A Theory of Annexation

Abstract

1. Introduction

The prohibition of annexation of territory, a development of the 20th century, is a pillar of the post-World War II international order organised around respect to territorial integrity and protection of sovereignty against the threat or use of force.¹ However, puzzlingly, the definition of annexation and how it is identified have not changed significantly since the time when annexation was a legitimate means for acquiring territory. This, we argue, jeopardises the important role of the prohibition on annexation in safeguarding the new world order and thus requires scrutiny. A reassessment of the concept and doctrinal boundaries of annexation is past due as challenges to the norm of territorial integrity are currently on the rise across the globe.² The need for developing a theory of annexation is further evident from the recent Advisory Opinion of the International Court of Justice (ICJ) concerning the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem,³ as well as from the Russian seizure of territories in Crimea and Eastern Ukraine as early as 2014.

Both before and after its prohibition, annexation is described as ‘an official state act signifying an extension of sovereignty’.⁴ Such formal state acts may include proclamations, flag hoisting or ceremonial cannon fire. However, we argue that requiring an official state act for annexation is incommensurable with the prohibition of annexation for two reasons. First, the extension of sovereignty to a territory beyond the recognised sovereign borders through a threat or use of force is no longer permitted under international law and is deemed null and void. Therefore, a formal state act cannot ‘signify’ an extension, since that extension cannot be achieved. Second, following the prohibition of annexation, states are incentivised to refrain from official acts when they purport to extend their sovereignty, and therefore to deploy alternative measures to generate an equivalent effect while evading the repercussions of their wrongful act.

This dissonance between the prohibition and the definition of annexation creates a rule-of-law problem, whereby the perpetrator retains the power to evade legal consequences for its transgression by refraining from official state acts signalling annexation. The requirement for a formal state act further bestows on the state seeking to annex territory the power to regulate how its control over the territory is classified and when an assessment is to be triggered, despite the fact that its people lack the right to self-determination in the territory.⁵ It also serves to perpetuate situations of indeterminacy which silence and deny venues and avenues for effective legal and political action from the people entitled to self-determination in the territory, targeted by annexationist policies. Importantly, the rule-of-law problem we identify is not contingent on the question of whether or not the prohibition on annexation is enforced, but on the flaw in the definition of annexation which creates a pernicious incentive structure.

Furthermore, at least prior to the recent ICJ Advisory Opinion, the requirement of an official state act led to a problem of conceptual clarity in that it does not recognise that instances of annexation may occur absent official acts. It was in the context of this conceptual gap that the terms ‘de facto annexation’ and ‘illegal occupation’ have developed, but, as we will argue below, these notions carry their own disadvantages.

To address these two problems, a satisfactory theory of annexation should propose measures to identify instances of annexation without deferring to the self-characterisation of the perpetrator. A theory of annexation must also distinguish between annexation’s definition (what is annexation?) and the epistemic means to identify certain situations qualifying as annexation (how to know if annexation occurred?). Such a theory of annexation would offer conceptual clarity and address the normative concern that arises under the current doctrine. In this article, we propose a theory of annexation that defines annexation and outlines means to identify situations as annexation independently of an official state act. To do so, we draw on theories of bureaucracy and administration.

While interest in the ways organizational practices shape and structure the law is not novel, attention to bureaucratic practices, institutions and administration as forces shaping the law and state authority has grown since the 1990s.⁶ A major theme in this ‘organizational turn’ has been the role of organisational practices in the interpretation and diffusion of international law and order.⁷ Indeed, administrative practice and organizational change feature prominently in analyses of global and transnational law, as well as in comparative analyses of national law.⁸ Other approaches focus on ways in which domestic administrative practice and regulation provide methods to decipher national policies on the implementation of international law.⁹ We build upon this literature and use organizational change and administrative practice as building blocks for a theory of annexation.

Our theory defines annexation as the incorporation by a state of another state’s territory. We understand incorporation as the administration of a territory as if it were part of the sovereign’s territory. This choice preserves the invalidity of annexation and its conceptualisation as a violation of international law while still providing a lens sensitive enough to capture undeclared annexations. Our theory offers three criteria by which to identify annexation: a normative organising framework with which the state manages the territory that reflects a perception of the territory as part of its own; an organisational structure of control which assimilates the management of the territory into the bureaucratic machinery of the state; and a symbolic performance of power that erases symbolic differences between the territory and the annexing state.

Our contribution is therefore twofold: first, we expose the rule-of-law problem and the lack of conceptual clarity that characterise the current understanding of annexation. Second, we propose a theory that addresses these flaws. This theory offers an interpretation of the concept of annexation. While the prohibition of annexation is beyond contention, its definition and means of identification remain significantly underdeveloped. A purposive interpretation of the concept of annexation must therefore be such that upholds its strict prohibition by withholding from perpetrators the power to sabotage the identification of their transgressions as annexation by not formally announcing it. In this way, the theory answers the challenges of clarity and the rule-of-law problem. Note, the theory does not seek to learn of annexation from a perpetrator’s intention (asking why it controls a territory or whether it intended to annex the territory), but rather, aims to focus on its structural-bureaucratic actions (how it controls the territory). The three criteria we offer are a means for characterising the mode of control over a territory that justifies classifying it as annexation.

The article continues in four sections. Section 2 describes the historical development of the prohibition on acquisition of territory by force. Section 3 refers to existing conceptualisations of annexation, discusses their pitfalls and offers an alternative conception. Section 4 addresses the ideas of de facto annexation and illegal occupation, and explains their limitations and their interpretation and application in the recent ICJ Advisory Opinion. Section 5 develops a theory of annexation based on theories of bureaucracy and administration, particularly colonial bureaucracy. It also discusses the example of Israel’s practices and policies in the West Bank.

