Brunk & Hakimi: The Prohibition of Annexations and the Foundations of Modern International Law

Ingrid (Wuerth) Brunk (Vanderbilt Univ. - Law) & Monica Hakimi (Columbia Univ. - Law) have posted The Prohibition of Annexations and the Foundations of Modern International Law (American Journal of International Law, forthcoming). Here's the abstract:

The international legal norm that prohibits forcible annexations of territory is foundational to modern international law. It lies at the core of three projects that have been central to the enterprise. The first focuses on settling title to territory as the basis for establishing state authority. The second regulates the use of force across (settled) territorial borders. The third provides for the people within each state’s (settled) borders collectively to determine their own fates. The norm that prohibits forcible annexations is integral to each of these projects independently, and by tying them together, has had a transformative effect on the legal system as a whole.

However, this prohibition is also misunderstood, both as a matter of history and in its relationship to other contemporary international legal norms. Because it is intertwined with all three of the above projects, its origins cannot be traced to only one or the other. The common narrative that describes it as the inevitable outgrowth of regulating war is, therefore, misleading and incomplete. That narrative overlooks the role that formerly colonized states played in securing this norm while seeking to establish themselves as states, through decolonization and claims of self-determination. In modern doctrine, too, the prohibition of annexations is often subsumed into the general prohibition on the use of force, when in fact, its normative influence extends much more broadly.

As a result, the norm’s significance and position in modern international law are consistently overlooked. Analysts have also, by and large, failed to appreciate that it is now caught up in a broader contest over the future world order and at risk of erosion. As deeply flawed as the previous world order was, jettisoning this norm is a dangerous path forward. From Ukraine to Palestine, Israel, the Nagorno-Karabakh region, the Golan Heights, Western Sahara, and the Chagos Archipelago, states and nonstate actors alike care deeply about exercising power over territory, which has historically been a primary impetus of interstate war.

Vidmar: Territorial Status in International Law

Jure Vidmar (Maastricht Univ. - Law) has published Territorial Status in International Law (Hart Publishing 2024). Here's the abstract:

This book develops a new theory of territorialism and international legal status of territories. It (i) defines the concept of territory, explaining how territories are created; (ii) redefines the concept of statehood, illustrating that statehood (rather than the statehood criteria) is territorial legal status established in the formal sources of international law; and (iii) grounds non-state territorial entities in the sources of international law to explain their international legal status. This fresh new theoretical perspective has both scholarly and practical importance, providing a tool helping decision-makers and judges in the practical application of international law both internationally and domestically.

Stilz: Territorial Sovereignty: A Philosophical Exploration

Anna Stilz (Princeton Univ. - Politics) has published Territorial Sovereignty: A Philosophical Exploration (Oxford Univ. Press 2019). Here's the abstract:

Territorial Sovereignty: A Philosophical Exploration offers a qualified defense of a territorial states-system. It argues that three core values-occupancy, basic justice, and collective self-determination-are served by an international system made up of self-governing, spatially defined political units. The defense is qualified because the book does not actually justify all the sovereignty rights states currently claim, and that are recognized in international law. Instead, the book proposes important changes to states' sovereign prerogatives, particularly with respect to internal autonomy for political minorities, immigration, and natural resources. Part I of the book argues for a right of occupancy, holding that a legitimate function of the international system is to specify and protect people's preinstitutional claims to specific geographical places. Part II turns to the question of how a state might acquire legitimate jurisdiction over a population of occupants. It argues that the state will have a right to rule a population and its territory if it satisfies conditions of basic justice and also facilitates its people's collective self-determination. Finally, Parts III and IV of this book argue that the exclusionary sovereignty rights to control over borders and natural resources that can plausibly be justified on the basis of the three core values are more limited than has traditionally been thought.

