-determination in which the world has 'by and large acquiesced'.90 It illustrates the limits of interna­ tional law as a constraining factor in the behaviour of states in the face of the overriding influence of national self-interest on the one hand, and in the absence of a mechanism of international enforcement able effectively to support the law against its dis­ regard or violation on the other. It demonstrates how politically strong states— especially when acting with strong regional sup­ port, and with the support of a great-power ally— are able to break the rules and get away with it. But the main question considered here is whether the rules themselves are still regarded as valid: whether the case in question should be defined as a failure to enforce the norm prohibiting the acquisition of ter­ ritory by force, which does not affect its continued validity, or whether the norm has in some sense been destroyed by the fail­ ure of states to apply it. Background Following the Portuguese revolution of April 1974, Portugal rad­ ically changed its policies towards its overseas territories and acknowledged its universally recognized duty to enable the Por­ tuguese colonies to exercise their rights to self-determination and independence. When the new Portuguese regime announced its intention to give the population of East Timor the right to decide by referendum whether the territory should become independent, 90 E. Benvenisti, The International Law o f Occupation, 153. For the history of the Indonesian annexation of East Timor, see James Dunn, Timor: A People Betrayed (Milton, Qld: Jacaranda Press, 1983); and John G. Taylor, Indonesia's Forgotten War: The Hidden History o f East Timor (London: Zed Books, 1991), 54-8. For legal analyses of the East Timor question, see Roger S. Clarke, 'The "Decolonization" of East Timor and the United Nations Norms of Self-Determination and Aggres­ sion', Yale Journal o f World Public Order, 7 (1980), 2; P. D. Elliott, 'The East Timor Dispute', ICLQ 17 (1978), 238; T. Franck and P. Hoffmann, 'The Right of SelfDetermination in Very Small Places', New York University Journal o f International Law and Politics, 8 (1976), 331; International Commission of Jurists, 'East Timor and Self-Determination', ICJ Review, 32 (1984), 1; and Peter Lawrence, 'East Timor', EPIL, 12 (1990), 94.

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The Demise of the Right of Conquest

continue to be Portuguese, or become part of Indonesia, Indone­ sia at first expressed support for this approach, indicating that it would in no way seek to influence choice of the people.91 However, it proved difficult to determine the choice of the people. Three political parties emerged, each favouring a differ­ ent option: FRETILIN, a left-wing national liberation movement, which favoured independence; UDT, which favoured federation with Portugal, gradually leading to independence; and APODETI, which favoured integration with Indonesia. A civil war erupted, and the Portuguese administration, unable to arrange for an orderly act of self-determination, withdrew from the capital, Dili. On 28 November 1975, FRETILIN, now in effective control of most of the territory and fearing an imminent Indonesian in­ vasion, issued a unilateral declaration of independence, estab­ lishing the Democratic Republic of East Timor.92 In response, on 29 November 1975, UDT and APODETI (whose leaders were now based in Indonesian West Timor) issued a counter-declaration proclaiming the unification of East Timor with Indonesia, and requested Indonesia to intervene on their behalf. Portugal, for its part, rejected the declarations of both FRETILIN and the proIndonesian parties, and on 30 November formally requested United Nations help in settling the East Timor problem. On 7 December 1975, claiming close ethnic ties with the people of the territory, historic title, and the need to protect the population from terrorist acts by FRETILIN, Indonesia launched a full-scale invasion of Dili, in which up to 100,000 Timorese were mas­ sacred by Indonesian troops. On 18 December 1975, the Indonesians brought the leaders of 91 However, once the possibility emerged that an independent East Timor—an option favoured by the majority of the East Timorese people—was the likely result of the decolonization process in East Timor, the generals who dominated the Indonesian government were determined to oppose such an outcome. Such a state, they decided, might stimulate unrest in the nearby non-Muslim Indone­ sian provinces of West Timor and West Irian, by reviving separatist sentiments there; and, if ruled by a left-wing government, might be susceptible to commun­ ist, possibly Chinese or Vietnamese, influence, thereby threatening the stability of the Indonesian regime with communist subversion. Thus, in Oct. 1974, the Suharto government adopted a plan code-named Operasi Komodo, whose aim was to bring about the integration of East Timor into Indonesia, preferably by peaceful means, but by annexation if necessary. The Indonesian government succeeded in achiev­ ing this outcome, by the latter means, with at least the acquiescence of Indone­ sia's major allies, the USA, Australia, and the ASEAN countries. 92 On 1 Dec, 1975, the new republic was recognized by Mozambique.

International Reactions after 1945

283

the anti-FRETILIN parties to Dili, where a 'Provisional Govern­ ment of East Timor' was established, thinly disguising what in reality was an occupation by the Indonesian armed forces. On 31 May 1976, the Indonesian government announced that a 'Peo­ ple's Representative Assembly' had approved a petition calling for integration with Indonesia. A 'bill of integration' was adopted into Indonesian law on 17 July 1976, and, despite continuing resistance from FRETILIN forces which was to persist for many years, East Timor was proclaimed Indonesia's '27th Province'. The International Reaction After heated debate, the General Assembly passed a resolution on 12 December 1975,93 strongly deploring 'the military interven­ tion of the armed forces of Indonesia in Portuguese Timor' and calling upon Indonesia 'to desist from further violations of the territorial integrity of Portuguese Timor and to withdraw with­ out delay . . . in order to enable the people of the Territory freely to exercise their right to self-determination and independence', while recommending to the Security Council 'that it take urgent action to protect the territorial integrity of Portuguese Timor and the inalienable right of its people to self-determination'. This resolution was adopted by 72 votes in favour (including Aus­ tralia), 10 against (including the ASEAN members, India, Iran, and Japan), and 43 abstentions (including the USA, NATO mem­ bers, and Muslim countries). After a week-long debate, the Security Council unanimously adopted a resolution on December 22,94 recognizing 'the inalien­ able right of the people of East Timor to self-determination and independence', deploring the intervention by Indonesia's armed forces, and 'regretting' that the government of Portugal had not fully discharged its responsibilities as the administering power of the territory under Chapter XI of the Charter. The Council reiterated the Assembly's call on Indonesia to withdraw without delay from the territory and recognized Portugal's continuing status 'as administering power' with the obligation 'to cooperate with the United Nations so as to enable the people of East Timor to exercise freely their right to self-determination'. The resolu­ tion also requested the Secretary-General 'to send urgently a 93 GA Resolution 3485 (XXX).

94 SC Resolution 384 (1975).

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The Demise of the Right of Conquest

special representative to East Timor for the purpose of making an on-the-spot assessment of the existing situation and of estab­ lishing contact with all the parties in the Territory and all States concerned in order to insure the implementation of the present resolution'. This was followed by a later resolution on 22 April 1976,95 again reaffirming the right of the people of East Timor to selfdetermination and calling upon Indonesia to withdraw its forces without further delay—although the resolution failed to note Indonesia's disregard of the earlier resolution. The United States abstained on the second resolution (on the ground that it was unlikely to serve any useful purpose since it ignored Indonesia's assertion that some forces had been withdrawn from the territ­ ory), and Indonesia rejected it, claiming that 'the majority of the people of Timor . . . have already demonstrated their strong de­ sire to be reunited with the Indonesian people in the exercise of their right of self-determination.'96 With the passing of this resolution, the Security Council's role in East Timor virtually came to an end. The United States, for its part, had no intention of supporting any further United Nations action on East Timor and had been urging other powers to come to terms with Indonesia's 'irreversible' action, while Britain, France, and to a lesser extent the Soviet Union adopted a passive attitude on the question. Most members of the Security Council lacked any sense of commitment to an issue which was well down the priority order of the peace-keeping questions demand­ ing their attention, and this served to ensure that Indonesia's formal annexation of East Timor in July 1976 would pass effec­ tively unchallenged. The key to the Security Council's inaction on Indonesia's inva­ sion and annexation of East Timor lies in the strategic importance and political influence of Indonesia—a point underscored some years later by the United States Assistant Secretary of State for East Asian and Pacific Affairs under the Carter administration, Richard Holbrooke, when testifying before the House Subcom­ mittee on Foreign Operations in June 1980: 95 SC Resolution 389 (1976). 96 Letter from the Deputy Representative of Indonesia to the UN SecretaryGeneral, 17 Feb. 1976, UN Doc. S/1196, Annex, pp. 1-2 (1976).

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Indonesia, with a population of 150 million. . . is the fifth largest nation in the world. It has the largest Muslim population in the world, is a moderate member of the Non-Aligned Movement, is an important oil producer—which plays a moderate role within OPEC— and occupies a strategic position astride the sea lanes between the Pacific and Indian Oceans [and between South-east Asia and Australia]... . Indonesia is, of course, important to key US allies in the region, especially Japan and Australia. We highly value our cooperative relationship with Indonesia.'97

The strategic importance of Indonesia to the West was, moreover, substantially enhanced in the mid-1970s, in view of the oil crisis, the American withdrawal from South Vietnam, and the North Vietnamese advances in Indo-China.98 East Timor, by contrast, was a remote, tiny colony with a popula­ tion (before the Indonesian invasion) of 700,000. It was a territory of strategic and economic unimportance to United Nations mem­ ber states, irrelevant to any major world crisis. Indonesia de­ scribed its people as 'backward, unable to manage self-rule, and thus prone to be exploited by the Communists'.99 'To Washing­ ton', as Franck has noted, 'it appeared that the Indonesian inva­ sion had prevented a clique of leftist Portuguese military officers from turning the colony over to FRETILIN, an indigenous Marx­ ist political party.'100 Nor, in view of the above-mentioned con­ siderations, was there any other major power or regional group willing to push the issue of the rights of the East Timorese to self-determination, or the wrongs of Indonesia's annexation. (The ASEAN countries, for their part, shared, to a lesser or greater extent, Indonesia's fears about a communist take-over in East Timor.) Thus the Western states, some of them havingprior know­ ledge about Indonesia's moves, wanted the issue to bedropped as soon as possible from the international agenda. As Daniel Patrick Moynihan, then the United States representative to the United Nations, later revealed: 'The United States wished things to turn out as they did, and worked to bring this about. The Department of State desired that the U.N. prove utterly ineffective 97 Foreign Assistance and Related Programs: Appropriations fo r 1981, Hearings before a Subcommittee of the Committee on Appropriations of the US House of Repre­ sentatives, 96th Congress, June 1980, quoted in Dunn, Timor, 353-4. 98 E. Benvenisti, The International Law o f Occupation, 157. 99 Ibid. 100 Nation against Nation, 229.

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The Demise of the Right o f Conquest

in whatever measures it undertook. The task was given to me, and I carried it forward with no inconsiderable success/101 The USA's official position was quietly to recognize East Timor as de facto a part of Indonesia, although officials also admitted that an act of self-determination had not taken place. Indeed, according to the testimony of Mr Aldrich, the State Department's Deputy Legal Advisor, the United States recognized that the Timorese 'still have a right of self-determination which they have not been able to exercise'. Aldrich made an interesting point in relation to United States policy. He declared: We recognize the validity of the sovereign authority of Indonesia in East Timor, as we recognize the validity prior to 1975 of the Portuguese sovereignty in East Timor. What I am adding to that is simply that I think, as a matter of legal theory, when a people has a right of selfdetermination which is generally acknowledged and which we have acknowledged, that right cannot be extinguished except through an act of exercise of that right of self-determination, which I think has not occurred in this case. Therefore, what I am saying is that, as a legal matter, the right of self-determination continues to exist.102

It is an obvious—if curious—implication of this position that the United States recognizes Indonesia as having the status of the new colonial power with regard to East Timor.103 The Australian government, too, after initially protesting against Indonesia's invasion of East Timor and criticizing the merger of July 1976 on the grounds that decolonization in East Timor should be based on a proper act of self-determination preferably carried out with United Nations participation,104 was soon ready to ac­ commodate what it saw as the fait accompli of integration. On 20 January 1978, Australia extended de jure recognition to Indone­ sia's incorporation of East Timor. Explaining this move, Austral­ ia's Foreign Minister at the time, Mr Peacock, stated that while Australia remained critical of the means by which integration 101 A Dangerous Place (Boston: Little, Brown, 1978), 247. 102 Human Rights in East Timor, Hearings before the Subcommittee on Interna­ tional Organizations of the Committee on International Relations of the US House of Representatives, 28 June and 19 July 1977 (Washington, DC: US Government Printing Office, 1977), 64. 103 Dunn, Timor, 353. 104 See statement of the Australian Foreign Minister, Mr Peacock, on 19 July 1976, Keesing's Contemporary Archives (1976), 27907.

