1.  The Inter-War Period

2  Territorial integrity and political independence emerged as important international concepts at the end of World War I. The earliest manifestation of the concepts in international relations was at the end of the war, in Woodrow Wilson’s famous Fourteen Points (Fourteen Points of Wilson [1918]) in which he mentioned: ‘specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike’ (XIV). The concepts were later to be included in Art. 10 Covenant of the League of Nations (‘League Covenant’) under which members of the League of Nations undertook ‘to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League’ (Covenant of the League of Nations [signed 28 June 1919, entered into force 10 January 1920] (1919) 225 CTS 195). In the event of any aggression in breach of the Covenant, the League Council was to advise upon the means by which the obligation should be fulfilled.

3  The powers of the Council under the Article were thus vague, but the Article clearly imposed a legal obligation on members and laid the foundation for the two concepts in international law. As the basis for a legal obligation, Art. 10 was invoked on a considerable number of occasions and seems to have been regarded as a general principle to which appeal could be made whenever a serious threat to the personality of a State was apprehended. Persia, as then named, appealed to the League by virtue of Arts 10 and 11 League Covenant after the Russian bombardment of Enzeli. Art. 10 was invoked by Austria in a complaint to the Council concerning alleged frontier violations by Hungary in 1921. When Bulgaria appealed to the League in 1925 following a Greek invasion, it referred to Arts 10 and 11, but the Council took action under Art. 11 alone.

4  In what came to be called the Stimson Note (‘Identic Notes from the United States Secretary of State to the Chinese and Japanese Governments, January 8, 1932’) the United States referred to the two concepts in 1932 when it indicated that it would not accept the legality of any de facto situation or recognize any treaty between the governments of Japan and the State of Manchukuo in China ‘which may impair the rights of the United States…including those which relate to the sovereignty, the independence or the territorial and administrative integrity of the Republic of China’ (see also Doctrines [Monroe, Hallstein, Brezhnev, Stimson]).While the Stimson Note did not make a specific reference to Art. 10 League Covenant, it nonetheless reflected the prevailing ideas in international law regarding political independence and territorial integrity. Indeed, not long after the Stimson Note, the two concepts were incorporated in the Convention on Rights and Duties of States (‘Montevideo Convention’), Art. 3 of which dealt with the right of a State to defend its integrity and independence regardless of whether its political legitimacy was recognized by the other States.

2.  The Concepts within the United Nation System

6  At the Dumbarton Oaks Conference (1944), the original draft of Art. 2 (4) was restrictive and only prohibited members from the ‘the use or threat of force in their international relations in any manner inconsistent with the purposes of the Organization’. The words ‘against the territorial integrity or political independence of any state’ were added to the Charter at the insistence of smaller countries that wanted some assurance that the more powerful States could not use force at the expense of weaker states. As the late Sir Hersch Lauterpacht wrote, ‘territorial integrity, especially where coupled with political independence, is synonymous with territorial inviolability’ (Oppenheim 154).

7  For smaller and weaker States, ‘territorial inviolability’ provided an essential foundation for sovereign equality (States, Sovereign Equality) undisturbed by external threats. Indeed, the combination of the word ‘threat’ in Art. 2 (4), as an equally impermissible activity as the use of force (Use of Force, Prohibition of Threat), with the expression ‘political independence’ meant that a State was protected not only from physical acts of violence against its territorial integrity and political independence, but also from threats which could be directed against and eventually influence the freedom of its decision-making and the normal operation of its organs.

8  In international law and in the practice of the United Nations, it is generally agreed that the notion of territorial integrity must be taken to refer to effective control and possession and not, necessarily, to a de iure recognized title to the territory in question. Consequently, loss of territorial integrity of a State implies loss of control and possession of the land, airspace, or sea, totally or partially, regardless of whether the former were based upon a legal title or a de facto situation. In practice, it is established that it is not only the direct occupation of a State’s territory which constitutes a violation of its territorial integrity, but also the indirect involvement in its internal affairs such as the aid of rebels by a third State to gain control of all or a part of its territory. Thus in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), for instance, Nicaragua’s ‘fundamental contention’ was that the conduct of the United States in assisting the Contra rebels was a violation of the United Nations Charter and the Charter of the Organization of American States (OAS). The International Court of Justice (‘ICJ’) found in favour of Nicaragua.