Pistor: From Territorial to Monetary Sovereignty

Katharina Pistor (Columbia Univ. - Law) has posted From Territorial to Monetary Sovereignty (Theoretical Inquiries in Law, Vol. 18, no. 2, pp. 491-517, July 2017). Here's the abstract:

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary sovereignty fit this pattern. All others are de facto more like private entities, which by definition cannot manipulate their own survival constraint. States can surrender their monetary sovereignty directly by adopting another currency or by issuing their own debt in foreign currency and under foreign law. They also compromise their sovereignty by permitting unlimited capital inflows denominated in currencies other than their own. This is because in times of crisis they will not be able to rescue the domestic financial system from its tendency to self-destruct without subjecting itself to a sovereign debt crisis and the implied need to rely on a lifeline from other states or supranational entities.

Fitzmaurice: Sovereignty, Property and Empire, 1500–2000

Andrew Fitzmaurice (Univ. of Sydney - History) has published Sovereignty, Property and Empire, 1500–2000 (Cambridge Univ. Press 2014). Here's the abstract:

This book analyses the laws that shaped modern European empires from medieval times to the twentieth century. Its geographical scope is global, including the Americas, Europe, Africa, Asia, Australia and the Poles. Andrew Fitzmaurice focuses upon the use of the law of occupation to justify and critique the appropriation of territory. He examines both discussions of occupation by theologians, philosophers and jurists, as well as its application by colonial publicists and settlers themselves. Beginning with the medieval revival of Roman law, this study reveals the evolution of arguments concerning the right to occupy through the School of Salamanca, the foundation of American colonies, seventeenth-century natural law theories, Enlightenment philosophers, eighteenth-century American colonies and the new American republic, writings of nineteenth-century jurists, debates over the carve up of Africa, twentieth-century discussions of the status of Polar territories, and the period of decolonisation.

Bell: An Economic Analysis of Territorial Sovereignty in International Law

Abraham Bell (Univ. of San Diego - Law) has posted An Economic Analysis of Territorial Sovereignty in International Law (in Research Handbook on the Economics of Public International Law, Eugene Kontorovich ed., forthcoming). Here's the abstract:

The laws of territorial sovereignty are among the earliest to have been developed in modern international law, and are among the most important. While this would seem to indicate the potential attractiveness of normative economic analyses of the laws of territorial sovereignty, there is unfortunately little scholarship on territorial sovereignty law that utilizes the insights of economic analysis. This essay aims to begin filling that gap by utilizing insights from a related field of private law: property. The doctrines of territorial sovereignty bear a strong resemblance to the laws of property in municipal law. Territorial sovereignty, like property; contains rules of acquisition, transfer, and abandonment. It uses chains of title to evaluate claims, and adopts standard property maxims such as nemo dat quod non habet, (one cannot transfer what one does not have). The Essay presents several areas of research in the field of property law that can fruitfully be incorporated into economic analysis of territorial sovereignty, and suggests the means for incorporating the insights. Unfortunately, economic analysis of property law can only partially fill the gaps in analysis of territorial sovereignty. Many of the concerns of the law of territorial sovereignty differ significantly from those of property. The Essay, thus, considers future potential directions for research, and concludes with observations on the limitations of the analogy between property and territorial sovereignty.

Giraudeau: Les différends territoriaux devant le juge international : Entre droit et transaction

Géraldine Giraudeau (Univ. of Orléans - Law) has published Les différends territoriaux devant le juge international : Entre droit et transaction (Martinus Nijhoff Publishers 2012). Here's the abstract:

Les décisions arbitrales et judiciaires relatives aux différends territoriaux terrestres et maritimes sont marquées par une tendance transactionnelle. Elles consacrent des tracés frontaliers situés entre les revendications respectives des parties et assurent plus globalement un équitable partage des espaces et des ressources. Ce phénomène de compromis s’exprime symptomatiquement dans la jurisprudence relative aux différends territoriaux en raison de la nature de ces litiges et de leurs enjeux géostratégique, économique et émotionnel. Il est aussi dû à la particulière flexibilité des règles et des principes applicables. Cette étude témoigne de l’instrumentalisation qui est faite du contenu des décisions juridictionnelles au profit de solutions équilibrées et démontre que le juge international est avant tout tourné vers la mission pacificatrice de son office.