International Reactions after 1945

28 7

was achieved, it could not realistically refuse to recognize that East Timor was part of Indonesia. A similar line was adopted by the New Zealand government, which also extended de jure rec­ ognition to the annexation in 1978. Consistently with its recognition of East Timor as a province of Indonesia, Australia concluded on 11 December 1989 the Timor Gap Zone of Cooperation Treaty with Indonesia.105 This treaty, which came into force on 9 February 1991, established a provi­ sional regime for joint development of petroleum resources in the 'Zone of Cooperation', an area of overlapping maritime juris­ dictional claims between East Timor and Australia. Portugal, however, has strongly protested against Australia's recognition of East Timor as the '27th province' of Indonesia. In February 1991, it instituted proceedings in the International Court of Justice against Australia, challenging the legality of Austral­ ia's signature of the Timor Gap Zone of Cooperation Treaty with Indonesia, which it condemned as 'a clear and flagrant violation of international law and the United Nations Charter, especially since numerous resolutions adopted by the General Assembly and the Security Council do not recognize Indonesia's sovereign power over East Timor, which was militarily and illegally occu­ pied in December 1975'.106 However, Australia's Foreign Minister, Senator Gareth Evans, responded to this criticism by boldly declaring in a public state­ ment in 1990 that '[tjhere is no binding legal obligation not to recognize the acquisition of territory acquired by force.'107 He went on to point out that 'even if the acquisition is recognized, it does not signify approval of the circumstances of acquisition', and reminded Portugal that although Australia's de jure recogni­ tion of Indonesian sovereignty over East Timor had taken effect in 1979, 'Australia did not condone the manner in which the 105 ILM 29 (1990), 469. 106 'Australia rejects Portuguese criticism of Timor Gap Treaty', Backgrounder (Canberra: Australian Dept, of Foreign Affairs and Trade), 1 /8 (23 Feb. 1990), 7. The Court, however, dismissed Portugal's application on the grounds that the merits of the case could not be decided without first ruling on the lawfulness of Indonesia's entry and continuing presence in East Timor. Since Indonesia was not a party to the proceedings and had not accepted the jurisdiction of the Court, the Court could not make that ruling (East Timor case (Portugal v. Australia), ICJ Reports (1995), 90, at 102). 107 'Australia rejects Portuguese criticism', 7.

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province was incorporated/ Therefore, he added, the 'conclusion of the Timor Gap Zone of Cooperation Treaty does not, as a matter of international law, signify Australia's approval of Indo­ nesia's original acquisition of the territory of East Timor'.108 The United Nations General Assembly, for its part, still re­ gards Portugal as the legal administering authority in relation to East Timor. In its official view the East Timorese are still deprived of the right of a non-self-governing territory to selfdetermination, and Indonesia's sovereignty over the territory has not been formally recognized. On 1 December 1976, the year in which Indonesia carried out its act of annexation, the General Assembly passed a strongly worded resolution rejecting Indone­ sia's claim to have incorporated East Timor and calling for an act of self-determination to be held in the territory, while appealing to the Security Council to implement its resolution of April 1976.109 However, with the passage of time, and in view of the Security Council's failure to act, the wording of the annual General As­ sembly resolutions on East Timor was toned down, and the majority voting in favour steadily dwindled.110 By 1979, the reso­ lution no longer called for Indonesia's withdrawal, nor did it reaffirm prior resolutions on the question. By 1982, even the right to self-determination of the East Timorese people ceased to be reaffirmed: rather, the Secretary-General was asked to 'initiate consultations with the parties concerned with a view to achiev­ ing a comprehensive settlement'. Despite the mildness of this resolution, those in favour outnumbered those against by only four votes (50-46:50). In 1983, for the first time since 1975, no resolution was adopted, and the matter was deferred to the 1984 session ostensibly so as not to interfere with the SecretaryGeneral's efforts to bring about a settlement. 'By then,' as Franck explains, 'most states, including many in the Third World, no longer saw much point in incurring the wrath of oil-rich Indone­ sia solely to affirm a principle which, at least in this instance, evidently could not be applied.'111 At each session since 1983, consideration of the East Timor question has been postponed to the following year's meeting. Indonesia's forcible acquisition of 108 Ibid. 109 GA Resolution 31/53, 1 Dec. 1976, 68-20:49. 110 See GA Resolutions 32/34, 28 Nov. 1977 (67-26:47); 33/39, 13 Dec. 1978 (59-31:44); 34/40, 21 Nov. 1979 (62-31:45); and, finally, 37/30, 9 Dec. 1982 (5046:50). 111 Nation against Nation, 307 n. 47.

International Reactions after 1945

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East Timor thus appears to be well on the way to being accepted by the United Nations as a fait accompli. Appraisal The world-wide acquiescence in Indonesia's annexation of East Timor has been aptly compared by one writer 'to the appease­ ment policy which motivated the reactions to the pre-World War II acts of Italy and Germany'112—in both cases, considerations of international legality were clearly overshadowed by the con­ straints of realpolitik. Yet most states took the view that the Indo­ nesian annexation was illegal—that the norm against territorial acquisition by conquest had been violated— as manifested in the repeated reiteration of the need to respect the territorial integrity of East Timor and the right of its people to self-determination. And while it is true that states have not been very assiduous in applying that norm and those principles—so that conquest in this case may well result in the acquisition of new rights—it is important not to leap to the supposition that because enforce­ ment is weak, the norm has been destroyed. It is ironical that this proposition has been most strenuously asserted by the very states which have recognized Indonesia's sovereignty over East Timor. Thus, both the United States and Australia have insisted that their recognition of the emergence of a new legal situation in East Timor must be seen as an adjust­ ment to a new territorial reality for practical reasons, and should not be invoked as a precedent in justifying other violations of the law on non-acquisition by force. Particular emphasis on this view was laid in the United States by the Deputy Legal Adviser to the State Department, Mr Aldrich, who said: 'I think it is important to state that I do not view U.S. policy in the case of East Timor as setting a legal precedent for future cases.'113 The United States government left no room for doubt that its conciliatory response to Indonesia's action in East Timor was motivated not by a judge­ ment on the legal merits of the case, but by Cold War strategic imperatives: namely, the wish not to embarrass Indonesia, a non­ communist state in a region in which it was desired to exclude communist influence. As the Deputy Legal Adviser frankly testified: 112 E. Benvenisti, 'Conflict of Laws and Belligerent Occupation', 382. 113 Human Rights in East Timor, 48.

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The Demise of the Right o f Conquest

The U.S. Government did not question the incorporation of East Timor into Indonesia at the time. This did not represent a legal judgement or endorsement of what took place. It was, simply, the judgement of those responsible for our policy in the area that the integration was an accom­ plished fact, that the realities of the situation would not be changed by our opposition to what had occurred, and that such a policy would not serve our best interests in light of the importance of our relations with Indonesia. It was for these reasons that the United States voted against U.N. General Assembly Resolution 31 / 53 of December 1, 1976, which rejected the incorporation of East Timor into Indonesia and recommended that the Security Council take immediate steps to implement its earlier resolutions to secure the exercise by the people of East Timor of their rights to self-determination.114

The Australian government, too, has stressed that its recogni­ tion of Indonesia's sovereignty over East Timor should not be understood as a recognition of the lawfulness of conquest as a mode of acquisition of territory. On the contrary, Australia had recognized that states were obliged to refrain from acquiring territory by force, and on this ground had disapproved of the manner in which Indonesia had incorporated East Timor. In the Australian government's view, the international community has a duty to prevent acquisitions of territory by force, or to restore any acquisitions so obtained; but the international community's failure in this case to fulfil this function— as evidenced in par­ ticular by the Security Council's failure to condemn Indonesia's seizure of East Timor and its incorporation into Indonesia—meant that a new effective situation had emerged which Australia was entitled to consider as lawful and act accordingly. (This argu­ ment was further elaborated by representatives of the Australian government in accounting to the Australian public for the diver­ gence between Australia's response to Indonesia's annexation of East Timor—which it recognized— and Iraq's annexation of Ku­ wait—which it did not.115) To quote from a statement made in December 1990 by Australia's Foreign Minister, Senator Evans: 114 Ibid. 115 See the statement by Senator Evans (Australia's Minister of Foreign Affairs and Trade) repr. from Hansard of 18 Dec. 1990 in Australian Foreign Affairs and Trade: The Monthly Record (Canberra: Australian Dept, of Foreign Affairs and Trade), Dec. 1990, 879; and a ministerial statement by Dr Blewett (Australia's Minister for Trade Negotiations) of 21 Jan. 1991, repr. in Backgrounder, 1 /3 4 (8 Feb. 1991), 8.

International Reactions after 1945

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I do not seek in any way to qualify this Government's very long-stand­ ing expression of concern and unhappiness about the circumstances of the Indonesian annexation— we made that clear in 1975: we have made it clear ever since—but there does come a time when the reality of an annexation or an absorption of this kind has to be accepted. That time came for this country some years a g o .. . . It may be that had the inter­ national community responded with much more vigour and enthusi­ asm to the situation in 1975, as indeed to innumerable other incidents over the Cold War period, the situation would be different. But that is the circumstance as we now confront i t .. .116

And again, in November 1991: We still to this day regard [Indonesia's annexation of East Timor] as a wrongful annexation and totally improper behaviour. We have drawn the distinction, however, between the circumstances of the annexation and the subsequent course of events which made it, in effect, a fait accompli which was incapable of reversal.117

It is undoubtedly the case that the failure of the international community to be roused to any form of effective action to re­ verse Indonesia's conquest was at least partly conditioned by the fact that East Timor was not a member of the United Nations, or a recognized sovereign country in its own right, but a colonial dependency: one that had in fact been deserted by its former colonial master and in respect of which there was a significant civil conflict. Indonesia's armed intervention in these circum­ stances could be passed off as an attempt to restore order in an abandoned colonial territory, rather than an act of naked aggres­ sion perpetrated by one sovereign country against another. At all events, conquest in this case was evidently not seen either by the major powers, or by the ASEAN members, as an intolerable threat to international order which it was therefore vital to act to re­ verse (or at least not to recognize). It would seem from the testimony of the Deputy Legal Ad­ viser to the State Department that this calculation played an important part in weakening (indeed nullifying) any American resistance to the Indonesian annexation which might have been 116 Repr. from Hansard, 18 Dec. 1990, in Australian Foreign Affairs and Trade: The Monthly Record, Dec. 1990, 879. 117 Statement by Senator Evans, repr. from Hansard, 27 Nov. 1991, in Austral­ ian Foreign Affairs and Trade: The Monthly Record, N ov-D ec. 1991, 760.

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The Demise of the Right of Conquest

present had East Timor been a recognized independent state. The question was put to him whether the United States govern­ ment, by acquiescing in Indonesia's action, had not created a highly destabilizing precedent. Would this not encourage other states to think that they too could commit such acts of conquest with impunity? In making his reply, the Deputy Legal Adviser argued that there was a qualitative difference between the threat to international order inherent in tolerating the conquest of ter­ ritory belonging to a sovereign country and the lesser danger, as most states in his view saw it, inherent in tolerating the conquest of a colonial area whose international status had not yet been defined. In the latter case, the danger was, he thought, limited in that these cases [Indonesia's annexation of East Timor and Morocco's seizure of Western Sahara] concern territories that were not part of the territory of another country. They were, if you will, colonial vestiges which are slowly being cleaned up. If, for example, we are talking about President Amin's desire to get territory out of neighbour­ ing countries, I think one will expect that the international community's reaction and the U.S. reaction will be quite different from cases in which it is not part of another country that is being sought, but a not-yetindependent colonial area. As we do away with those cases, the prob­ lem itself will become less and less likely to arise.118

Fifteen years later, this hypothesis was to be tested when Iraq embarked on its conquest of Kuwait.

V. IRAQ'S CONQUEST OF KUW AIT, 1990

Iraq's invasion and annexation of Kuwait, which led to the un­ precedented extinction by armed force of a sovereign member of the United Nations, provides the first case in the history of the United Nations in which the collective-security procedures em­ bodied in Chapter VII of the Charter were utilized to reverse an acquisition by conquest, resulting from an incontestable act of unprovoked aggression. The unusual clarity of Iraq's aggression; the continuing threatening nature of the Iraqi regime, whose conquest of Kuwait imperilled the existence of Saudi Arabia and the other Gulf states; the exceptional sensitivity of the petroleum118 Human Rights in East Timor, 65.

International Reactions after 1945

293

rich Gulf region, whose stability was vital to the interests of the powerful nations of the world; and the changed international climate in which it occurred now that the Cold War had come to an end—all these made it possible for the international commu­ nity not only to assert the principle of the inadmissibility of the acquisition of territory by force, but actually to enforce it in the most effective performance yet played on the United Nations stage. Iraq's Invasion and Annexation of Kuwait Iraq's invasion and occupation of Kuwait occurred on 2 August 1990 after Saddam Hussein, the Iraqi President, accused Kuwait of deliberately engineering a lower price for oil (by producing more oil than its OPEC quota) in order to damage Iraq's economy. The invasion was launched on the pretext that Iraqi troops had been invited into Kuwait to restore order to the country by a group of 'revolutionaries', who had allegedly staged a coup against the 'defunct and corrupt' Al-Sabah regime; but this claim was soon discredited by Iraq's inability to find Kuwaiti nationals willing to serve in a puppet government. This did not prevent the Iraqis from installing a provisional cabinet on 4 August—the 'Provisional Free Government of Kuwait', composed entirely of Iraqi army officers—which three days later declared Kuwait a republic, abolishing the 200-year-old dynasty.119 It soon became clear that the underlying motive of the Iraqi move was to incorporate Kuwait into Iraq by force. On 8 August, following an announcement by the 'Provisional Free Govern­ ment of Kuwait' that it had asked Iraq to approve a merger between the two countries 'so that Saddam Hussein will be our leader', Iraq effected its formal annexation of Kuwait. The Revo­ lutionary Command Council, the highest authority in Iraq, de­ clared 'a comprehensive and eternal merger' between Iraq and Kuwait, portraying the Iraqi annexation as the liberation of Ku­ wait and its union with the motherland and as the obliteration of the arbitrary lines drawn by colonial powers. By the end of August, Iraq had completely absorbed Kuwait into its adminis­ trative structure, renaming Kuwaiti towns and institutions, and,

119 Keesing's Record o f World Events (1990), 37633.

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The Demise of the Right o f Conquest

on 28 August, it announced that Kuwait had become Iraq's '19th province .1 2 0 /

The International Response In launching his attack against Kuwait, Saddam Hussein had failed to appreciate the extent of the new relationship that had developed between the United States and the Soviet Union since the advent of President Gorbachev and the virtual collapse of the Soviet Union as a superpower. For the Soviet Union was now following a policy of cooperation rather than confrontation with the United States; and the Bush administration was determined, among other things, to establish a more peaceable order in a world which had finally emerged from the Cold War and to use the collective-security procedures of the United Nations in doing so. Moreover, with the possibility of an Iraqi stranglehold over oil supplies vital to the well-being of the entire world and espe­ cially the rich industrialized countries of the West; with the majority of Arab states threatened by Saddam Hussein's expan­ sionist and hegemonial ambitions but too weak even in combi­ nation to defeat Iraq which had achieved a position of regional ascendancy; and with the fear in the developing world-—where so many countries had more precarious and even more recent frontiers than Kuwait, as well as covetous neighbours— of the dangerous precedent which would be set by an Iraqi victory, the essential ingredients were there for an effective collective response to a particularly flagrant act of aggression, which threatened to culminate in a general Middle East war if Iraq was not contained. On 2 August 1990, the day of the Iraqi invasion, the United Nations Security Council met and approved Resolution 660 (1990),121 which determined the existence of a breach of interna­ tional peace and security, condemned Iraq's invasion of Kuwait, and demanded its immediate and unconditional withdrawal. The resolution was passed unanimously, although Yemen did not participate in the vote. Once it became plain that the Iraqi President was failing to comply with this resolution, the Security Council on 6 August adopted Resolution 661 (1990),122 imposing mandatory economic 120 Keesing's Record o f World Events (1990), 37631, 37635. 121 ILM, 29 (1990), 1325. 122 ILM, 29 (1990), 1325-7.