2. The Prohibition on Acquisition of Territory by Force

According to the once-common practice, an aggressive invasion of a territory granted the victorious sovereign a right to incorporate the territory it conquered into its own territory and demand the inhabitants’ allegiance.¹⁰ That was the case whether based on the complete subjugation of the conquered state (debellatio) or on the consent of the defeated state to cede its territory to the conqueror.¹¹ The beginning of the 20th century marked a turning point after which territorial and constitutional changes through the use of force were progressively prohibited.¹²

The law of belligerent occupation normatively distinguished between a state of occupation and the imposition of sovereignty, ie annexation.¹³ According to this law, when placing a territory under belligerent occupation, the occupant has the duty to ‘take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country’.¹⁴ The occupant is forbidden from exploiting the resources of the land for its own interests, and from transferring populations and instituting other permanent changes.¹⁵ Furthermore, the law of occupation absolutely prohibits the naturalisation of inhabitants of the occupied territory as citizens of the occupant state.¹⁶

As these provisions indicate, an underlying premise of the 20th-century law of occupation is that the occupant is regarded as a trustee of the ousted sovereign. Further, with the more recent developments of human rights law and the principle of self-determination, the trust’s beneficiaries have come to be understood as the ‘indigenous community under occupation’.¹⁷

The occupant is further forbidden from taking any measures which will void the temporariness of the occupation. To prevent such outcomes, the occupying state must maintain a clear distinction between its own institutions and the military institutions governing the occupied territory.¹⁸

The prohibition on annexation developed under jus in bello was reinforced by changes to jus ad bellum:¹⁹ it became a central component of the prohibition on the use of force in international relations.²⁰ At the core of the 1919 Covenant of the League of Nations, the signatory states agreed to ‘respect and preserve’ the ‘territorial integrity and existing political independence of all Members of the League’, and to condemn aggression.²¹ According to the 1928 Kellogg Briand Pact, the signatory states ‘condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another’.²² Although most states in existence at the time were members of the Pact, it was obviously not successful in preventing a second world war.²³ Nevertheless, the 1941 Atlantic Charter reiterated a decisive stance against territorial aggrandisement, condemning ‘territorial changes that do not accord with the freely expressed wishes of the peoples concerned’, and stressing the necessity of abandoning the use of force.²⁴ The Atlantic Charter was further subscribed to by the signatories of the 1942 Declaration of the United Nations.²⁵ Following World War II and with the aim of saving ‘succeeding generations from the scourge of war’, by establishing the United Nations, member states committed themselves, in article 1 of the UN Charter, to maintain international peace and security, including the taking of ‘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’. Article 2, paragraph 4 stipulates that ‘All Members 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’. Chapter VII of the Charter entrusts the Security Council with the power and responsibility to act in response to threats to the peace, breaches of the peace and acts of aggression.

Although aggression is central to the Charter’s prohibition on the use of force, the concept of aggression is not defined in it. The UN General Assembly took several steps to fill in this lacuna. In 1967, it appointed a special committee to address the question of defining aggression.²⁶ However, even before this committee succeeded in completing its work, aggression served as a core concept in the 1970 Declaration on Friendly Relations among States. While the Declaration does not define aggression, it reasserts, among others, that the territory of a state shall not be ‘the object of acquisition by another State resulting from the threat or use of force’. Furthermore, it determines that territorial acquisition resulting from the threat or use of force shall not be ‘recognized as legal’.²⁷

In 1974, the General Assembly approved by consensus its Resolution 3314 on the Definition of Aggression. The Resolution declared aggression to be ‘the most serious and dangerous form of the illegal use of force’. It defined aggression as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’.²⁸

Among the non-exhaustive list of acts defined in the Resolution as constituting aggression,²⁹ the first includes reference to the prohibition of ‘any annexation by the use of force of the territory of another State or part thereof’.³⁰ Notably, the Resolution’s text notes that the term ‘State’ is used ‘without prejudice to questions of recognition or to whether a State is a member of the United Nations’.³¹

Moreover, the Resolution underscores that ‘no consideration of whatever nature’ may serve as a justification for aggression. It also stipulates the consequences of aggression: it is classified as an international crime; it gives rise to international responsibility; and no territorial acquisition or special advantage resulting from aggression ‘is or shall be recognized as lawful’.³² An explanatory note in the Report of the Special Committee on the Question of Defining Aggression stresses that this list of consequences ‘should not be construed so as to prejudice the established principles of international law relating to the inadmissibility of territorial acquisition resulting from the threat or use of force’.³³

The ICJ has determined that the principle concerning the illegality of territorial acquisition resulting from the threat or use of force reflects customary law.³⁴ Furthermore, the International Law Commission has defined aggression, including when carried out by annexation, as a violation of jus cogens.³⁵

To conclude, annexation of a territory, once permitted, has become strictly forbidden under international law. It is forbidden under the law of occupation and it is also classified as aggression: a violation of the bedrock, jus cogens norm of jus ad bellum—the prohibition on the use of force. As such, the prohibition on annexation is an important part of the legal regime designed to protect sovereignty, sovereign equality and the self-determination of peoples. Annexation generates ipso facto duties on third states, giving rise to a duty of non-recognition, namely requiring them to refrain from recognising the annexing state’s attempt to change the status of the territory and to avoid any form of relationships or dealings with it with respect to the territory in question.³⁶

Despite the clear shift in the normativity of annexation, until very recently, international law has not clarified its implications for the definition and identification of annexation in the new world order. This was the case, among others, with respect to the legal status of Namibia/South West Africa, discussed in several ICJ proceedings. The Court reaffirmed that South Africa’s refusal to withdraw from Namibia is illegal. It also reiterated that the principle of non-annexation was key in the League of Nations’ mandate system. The Court did not explain, however, what annexation means and how it is formalised.³⁷ In the 2004 Wall Advisory Opinion, the ICJ expressed its concern that the wall built by Israel in the occupied West Bank and its associated regime ‘create a “fait accompli” on the ground that could well become permanent, in which case, and notwithstanding the formal characterisation of the wall by Israel, it would be tantamount to de facto annexation’,³⁸ but did not explain how one was to know that the concern had materialised.

However, in its most recent 2024 Advisory Opinion on the legal consequences of Israel’s control of the Occupied Palestinian Territory, the Court provided the following definition of annexation:

By the term ‘annexation’, in the present context, the Court understands the forcible acquisition by the occupying Power of the territory that it occupies, namely its integration into the territory of the occupying Power. Annexation, then, presupposes the intent of the occupying Power to exercise permanent control over the occupied territory.³⁹

The Court further noted that a distinction is sometimes made between de jure and de facto annexation, explaining the former as requiring a ‘formal declaration’ and the latter as comprising ‘acts short of a formal declaration that create a “fait accompli” on the ground and that consolidate the occupying Power’s permanent control over the occupied territory’.

It seems, therefore, that the Court is inclined to recognise undeclared annexations as annexations per se, noting that asserting ‘permanent control over the occupied territory’ may drive instances of annexation that fall ‘short of a formal declaration’ as well.⁴⁰ Our goal in this article is to offer a theory of annexation that accounts for such instances of undeclared annexation.