Paik, Lee, & Tan: Asian Approaches to International Law and the Legacy of Colonialism: The Law of the Sea, Territorial Disputes and International Dispute Settlement

Jin-Hyun Paik (Judge, International Tribunal for the Law of the Sea), Seok-Woo Lee (INHA Univ. - Law), & Kevin Y.L. Tan (National Univ. of Singapore - Law) have published Asian Approaches to International Law and the Legacy of Colonialism: The Law of the Sea, Territorial Disputes and International Dispute Settlement (Routledge 2012). The table of contents is here. Here's the abstract:

The chapters in this volume address international legal issues impacted by the legacy of the Asian region’s historical experience with colonialism and its current standing in the international system. This volume provides a perspective on these issues from Asian legal scholars who have embarked on an analysis and discussion of the various ways in which international law and the international legal process can resolve these issues in a manner that is appropriate for the region.

The book examines the interconnections between diverse topics, such as current territorial disputes over maritime areas (which includes disputes over maritime delimitation) and the scope of exclusive economic zones in East and Southeast Asia, both of which are aspects of some of the critical political, economic, and legal issues presently confronting the region. These territorial and maritime disputes are partially due to the geography of the region, but the editors make a convincing argument for the genesis of these disputes being rooted in the legacy of the region’s colonial past; a legacy which has confounded attempts at resolution of these disputes and still deeply influences international relations in the region.

Waters: Plucky Little Russia: Misreading the Georgian War Through the Distorting Lens of Aggression

Timothy William Waters (Indiana Univ. - Law) has posted Plucky Little Russia: Misreading the Georgian War Through the Distorting Lens of Aggression (Stanford Journal of International Law, forthcoming). Here's the abstract:

One might expect massed armor crossing an international frontier to constitute the paradigmatic example of aggression – a case perfectly fit to analyze with the rules of jus ad bellum – and in the first flush and shock of the Georgian War in 2008, this is exactly how Western leaders described Russia’s actions. Yet that August, a constellation of circumstances combined to produce an anomalous outcome: an international war without any aggressor or any wrongful violation of territorial integrity. In theory – in doctrine – this is not supposed to happen.

The key to this puzzle is the special regime created by the 1992 Sochi Agreement, which functioned as an internationalized mechanism regulating the internal conflict between Georgia and South Ossetia by creating a new territorial status within Georgia’s sovereignty. Once we view Sochi in this way, the performance of the various actors in August 2008 looks rather different: Rather than aggressors, Russian tanks are a responsive mechanism designed to stop Georgian incursions in violation of the Sochi regime – a mechanism, moreover, that actually worked as it was supposed to. Understanding the Georgian War in this way leads us to confront our present, dualistic approaches to sovereignty. Under international law, it is definitionally impossible for Georgia to aggress against itself or violate its own territorial integrity, and it is only because of the Sochi regime that we describe Georgia’s actions as wrongful.

In some ways, the 2008 war looks like part of a rising phenomenon: the effort to regulate the resort to violence within states. Indeed, the Sochi regime suggests a far better mechanism, since it creates a new category of protectable territory, rather than identifying levels of harm that trigger a reaction; this may be particularly useful in self-determination disputes, in which separatists challenge the very fact of the state’s sovereignty. Still, seeing the Georgian War in this way is not necessarily a source of optimism. Sochi was the product of a specific context, and there is no reason to suppose it is generalizable. But the greatest source of pessimism concerns the rhetorical reactions to the war: Western leaders resorted to the enchanted vocabularies of the jus ad bellum in ways that distracted them from the actual operation of the very mechanism regulating the underlying conflict. It seems we remain ill-equipped to recognize the real logic of efforts to regulate internal wars.

Raustiala: Does the Constitution Follow the Flag?