9  The notion of ‘political independence’ lends itself to easier interpretation since it is obvious that the political independence of a State is infringed in all cases in which foreign acts tend to control the organs of a State and influence their capacity to decide through the threat or use of force or through subversive measures or pressures exerted upon them. It is interesting to note that in the cases brought before the United Nations based on claims of violation of political independence, frequent references have been made to the maintenance of foreign troops on the territory of a State contrary to the will of the local government. Early complaints against such a phenomenon may be detected in the Soviet protest against the continuing presence of British troops in Greece (1946). More recent action includes United Nations Security Council Resolution 1559 (2004) of 2 September 2004 to end Syrian occupation of Lebanon.

11  The next reaffirmation of the continuing significance of territorial integrity and political independence is to be found in the Friendly Relations Declaration (1970) (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UNGA Res 2625 [XXV]). In this instrument, the expressions ‘territorial integrity’ and ‘political independence’ occupy an important position, intertwined, this time not only with the principle of the prohibition of the threat or use of force but also with the principle of sovereign equality of States.

12  The concepts of territorial integrity and political independence appear recurrently in the preamble of the Friendly Relations Resolution. First, the United Nations General Assembly recalls the duty of States to refrain in their international relations from military, political, economic, or any other form of coercion aimed against the political independence or territorial integrity of any State. In addition, it considers it essential that all States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State. Second, the General Assembly expresses its conviction that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country, or at its political independence, is incompatible with the purposes and principles of the Charter. Finally, the General Assembly considers that the codification and progressive development of international law, including the prohibition of the threat or use of force against the territorial integrity or political independence would promote the realization of the purposes of the United Nations.

17  The inclusion of the two concepts in the Friendly Relations Resolution within the purview of the principle of the sovereign equality of States has raised them from their monolithic coexistence with the principle of the prohibition of the threat or use of force and their consequent ‘negative’ definition in the context of international law. Acceptance by the Friendly Relations Resolution of these concepts as parts of the sovereign equality of States has put them in their right perspective, giving them an affirmative status in international law.

18  Two other documents emerging from the activity of the United Nations General Assembly complete the image of territorial integrity and political independence. The first is the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty of 21 December 1965 (UNGA Res 2131 [XX]), where the General Assembly, concerned at the increasing threat to international peace due to armed and other direct or indirect forms of interference threatening the sovereign personality and the political independence of States, stated that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty, and the integrity of their national territory, and that, by virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural developments. As in the case of the Declaration on the Granting of Independence to Colonial Countries and Peoples, this Declaration also encompasses the freedom of economic, social, and cultural development of a people.

19  Another instrument of significance in the evolution of the two concepts is the Resolution on the Definition of Aggression of 14 December 1974 (UNGA Res 3314 [XXIX]). Under this resolution, the General Assembly reaffirms the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom, and independence, or to disrupt territorial integrity. The resolution defines ‘aggression’ as the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State.

20  The Declaration on the Inadmissibility of Intervention and the Resolution on Aggression reflect in their texts the development of the concepts of territorial integrity and political independence in the circumstances of an enlarged United Nations Organization, heavily influenced by new, small, mainly ex-colonial States (Colonialism) with particular problems of integration within the international system, mindful of the past and prospective role of the Northern Hemisphere with respect to their sovereignty and integrity.

21  In the United Nations, particularly in the Security Council, the two concepts have become established as important building blocks in the resolution of most disputes involving territory and or the use of force. For instance, in Eastern Europe the United Nations consistently relied on the concepts as important foundations for peace and security following the dismantling of the former Soviet Union, and in the former Yugoslavia (Yugoslavia, Dissolution of) and the subsequent conflicts in Kosovo, Bosnia-Herzegovina, and Nagorny-Karabakh. In the Nagorny-Karabakh question, the Security Council condemned the Armenian invasion and occupation of Azerbaijan’s territories and reaffirmed the sovereignty and territorial integrity of Azerbaijan, in four Resolutions: 822 (30 April 1993), 853 (29 July 1993), 874 (14 October 1993), and 884 (12 November 1993), which reaffirmed: (a) the sovereignty and territorial integrity of Azerbaijan and all other States in the region; (b) the inviolability of international borders; and (c) the inadmissibility of the use of force for the acquisition of territory (Territory, Acquisition). In resolutions 1244 (1999) of 10 June 1999 and 1297 (2000) of 12 May 2000, the Security Council reaffirmed the two concepts in relation to the resolution of the conflicts in Kosovo and the Congo (Congo, Democratic Republic of the) respectively.