3. Defining and Identifying Annexation

A distinction should be made between annexation’s definition and the means of identifying instances of annexation. We begin with the question of defining annexation. Annexation has been referred to in existing scholarship as the [alleged] ‘change [of the] legal status of a territory to that of a component part of the occupant’s sovereign state’,⁴¹ or ‘the forcible acquisition of territory by one State at the expense of another State’.⁴²

It is important to stress at the outset that a definition of annexation should not assume the potential validity of annexation. We therefore suggest moving away from definitions that frame annexation as an act which successfully generates a normative change in the title or sovereignty with respect to the territory.

In order to analytically break down the various elements constituting annexation, we propose the following working definition: ‘Annexation is the (a) incorporation by (b) a state (c) of another state’s territory’. By ‘incorporation’, we refer to a mode of control of a territory which integrates it into the controlling state’s territory. In other words, the controlling state administers the territory as if it were part of its own. This choice preserves the invalidity of annexation as well as its conceptualisation as a violation of international law, while providing a lens sensitive enough to capture undeclared annexations.

The territory subject to incorporation is ‘another state’s territory’, namely, another state has title to it. Thus, even if prior to its incorporation the territory was not in the actual possession of the title state, an act of incorporation may still qualify as annexation. Further, note that annexation may apply to the entire territory of a state or to a part thereof.

Finally, the term ‘state’, which appears twice in our definition, refers not only to states,⁴³ but also to self-determination units.⁴⁴ This understanding is in line with the explanatory note contained in the UN General Assembly’s Definition of Aggression according to which a ‘state’ is defined ‘without prejudice to questions of recognition or to whether a State is a member of the United Nations’.⁴⁵ Moreover, as the ICJ has explained in the Chagos Advisory Opinion, the right to territorial integrity is a key element of the right to self-determination held by peoples of non-self-governing territories.⁴⁶ Thus, the right to territorial integrity of peoples of self-determination units that have not yet attained statehood, similarly to that of states, is vulnerable to breach through annexation and must be protected.⁴⁷

With this definition in mind, we now consider how annexation may be identified. Again, we note that there is a difference between defining an object or situation (in our case, annexation) and the means to determine whether a particular event should be identified as such.

At the time when conquest was still a legitimate form of acquisition of territories, ‘annexation was usually effected by a unilateral declaration after the conquest of the territory in question and the final defeat of the adversary’.⁴⁸ Performative acts signalling the imposition of sovereignty such as formal proclamations or the hoisting of flags therefore served as the litmus test for identifying that an annexation had taken place.⁴⁹

Since annexation is no longer a legitimate practice, states today would likely be inclined to refrain from such expressive acts.⁵⁰ Nevertheless, annexation continues to be primarily understood to result from ‘the official proclamation of sovereignty’ over an occupied territory,⁵¹ pronounced through the adoption of formals state acts, including, inter alia, domestic legislation by the annexing state.⁵² Thus, undeclared annexations have often been characterised as qualifying merely as de facto or quasi annexations, leaving the realm of formal or de jure annexation to declared annexations alone.⁵³

This, we argue, is a mistake: it reflects a perception that continues to presume the validity of the requirement of a declaration (or another formal state act), even though such declarations have been rendered unlawful and their legal effect has become null and void. We therefore argue that the continued reliance on a declaration of annexation is untenable. The violation of a norm cannot be identified using the conditions designed to once facilitate what is now forbidden. If a declaration can no longer give rise to a valid acquisition of territory, its presence or its absence is neither necessary nor sufficient in the determination of whether annexation has taken place.

Moreover, the normative shift of annexation from legitimacy to illegitimacy turns on its head a state’s incentive structure. Whereas, previously, a declaration was the means for acquiring title to a territory, today it would invite sanctions against the declaring state and is therefore disincentivised.⁵⁴

Examining the role of declarations in the context of states’ incentive structures is illuminating. In the law of statehood, making a claim for statehood, including by way of a declaration of independence, may similarly invite an assessment of legal consequences.⁵⁵ Such claim making would then not only serve as a necessary qualification of statehood, but also prompt consideration of whether a self-determination unit qualifies as a state.⁵⁶ As Crawford puts it, ‘an entity which does not claim to be a State, even though it might otherwise qualify for statehood in accordance with the basic criteria, will not be regarded as a State’.⁵⁷

In the context of the common conceptions of both annexation and statehood, requiring that an actor declares its claim to a legal status serves as a necessary qualification for obtaining it, as well as a way to prompt consideration of the legal status. However, while the requirement of declaration or claim-making is justified in the case of statehood because it gives a people the discretion to secure its self-determination in its own words, maintaining the requirement of a declaration in the case of annexation serves as a means of denying self-determination to the people entitled to it in the territory. Furthermore, relying on the perpetrator’s discretion whether to declare itself as annexing creates a rule-of-law problem: the actor that violates the law controls whether its actions are subject to scrutiny.

We argue that a proper theory of annexation therefore must have a rule of identification which is independent of the perpetrator’s choice of words and self-characterisation. As we argue below, annexation may be perpetrated in ways other than formal declarations.⁵⁸

Thus far, instances suspected of amounting to annexation but not declared as such by the annexing state have been discussed through two lenses: de facto annexation and illegal occupation. Before elaborating on our proposed qualifications for identifying annexation, we now turn to introduce these two concepts as they have developed until recently, and then discuss the way they were utilised in the recent ICJ Advisory Opinion.

4. De Facto Annexation and Illegal Occupation

Scholars have long realised the discrepancy between the gravity of the prohibition on annexation, amounting to jus cogens, and the obscurity of the conditions for identifying a situation as annexation. To attend to this problem, scholars have developed two different lenses with which to address liminal situations—de facto annexation and illegal occupation. Both ideas are aimed at uncovering moves on the part of an occupying state which, on the one hand, undermine the legitimacy of its control of the territory but, on the other hand, still provide it with plausible deniability in the face of allegations of annexation. Despite their considerable value, each of these lenses carries its own difficulties, which we now turn to discuss.