Kal Raustiala (Univ. of California, Los Angeles - Law) has published Does the Constitution Follow the Flag?: The Evolution of Territoriality in American Law (Oxford Univ. Press 2009). Here's the abstract:

The Bush Administration has notoriously argued that detainees at Guantanamo do not enjoy constitutional rights because they are held outside American borders. But where do rules about territorial legal limits such as this one come from? Why does geography make a difference for what legal rules apply? Most people intuitively understand that location affects constitutional rights, but the legal and political basis for territorial jurisdiction is poorly understood. In this novel and accessible treatment of territoriality in American law and foreign policy, Kal Raustiala begins by tracing the history of the subject from its origins in post-revolutionary America to the Indian wars and overseas imperialism of the 19th century. He then takes the reader through the Cold War and the globalization era before closing with a powerful explanation of America's attempt to increase its extraterritorial power in the post-9/11 world. As American power has grown, our understanding of extraterritorial legal rights has expanded too, and Raustiala illuminates why America's assumptions about sovereignty and territory have changed. Throughout, he focuses on how the legal limits of territorial sovereignty have diminished to accommodate the expanding American empire, and addresses how such limits ought to look in the wake of Iraq, Afghanistan, and the war on terror. A timely and engaging narrative, Does the Constitution Follow the Flag? will change how we think about American territory, American law, and-ultimately-the changing nature of American power.

Weller: Contested Statehood: Kosovo's Struggle for Independence

Marc Weller (European Centre for Minority Issues & Univ. of Cambridge - Law) has published Contested Statehood: Kosovo's Struggle for Independence (Oxford Univ. Press 2009). Here's the abstract:

This book offers the first critical analysis of the international attempts to settle the Kosovo crisis from its inception to Kosovo's declaration of independence. The author participated in most of these settlement attempts, including the Carrington Conference on the former Yugoslavia and the Rambouillet and Ahtisaari negotiations. On this basis, the book provides first hand insights into the failure of high-level international diplomacy in dealing with one of the most explosive crises to hit the European continent since 1945.

The introductory chapters offer a brief account of the background to the crisis, identifying the structural tensions in the modern international system that made it so difficult for the organized international community to address the episode effectively. The book addresses the initial settlement attempts, from the London Peace Conference on Yugoslavia of 1991 to the Geneva negotiations and the impact of the Dayton peace conference on the situation in Kosovo. The second part of the book considers the first attempt of addressing the Kosovo crisis on its own terms, initially through the shuttle diplomacy of US Ambassador Chris Hill over the summer of 1998. The Holbrooke agreement, obtained under the threat of NATO air strikes and providing for a cease-fire is then considered, along with further attempts to obtain a political settlement during this purported breathing space. The book then turns to the extraordinary episode of the Rambouillet Peace Conference and the subsequent use of force against the rump Yugoslavia.

The final part of the book addresses the attempts to prepare for final status during the UN administration of Kosovo. The initial constitutional framework for Kosovo is discussed, along with the abortive 'standards before status' policy. This is followed by a detailed analysis of the Vienna negotiations on final status, and the subsequent tug of war at the United Nations about Security Council endorsement of the result. The book concludes with an analysis of the comprehensive proposal for a settlement proposed by UN envoy Martti Ahtisaari and its eventual recasting into the constitution of Kosovo upon unilateral independence.

This book ties together several strands of analysis, including the tension between state sovereignty and humanitarian concerns, the problem of squaring the doctrine of territorial unity with the principle of self-determination, the reluctance of international actors to involve themselves in internal conflicts, in particular where secessionist conflicts are concerned, and the role of the threat or use of force in the context of coercive international diplomacy.

Hauswaldt: Der Status von Palästina: Eine völkerrechtliche Untersuchung des territorialen Status

Christian Hauswaldt has published Der Status von Palästina: Eine völkerrechtliche Untersuchung des territorialen Status (Nomos 2009). Here's the abstract:

Das Werk beschäftigt sich mit der zentralen Frage des Nahostkonflikts: Wem gehört das Land? Der Autor untersucht den territorialen Status von Palästina aus völkerrechtlicher Perspektive und analysiert die historische Entwicklung des Palästinaproblems seit dem Jahr 1917. Der Schwerpunkt der Studie liegt auf den Entwicklungen seit dem Abschluss der ersten palästinensisch-israelischen Verträge im Jahr 1993.