International Reactions after 1945

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sanctions on Iraq in order to 'bring the invasion and occupation of Kuwait by Iraq to an end and restore the sovereignty, inde­ pendence and territorial integrity of Kuwait'. The vote in favour of the resolution was thirteen to nil with Cuba and Yemen abstaining. When Saddam Hussein actually annexed Kuwait even his putat­ ive allies in the Security Council, Cuba and Yemen, found it dif­ ficult to support him; and on 9 August the Council unanimously adopted Resolution 662 (1990).123 This stated that the Council Decides that annexation of Kuwait by Iraq under any form and what­ ever pretext has no legal validity, and is considered null and void; Calls upon all States, international organizations and specialized agencies not to recognize that annexation, and to refrain from any action or dealing that might be interpreted as an indirect recognition of the annexation; Further demands that Iraq rescind its actions purporting to annex Kuwait; Decides to keep this item on its agenda and to continue its efforts to put an early end to the occupation.

The decision not to validate the Iraqi annexation was endorsed by the League of Arab States at an emergency summit held in Cairo on 10 August 1990. In a resolution adopted by a majority vote the Arab League condemned 'Iraqi aggression against the brotherly state of Kuwait'; refused 'to recognize the Iraqi deci­ sion to annex Kuwait'; and reaffirmed 'Kuwait sovereignty, its independence and regional security, being a member state in the Arab League and the UN'.124 Affirmations o f the Principle of the Inadmissibility o f the Acquisition o f Territory by Force In his address to the American people on 8 August 1990, explain­ ing his decision to send American forces to the Gulf at the re­ quest of the Saudi government to protect Saudi Arabia against further Iraqi expansion, President Bush reiterated the principle contained in the preamble to Security Council Resolution 242 on the Middle East of 22 November 1967 that 'The acquisition of 123 ILM 29 (1990), 1327-8. 124 Resolution 195 adopted at the Extraordinary Arab Summit, 10 Aug. 1990, repr. in E. Lauterpacht et al. (eds.), The Kuwait Crisis: Basic Documents (Cam­ bridge: Grotius Publications, 1991), 294.

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The Demise o f the Right o f Conquest

territory by force is unacceptable.'125 Similarly, the Finnish Am­ bassador to the United Nations, during the discussion in the Security Council on 9 August leading up to the adoption of Resolution 662 invalidating the Iraqi annexation of Kuwait, declared: The acquisition of the territory of another State by the use of force contradicts one of the most basic and firm principles of international law. Finland considers the annexation of Kuwait by Iraq null and void and has just joined other members of the Security Council in calling upon everyone not to recognize it.126

The Kuwaiti delegate to the United Nations spoke of Iraq's an­ nexation of his country as an act which brings us back to the law of the jungle. It runs counter to all interna­ tional norms, instruments and principles.. . . The Emir, Government and people of Kuwait, faced with this new challenge not only to us, but to all the other peoples of the world, call upon your Council, and through it the international community, to condemn and categorically reject this annexation, and to consider it null and void, with no legal validity. There is a clear principle deeply rooted in international instruments and norms, namely, the non-admissibility of the acquisition of territory by force.127

The Malaysian delegate expressed alarm at Iraq's annexation and the violation of Kuwait's right to sovereignty, national independ­ ence, and territorial integrity, and pointed out that: The world has come a long way from the history of wars and miseries brought about as a result of ambitions and imperatives of States to expand and annex other States around them. There is now total rejec­ tion of such acts and policies. The Security Council this time and in this instance can do no less. The annexation of Kuwait is totally unaccept­ able. In rejecting the annexation of Kuwait, the Security Council. . . must be prepared to take the necessary action to restore to Kuwait its sover­ eignty and territorial integrity.128

The Chinese representative expressed his delegation's shock at the recent actions of Iraq and stated: 'We believe that the annexa­ tion of a sovereign State constitutes a gross violation of the United 125 The Times (London), 9 Aug. 1990. 126 UN Doc. S/PV.2934, 9 Aug. 1990, p. 27. 127 Ibid. 32. 128 Ibid. 21.

International Reactions after 1945

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Nations Charter and the basic norms governing international relations, and therefore cannot be allowed/129 Syria's President Assad strongly condemned Iraq's actions, noting that the world would 'resemble a jungle if every country were to impose its illegitimate viewpoints through aggression and the use of force'.130 And a senior Pakistani diplomat, explaining his country's decision to send 5,000 troops to help defend Saudi Arabia, pointed out that this was the first time that one Muslim country had annexed another and that this set an unacceptable precedent. He stated: 'It would be the law of the jungle if the borders set out in the colonial era were to change now. It is in Pakistan's strategic and national interests and its international duty to stop Iraq.'131 The Security Council's Authorization o f the Use o f Force to Expel Iraq from Kuwait and Restore International Peace and Security in the Region Given the evident failure of economic sanctions to lead Saddam Hussein to disgorge his conquests, and given the unspoken need to preserve the international coalition which had been forged by the adroit diplomacy of the Bush administration and was repre­ sented by the military contingents to Saudi Arabia—in which the USA and other Western countries were joined by forces from a number of Third World states including Egypt, Syria, and Morocco in order to protect Saudi Arabia under Article 51 of the Charter against possible future aggression by Iraq132—the con­ clusion was reached that force would have to be used if the objective of restoring the sovereignty and territorial integrity of Kuwait was to be achieved.133 Consequently, on 29 November 129 Ibid. 22. 130 The Times (London), 8 Aug. 1990. 131 Independent (London), 20 Aug. 1990. 132 By the end of 1990, thirty countries had contributed to the US-led response to the Iraqi invasion and annexation of Kuwait. In addition to the USA, the coalition comprised Argentina, Australia, Bahrain, Bangladesh, Belgium, Canada, Czechoslovakia, Denmark, Egypt, France, Germany, Greece, Honduras, Italy, Kuwait, Morocco, Netherlands, New Zealand, Niger, Norway, Oman, Pakistan, Qatar, Saudi Arabia, Senegal, Spain, Syria, United Arab Emirates, and the UK. At this time 750,000 'allied' or 'coalition' troops faced 500,000 Iraqi troops. The USA commanded the multinational forces and contributed 500,000 troops (Keesing's Record o f World Events (1991), 37935-6). 133 Brian Urquhart, 'Learning from the Gulf', in Mara R. Bustelo and Philip Alston (eds.), Whose New World Order: What Role fo r the United Nations? (Sydney: Federation Press, 1991), 14-15.

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1990, at the urging of the United States, the Security Council passed Resolution 678 (1990)134 which noted that 'despite all ef­ forts by the United Nations, Iraq refuses to comply with its ob­ ligation to implement resolution 660 (1990) and the . . . subsequent relevant resolutions, in flagrant contempt of the Council'. The Security Council, it went on: Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so; Authorizes Member States co-operating with the Government of Ku­ wait, unless Iraq on or before 15 January 1991 fully implements .. . the foregoing resolutions, to use all necessary means to uphold and imple­ ment Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area . . .

The resolution, proposed by the USA, the Soviet Union, the UK, and Canada, was adopted by a vote of twelve to two (Cuba and Yemen), with China abstaining, thus breaching for the first time the unanimity of the five permanent members of the Security Council in supporting resolutions on the Kuwait crisis. None the less, China did not veto the resolution, thus acquiescing in the decision to use force against Iraq. With the expiry of the United Nations deadline of 15 January, and in the absence of any concrete signs of an Iraqi withdrawal, the multinational force led by the United States embarked on offensive military action just before midnight GMT on 16 Janu­ ary 1991, pursuant to Security Council Resolution 678 (1990). An extensive and largely unopposed air campaign was carried out by the allied forces against Iraq and against Iraqi forces occupy­ ing Kuwait throughout the remainder of January and during February. Throughout the campaign, the coalition made it clear that it would not be amenable to peace initiatives so long as the Iraqi leadership remained unprepared to accede unconditionally to the requirements laid down in the relevant United Nations Security Council resolutions. In the event, it was not until 27 Feb­ ruary 1991— with Iraq's comprehensive defeat in the land war, which began on 24 February—that the Iraqi government agreed to meet these conditions.135 134 ILM 29 (1990), 1565. 135 Keesing's Record o f World Events (1991), 37934, 37982.

International Reactions after 1945

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Allied military operations were suspended on 28 February. On 2 March 1991, the Security Council approved Resolution 686 (1991),136 which laid down the terms for a temporary cease-fire. It demanded Iraq's acceptance of all twelve previous relevant resolutions, the repeal of the laws annexing Kuwait, and the acceptance by Iraq of liability under international law for dam­ age done to Kuwait. These terms were accepted by Iraq on 3 March, as conveyed in a letter to the United Nations from Tariq Aziz, then Iraq's Foreign Minister.137 Having thus secured Iraq's agreement to comply with the twelve resolutions passed by the Security Council between 2 August and 29 November 1990 on a variety of aspects of the Kuwait crisis,138 there remained to be fulfilled the further require­ ment, laid down in Resolution 678 (1990) of 29 November, of achieving the conditions necessary 'to restore international peace and security in the area'—namely, dismantling Iraq's capacity to wage aggression. These conditions were laid down in Resolution 687 (1991) of 3 April 1991,139 whose acceptance by Iraq was re­ quired for the establishment of a full cease-fire in the Gulf. This comprehensive, thirty-four-point resolution contained many pro­ visions which further punished Iraq, including provisions requir­ ing its destruction of all chemical and biological weapons and all ballistic missiles with a range above 150 km.140 A Special Com­ mission was created by the resolution to monitor compliance and to ensure that Iraq did not develop such military capability in the future. The resolution further demanded an Iraqi renun­ ciation of international terrorism. And it required the payment of war reparations from a special fund administered by the United Nations and created from a levy of an unspecified percentage of Iraq's oil export earnings. Resolution 687 (1991) was accepted on April 5 by Iraq's ruling Revolutionary Command Council, al­ though not without protest.141 136 ILM 30 (1991), 568-9. Voting was 11-1:3 (Cuba voted against, while China, India, and Yemen abstained). 137 Keesing's Record o f World Events (1991), 38116. 138 See SC Resolutions 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677, 678 (1990). 139 ILM 30 (1991), 847-54. The resolution was adopted by twelve votes to one (Cuba), with two abstentions (Yemen, Ecuador). 140 During the war, Iraq launched several Scud missile attacks against Saudi Arabia and Israel. 141 The terms of the resolution were described by Iraq's Foreign Minister (in a letter accompanying Iraq's formal acceptance of Resolution 687 and conveyed to

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On 9 April 1991, the Security Council unanimously adopted Resolution 689 (1991),142 establishing a demilitarized zone between Iraq and Kuwait— extending 10 km. into Iraq and 5 km. into Kuwait—to be monitored by a 1,400-strong observer force (the United Nations Iraq-Kuwait Observation Mission, for which all five permanent Security Council members were prepared to pro­ vide military personnel) to replace coalition forces. Two days later, the Security Council notified the Iraqi government that a cease-fire in the Gulf was formally in effect.143 Appraisal As a result of the first resoundingly successful United Nations exercise of collective security— orchestrated and executed, it is true, predominantly by the United States, but with United Na­ tions authorization and legitimization and with near-unanimous international support—Iraq was not allowed to keep Kuwait as its nineteenth province, and the principle that there shall be no territorial fruits from aggression was firmly upheld. The interna­ tional reaction to Iraq's conquest of Kuwait thus provides a clas­ sic illustration of the application of the rule that the acquisition of territory by the unlawful use of force is absolutely prohibited; and the refusal of the international community to recognize the annexation highlights the contemporary resistance to territorial acquisitions obtained by force which may be said to characterize international practice in our own times. Yet it is a notable feature of the victory over Iraq that no steps were taken to remove any territory from Iraqi sovereignty as a punishment for its aggression against Kuwait. While in the past, bringing peace and security to a region might well have included the forcible alteration of boundaries and been accepted as such with equanimity by the society of states, this is not so today, when internationally recognized boundaries are regarded as sac­ rosanct and absolutely immune to alteration by force, as a means the UN on 6 Apr.) as 'unfair and vindictive', ignoring Iraq's 'right to demand compensation' for destruction to its infrastructure and environment which 'con­ spicuously exceeded' the authority given to the US-led coalition forces under Resolution 678. Furthermore, it was argued, the resolution would maintain a military imbalance which 'made Israel the dominant aggressive power in the region' (Keesing's Record o f World Events (1991), 38164). 142 ILM 30 (1991), 863. 143 Keesing's Record o f World Events (1991), 38164.