A. De Facto Annexation

Over the years, scholars have analysed certain cases of adverse possession of territory where no formal declaration of annexation was made as de facto or creeping annexation. These terms were used in an attempt to attribute illegality to such possessions. De facto annexation is often described through a non-exhaustive list of indicia, including the extension of citizenship or passportisation of the inhabitants of an occupied territory by the occupant, and economic, legal and bureaucratic integration of the occupied territory into the annexing state’s regime.⁵⁹ Additional indicia may be the conclusion of agreements with third states concerning the occupied territory; the changing of the territory’s borders and/or demographic composition; effacing the local culture; or undertaking major public works.⁶⁰

While these indicators may be helpful in uncovering how the occupying power administers the territory, we argue that the lens of de facto annexation fails us. This is so for a number of reasons: first, by maintaining a distinction between de facto and de jure annexation, it is (falsely) implied that, doctrinally, as long as the de jure annexation ‘threshold has not been crossed’,⁶¹ the violation of norms—and thus the triggering of correlative duties on other states—has yet to occur.⁶²

Second, since transgressors are disincentivised from formally proclaiming annexation, most cases of annexation today are likely to fall into the realm of undeclared annexations that the idea of de facto annexation aims to cover. However, we argue, such instances should not be relegated to a category that falls short of (de jure) annexation. Rather, they must be evaluated as annexations proper. They are, indeed, the prototype of annexations in the 21st century, and thus should be assessed as annexation proper, not merely de facto.

Third, although clearly no annexation is valid, by juxtaposing between de facto and de jure annexation the common discourse contains an implicit false narrative according to which certain cases of (de jure) annexation may be effective or valid. Moreover, the term ‘de facto annexation’ inadvertently provides a veneer of legitimacy to undeclared (de facto) annexations, absent a proclamation of annexation, since they do not amount to an explicit violation of the international prohibition.⁶³

Finally, annexation—which we defined as the incorporation of a territory—cannot be determined solely based on the explicit choice of words on the part of the state involved. As explained above, for considerations of both self-determination and the rule of law, the requirement that annexation be expressly proclaimed cannot be sustained. Maintaining a distinction between de facto and de jure annexation entrenches the continued reliance on such self-proclamation.

B. Illegal Occupation

Another lens developed to address situations where annexation is suspected but has not been pronounced as such is that of illegal occupation.⁶⁴ The traditional understanding of the law of occupation is that it takes no position on the legality or illegality of particular instances of occupation; rather, it regulates the conduct of occupation, providing the occupant and the inhabitants of the occupied territories with respective rights and obligations.⁶⁵ Thus, international lawyers often classify the existence of an occupation as a factual, rather than a legal, question.⁶⁶ This framing of the issue echoes the conditions triggering the application of occupation law, which contain factual criteria: (i) whether a territory is ‘actually placed under the authority of the hostile army’; (ii) whether such authority has been established and can be exercised; and (iii) whether the ousted sovereign can exercise its own authority over the territory or can no longer do so.⁶⁷

The international law of occupation is, however, a legal regime that is founded on a presumption of temporariness.⁶⁸ Although the law of occupation does not set a specific timeline or even clearly spells out an obligation to bring the state of occupation to an end, a permanent occupation is no longer an occupation.⁶⁹ Indeed, as mentioned above, the prohibition on annexing or otherwise altering the legal status of an occupied territory is found not only in the jus ad bellum prohibition of acquisition of territory by force, but is also echoed in jus in bello.⁷⁰ This may be learned from the prohibition, contained in article 47 of the 1949 Fourth Geneva Convention, on depriving protected persons of their rights as a result of annexation by the occupying power of the whole or part of the occupied territory. Furthermore, the 1977 First Additional Protocol to the Geneva Conventions determines that neither the occupation nor the application of the law of occupation affects the legal status of the territory in question.⁷¹ Note, it does not follow that annexation ends the situation of occupation. Since annexation is invalid, it does not preclude the application of the law of occupation, which remains in force.

Against this background, it has been suggested that we ought to move away from a ‘merely factual’ approach to occupation to a normative approach.⁷² In other words, it is required that we consider not only whether an occupation exists (once the factual conditions are fulfilled), but also whether the continued maintenance of the regime of occupation is legal.⁷³ Employing this lens, Eyal Benvenisti has argued that an occupying power failing to earnestly promote a peaceful settlement is acting in bad faith, which renders the occupation per se unlawful.⁷⁴ Orna Ben-Naftali, Aeyal Gross and Keren Michaeli suggested that an indefinite occupation, too, can no longer enjoy the veneer of legitimacy—as opposed to ‘mere’ occupation.⁷⁵ They propose a test according to which an occupation that violates the following principles is unlawful: an occupation does not grant title or sovereignty to the occupying power; the occupying power is entrusted with the management of public order and civil life; and occupation is temporary and may not be permanent or indefinite.⁷⁶ In other words, once an occupation becomes permanent or irreversible, the occupant’s control over the territory loses its legitimacy and becomes unlawful. As for the implications of this new status, they are suggested to be tantamount to those of de facto annexation.⁷⁷

We think that it is analytically more accurate and normatively more justified to centre the discussion on annexation (de jure) as the organising framework for the debate, as opposed to de facto annexation and illegal occupation. First, one does not need to substantiate arguments within the framework of occupation law (jus in bello) in order to make a case for a violation of the prohibition on acquisition of territory by force (jus ad bellum), or vice versa.⁷⁸ An act of annexation breaches first and foremost the prohibition on forcible acquisition of territory and the principle of self-determination, even if it could further be said to be unlawful under occupation law. For this reason, an act of annexation, moreover, is a violation of a jus cogens prohibition.⁷⁹

In addition, a situation of occupation legitimises the control of a single state over multiple territories (and peoples)—its own sovereign territory and the occupied territory—while applying a different legal system in each. In this context, maintaining the guise of occupation provides legitimacy for the occupying state’s application of different legal systems in the different territories. This is arguably the case even if occupation is pronounced unlawful, as it is unlikely that such a pronouncement will void the applicability of the law of occupation and its benefits for the protected population.⁸⁰ Exposing that annexation has taken place, however, may substantiate accusations of apartheid by revealing the disparate treatment between populations as illegitimate, where the motive for such treatment is the maintenance of a regime of systematic oppression and domination by the occupant over occupied population.⁸¹

C. The 2024 ICJ’s Advisory Opinion

We now turn to consider the use of the concepts of de facto annexation and illegal occupation in the process leading up to the ICJ’s recent Advisory Opinion, and the Opinion itself. In December 2022, the General Assembly requested that the ICJ issue an Advisory Opinion concerning the legal consequences arising from the policies and practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.⁸²

A record number (at the time) of 57 states and international organisations submitted their legal positions on the questions before the Court. A survey of these statements provides a window into the mixed understandings of the ideas of de facto annexation and illegal occupation by multiple states.

Some states appearing before the Court accepted and applied the concept of illegal occupation, as well as that of de facto annexation. However, a survey of the various statements reveals that the precise definition of these concepts, the terms under which each should be identified and the distinction between the two ideas remain quite vague. Nevertheless, while many states opined that Israel’s occupation of the Palestinian Territory was illegal from its inception or has become illegal, the discussion of whether annexation of the West Bank (with the exception of East Jerusalem) has taken place retained much equivocation.