Der Autor begründet zunächst, warum das Selbstbestimmungsrecht der Völker für die Untersuchung des territorialen Status nicht relevant ist. In einem weiteren Schritt wird mit den klassischen Methoden des Völkerrechts untersucht, welche Teile des ehemaligen Mandatsgebietes Palästina welchen Völkerrechtssubjekten (z.B. Staaten) zuzuordnen sind.

Er kommt zu dem Schluss, dass das Völkerrecht nur eine lückenhafte Antwort auf die zentrale Frage des Nahostkonfliktes gibt, legt dar, dass das Völkerrecht (allein) nicht das Erfolg versprechende Mittel zur Lösung des Nahostkonfliktes ist und dass sich das Völkerrecht in der Moderne den Herausforderungen territorialer Konflikte stellen muss.

PCA: Deposit of Arbitration Agreement Concerning the Delimitation of the Abyei Area

Last Friday, July 11, the Government of Sudan and the Sudan People’s Liberation Movement/Army deposited with the Permanent Court of Arbitration an Arbitration Agreement concerning the delimitation of the Abyei Area. The agreement (article 2) calls for a five-member tribunal to determine the following issues:

a. Whether or not the ABC [Abyei Boundaries Commission] experts [in their Report] had, on the basis of the agreement of the Parties as per the CPA [Comprehensive Peace Agreement], exceeded their mandate which is “to define (i.e. delimit) and demarcate the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905” as stated in the Abyei Protocol, and reiterated in the Abyei Appendix and the ABC Terms of Reference and Rules of Procedure.

b. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts did not exceed their mandate, it shall make a declaration to that effect and issue an award for the full and immediate implementation of the ABC Report.

c. If the Tribunal determines, pursuant to Sub-article (a) herein, that the ABC experts exceeded their mandate, it shall make a declaration to that effect, and shall proceed to define (i.e. delimit) on map the boundaries of the area of the nine Ngok Dinka chiefdoms transferred to Kordofan in 1905, based on the submissions of the Parties.

Stahn: The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond

Carsten Stahn (Swansea Univ. - Law) has published The Law and Practice of International Territorial Administration: Versailles to Iraq and Beyond (Cambridge Univ. Press 2008). Here's the abstract:

International actors have played an active role in the administration of territories over the past two centuries. This book analyses the genesis and law and practice of international territorial administration, covering all experiments from the Treaty of Versailles to contemporary engagements such as the conflict in Iraq. The book discusses the background, legal framework and practice of international territorial administration, including its relationship to related paradigms (internationalisation, mandate administration, Trusteeship administration and occupation). This is complemented by a discussion of four common legal issues which arise in the context of this activity: the status of the territory under administration, the status and accountability of administering authorities, the exercise of regulatory powers by international administrations, and the relationship between international and domestic actors. Alongside surveys of the existing approaches and conceptual choices, the book also includes relevant case-law and practice and lessons learned for future engagements.

ICJ: Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore)

Today, the International Court of Justice rendered its judgment in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore). Judgment here; summary here; press release here. The dispute pertained to the sovereignty over three maritime features in the Straits of Singapore: Pedra Branca/Pulau Batu Puteh (a granite island on which there is a lighthouse); Middle Rocks (some rocks that are permanently above water); and South Ledge (a low-tide elevation). The parties had submitted the case to the Court by special agreement.

Here's the Judgment's dispositif:

The Court,

(1) By twelve votes to four, Finds that sovereignty over Pedra Branca/Pulau Batu Puteh belongs to the Republic of Singapore;

(2) By fifteen votes to one, Finds that sovereignty over Middle Rocks belongs to Malaysia;

(3) By fifteen votes to one, Finds that sovereignty over South Ledge belongs to the State in the territorial waters of which it is located.

Judge Ranjeva appended a declaration to the Judgment of the Court; Judge Parra-Aranguren appended a separate opinion; Judges Simma and Abraham appended a joint dissenting opinion; Judge Bennouna appended a declaration; Judge ad hoc Dugard appended a dissenting opinion; and Judge ad hoc Sreenivasa Rao appended a separate opinion. These declarations, separate opinions, and dissenting opinions can be found here.