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of avoiding future causes of war—which is the highest priority of international society today. Thus while the war against Iraq demonstrated to potential aggressors that the price of aggression may be greater than merely returning the spoils—Iraq was obliged to pay reparations, and its offensive military capability was not permitted to remain intact—the present case-study would also seem to reinforce the proposition, advanced in Chapter 6, that it is beyond the competence of the Security Council forcibly to detach the national territory of the aggressor in discharging its responsibility for the maintenance of international peace and security. It must, however, be admitted that in the absence of any state actually calling for the dismemberment of Iraq, the present case provides only circumstantial support for the propo­ sition in question—namely, that in the era of the United Nations144 forcible territorial dismemberment is not regarded as an accept­ able punishment for aggression. That evidence is, however, clearly strengthened by the third paragraph of the preamble to Security Council Resolution 687 (1991) ‘[afffirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq'— that is, of both victim and aggressor alike. 144 Subject, however, to the exceptions regarding ex-enemy states provided for in Art. 107 of the Charter.

Conclusion Continuing Problems Regarding the Abolition of the Right of Conquest The aim of this conclusion is twofold: to outline the main stages in the progress away from the acceptance of the right of conquest towards its present rejection and to focus attention on some of the continuing problems caused or exacerbated by its abolition. The prohibition of the acquisition of territory by force in our own times has been the cumulative effect of a variety of develop­ ments in international law, including the Covenant of the League of Nations, the Kellogg-Briand Pact, the Stimson Doctrine, the United Nations Charter, the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, the 1969 Vienna Convention on the Law of Treaties, the 1970 De­ claration on Principles of International concerning Friendly Rela­ tions, and the acceptance of the principle of self-determination as a right in international law. The only exception to this prohi­ bition would seem to be the case where an aggressor state, as a result of its total defeat in war, has ceased in fact to exist, and the inhabitants of the conquered territory actually wish to be brought under the jurisdiction of the occupying state in the exercise of their right to self-determination. The progress towards the denial of the right of conquest has been gradual: its origins, as we have seen, were by no means confined to the twentieth century. In the sixteenth and seven­ teenth centuries, the right of conquest was a reasonable adjunct to the divine right of kings—whereby a king ruled his subjects by divine sanction, not by consent of the governed—and the theory of absolute monarchy, which tended to regard a state's territory as the private estate of the prince, and war as a socially acceptable form of property acquisition. However, by the late eighteenth century, the rejection of patrimonialism and the enun­ ciation of the doctrine that the people are sovereign began to

Conclusion: Continuing Problems

303

challenge the notion that victory in war conferred a right of dominion on the conqueror which could be asserted against the will of the inhabitants of a conquered territory. With the grow­ ing acceptance by the mid-nineteenth century of popular consent as the new criterion of political legitimacy in Europe—reflected in the frequent use of plebiscites at that time to validate territ­ orial changes—this challenge to the right of conquest was sub­ stantially increased. However, it was only after the First World War—with the fall of the Russian, Habsburg, German, and Otto­ man Empires and the advent of Lenin and Wilson—that the principle of the self-determination of peoples was held up as an alternative to the right of conquest to be applied to a general peace settlement in Europe. The second stage in the progress towards the rejection of the right of conquest was the gradual acceptance of the proposition that colonial rule was temporary. This belief, reflected in the British imperial doctrine that the goal of the British Empire was the education of native peoples for self-rule, culminated in the Trusteeship System of the United Nations—which extended the right of popular sovereignty to the colonial peoples of Africa and Asia and extinguished the concept of empire as an acceptable political form. The third element in the gradual erosion of the right of con­ quest was the emergence of the idea that belligerent occupation was a temporary status. With the development of the law of military occupation in the nineteenth century, the laws of war began to discriminate in favour of the weaker over the stronger party in an armed conflict, by preserving the claim of the ousted government to return to areas it had controlled before their oc­ cupation. By limiting in this way the applicability of the right of conquest to cases where the state whose territory was occupied had ceased to fight for its recovery, the law of military occupa­ tion substantially inhibited the operation of the right of conquest. The fourth development which led to the abolition of conquest as a basis of title to territory was the growing belief in the twen­ tieth century that war was too dangerous to be allowed to be used as an instrument of national policy. In this context the abolition of the title by conquest was seen as a valuable measure in strengthening the prospects for peace, by discouraging temp­ tations to aggression.

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Conclusion: Continuing Problems

It is clear from the facts of this century's history that states did not renounce conquest as a means of gaining territory: only con­ quest as a lawful means of doing so. The undoubtedly radical change in attitudes towards the acquisition of territory by force turns out not to have had a radical effect on the actual behaviour of states in international relations, since states have not in fact abstained from force as a means of effecting territorial change. However, it would be a mistake to judge the efficacy of the rule prohibiting the acquisition of territory by force solely by reference to the fact that it is occasionally disregarded or that enforcement of the prohibition is weak. For one thing, account must be taken of the fact that the vast majority of states at most times attach considerable value to this prohibition—which, when one considers the kind of situation that can arise when the pro­ hibition is ignored (as in the state of affairs which recently obtained in the territories of former Yugoslavia) is not at all surprising. For another thing, there are important cases which constitute clear vindications or expressions of the illegitimacy of the imposition of foreign rule by conquest: the European powers, for example, had to relinquish their colonies because of it; and the Soviet Union, in its last days, itself admitted the illegality of its conquest of the Baltic states. What, then, are some of the problems associated with the abo­ lition of the right of conquest? What are some of the questions that remain to be asked? In the first place, although the legal obstacles which have been placed in the way of conquest may be regarded, on the whole, as a progressive development from the standpoint of international justice, have these obstacles also served as a contribution to international order, by deterring prospective conquerors? Or have states merely found ways round a prohibi­ tion which, in the absence of effective collective procedures to secure its enforcement, has only served to widen the gap be­ tween international law and the facts of international politics? Secondly, if the right of conquest is ruled out as a means whereby the victor enforces a settlement on the vanquished, how can wars be brought to an end, or peace settlements be achieved, in an international system where no community force exists to enforce a settlement on both parties in accordance with the re­ quirements of international law and justice? Thirdly, if the right of acquiring territory by force is ruled out

Conclusion: Continuing Problems

305

absolutely, then is this not in contradiction with the requirements of international justice in so far as it rules out the right of recov­ ering by force territory of which a state was itself once forcibly deprived, or the right of acquiring by force territory whose popu­ lation may wish to be united with the annexing state, or the right of acquiring by force territory which has repeatedly been used as a base for attacking the state that emerges victorious in a war of self-defence? Fourthly, has the contemporary denial of the right of conquest on the one hand, and the acceptance of the right of selfdetermination on the other, not had the unintended effect— as the Goa case demonstrates— of encouraging wars and conquest, by stripping the established territorial order of its legitimacy to the extent that it is based on ancient conquest, while affording a casus belli on grounds of self-determination for states with irredentist claims seeking to expand their own borders? Fifthly, has the abolition of the right of conquest not had the curious result that, far from deterring states from embarking on conquest, it has led instead to the emergence of a wide range of functional equivalents for the right of conquest—that is, to oldfashioned expansionism disguised in new forms? For if one con­ siders the actual conduct of states, the impact of the denial of the title by conquest appears to have led directly to such measures as the use of hidden violence to obtain the apparent consent of an unwilling population to incorporation within the territory of the annexing state (as in the Baltic States in 1940); the creation of apparently independent 'puppet' governments in conquered territories as a substitute for the ancient practice of annexation; the development of fictitious history—so that most conquests are now presented as 'reconquests' or recovery of national territory in an attempt to disguise expansionism; the introduction of sys­ tems of permanent control under cover that they are only tem­ porary (as in the West Bank from 1977 to 1992); and the use of covert support (as by the Federal Republic of Yugoslavia (Serbia and Montenegro) in Croatia and Bosnia-Herzegovina), so that it can be argued that no external forces are being used in the acqui­ sition of territory, but only local militias—thus complicating a conflict and making it more difficult to end. A further problem associated with the abolition of the right of conquest is that it may occasionally serve to perpetuate conditions

306

Conclusion: Continuing Problems

of instability or insecurity—by leading, for example, to a Syrianstyle reluctance to negotiate the future of occupied land; or to reluctance on the part of the Security Council to seize territory even from the most troublesome state, regardless of the impera­ tives of international peace and security which may in some cases require such a course. Moreover, given that a right of conquest is no longer rec­ ognized, what is to be done about a state—the recent history of Bosnia-Herzegovina provides a possible illustration of the problem—which has no real existence or central authority capa­ ble of maintaining orderly government in its territory, and whose violent intercommunal hatreds are likely to lead to a permanent state of civil war, with all the dangers to international order which that entails? While old-fashioned partition—in the mould of the eighteenth-century partition of Poland—must, in the late twentieth century, be regarded as an unacceptable and barbaric solution, has contemporary international society devised any alter­ native procedures for preserving the interests of order in a case of this kind? Does an insistence on the legitimacy of impractical boundaries, in the name of preserving the territorial integrity of a state whose ethnic composition makes it inherently ungovern­ able, not tend to exacerbate rather than alleviate the problem? It has been the conventional wisdom, in commenting upon the evolution of international law regarding the forcible acquisition of territory by states, that there has, in the course of the twenti­ eth century, been not merely change but progress: progress away from a law that acknowledged the principle that might is right towards a law which seeks to uphold the maxim ex injuria jus non oritur; from a law that follows the facts towards a law that blames them; from a law in which people are treated as belonging to the land towards a law in which the land is regarded as be­ longing to the people. But an accurate estimation of the value of a norm must take into account not only the extent to which its prescriptions are in accordance with the dictates of justice, but also whether its impact in practice has been such as to promote international order. The question, in short, is whether the aboli­ tion of the right of conquest has served to reduce the occurrence or intensity of violent conflict in international relations, or merely to increase or prolong such conflict. There would, of course, be difficult problems of diagnosis involved in any attempt to set

Conclusion: Continuing Problems

307

about answering this question systematically—for example, even if it could be shown that there has been a reduction in the inten­ sity of violent conflict between states, to what extent has this been due to factors, such as the emergence of nuclear weapons, which exist independently of those rules of international law which aim to achieve that end? But while awaiting the outcome of such an enquiry— and without denying the great significance of the legal progress which has occurred in this field in this century—it would be rash to argue that the problems of interna­ tional order which motivated Grotius and Vattel to support the recognition of a right of conquest have been successfully and completely eliminated by the adoption and elaboration of a rule which abolishes it.

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INDEX absolutism 30 -1 , 36-7, 72-3, 78, 302 Abyssinia, Italian conquest of (1936) 193, 194, 242 Acton, Lord 72, 76-7 Africa: European title to territory in 41, 6 5 -6 expansion of Europe in 41, 42-3, 44, 60, 80 German colonies in 141 Papacy supports Portuguese conquests in West 44 partition of 41 Portuguese territories in 269 n., 280 and self-determination 62, 133, 141, 303 Africa, South 165, 226 n., 244, 270 n., 280 see also Orange Free State; Transvaal Africa, South West 165 see also Namibia Africa, West 44 Afro-Asian states 243 n. Aggression, UN Definition of (1974) 244 agriculture, doctrine of superiority of 56, 57-8 Aix-la-Chapelle, Treaty of (1748) 72 Akehurst, Michael 10 n., 12 n., 210, 271 n., 276 n. Aldrich, Mr (US) Deputy Legal Advisor to State Dept. 286, 289-90, 291-2 Alexandrowicz, C. H. 2 n. Algeria 42 n., 59 Alsace-Lorraine: German annexation of (1871) 39, 80, 82, 86 n., 87-93, 113-14, 145, 147, 204 historic route of French invasion 147 'lessons' of 145, 147, 151 Prussia's occupation of (1870-1) 113-14

retrocession to France (1918) 140-1, 143 n. America: Anglo-Saxons settle in 57 n. European title to territory in 45-6, 6 3 -4 expansion of United States in 57-8, 59, 80, 235 Papacy supports Spanish conquest of 4 4 -5 right of European expansion in 57 Spanish conquest of 49-50 Vitoria on Spanish conquest of 5 3 -6 see also New World; United States America, Central, see Latin America America, Latin, see Latin America America, South, see Latin America American continent: attempts to establish no-conquest principle on 234-8, 240-2 and Monroe Doctrine (1823) 235 American Institute of International Law (Project No. 30) 238 American States: First Inter-American Conference (1826) 236 Inter-American Congress of Lima (1848) 236 Inter-American Conference of Santiago de Chile (1856) 236 First Pan-American Conference (1890) 237 Sixth Pan-American Congress (1928) 238 Seventh Pan-American Conference (1933) 241 Inter-American Conference for Maintenance of Peace (1936) 241 Eighth Pan-American Conference (1938) 241 Inter-American Conference on Problems of War and Peace (1945) 242 Amerindians 52, 56 see also Indians, American

Index Amin, President 292 ancien régime 36, 79 Annam 65 Anne, Queen of Great Britain and Ireland 97 annexation: calls for general renunciation of 136 as distinct from occupation 122-3, 217, 261 n. as evidence of intention to acquire territory 99, 122, 123, 125, 129, 130 as formal termination of war 26, 223-4 illegal if not preceded by war 100-1, 109, 126 n. illegal in time of war 100-1, 111, 115, 116, 120, 127, 129, 149, 221, 222, 224 illegal since 1945: 209-12, 214 n., 243-4, 256-7, 260, 262, 271 implies effective possession 109, 112, 126-7 and League of Nations Covenant 181-9 Mandates System as alternative to 141-3, 149-50 as a mode of completing conquest 9, 17, 26, 48, 123, 125-9, 223 peace without 135, 137, 139, 149, 162 puppet governments as substitute for 195 n., 305 right of 202, 218-22, 223 n„ 224, 228-30 and self-defence 189, 202, 203-4, 212, 250, 256, 257 and self-determination 78, 85-6, 91-3, 139, 144-6, 224 n., 225, 228-9, 259, 27 4 -5 signifies substitution of sovereignty 111, 122-3, 125 as a source of irredentism 144, 145, 151 as a source of national weakness 90 Strategic Trusteeship as alternative to 163 violation of territorial integrity 92, 111, 186, 289 and UN Charter 201, 209 Anti-War Treaty of Non-Aggression and Conciliation (1933) 240 n.