Several states took pains to address separately the questions of the legality of the occupation and annexation. For example, China addresses separately the question of the legality of Israel’s practices as an occupant and the question of whether it has annexed the territory, and seems to identify only the situation of East Jerusalem as amounting to annexation—but not that of the West Bank.⁸³ Ireland also addresses the issues separately, and qualifies East Jerusalem as annexed de jure and the rest of the West Bank as annexed de facto.⁸⁴ France doubts the idea of unlawful occupation. It nevertheless strives to distinguish a prolonged occupation from a situation of annexation.⁸⁵ Similarly, the United States rejects the concept of illegal occupation:

[I]nternational law does not provide for an occupation to itself be rendered unlawful or void … Although international humanitarian law imposes obligations on belligerents in their conduct of an occupation, it does not provide for the legal status of occupation to be lawful or unlawful.⁸⁶

On the other hand, other states analysed the two questions concurrently, finding a violation on both counts. For instance, Jordan, Egypt and Brazil discuss the two issues together, with their finding that annexation has taken place supporting their conclusion that the law of occupation has been breached, and vice versa.⁸⁷

To conclude, while multiple states have dedicated significant efforts to support a legal proceeding which they plainly view as enforcing the prohibition against annexation, a survey of their statements does not reveal a coherent theoretical or doctrinal analysis of how annexation is to be defined and identified, how to distinguish—if at all—between de facto and de jure annexation, and whether or not these concepts are distinct in essence or consequences from that of illegal occupation.

The Court’s Opinion, on the other hand, insists on distinguishing its analysis of annexation and occupation by clarifying that the legality of the occupying power’s presence in the occupied territory must be assessed in light of rules other than the law of occupation. These ‘other rules’, the Court explains, concern ‘the prohibition of the threat or use of force, including the prohibition of territorial acquisition resulting from the threat or use of force, as well as… the right to self-determination’.⁸⁸

Furthermore, its application of the law to the case of Israel also takes care to distinguish its analysis of Israel’s violations under the law of occupation and human rights law⁸⁹ from its analysis of Israel’s violations of the prohibition on the use of force and the right to self-determination.⁹⁰ It is only from the latter that the Court draws its conclusion that Israel’s presence in the territory has become unlawful, and not from the former. The Court says explicitly that

the rules and principles of general international law and of the Charter of the United Nations on the use of force in foreign territory (jus ad bellum) have to … determine the legality of the continued presence of the occupying Power in the occupied territory; while the [laws of occupation and human rights law] continue to apply to the occupying Power, regardless of the legality or illegality of its presence.⁹¹

The Court concludes that

the violations by Israel of the prohibition of the acquisition of territory by force and of the Palestinian people’s right to self-determination have a direct impact on the legality of the continued presence of Israel, as an occupying Power, in the Occupied Palestinian Territory.⁹²

Furthermore, the Court’s discussion of Israel’s annexation of parts of the Palestinian Territory is intertwined with its finding that Israel’s practices and policies amount to racial segregation or apartheid, in violation of article 3 of the Convention on the Elimination of All Forms of Racial Discrimination.⁹³ This finding, as we have argued, is logically contingent on a conclusion that an attempted annexation had taken place, whereby the legal ground for placing different populations under different legal systems existing in the case of a ‘mere’ occupation is no longer available.

As we have already mentioned, the Court’s Opinion is inclined to recognise undeclared annexation as annexation per se, referring to instances that fall ‘short of a formal declaration’.⁹⁴ It seems, therefore, that the Court adopts neither the lens of de facto annexation nor the lens of illegal occupation. The Court’s approach, focusing the discussion on whether or not annexation has taken place, as opposed to considering the legality of the occupation, is the more constructive way forward, for the reasons elaborated above.

As we submitted in the Introduction, a theory of annexation must distinguish between annexation’s definition (what is annexation?) and the epistemic means to identify certain situations qualifying as annexation (how to know if annexation occurred?). The ICJ’s Opinion and analysis are in line with the definition that we have proposed in response to the first question. To complement the discussion, the second question still requires attention: how to know if annexation occurred? In the next section, we develop the concept of incorporation, which is a foundational element in our definition. The theory we propose thus suggests criteria for identifying incorporation, ie whether a state administers a territory as its own.

5. A Theory of Annexation

We have defined annexation as the incorporation by a state of another state’s territory. We have noted that ‘incorporation’ refers to a mode of control of a territory which integrates it into the controlling state’s territory. In other words, the controlling state administers the territory as if it were part of its own. Nevertheless, we stressed that such incorporation could be done in various ways, not limited to a formal declaration of annexation. We contend that we must not leave the power to name, classify and identify annexation in the hands of the state whose actions are to be scrutinised for illegality, so as to prevent a rule-of-law problem and the denial of self-determination. In this section, we develop a theory of annexation that identifies incorporation based on organisational theories of administration and bureaucracy.

In order to develop a theory of annexation which goes beyond existing legal doctrine, we approach the issue from the perspective of bureaucracy, organisations and institutional theory. This field of knowledge is dedicated to analysing the structure and meaning of organisations and how they shape and are shaped by law. States, too, are organisations, and their bureaucracies and administrative design have been studied by scholars of institutions across disciplines in the social sciences. Increasingly, institutions and administration are understood as constitutive elements of state power, legitimacy and authority. This framework, we argue, is helpful in analysing what alternative pathways, in lieu of a formal declaration, states may employ in order to annex territories.

In particular, we find the consideration of practices employed by imperial colonial officers, studied by historians of sovereignty, most relevant. At the time of modern colonial empires, when annexation was yet to be forbidden and self-determination of peoples was not yet acknowledged, colonial officers faced practical questions of determining colonies’ level of independence in order to assess the empire’s duties and the extent of their authority over them. In this context, legal historians show how changes in organisational capacities, authorities and structures served officials and legal advisers as evidence of shifts in sovereignty. These insights may prove useful in considering whether and how to classify a situation as annexation. Following a brief survey of this scholarship and the colonial practice underpinning it, we propose a set of qualifications for identifying incorporation inspired by theories of bureaucracy and administration.

A. Theories of Bureaucracy and Administration

In the next two subsections, we argue that organisational and administrative aspects of the state can and do amount to major legal changes, particularly in cases when there is a gap in sovereignty between authority, territory and population. The best cases to draw from are modern colonies, where jurisdictional challenges and debates were resolved through attention to administrative and organisational activity.