325

Aquinas, St Thomas 55 Arab-Israeli wars 203, 25 0 -2 Arab League 295 Arangio-Ruiz, Gaetano 245 n. Argentina: and Britain's seizure of Falkland Islands (1833) 95, 105, 107, 108, 126 n. attempted reconquest of Falkland Islands (1982) 275-80 ASEAN (Association of South East Asian Nations) members 281 n., 283, 285, 291 Asia: European title to territory in 42-3, 64 -5 , 80 France's mission civilisatrice in 60 Karl Marx on benefits of colonialism in 62 Portuguese territories in 269 n. right of European expansion in 57 Russia's conquest of Central 59-60 and self-determination 62, 133, 303 Asia, Central, see Central Asia Asia, Northern 64, 65 Asia, South East 285 see also ASEAN Asiatics 60, 62 Assad, President 297 Atlantic Charter (1941) 162, 163, 165, 169, 172, 174-5, 177 Augustine, St 52, 55 Australia: and Declaration on Colonialism (1960) 226 n. and East Timor 282 n., 283, 286-8, 289, 290-1 strategic importance of Indonesia 285 territorium nullius 4 2 -3 and UN action against Iraq 290, 297 n. Austria (see also Austro-Hungarian Empire): annexation of Cracow (1846) 81-2, 100-1 Germany's annexation of (1938) 242-3 partitions of Poland 73-7, 101 and 1919 peace settlement 152, 153, 154 prescriptive rights in Silesia 69

326

Index

Austria (cont.): Prussia's conquest of Silesia (1740) 13 n., 36, 67-72 and Schleswig-Holstein 84 -6 , 128 Austrian Succession, War of the (1740-8) 67, 72 Austro-Hungarian Empire 135, 303 'backward races', see 'barbarian' peoples 'backward' territory, see nonChristian lands balance of power: criterion for apportioning spoils of victory 79, 138, 140, 151 inimical to self-determination 184 methods of regulating 184 and partition of Poland 73-4, 77, 79 possibility of annexation limited by 95 principle of compensation 138 principle of equal aggrandizement 73-4, 77 n. repudiated by liberals 137, 140 rights of weaker states sacrificed to 79 as a route to international order 79-80, 151, 184, 189 sanctioned acquisitiveness of eighteenth-century diplomacy 79 Balfour, Lord 150, 186 Balkan War, First (1912-13) 154 Baltic States 162, 243, 304, 305 'barbarian' peoples: discovery did not extinguish title 44, 4 5 -6 Europeans assume right to conquer 4 4 -7 justifications for conquest of 49-51, 53-63 native title recognized 44 n., 45, 64 n. natural-law right to sovereignty 52 Papal grant did not extinguish title 4 4 -5 sovereign rights denied 4 3 -4 self-determination not applied to 62, 141 title extinguished by conquest or cession 44 -6 , 6 3 -6 unable to meet standards of 'civilization' 59 Vitoria on legal rights of 5 2 -3 see also non-Christian lands

'barbarian option' 61 n. Bedjaoui, Ambassador 42 n. Begin, Menachem 254, 261 belligerent occupation: annexation illegal during 112, 120, 218-24, 225, 249, 257 as distinct from subjugation 111, 114, 223 emergence of modern doctrine of 109-10 French Revolution's influence on modern concept of 120-4 Grotius foreshadows modern concept of 110 n. Israel in East Jerusalem 257-9 Israel in Golan Heights 260, 263, 265 law of 16 n„ 218-24, 229, 249, 257-9, 260, 266, 303 legitimate in self-defence 203, 205, 209-10, 258, 265 occupant's rights unlimited in seventeenth century 29-31 Prussia in Alsace-Lorraine 113-14 sovereignty not displaced by 109-11, 114, 217, 219-21, 224, 258, 260, 266 a temporary status pending conclusion of peace 110, 111, 114, 219-20, 221 n„ 224, 303 see also post-surrender occupation Benvenisti, E. 16 n., 228, 261 n. Benvenisti, Meron 252-3 Berlin Act (1885) 118 Berlin Congo Conference (1884-5) 118 n. Berlin Declaration (1945) 223 n. Bernhardi, Friedrich von 11 n. Bessarabia 171 Bindschedler, Rudolf 109 n., 201 n., 202 Bismarck, Otto von x, 88, 90, 92, 147 Blum, Y. Z. 211 n., 256 n., 258 n., 263 Bluntschli, C. 125 Boer War (1899-1902) 115-17 Bolivia 236, 237 n„ 240, 270 Bolshevik Revolution 137 see also Russian Revolution Bonfils, Henry 94 Bosnia-Herzegovina 305, 306 Bothe, Michael 201 n., 222 Bowett, D. W. 112 n., 2 0 3 -5 Brandenburg 71

Index Brandenburg, House of 68, 69 Brazil 237 n. Brest-Litovsk, Treaty of (1918) 137, 138, 155 Brierly, J. L. 9 n., 18 n., 246 Britain: annexation of Boer Republics 115-17 annexation of Burma 65 approves Soviet acquisitions in World War II: 162, 168, 171-3, 196, 243 and Baltic States 162, 243 cedes Golan Heights to FrenchMandated Syria (1923) 260 n. colonial rebellion in Canada 102-3 condemns annexation of Cracow 81-2 condemns annexation of SchleswigHolstein 84, 85 -6 , 128 conquest of Matabeleland and Mashonaland 66 conquest of Sudan 66 conquests in Southern Rhodesia 129-30 defeat of Turkey in First World War 158 defence of vital interests as ground for war 193-4 disposes of Iraq by right of conquest 156-7 and East Timor 284 and Falkland Islands 95, 104-8, 126 n., 275-8 and first partition of Poland 77, 79 and Gibraltar 9 6 -7 and Heligoland 123 in India 61, 62 in Ireland 35, 154 n. and Libya 119 in Mosul 156-8 on non-recognition 247 and Palestine 158 at Paris Peace Conference 145-8 and Poland 168 and Prussia 72 in Quebec 3 3 -6 recognizes Jordan's sovereignty in West Bank 258 and schemes for partition of Ottoman Empire 135, 158 n. and Syria 142 n., 158

327

on title by conquest under League Covenant 186 title to territory in America 63 on validity of title by annexation 80 see also British Empire British Empire: conquest of French Canada poses novel problem for 33 goal of 303 Japanese attacks on 195-6 'power and dignity' of 82 title to territory in India 59, 60, 64 Broglie, Due de, French Ambassador in Warsaw 77 Brownlie, Ian 71, 80, 106 n., 183, 193 n„ 194 n„ 195, 198, 199 n., 200 n„ 206, 208 n., 213 n., 242 n., 275 Bryce, Mr 116 Bryde, Brun-Otto 205 Bucharest, Treaty of (1913) 154 Bukovina, North 171 Bulgaria 152, 153, 154 Bull, Hedley v, vi, 13 n., 25 n., 41 n., 79 n., 190-1 Burma, British annexation of (1866) 65 Bush, President 294, 295-6 Cabot, John and Sebastian 47 Campbell v. Hall (1774) 123 Campo Formio, Treaty of (1797) 39 n. Canada: on Art. 10 of League Covenant 182, 183-4 British conquest of (1760) 33, 36 Canada Bill debates (1774) 3 3 -5 France authorizes subjection of natives in 47 French laws preserved in 35 French settlers in 33 Protestant settlers in 35 Quebec Act (1774) 33, 35 rebellion against British colonial rule (1837) 102-3 Roman Catholicism preserved as religion of Quebec 35 Caracas Protocol (1833) 237 Caroline case (1837) 102-4, 105, 107 Caroline Islands 164, 176 Castle, US Under-Secretary of State 239

328

Index

Catherine II (the Great), Empress of Russia 73 n., 77 Central Asia, Russian conquest of (1864-85) 59-60, 64, 65 cession, forced: attempts to outlaw 237 consent a legal fiction 127, 128 illegal since 1945 230, 232-3 impact on inhabitants 30-1, 38 legitimization through plebiscites 38, 85-6, 92, 303 mode of completing conquest 17, 123 moral equivalence of annexation and 18 n., 124 and practice of option 39 n., 91 validity of 19, 38, 93, 97, 98, 124-5 and 1969 Vienna Convention on Law of Treaties 230-4 see also peace treaties, imposed Chaco Declaration (1932) 240 Chandler, Senator 164 Chapultepec, Act of (1945) 242 Charles II, King of Great Britain and Ireland 64 Charles VI, Holy Roman Emperor 68 Charles, Archduke of Austria, Pretender to Spanish Crown 97 Charter of Organization of American States (1948) 242 Charter of United Nations, see UN Charter Chartered Companies 66 n. Cheng, Bin 234 n. Chiang Kai-shek 165 Chile 236-7, 269, 272 China 65 see also China, People's Republic of; China, Republic of China, People's Republic of: annexation of Tibet (1950) 2, 253 n. and UN debate on Falkland Islands 277, 278, 279 and UN action on Kuwait 296-7, 298, 299 n. China, Republic of 165, 194, 238-9, 269, 272, 278 Christian IX, King of Denmark 84 Christianity: and concept of terra nullius 42, 43 n„ 46 conversion of 'infidels' justifies conquest 49-51, 52, 56

and European expansion 42-5, 4 6 -7 just war doctrine in relations with non-Christians 47-8, 49, 51, 52, 55 Papal grant justifies conquest 44 -5 , 49-50, 51, 52 and sovereign rights of nonChristians 44, 48, 51, 5 2 -3 as standard of moral assessment of states 56 superior religion as ground for war 49, 52, 53 Churchill, Winston 162, 165, 166, 167, 168, 170, 171, 172, 173 civilization: assumption of superiority of European 56-9, 6 0-3 and concept of terra nullius 42, 43 n., 64 n. conquest as agent of 6 0-2 definition of standard of 59 failure to meet standards of 1, 56, 59-60, 61 Mandates as 'sacred trust' of 142 mission civilisatrice 57, 61 sovereign rights of 'barbarians' 44, 47, 61 Clarke, R. S. 281 n. Claude, Inis 143, 150 Cold War 289, 291, 293, 294 collective defence 176 n., 195, 200 collective sanctions: ineffective in reversing Italy's conquest of Abyssinia 242 Kellogg-Briand Pact not linked to any system of 192 League Covenant provisions for 180-1, 188 collective security system: basis of Wilsonian international order 151, 189 effective in reversing Iraq's conquest of Kuwait 292, 294, 300 effectiveness of no-conquest principle depends on effective 243-4 n., 245, 248, 281, 304 intended by UN Charter to be chief deterrent against aggression 215 Kellogg-Briand Pact not linked to 192 and Organization of American states 242 UN Charter provisions for 200, 215

Index colonial conquest, justifications for: conversion of infidels 49-51, 52, 56 failure to meet standards of 'civilization' 56, 59, 61 grant of Pope as temporal and spiritual lord of the world 44 -5 , 49-50, 51, 52 instituting civilized rule in 'backward' territories 56, 58-63 punishing transgressions against law of nations 52, 59 colonial enclaves 272-3 colonial expansion, see European expansion colonial rule: justified by civilizing mission 58-63 as 'permanent aggression' 268, 277 as preparation for self-rule 303 see also 'barbarian' peoples Colonialism, Declaration on (1960) 226, 268, 273 Columbus, Christopher 47 compensation, principle of 74, 138, 146-7, 158 n., 166, 168, 204 Concert of Europe 80 conquest: declarations of illegality of 209, 210, 238, 239-42, 2 4 3-4 definition of 9 8 -9 glorification of 60-1, 7 2-3 moral criticism of 10-11, 37, 81-2, 85-6, 91-2, 120-1, 136-8, 139-40, 144, 157, 184 a normal historical process 26, 48, 67, 89 conquest, completed: Allied occupation regime in Germany (1945) 222-3 implies evidence of intention to annex 99, 123 modes of achieving 9, 123-31 conquest, justifications for: appeal to judgement of God 11, 87 balance of power 73 -4, 77, 79, 138, 151, 184, 189 defensive conquest 170, 175, 177, 204, 250, 256, 262 dynastic claims 68, 69, 71, 74 economic necessity 153 eliminating a vestige of colonialism 268-9, 271, 273-4, 277

329

ethnic affiliation 89, 90, 167 n., 267, 282 historic title 2-3 , 89, 90-1, 145, 253, 267-8, 275, 282 imperial interests 138, 144 incurable misgovernment and disorders (Polish 'anarchy') 60, 75, 77 Lebensraum 195 liberation of national territory (irredentism) 90, 140-1, 267-9, 272-3 manifest destiny 58, 60 national unity 272-3, 273 n. obliterating arbitrary colonial borders 261, 293, 297 peace preserved among Great Powers 73-4, 75, 77 n. penalty for aggression 90-1, 92, 203-4, 212-13 political necessity 81, 87 prevention of future attacks 90, 93, 170, 174, 189, 193-4, 196, 204 principle of compensation 74, 138, 146, 158 n., 166, 168, 204 raison d'etat 70-1 reconquest of territory gained by aggression 196 reconquest of territory gained by illegal means 267-8, 277 redress for injuries received 92-3, 140, 145, 151 reparation for wartime losses 145-6, 151, 165-7, 169 restoration of peace and order 81, 251, 282, 285, 291, 293 reward for contribution to victory ('to the victors belong the spoils') 138, 144, 158-60, 165, 166, 167, 168-9 self-determination 154-5, 273, 274-5 strategic security 90, 92, 145, 147, 153, 170-2, 173-5, 204, 261 'survival of the fittest' (Social Darwinism) 11 n. threat of communist subversion 282 n., 285 see also colonial conquest conquistadores 49 Constantinople 136, 158 n. Cortes, Hernan 54, 63 Costa Rica 255 n.

330

Index

Cracow, Austria's annexation of (1846) 81-2, 100-1 Cracow, Convention of (1846) 81, 100 Crane, Melinda 250 n., 254 n. Crawford, James 41 n., 201 n., 208 n., 272 n„ 273 n„ 274, 275 Croatia 305 cultural backwardness 56 cultural superiority 5 6 -7 Curzon Line 167-8 Czechoslovakia 152, 153, 154, 156, 233, 240 n,, 242, 297 n. Cyrenaica and Tripolitana, see Libya Danzig 75, 77, 153, 173, 174 Day, Alan J. 2 n. De Arechaga, E. J. 235 n. de facto possession 111 de jure possession 111, 114 debellatio 9, 109, 125, 218, 219, 221-2, 224-5, 228-9 Declaration on Granting Independence to Colonial Countries and Peoples (1960), see Colonialism, Declaration on Declaration on Non-Recognition of the Acquisition of Territory by Force (1938) 241-2 Declaration of Principles of Inter-American Solidarity and Co-operation (1936) 241 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970) 209-10, 214, 227, 243, 249 n., 256, 260, 302 Denmark, defeat of (1864) 8 4 -5 Despagnet, Frantz 94 Deutsches Reich 90 Diena, Professor 119 Dinstein, Yoram 13-14, 99 n., 201 n., 220, 221 n„ 222, 228, 232 discoveries, age of 42, 51 discovery, right of 42-6, 6 3 -4 Disraeli, Benjamin 61 divine right of kings 302 Dobrudja, southern 154 Dolzer, Rudolf 105 n., 125, 126 n. dominium 30 Donelan, Michael 45 n., 48 Draft Declaration on the Rights and Duties of States (1949) 246-7

Dugard, John 271, 274 Dunn, James 281 n. duties of the conqueror 34, 35, 56 dynastic legitimacy 37 Eagleton, Clyde 183 East India Company, British 64 East India Company, Netherlands 66 East Indies, Dutch sovereignty in 64, 65 East Jerusalem 244, 250-60, 261 East Timor, Indonesia's annexation of (1976) 3, 281-92 East Timor case (1995) 287 n. Eastern Europe 79 Eban, Abba 253 Ecuador 269, 272, 299 n. Eden, Sir Anthony 165 n., 171, 172 effective occupation 118 effective possession: annexation requires 109, 112-13, 126-7 basis of title by conquest 8 -9 , 27, 96, 98, 109-20 basis of title by occupation 96 basis of title by prescription 27 evidence of 8 -9 , 110 n., 111-12 not sufficient condition for conquest 107-8 peaceful and permanent 109, 110 n., 111-12 effectiveness, principle of 245-6 Egypt, conquest of Sudan (1898) 66 Egyptian-Israeli Treaty of Peace (1979) 211 n. El Salvador 255 n. Elliott, P. D. 281 n. empire, concept of 62, 303 enclaves, see colonial enclaves England: explores North-East coast of North America 47 and India 59-60 and Ireland 35 rejects validity of Papal grant 43 n. and 'savages' in America 61 see also Britain Enlightenment 31, 36 Ethiopia, see Abyssinia Europe: national self-determination in 37, 38, 39-40, 62, 78, 84, 85-6, 89,

Index 91-3, 133, 135, 138, 139, 140, 144, 146, 151, 153-5, 157 right of conquest in 67-93, 156-7 scientific and social achievement in 57 European expansion: in Africa 41, 42-3, 44, 60, 65 -6 , 80 in America 4 5 -6 , 49-50, 57-8, 6 3 -4 , 80, 235 in Asia 42-3, 57, 59-60, 6 4 -5 , 80 in Australia 4 2 -3 limited role of terra nullius 4 2 -3 , 44, 46-7, 64 n. by right of conquest 41, 6 3 -6 ex factis jus oritur 28, 246 ex injuria jus non oritur principle: limitations of 245-6, 248 and non-recognition of conquest 234, 243, 256 n., 306 not applied to conduct of war 15-16, 221 n. prescription overrides 16-17, 27 right of conquest and x, 12, 27, 206 used to discourage aggressors 215 ex injuria jus oritur 14, 72 Falkland Islands: • Argentina's attempted reconquest of (1982) 275-80 Britain's seizure of (1833) 95, 104-8, 126 n. Falklands War (1982) 105, 275-7, 280 Fauchille, Paul 94 n., 100 n., 120 n. Feinberg, Nathan 206 n, Feis, Herbert 165, 172 Feisal, Emir 158 Ferdinand, King of Aragon and Isabella, Queen of Castile 45, 47 Finland 170, 171, 172-3, 240 n„ 243, 296 Fiore, Pasquale 94 First Geneva Protocol (1977) 217, 220 First World War: impact of Russian Revolution 135-7, 139 moral climate transformed after 1917: 135, 139, 151, 161 rise of self-determination 135-8, 139-40, 144, 151 secret treaties (1915-17) 135, 137, 138, 144, 158 n.

331

turning-point in history of law of conquest 12, 148-9, 189-92 US enters 135, 136-8, 139-40 war aims revised 135-8, 144, 161 see also Paris Peace Settlement Fisheries Jurisdiction case (1973) 230 Fitzmaurice, Judge 208 Foch, Marshal 147 The Foltina case (1814) 123 force, use of: under Kellogg-Briand Pact 192-9, 234 under League Covenant 180-92, 234 under traditional international law 12-14, 95, 99-104, 107-8 under UN Charter 199-210, 234, 245, 248 forced cession, see cession, forced Fourteen Points 138, 141, 148, 177, 184-5 Fourth Geneva Convention (1949) 214 n„ 219-21, 223-4, 257 n„ 258-9, 263, 265-6, 302 Fox, Charles James 33 Fraenkel, E. 149 n. France: in Algeria 59 authorizes subjection of natives in Canada 47 condemns annexation of Cracow 81-2 conquest of Madagascar 65 and first partition of Poland 79 Franco-Prussian War 87-9 Germany's annexation of Alsace-Lorraine 86 n., 87-93, 204 and Indo-China 64, 65 and Mosul 158 Napoleon's conquest of Hesse-Cassel (1806) 130-1 and schemes for partition of Ottoman Empire 135, 158 n. and Palestine 158 rejects validity of Papal grant 43 n. retrocession of Alsace Lorraine 140-1, 143 n. and Rhineland 145, 147-9 and Saar valley 145-7 and Syria 142 n., 158 see also French Revolution; Napoleonic Wars Francis I, King of France 47

332

Index

Franck, Thomas M. 2 n., 177-8, 272, 279 n„ 280, 281 n., 285, 288 Franco-Prussian War (1870-1) 39, 87-9, 91-2, 113-14, 147 Frankfurt, Peace Treaty of (1871) 39, 88, 91, 114 Frankfurt, Prussia's conquest of (1866) 86-7, 125 Frederick II (the Great), King of Prussia: conquest of Silesia 13 n., 67-73 'law of sovereigns is right of the stronger' 74 partition of Poland 74, 77 n. raises Prussia to great-power status 67, 70-1 respects religious liberties in Silesia 36 Frederick VII, King of Denmark 83 French Canada, see Canada French Revolution 37, 38-40, 78, 80, 120-2 FRETILIN 282-3, 285 Gastein, Convention of (1865) 85 Gaza Strip 250, 251, 252, 259 General Treaty for the Renunciation of War (1928), see KelloggBriand Pact Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), see Fourth Geneva Convention Geneva Protocol I on Protection of Victims of International Armed Conflicts (1977), see First Geneva Protocol Geneva Protocol for the Pacific Settlement of International Disputes (1924) 185-6, 202 n. Gentili, Alberico 49 Gentz, Friedrich von 78-9 George III, King of Great Britain 77, 105 German Confederation 82, 83, 84, 86 Germany: African and Pacific colonies 141 Allied occupation regime in 177, 222-3 annexation of Alsace-Lorraine (1871) 39, 86 n„ 87-93, 204 annexes Austria and Czechoslovakia (1938-9) 242-3

appeasement of 289 Atlantic Charter and 163 imperial mission to implant Kultur 60 Kellogg-Briand Pact and offensive wars of aggrandizement 195 national reorganization of 87 Nazi-Soviet partition of Poland (1939) 167 n. and North Schleswig 86 n. territorial dismemberment in 1945: 166-8, 170, 173-5, 204, 213-14 Versailles settlement 143-4, 145-9, 152-3, 189 Gerson, Allan 149, 250 n. Gibraltar dispute 9 6-8 Goa: India's annexation of (1961) 253 n., 267-75, 277-8, 280, 305 Portugal's title to 98 n., 268 Goebel, Julius 105 n. Golan Heights 244, 250, 260-7, 306 Gooch, G. P. 68 n., 69, 71 Gorbachev, President 294 Gorchakov, Prince, Chancellor of the Russian Empire 59-60, 65 Graber, D. A. 110 n. Greece 153 n., 156 Greenspan, Morris 201 n., 212 n., 215 n. Greig, D. W. 106 n., 235 n. Grenville, J. 9 n. Grey, Sir Edward 119 Grotius, Hugo 7 n„ 18-25, 29-31, 49, 55, 110 n., 204, 267, 307 Gulf conflict (1990-1), see Kuwait, Iraq's annexation of Gustafson, Lowell 105 n., 106, 107 Guyana 278 Habsburg dominions 68 Habsburg Empire, see AustroHungarian Empire Hague Convention II on Limitation of Use of Force for Recovery of Contract Debts (1907) 179 Hague Regulations on Laws and Customs of War on Land (1907) 118 Halberstam, Malvina 201 n. Hall, William E. 8 n., 16-17, 26, 38, 127 n„ 130-1 Halleck, H. W. 8 n„ 31 n.

Index Hanover, Prussia's conquest of (1866) 8 6 -7 Harcourt, Sir William 116 Harris, D. J. 106 n„ 211 n, Heeren, A. H. L. 75 Heffter, A. 125 Heligoland 123 Henry IV, King of France 47 Henry VII, King of England 47 Hershey, Amos S. 8 n., 127 n. Hesse-Cassel: Napoleon's conquest of (1806) 130-1 Prussia's conquest of (1866) 86-7, 125 Higgins, Rosalyn 200 n., 201 n., 225 n., 268 n. Hobbes, Thomas 22, 26 Holbrooke, Richard 2 8 4-5 Holland 43 n., 59 see also East Indies Holland, T. E. 8 n. Holy Roman Empire 39 n., 89, 90 Holy War 51 Howard, Sir Michael 48, 57, 72, 92 Huber, Max 127 Hughes, A. D. 2 n. Hughes, US Secretary of State 159-60 human rights 15-16, 32 n., 33, 122 see also International Covenants on Human Rights Hungary 68, 152, 153, 154 Hussein, Saddam 293, 294, 295, 297 Hyde, Charles Cheney 8 n., 125, 189-90, 241 imperium 30 India: annexation of Goa (1961) 253 n., 267-75, 277, 280, 305 British rule in 61 British title to territory in 59, 60, 64 'colonial conquest does not give title' 98 n„ 267-8 doctrine of 'permanent aggression' 268, 277 Karl Marx on England's mission in 62 Indians, American 45, 48, 50, 52, 53, 54, 56, 57 n„ 58 n. Indies, the 45, 49-50, 55, 63 see also America; New World

333

Indo-China, French rule in 64, 65 Indonesia 3, 281-92 inhabitants of conquered territory, rights of: in seventeenth century 29-31 from mid-eighteenth century 3 1 -7 in nineteenth century 37-40, 9 1 -2 from mid-twentieth century 16, 214 n., 219-21, 2 2 4 -5 , 228-9 Inter Caetera (1493) 45 International Commission of Jurists 281 n. International Covenants on Human Rights (1966) 227-8, 229 International Law Association 196 International Law Commission 231, 247 International Military Tribunals at Nuremberg 15 n., 195 at Tokyo 195-6 see also Nuremberg Judgement; Nuremberg Trial international morality 13, 37, 40, 61, 62, 70, 76, 77, 93, 124, 216 International Trusteeship System 177-8, 225-6, 226 n., 303 intertemporal law, principle of 12-13 Iraq: annexation of Kuwait (1990) 215-17, 292-301 Britain claims right of conquest in 156-7 Ireland 35, 154 n. irredentism 144, 151, 305 Isabella of Castile, see Ferdinand of Aragon Island o f Palmas case (1928) 96 Israel: annexation of East Jerusalem: 244, 250-60, 261 annexation of Golan Heights: 244, 250, 260-7 see also Middle East peace Italia irredenta 144 Italy: acquires South Tyrol 153 annexation of Libya (1911) 117-19, 129 conquest of Abyssinia (1936) 193, 194, 242 demands northern Dalmatia 144 demands southern Anatolia and Smyrna 158