Bureaucracy, according to an outdated idea, functions to officially carry out tasks guided by policy makers. The study of institutions in the past was focused on organisations as formalist and functional actors operating according to rules of efficiency, which follow and are shaped by law. Historically, scholarship on the relationship between law and organisation oscillated between those who believed that law is the dominant frame that shapes organisations and those who held that organisational structure and practice shape law.⁹⁵

The New Institutionalism perspective,⁹⁶ which came into play in the sociology of organisations in the late 1970s,⁹⁷ emphasises the importance of institutions not only in effectively executing rules dictated by policy makers, but also in creating and enforcing rules, norms and values that govern social behaviour and shape the social, political and economic landscape.⁹⁸ New Institutionalism contributed an understanding of the endogeneity of law and organisations⁹⁹ as one in which organisations construct and configure legal regimes even as they respond to them. It added a perspective that underscores the wider influences organisational aspects have on political regimes¹⁰⁰ and economic relations of power,¹⁰¹ and how organisational structures and practices shape the law.¹⁰² This constructivist frame ushered research on administrative and bureaucratic practices that played a crucial role in state formation,¹⁰³ statecraft and international law.

Institutions, from the bureaucratic agency to the military unit, are arenas for contending social forces. They are not fixed or static, but adapt and change in response to new political and economic conditions,¹⁰⁴ for they are also collections of standard operating procedures and structures that define and defend interests. As James March and Johan Olsen write, ‘institutions are political actors in their own right’.¹⁰⁵ The view that institutions hold a causal position in political life has become widely acknowledged and transcends national boundaries.¹⁰⁶ We argue that in cases in which there is indeterminate sovereignty, institutional practices can constitute or evidence major legal changes.

How do organisations shape legal authority and construct legitimacy in modern national and international politics?¹⁰⁷ Organisational capacities and administrative power have been recognised in sociological theory as key features in assessing state authority and legitimacy ever since Max Weber’s famous definition of the state as a compulsory political organisation that claims the monopoly over the legitimate use of physical force within its territory.¹⁰⁸ While most scholarship engaged with the military, economic and political forces of the state, Weber’s definition of the modern state as an organisation and of its rational-legal administration as its central feature positioned administrative power and capacity as critical variables in the study of state making and state power.

Organisational and administrative capacities have served scholars of institutions, from political science to political economy¹⁰⁹ and sociology,¹¹⁰ as evidence of shifts in authority and legitimacy amounting to the making of new states¹¹¹ or of shifts in legal and economic regimes. Administrative capacities and bureaucratic authority served as indicators for states in the making or during transfers of power, because in circumstances where there were gaps in authority, these practices served to define jurisdictions and control in what would come close to the monopoly on the legitimate use of force, Weber’s definition of state authority.

Douglas North, an economic historian, uses administrative changes as evidence for shifts in legal regimes and institutions. For example, North, Summerhill and Weingast argue that changes in the way that administrative agencies enforce laws or expand regulatory frameworks can indicate changes in the legal regime’s strength and effectiveness, particularly when there are shifts in political power.¹¹² For North’s macro-institutional analysis, creation or expansion of administrative agencies can be used as evidence of changes in the legal regime, indicating a shift in ways the state exerts control over its citizens and regulates their behaviour. Similarly, changes in the scope and authority of administrative agencies can indicate changes in the balance of power between different branches of government that can amount to regime change.¹¹³ Economic historian Avner Grief argues that change in administrative appointments or structures of law enforcement can lead to major institutional changes, both legal and economic, from a micro-institutional perspective that examines how administrative changes reflect the underlying dynamics between political authority and legal order within a specific context.¹¹⁴

The best examples of use of administrative and bureaucratic practices to define authority and what amounts to quasi-sovereignty have been investigated by legal historians of the British Empire as ways to understand the interplay of authority and jurisdiction in colonised territories, in order to apply international law in the 19th century. In these cases, change in the actions of administrators, such as imperial agents and colonial officials, served as key evidence for determining whether territories were sovereign.¹¹⁵ In the next section, we briefly explore dynamics of bureaucracy in colonial settings, where bureaucratic administration replaced sovereign authority. In turn, bureaucratic practices were used to determine questions of sovereignty and the application of international law in contested territories.

B. Colonial Bureaucracy and Questions of Sovereignty

Colonial contexts present a challenge to the imagined Weberian model of rational-legal bureaucracy,¹¹⁶ in which administration appears ‘neutral’ or subsumed into law.¹¹⁷ The assumption of the neutrality of administration becomes particularly untenable in situations of contested sovereignty.¹¹⁸ This is because, from a jurisdictional perspective, colonial sovereignty remains incomplete, in terms of both the accretion and layering of authority between regulatory bodies and the ways these administrative bodies mark and codify relationships on the ground.¹¹⁹

The gap in sovereignty meant that bureaucracy was the hub of power in the colonies, where the colonisers were concerned with juridical normativity and claimed to rule by law, yet colonial administrative and executive powers were placed beyond the reach of the courts.¹²⁰ In her book On Violence, Hannah Arendt characterised colonial rule as ‘bureaucracy instead of government’.¹²¹ Absence of formal sovereignty and the traditional authority of the state in colonial rule meant that administrators came instead of statesmen, and administrative action and discretion replaced the substantive rule of law. British colonial bureaucracy, observes Nasser Hussain, was based on the systemic expansion of executive discretion that effectively collapsed the separation of powers, so that officials, clerks and commissioners made law in their daily and mundane decisions, consolidating the power of the colonial state while containing the semblance of the rule of law.¹²²

A useful concept with which to understand this reality is ‘hybrid bureaucracy’.¹²³ It refers to the fact that bureaucrats and administrative officials employed sovereign-like powers, made extensive political decisions, created laws and defined the limits of their own discretion, particularly when the authority over the territories they ruled was contested and controversial.

Colonial officials defined hybrid bureaucracy as a flexible system in which separate administrative practices and regulations were created for racial groups that were formally defined as ‘subject races’.¹²⁴ Bureaucrats legitimised such disparate treatment in two ways: explicitly, through concepts referring to the racial inferiority of colonised peoples who were not considered full-fledged citizens; and implicitly, through decoupling law from administration to maintain the veneer of the universal wording of laws, while simultaneously deploying the bureaucracy to carry out explicitly disparate racialised practices.¹²⁵ Further, a perpetual state of emergency led to excessive legalities and overlapping jurisdictions, and made the inversion of the ‘rule of law’ both possible and necessary, for it was impossible to maintain juridical order in the colonies without exceptional measures.¹²⁶ This meant that legal shifts occurred swiftly through administrative decisions. In sum, the most salient features of hybrid bureaucracy were that it elevated the bureaucrats to hold sovereign-like powers, and administrative decisions and practice into law.¹²⁷

The insight of scholars of institutions described above, according to which administrative and bureaucratic change are indicators of legal change, has greater salience in colonial contexts because of the sovereign-like powers of bureaucrats in territories where sovereignty was contested. Colonial officials’ grappling with classifications of territories in which they did not have sovereignty thus preceded the contemporary scholarship.

One particular context in which administration and organisational capacities within a territory was important was in efforts to determine whether a territory qualified as ‘quasi-sovereign’ in order to define the application of international law to territories controlled by the empire but not constituting its sovereign territory. The term ‘quasi-sovereign’ refers to the status of sub-polities within empire states that retained some authority over their internal legal affairs while holding limited capacity to form international relations. The challenge in creating a classification system for these dependent imperial sub-polities was that they were what Anthony Anghie calls ‘outside the scope of law and yet within it, lacking international capacity and yet necessarily possessing it’.¹²⁸ In these territories of indeterminate sovereignty, where little separation of powers existed, the executive branch served also as the legislator and the judiciary.

For instance, Sir Henry Maine, a prominent British jurist-administrator, who served on the Imperial Legal Council for British India, depicted administrative changes as having the capacity to change the status of the territory.¹²⁹ Maine believed that sovereignty for the sake of international law was ‘divisible’, and administrative capacities served as evidence for this type of sovereignty, which Maine believed was a ‘collection or bundle of powers’.¹³⁰ Legal historian Lauren Benton shows how this was the case with over 500 Indian princely states that were relatively independent from British India. This raised questions among British officials about whether the region should be considered foreign or British territory and, if foreign, whether intervention in its internal governance was permissible.¹³¹

The evidence reviewed for making this determination sought to identify the extent of administrative control and capacity held by the rulers. As Lauren Benton shows, colonial officials and administrators searched for signs of administrative power, bureaucratic capacity and control, as well as organisational structures in order to define the scope of subordinate jurisdictions. Taxation and tributes paid, the capacity to provide security to the population of a state and the use of security forces to collect tribute were all used as indicators of sovereignty and jurisdictional shifts.¹³² Maine examined, beyond the collection of tribute or taxes, any administrative shifts in jurisdiction aimed at expanding criminal law measures’ applicability. Financial and fiscal aspects, such as regulating the district’s budget, customs and commercial taxes, served as further evidence for princely states’ scope of jurisdiction.

In conclusion, legal historians have demonstrated that administration and bureaucratic organisations were studied by colonial jurists as a proxy for evaluating types and degrees of sovereignty. Scholars of institutional theory and organisations across the social sciences have used accounts of administrative and bureaucratic changes as evidence of major shifts in legal regimes. We argue that administrative and bureaucratic changes can and should be examined as evidence for possible annexation in lieu of a formal declaration by the state.

C. How to Identify Annexation?

Annexation is the incorporation by a state of another state’s territory. It reflects the attempted integration of the annexed territory into that of the sovereign territory of the annexing state. Bureaucratic administration and organisation serve to execute this incorporation. Organisational charts and bureaucratic procedures reveal the modalities of control that the annexing state exerts over the territory, and, in certain instances, they may provide the only way to expose undeclared annexation.

We suggest that in order to define and evaluate whether an annexation has taken place, three cumulative qualifications must be assessed: the normative organising framework with which the state manages the territory reflects a perception of the territory as part of its own; the organisational structure of control assimilates the management of the territory into the bureaucratic machinery of the state; and the symbolic performance of power erases symbolic differences between the territory and the annexing state.¹³³

(i) Normative organising framework

The first qualification is the state’s normative organising framework. What theory does the state employ for managing the territory? Does it reveal a perspective according to which the territory is integral to its own sovereign territory?¹³⁴ Does it apply its domestic law to the territory? Or does it manage the territory using a separate legal framework, such as the international law of occupation? The point of view to be assessed here is not that of an external observer, but rather that of the state under scrutiny. That said, the scrutiny is not of the state’s mental state—its intention or ‘animus’¹³⁵—but of objective metrics, such as the legal rules and administrative routines and means by which it administers the territory.

Specifically, changes in the normative organising framework may support the conclusion that annexation has taken place—for example, when the legal framework by which a state manages a territory or which it applies as its source of authority is redefined, whether in written form or otherwise. In the colonial context, this element came into play as a possible shift from a locally ruled territory to one that is quasi-sovereign, or from British territory to a territory that is locally ruled and thus possibly enjoying a right of non-intervention in its internal affairs. In the context of annexation, a change in the normative organising framework may be learned from political statements made; changes to the legal framework applied—even if not publicly or formally declared; and changes in the norms that are applied to the territory, or in the way they are implemented that indicate a pivot in the perspective concerning the territory. A paradigmatic example for such a shift, supporting a conclusion that annexation has occurred, would be when a state modifies its normative framework for managing a territory from applying the law of occupation to applying its domestic law to the territory.

(ii) Organisational structure of control over the territory

The second qualification is the organisational structure of control over the territory. In this context, we seek on-the-ground evidence relating to the administration and bureaucracy used to manage the territory under control. Is the territory’s management assimilated into the bureaucratic structures of the state in control? Or is it managed independently? In other words, is there a separate administration in place for the territory, distinct from that of the state?

Changes in the organisational structure impact the power and decision-making capabilities of a political entity. If a government undergoes significant organisational changes, such as restructuring its administrative departments, relocating authority from one bureaucratic unit to another or altering appointments and decision-making processes, these may affect its ability to exercise sovereign powers and fulfil its responsibilities to its subjects and the manner in which it does so. In the colonial context, evidence of organisational change included budget reallocation, change in processes of tribute collection or changes in the scope and degree of criminal enforcement. In the context of annexation, a change in organisational structure may be learned from changes to the checks and balances on the execution of power with respect to the territory in question; changes to designation of authority or to the scope of authority; or changes to the processes of appointments, to the definitions of positions and more. A paradigmatic example here would be the replacement of a military structure of control, which is required under the law of occupation, to a civilian one, which is integrated into the bureaucracy of the state.

(iii) Symbolic performance of power

Finally, the third qualification is the symbolic performance of power. Is there evidence that the state employs national symbolic representations to reflect its perspective of the territory as integral to its own? Are other defining symbols, such as other national flags, allowed to fly in that territory? Is the territory managed by uniformed military soldiers (which is to be expected under the law of occupation), or is it managed, for instance, by civilians or the national police (which is more likely in an annexed territory)?