334

Index

Italy (cont.): revisionist power in inter-war years 151 n. and schemes for partition of Ottoman Empire 135, 158 n. Japan: acquires German rights in Shantung 143 n., 153 conquest of Manchuria (1931) 193-4, 238-40 imperial mission in Asia 60 intervention in Siberia (1919-21) 175 Kellogg-Briand Pact and offensive wars of aggrandizement 195-6 and Russo-Japanese War (1904-5) 168 n., 175 Soviet 'reconquest' of South Sakhalin and Kurile Islands 168-9, 175-6, 196, 243 territorial dismemberment in 1945: 166-8, 170, 173-5 US claim to retain Japanese Mandated Islands 162-3, 163-5, 169, 176-7 Jennings, R. Y. 9 -1 0 n., 102, 107, 203-5, 206-7 Johnson and Graham's Lessee v. McIntosh case (1823) 46 Johore, King of 66 Jordan 250, 251, 252, 256, 258, 264, 278 jus ad bellum 19 jus cogens 275 jus gentium 22 jus in bello 19 n., 212, 220, 221 n. see also laws of war just war doctrine 19, 48, 49, 52 -3 , 55, 99 n. Keen, M. H. 11 n. Kelsen, Hans 245 Kellogg-Briand Pact (1928) 99, 179, 192-9, 213 n„ 234, 238-40, 243, 302 Klüber, Jean-Louis 125 Knox, Frank, US Secretary of the Navy 163-4 Königsberg, Soviet annexation of 166-7, 168, 173, 174, 243 Kosciuszko, Tadeusz 7 5 -6 Kurdistan 153 n. Kurile Islands 168-9, 175-6, 196, 243

Kussbach, Erich 41 n., 98 Kuwait, Iraq's annexation of (1990) 215-17, 292-301 Langer, Robert x, 82, 171 n., 236 n., 237 n., 241 n„ 243 n. Langer, William L. 11 n. Latin America: attempts to circumscribe 'law of conquest' in 236-8, 240-2 new states adopt uti possidetis principle: 235 see also American continent; American States Lausanne Conference (1923) 156 Lausanne, Peace Treaty of (1912) 119 Lausanne, Treaty of (1923) 152 Lauterpacht, Elihu 201 n., 256 n. Lauterpacht, H. 10 n., 15 n., 20, 124 n., 179, 185, 188, 200 n., 222, 239 Lawrence, Peter 281 n. Lawrence, T. J. 8 n. laws of war: apply equally to aggressor and victim 14-16, 19-20, 220-1 protect human beings 15-16, 258 regulate conduct of war 14, 15, 19-20, 100 legalized use of force as means of acquiring territory 28, 100, 104 see also belligerent occupation, law of and jus in bello League of Nations: Covenant 17, 40, 99, 159, 179, 192, 193, 195, 199, 234, 243, 302 and Italo-Abyssinian war 193-4, 242 and Japan's seizure of Manchuria 193-4, 238-40 organ of collective security 148 n., 151 trusteeship of the Saar 146-7 see also Mandates System and next entry League of Nations Covenant, Articles of: 10: guarantee of territorial integrity 181-92, 198-9, 200, 202, 210, 239 12, 13 & 15: distinction between legal and illegal wars 180-1

Index 15(7): permits resort to war if no unanimous Council report 181, 184, 188 16: collective sanctions against illegal war 180, 182, 187, 188, 199 19: Assembly may recommend territorial changes 187, 190, 191 22: Mandates System 142 Leahy, Admiral, US Chief of Staff to the President 164 Lebensraum 195 Legal Consequences fo r States o f the Continued Presence o f South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion (1971), see Namibia Opinion (1971) Legal Status o f Eastern Greenland case (1933) 102 legitimacy, political 37, 133, 143, 148, 303 Lenin, Vladimir Ilyich 137, 139, 303 lex talionis 216 Libya, Italian annexation of (1911) 117-19, 129 Lindley, M. F. 8 n , 43, 44, 46, 119 n„ 124 Lindsey, John 106 Lithuania, Grand Duchy of 73, 75 Lloyd George, David 137, 138, 145-6, 148 London, Treaty of (1915) 138 n., 144 Louis XIV 89, 120 Louis XV 79 Lytton, Lord, Indian Viceroy 61 Lytton Commission Report (1932) 193-4 Macaulay, Lord x, 69 Macedonia 154 Macht geht vor Recht x see also might is right McMahon, Matthew M. 54, 55, 95 n., 101 n., 102, 107, 128 n., 130 n., 183, 184, 191, 196, 198 McNair, Arnold D. 185 Madagascar, French conquest of (1896) 65 Malvinas, see Falkland Islands Manchukuo 238

335

Manchuria, Japanese seizure of (1931) 193-4, 238-40 'Mandate of Heaven' 48 Mandates System: to counter 'imperialism' as a cause of war 150 doctrine that sovereignty resides in victors 150, 159-60 legitimized colonial conquests 142-3 limited rights of conqueror 149-50 orderly division of spoils of vanquished 150 n. peak of imperial expansion 141-3, 149-50, 177 self-determination not guiding principle 141-2, 142 n., 150 n., 177 manifest destiny 58, 60, 90 Manning, C. A. W. 10 n, Maria Theresa, Empress of Austria 68, 71, 72 n., 74, 77 n. Mariana Islands 164, 176 Marshall Islands 164, 176 Martens, G. F. de 119 n., 125 Marx, Karl: on England's mission in India 62 on Prussia's annexation of Alsace-Lorraine 9 1 -2 Mashonaland, British conquest of (1894) 66 Matabeleland, British conquest of (1894) 66 Mayall, James 61 n. Mein Kampf 195 Mendez, Costa 276 n., 277 Mexican War (1846-8) 80 Mexico, Spain's conquest of (1518-21) 63 Meyrowitz, Henri 221 n. Micronesia 164 Middle East peace: SC Resolution 242 (1967) 210-12, 256 n., 263, 266, 295-6 SC Resolution 338 (1973) 263, 266 see also East Jerusalem; Golan Heights might makes right 9, 11 n., 17, 25, 95, 155, 222, 306 see also Macht geht vor Recht military occupation, see belligerent occupation

336

Index

Mill, John Stuart 61 -2 Miller, David Hunter 183, 186 Minorities Treaties 156 Moldavia 34 Molotov, V. M. 167 n., 174 Moltke, Helmuth von 147 monarchy's tradition of war and conquest 48, 67, 71, 73, 73 n. Monroe Doctrine (1823) 108 n., 193, 235 Montluc, L. A. de 94 Montesquieu, Baron de 32, 34, 73 Montevideo Convention on Rights and Duties of States (1933) 241 Monts, de 47 Moore, John Bassett 8 n., 237 n. More, Thomas 57 Morocco 2, 253 n„ 292, 297 Mosul 156-7, 158, 160 Moynihan, Daniel Patrick 285-6 Murphy, C. F. 23 n. Namibia 244 Namibia Opinion (1971) 208 n., 244 Napoleon I, Bonaparte, Emperor of France 37, 80, 130-1 Napoleon III, Emperor of France 88, 91, 92 Napoleonic Wars (1802-15) 37, 80, 110, 123 Nassau, Prussia's annexation of (1866) 86, 125 national liberation movements in Europe 38 'nationality', doctrine of, see self-determination native tribes, see 'barbarian' peoples'; non-Christian lands NATO countries 283 natural law doctrine 22, 52-4, 55, 204 Netherlands, Austrian 68 Neuilly, Treaty of (1919) 152, 153 New England 35 New World: Papal and Spanish claims to 49-50 posture of European powers in 4 2 -7 Protestant claim of right of expansion in 58 Roman Catholic claim of right of expansion in 58

Spanish and Portuguese conquests in 47-8 Vitoria rejects Papal and Spanish claims to 52, 55 see also America Nicholas V, Pope 44 non-Christian lands: and concept of terra nullius 42-3, 44, 46-7, 64 n. European assumption of right to conquer 43-5, 46-7, 49-51, 57-63 Papacy assumes right to conquer 4 4 -5 , 46-7, 51 Vitoria denies automatic right to conquer 5 2-5 see also colonial conquest, justifications for non-recognition, principle of: alternatives to 82 application 238-40, 244, 253-5, 263-5, 295 failure to apply 242-3, 270, 274-5, 2 84-9 as legal duty 234, 236-8, 240-2, 243-4 limitations of 245-8 non-self-governing territories 226 n., 267, 268, 269 n„ 270, 273, 288 North German Confederation 88, 90 Northern Schleswig 83-5, 86, 92, 144 Nuremberg Judgement 29 Nuremberg Trial 15 n., 221 occupation, military, see belligerent occupation occupation of terra nullius, title by 42-3, 44, 46, 96 O'Connell, D. P. 43 n„ 109, 122, 123 Oder-Neisse Line 168, 174-5, 198, 223 n. Oppenheim, L. 7, 8 n., 38, 39 n., 95, 100 n„ 101, 128, 217-18 option, practice of 39 n., 91 see also plebiscites Orange Free State, British annexation of the (1900) 115-17 order and justice, conflict between 20, 23-5, 25-6, 151, 162, 266-7, 304, 306, 307 Osgood, Robert 245 n.

Index Ottoman Empire: fall of 303 Middle Eastern territories 142 n., 158 n. right to dispose of Turkish territories 156-60 practice qua conqueror 34 schemes for partition of 135, 158 n. Pacific: 'barbarians' of the 141 German colonies in 141 US claim to retain Japanese Mandate in 162—3, 163-5, 169, 176-7 Pacific, War of the (1879-83) 236-7 Pacific Islands Mandate 163, 164, 165, 169 Pacific Islands Strategic Trusteeship, see Strategic Trusteeship of the Pacific Islands pacta sunt servanda 18, 232 n. Pakistan 258, 297 Palestine 158, 250-1, 252, 259, 260 see also Israel Palmerston, Lord 82, 97 n. Panama Canal 193 Papacy: assumes right to depose native rulers 4 4 -5 , 4 6 -7 holds the ring between Spain and Portugal 45 Inter Caetera (1493) 45 supports Portuguese conquests in West Africa 44 supports Spanish conquest of the Indies 45, 63 supremacy of 50, 52 Papal grant: bestowed exclusive rights of acquisition 43-5, 51, 63 legitimized wars of conquest 4 4 -5 , 51 not widely recognized by fifteenth century 43 n. Paraguay 240 Paris, Peace of (1763) 33 Paris, Treaty of (1815) 39 n. Paris, Treaty of (1898) 39 n. Paris Peace Settlement (1920): exceptions to self-determination 140-1, 153-5 plebiscites 86 n., 143-4, 152

337

and principle of self-determination 144-9, 151, 152-5, 157, 161 right of conquest 149-50, 152, 155-61, 190-1 see also Mandates System patrimonialism 31, 36-7, 3 8 -9 , 302 peace treaties, imposed: consent a legal fiction 127, 128, 231-2 n. and international order 20-1, 23-5, 2 5 -6 and legal termination of war 25-6, 127 as opposed to voluntary 211 n. validity of 17-18, 21-2, 123-5, 231 see also cession, forced Peacock, Andrew 286-7 permanent aggression, doctrine of 268-9, 277 Peru: Spain's conquest of (1533) 63 and War of the Pacific (1879-83) 236, 237 n. Philippines, US annexation of (1898) 39 n„ 80 Phillimore, Robert 8 n., 64 Phillipson, Coleman 8 n., 25 n,, 39 n., 49 n., 93, 101 n., 110, 111 n., 112 n., 113, 114 n., 115, 117 n., 118 n., 124, 127, 130 n. Pizzaro, Francisco 63 plebiscites: to legitimize annexations 38, 85-6, 92, 122, 303 in 1919 peace settlement 86 n., 143-4, 152 Poland: annexation of Eastern Germany 168, 170, 173-5, 204, 223 n„ 243 corridor for German attack on Russia 170 Cracow incites revolt in 81 and Germany 167, 203 partitions of (1772-95) x, 67, 72, 73-80, 101, 124, 151, 306 and 1919 peace settlement: 153, 154, 156 recovers independence (1918) 76 n., 154 Soviet annexation of Eastern 167-8, 170, 204 in UN debate on Falkland Islands 278-9