New Institutionalists assert that material changes have symbolic value, and vice versa. John Meyer and Brian Rowan, in their foundational article, treat changes in organisations as rituals and ceremony, in which symbolic and performative acts shape the delegation of authority and discretion within the organisation.¹³⁶ Mark Suchman and Lauren Eidelman demonstrate how organisations shape the law¹³⁷ through symbolic and cultural elements, as the organisational structure itself influences the content and meaning of law. Mara Loveman shows how administrative capacity forged symbolic power and legitimacy during state formation.¹³⁸ The lineage of these ideas goes as far back as Max Weber’s assertion that uniforms and symbols are critical marks of authority and the way to achieve and maintain a monopoly on violence, through the performative assertion of authority.¹³⁹

Therefore, changes in organisational structure and in the normative organising framework also carry profound symbolic meanings. In addition, changes in the performance of the administration, its use of symbols, uniforms, titles or signs can and do indicate shifts in sovereignty.

In the British colonial context, these came into play in the geographic location of key decision making with respect to a territory: for instance, how much power and autonomy is granted to local officials, as opposed to how much is controlled by the Foreign Office in London, or differences in the symbols and uniforms between Crown colonies and dominions that reflected their differing degrees of sovereignty. In the context of annexation, a shift in the symbolic performance of power may be learned from changes made in political symbols and their use, in symbolism regarding the geographic location of decision making or in the choice of deploying locally stationed uniformed military officers to manage the territory as opposed to civilian bureaucrats operating from within the state’s borders. Additional symbolic performances may be used to assess annexation.

D. Israel and the Occupied Palestinian Territory

To demonstrate the value of the proposed theory, we turn to the analysis of Israel’s control of the Occupied Palestinian Territory in the ICJ’s Advisory Opinion. In discussing acts by Israel that amount to annexation of East Jerusalem, the Court analises not only legislation determining that Israeli law will henceforth apply to the territory, which may be characterised as a formal declaration of annexation, but also the fact of application of domestic laws and regulations, and the deployment of bureaucratic mechanisms that ‘integrate the infrastructure of East Jerusalem with that of West Jerusalem, notably through the construction of a single public transportation network’; the enclosure of East Jerusalem neighbourhoods into the Israeli side of the Separation Wall, detaching them from the West Bank; Israel’s regard for the Palestinian population of East Jerusalem as foreigners and its requirement that they hold a residence permit; and its enforcement in East Jerusalem of its settlement of land title process ‘whereby land ownership claims are examined and conclusively registered in Israel’s land registry’.¹⁴⁰

In evaluating Israel’s management of the West Bank, where, conversely to East Jerusalem, Israel has not formally applied its domestic law in full, the Court’s conclusion that Israel has annexed parts of the territory is supported by its finding of the integration of infrastructure between Israeli settlements in the territory and Israel, including particularly the road network; Israel’s extension of domestic law to the West Bank, notably to settlements and to settlers; its declaration of vast areas in the West Bank as ‘State land’, thereafter allocated for the benefit of Israeli settlements, all in consonance with an Israeli Basic Law according to which the State of Israel ‘views the development of Jewish settlement as a national value, and shall act to encourage and promote its establishment and consolidation’; its ‘transfer of powers, including land designations, planning and co-ordination of demolitions, to a civilian administration within the Ministry of Defence in 2023’; as well as the 2022 guiding principles of the Israeli government ‘which announced the formulation and promotion of a policy for the ‘application of sovereignty’ over the West Bank’.¹⁴¹ The lack of a similar conclusion concerning the Gaza Strip is explainable by the withdrawal of Israeli settlers and military presence from the Strip in 2005. While the Israeli withdrawal was not sufficient to convince the Court that Israel is entirely released of its obligations under the law of occupation' in Gaza (even prior to the war that erupted on 7 October 2023), it did nonetheless serve to distinguish the Court’s legal conclusion on the question of annexation.

In other words, as our theory suggests, Israel’s application of an organising normative framework according to which the territory is managed as its own, and particularly the application of its domestic law to the Palestinian territory; its integration of the bureaucratic and administrative infrastructure and mechanisms with which it manages the territory with its own; and its symbolic performance of power, blurring the lines between military and civilian control, displacing the military’s authority and seeking to enforce its national values in the territory all served to convince the Court that annexation has indeed taken place, even absent a formal declaration.

6. Conclusion

With Israel’s annexation of Palestinian territories, and with the Russian aggression in Ukraine, the world must come to terms with the threat that acts of annexation pose once more to the world order.¹⁴² However, existing legal theory provides aggressors with excessive control over when and whether their violation of the jus cogens prohibition on annexation is subject to international scrutiny and response. Those whose actions are being evaluated should not be the same as those who determine whether the law is applied. This is required by the rule of law.

The history of the prohibition on the use of force reveals the point at which official state acts ceased to be justified as the sole test for identifying annexation. When obtaining title over territory through annexation is permitted, proclaiming it or planting a flag in order to consolidate title may reasonably serve as the test for establishing annexation. However, once annexation is legally prohibited, a theory of annexation must be capable of identifying undeclared annexations in order to uphold the norm of territorial integrity and protect the principle of self-determination.

Drawing on an established body of literature from organisational studies, we show that changes in organisational capacities and structures serve as evidence of shifts in sovereignty. They may similarly indicate whether annexation has taken place, even if the annexing state has not formally declared it.

We propose three cumulative qualifications for identifying annexation. The first is the normative organising framework with which a state manages a territory. A common shift here would be from the legal framework of the law of occupation to a state’s own domestic law, reflecting an administration of the territory as its own. The second qualification is the organisational structure of control over the territory. What has not been formally declared may nevertheless be clearly learned from the organisation of authority and formal capacities. In the context of an occupation, clear evidence of annexation is a removal of authority and power from the military commander, whom the international law of occupation designates as the ruler of the occupied territory and its reallocation to the civilian government of the occupying state. Finally, a third qualification is the symbolic performance of power. The performance of administration and the use of symbols including uniforms, job titles, and physical location of offices have profound organisational meaning from which we can deduce the state’s normative organising framework and conclude the occurrence of annexation.

It is incumbent upon the international community to uphold the jus cogens prohibition on annexation. This requires articulating more clearly the terms under which the norm is violated. The organisational theory of annexation proposed in this article fills this gap.

Footnotes