338

Index

Polish-Lithuanian Commonwealth 73 Politz, Karl 125 Poortugael, General Den Beer 116 popular sovereignty 36, 121-2, 228, 302, 303 see also self-determination Portugal: conquests in New World 43 n., 44, 45, 47, 58 and East Timor 281-3, 285-8 and Goa 98 n„ 267-72, 273 n„ 274, 280 post-surrender occupation 149, 177, 222-5, 228-9 Potsdam Agreement (1945) 166, 168, 174, 198, 223 n„ 243 Pradier-Fodéré, P. 94, 125 Pragmatic Sanction 68-9, 72 n. Prague, Treaty of (1866) 86, 92 Prescott, William H. 43 n., 50-1, 58, 63 n. prescription, principle of 16-17, 26-7, 69, 101, 106, 128, 275 Prussia: annexation of Schleswig-Holstein (1866) 82 -6 , 128 becomes a Great Power 67 conquest of four members of German Confederation (1866) 86-7, 125 conquest of Silesia (1740) 13 n., 36, 67-72 Franco-Prussian War (1870-1) 39, 87-9, 91-2, 113-14, 147 hereditary claims in Silesia 68-9 occupation of Alsace-Lorraine (1870-1) 113-14 Puerto Rico, US annexation of (1898) 39 n„ 80 Pufendorf, Samuel 2 1-4 Quebec, see Canada racism 57 Rayneval, G. 125 raison d'état 70-1 realpolitik 71, 289 'Requirement', the (1513) 50 Rhineland 145, 147-9 Rhodesia, Southern 129-30 right of conquest: aids termination of wars 18-25, 266

consequences for international law 8-18 creates stability by legalizing status quo 2 5 -6 defined 8 -9 , 9 8-9 in Europe 67-93 and European expansion 41-66 favours the stronger 9-12, 18, 155 flows from legality of war 14, 28, 94-5, 99-100, 104, 107-8 recognized by international law 7-8, 80, 9 4 -6 renunciation of 121, 136, 138-9, 140, 155, 189-92 restrictions on 13, 38-40, 94, 95, 98, 116, 150, 161 a right based on might 9-11, 18, 85-6, 9 4 -5 , 128 a 'right' and not just a power 95 and self-determination 37-40, 120-2, 139-40, 161, 227-9 Right o f Passage over Indian Territory case (1960) 268 n. 'right of the strongest' 9 n., 73, 101, 121

rights of the conqueror 29-40, 54, 93, 144, 150, 303 rights of man 32 n., 121 Roberts, Adam 219 n., 220 n., 223 Roberval, de 47 Rolin-Jacquemyns, Gustave 91 Romania 135, 153, 154, 156, 171 n., 243 Romans, the 61 Rousseau, Jean-Jacques 9 n., 11 n., 31-2, 37, 121 Russian Empire: conquest of Central Asia (1864-85) 59, 60, 64, 65 conquest of Siberia (1581-98) 65 conquest of the Steppe 65 conquest of Turkestan 65 fall of 135-6, 303 founded on conquest of 'barbarous tribes' 61 schemes for partition of Ottoman Empire 135, 158 n. and Sweden 13 n., 24 n. see also Soviet Union Russian Revolution 135-6 see also Bolshevik Revolution

Index Russo-Japanese War (1904-5) 168 n., 175 Saalfield, F. 125 Saar 145-7, 149 Saavedra Lamas Pact (1933), see Anti-War Treaty of NonAggression and Conciliation Saigon, French capture of 65 Saint Germain-en-Laye, Treaty of (1919) 152, 153 St Jean de Maurienne Agreement (1917) 158 San Remo Conference (1920) 142 n. Saudi Arabia 292, 295, 297, 299 n, Schleswig-Holstein 82 -6 , 128 see also Northern Schleswig Schmalz, T. 125 Schwarzenberger, Georg 53 -4 , 108-9, 120, 200 n„ 22 1 -2 Schwebel, Stephen M. 201 n., 218 n., 256 n. Second World War: Berlin Declaration (1945) 223 n. colonial territories of the defeated states 177-8 forcible transfer of populations 175, 198, 214 n. forcible transfer of territory 166-74, 243 see also Potsdam Agreement; Yalta Agreements self-defence, right of: and Kellogg-Briand Pact 193-4 in UN Charter 200 as a justification for conquest 182, 189, 197-8, 202-12 self-determination: and Atlantic Charter 162, 163, 169, 172, 174-5 colonial enclaves and 272-3 and decolonization 225-6, 303 in eighteenth-century Europe 37, 78 exceptions to 272-3, 273 n., 276 imperialists deny applicability of 62, 141 a legal right 227-8 Mandates System and 141-2, 142 n., 150 n., 177 and national unity 2 7 2-3 in nineteenth-century Europe 37, 62, 8 4 -6 , 89, 91-3, 151

339

non-self-governing territories and 226 n. in 1919 peace settlement 133, 135, 138-40, 144, 146, 151, 153-5, 157 plebiscitary consent to transfers of sovereignty 37-9, 85 -6 , 92, 122, 140, 171-2, 273, 303 and right of conquest 37, 120-3, 139-40, 227-9, 274-5, 305 and territorial integrity 272-3 Trusteeship System and 177, 225-6 in UN Charter 225-6 used by victors as weapon against vanquished 15 4 -5 self-help 183, 192 self-preservation 193-4 Senior, Nassau W. 25 n. Serbia 154, 305 Seven Years War (1756-63) 33, 72 n. Sèvres, Treaty of (1920) 152, 153 Shafirov, Vice Chancellor of Russian Empire 13 n. Shantung 143 n., 153 Shaw, Malcolm 2 n., 13 n., 41 n., 44 n., 64 n., 104 n., 106 n., 107 Shawcross, Sir Hartley, UK Chief Prosecutor (Nuremberg Trial) 15 n., 199 Siberia: intervention in (1919-21) 175 Russia's conquest of (1581-98) 65 Sidgwick, Henry 2 4 -5 Silesia: prescriptive rights of Austria in 69 Prussia's conquest of (1740) 13 n., 36, 67-72 Prussia's hereditary claims in 6 8 -9 Silesian Wars 72 n. Sinclair, Ian 231, 2 3 1-2 n. slavery 30, 32, 34, 35 Smuts, General 141 Smyrna 153 n., 158 Social Darwinism 11 n. Sorel, Albert 71 n., 74 n., 80 n. South Africa Company, British 129-30 South Sakhalin 168-9, 175-6, 243 South Tyrol 153 Southern Rhodesia 129 Southern Rhodesia, In re (1919) 65-6, 129-30 sovereignty of the people, see popular sovereignty

340

Index

Soviet-Japanese Neutrality Pact (1941) 169 n., 175 Soviet Union: acquisition of defensible frontiers 204 annexation of Baltic States (1940) 162, 243, 304, 305 annexation of Königsberg 166-8, 243 annexation of Eastern Poland 167-8, 170 annexation of Bessarabia and North Bukovina 171, 243 annexation of Finnish territory 170, 171-2 motive for entering war against Japan 169, 175-6, 196 'reconquest' of South Sakhalin and Kurile Islands 168-9, 175-6, 196, 243 and UN debate on Falkland Islands 279 see also Russian Empire Spain: conquest of Mexico (1518-21) 63 conquest of Peru (1533) 63 and Falkland Islands 105, 276, 278, 279 and the Indies 45, 47, 49-50, 55, 58 Spanish-American War (1898) 39 n., 80 Spanish naturalists 54 Spanish Succession, War of the (1702-13) 96 sphere of influence 44 n. Stalin, Joseph 165-73, 175 status quo post bellum 112 Stephan, John 169, 176 n. Steppe, Russia's conquest of the 65 Stimson, Henry, US Secretary of War 176-7 Stimson Doctrine 234, 238-9, 243 n. Stone, Julius 201 n., 214-15, 218 n„ 233 n., 234, 256 n. Strategic Trusteeship of the Pacific Islands 163, 169 subjugation 7, 25 n., 99, 101-2, 109-12, 114, 115 n., 117-18, 120, 122, 125-7, 217-19, 222-3, 228 Sudan, Anglo-Egyptian conquest of (1898) 66 Suez Canal 193 Suganami, Hidemi 10 n.

Suharto, President 282 n. Sybel, Heinrich, von 90-1 Sykes-Picot Agreement (1916) 158 Syria 142 n„ 158, 250, 260-7, 297, 306 Taylor, John G. 281 n. Temperley, H. W. V. 76 n., 89-90, 92-3, 156 terra nullius, concept of 42-3, 44, 46-7, 64 n„ 235 territorial boundaries: based on ancient conquest 26, 89 evolution in Europe 67 territorial integrity: meaning of UN Charter reference to 268 n. right of aggressors to 182-6, 188-9, 197-9, 200-2, 209-16, 229, 243, 256, 257, 300-1 self-determination and 272-3 Wilson plans organ to punish violations of 137, 185 Texas, US annexation of (1848) 80 Thornton, A. P. 56 n., 61, 160 Thurlow, Edward 35 Tibet 2-3, 253 n. Tilsit, Treaty of (1807) 130 Timor Gap Zone of Cooperation Treaty (1991) 287-8 title by conquest: anti-colonial view on 98 n., 267-8 cause of war immaterial 12-13, 19-20, 99-100, 104 consent immaterial 106, 126-8 and European expansion 41, 6 3 -6 legitimized by plebiscite 38, 85-6, 92, 121-2, 303 and principle of intertemporal law 12-13 unpopular outside colonial sphere 62, 93 war a precondition for valid 99-109, 126 n. see also conquest, completed; right of conquest titles jure belli 235 see also title by conquest Tlaxcala, the 54 Togo 278 Tonking 65 Transvaal, British annexation of (1900) 115-17 treaties of peace, see peace treaties

Index Treitschke, Heinrich von 61 trial by battle 11 Trianon, Treaty of (1920) 152, 153 tribal societies, see 'barbarian' peoples; non-Christian lands Tripolitana and Cyrenaica, see Libya Trotsky, Leon 137 Trusteeship System 177, 225, 226 n., 270, 303 Tucker, Robert W. 14, 59, 150 n., 245 n„ 246 n. Tunkin, G. I. 200 n., 212-14 Turco-Italian War (1911-12) 117-19 Turkestan, Russian conquest of 65 U Thant 253 Uganda 278, 279-80 UN Charter, Articles of: 1(1): international peace and security through effective collective measures 215 1(2): friendly relations based on respect for self-determination 225, 226 n. 2(3): all disputes to be settled by peaceful means 199, 249 n., 257, 260, 269-70 2(4): non-use of force against territorial integrity 199-202, 208, 209-14, 227, 232, 249 n., 260, 268 n., 269-70, 271, 279 24(2): limited powers of Security Council 201, 208-9, 210 25: Security Council decisions binding 208-9, 264 39: identification of aggressors 200, 207, 208; restoration of international peace and security 200, 208, 264 41: non-forcible sanctions 200 42: power to undertake military action 200 51: right of individual or collective self-defence 200, 201, 202, 203-9, 297 55: respect for principle of equal rights and self-determination 225, 226 n. 73: Non-Self-Governing Territories 269 107: action against ex-enemy states 213-14, 301 n.

341

UN Charter, Chapters of: VII: Action with Respect to Threats to the Peace, Breaches o f the Peace, and Acts o f Aggression 199-200, 202, 208-9 XI: Declaration regarding Non-SelfGoverning Territories 225-6 XII: International Trusteeship System 226 n. United States: annexation of Texas (1848) 80 annexation of Philippines (1898) 39 n., 80 annexation of Puerto Rico (1898) 39 n., 80 claim to retain Japanese Mandated Islands 162-3, 163-5, 169, 176-7 conquest of Mexican lands 58 conquest of Native American lands 58 enters First World War (1917) 135, 136-7 and Mexican War (1846-8) 80 and Monroe Doctrine 108 n., 193, 235 and Spanish-American War (1898) 39 n., 80 on title to the Falkland Islands 107, 108 westward expansion of 57-8, 60, 235 United States v. Hayward (1815) 114 USSR, see Soviet Union uti possidetis, principle of: acceptance of status quo post bellum 112, 119 n. acceptance of inherited colonial boundaries 235 Utopia 57 Utrecht, Treaty of (1713) 9 6-7 Vattel, Emmerich de 7 n., 10-11, 18-20, 25-6, 27-8, 31-2, 36-7, 55, 57, 110 n., 204, 207, 307 Vereeniging, Peace of (1902) 115 n. Versailles, Treaty of (1919) 143-4, 152-3, 159-60 Verzijl 66 n. victory in war, moral significance of: denied by Vattel 10-11 in Middle Ages 11 in Social Darwinism 11 n. Vienna, Congress of (1814-15) 83, 151

342

Index

Vienna, Final Act of Congress of (1815) 80, 81, 85 Vienna, Treaty of (1864) 84, 128 Vienna Convention on the Law of Treaties (1969) 230-4, 302 Vinson, Carl 176 Vitoria, Franciscus de 48, 49, 51, 5 2 -6 Wallachia 34 Walt van Praag, Michael 2 n. Waltheim, Kurt 263 war: decision of 10-11, 87 idea of 30, 3 1 -2 international relations as Hobbesian state of 26 legal and illegal 180 legal termination of 26, 223-4 material termination of 111-12, 221 , 222

necessary for valid conquest 99-109, 126 n. of sanction 194-5, 196, 198-9 Wedderburn, Alexander 33, 34 West Bank 250-3, 256 n., 258-9 West Irian 282 n. West Timor 282 n. Western Sahara 2-3, 253 n., 292 Western Sahara Advisory Opinion (1975) 42 n„ 43 n„ 273 n.

Westlake, John 8n ., 116 n. Westphalia, Kingdom of 130-1 Westphalia, Peace of (1648) 99 Wheaton, Henry 8 n., 67, 76 n. Wight, Martin 44 n., 51 Williams, John Fischer 95-6, 126, 184 n., 186-7, 188-9 Wilson, Woodrow 136-8, 139-40, 141, 145-6, 148, 149, 151, 153, 155, 157, 158 n„ 184-5, 189, 190, 303 Wilsonian principles 138-9, 143, 145-7, 149, 156-7, 161-2, 189 Winter War (1939-40) 171 Woodward, William Harrison 33 n. Woolsey, T. D. 8 n., 75 n. Worcester v. State o f Georgia case (1832) 46 Wright, Herbert 197 Wright, Quincy 42, 44, 53 n., 159, 183, 210-11, 269 n., 271, 273 n. Yalta Agreements (1945) 168-70, 173, 176, 196, 243 Yugoslavia 144, 153 n., 154, 156 Yugoslavia, Federal Republic of (Serbia and Montenegro) 305 Yugoslavia, former 304 Zaire 278 Zimmern, Alfred 182 n., 186