22  The two concepts remain very much an important element in the operation of the United Nations. At the 2005 World Summit Outcome world leaders re-dedicated themselves to support all efforts to uphold the sovereign equality of all States, and to respect their territorial integrity and political independence (‘2005 World Summit Outcome, UNGA Res 60/1 [12 September 2005] GAOR 60th Session Supp 49 vol 1, 3).

3.  The Concepts outside the United Nations System

23  Outside the UN system, territorial integrity predates the United Nations’ recognition of the concepts. In the early 19th century when Spain’s former Latin American colonies achieved their independence, they adopted the uti possidetis doctrine, under which each State’s colonial administrative borders were established and accepted as the international borders.

24  The doctrine of uti possidetis became a precedent followed most notably in post-colonial Africa in dealing with the issue of territorial integrity and political independence. In the process of acquiring territories in the colonial period in Africa, the European powers had adopted boundaries during the Berlin Conference in 1896 without regard to tribal ‘natural’ boundaries between the different tribes. The ‘artificial’ national boundaries became the basis of most of the post-colonial States in Africa. As various African States gained their independence on the basis of their acquired colonial boundaries, there was a concern that territorial claims and counter-claims to reunite the various tribes on the basis of their ‘natural’ boundaries could lead to conflicts and political instability and threaten the territorial integrity of several States. The question of territorial integrity therefore received particular attention in the Charter of the Organization of African Unity (‘OAU’) ([adopted 25 May, entered into force 13 September 1963] 479 UNTS 39). In the Charter, African States express their determination to safeguard and consolidate ‘the hard-won independence’ as well as the sovereignty and territorial integrity of their States. Art. 11 OAU Charter states that the defence of sovereignty, territorial integrity, and independence constitutes a purpose of the Organization.

25  While respect for inherited colonial boundaries was implicit in the OAU members’ commitment to territorial integrity in the Organization, there was a view that the ‘colonial boundaries rule’ needed explicit articulation. In 1964, following the view that it is only by acceptance of the frontiers bequeathed to them by the colonialists can permanent peace reign on the African continent, the OAU formally adopted Resolution 16/1 ‘Border Disputes among African States’ of 1964 in which all Member States pledged ‘to respect the borders existing on their achievement of national independence’ consistent with the principle of uti possidetis.

26  The strong adherence of African states to uti possidetis as the basis for respecting territorial integrity in the African context established regional customary law regarding territory boundaries inherited from the colonial period. This in part explains the African collective objection to the recognition of Biafra (Biafra Conflict) as a secessionist State from Nigeria, and other secessionist movements on the continent (Secession).

28  The secession of Eritrea from Ethiopia and its subsequent recognition by the OAU in 1993 stands out as an exception to the recognition and acceptance of inherited colonial boundaries as the basis of territorial integrity in Africa. Another potential exception is that of the Southern Sudan. In 2005 the Government of Sudan and the Sudan People’s Liberation Army (‘SPLM/A’) signed the Comprehensive Peace Agreement (‘CPA’) after decades of secessionist insurgency by the southern Sudanese. Under the terms of the CPA the government was required to hold a referendum at the end of a six-year interim period in 2011, to allow the southerners to secede if they so wish. Following a vote in a referendum, it became the second instance in the history of the continent of the recognition of an alteration of an inherited colonial boundary and an implicit rejection of the inviolability of sovereignty and territorial integrity founded on inherited colonial boundaries in Africa.

29  A notable feature of the cases of Eritrea and the Southern Sudan is that they are both internal claims; they are not external territorial claims on the parent States. In the context of Africa, the two examples permit a modern interpretation of territorial integrity based on colonial boundaries and the doctrine uti possidetis to allow for secessionist self-determination.

30  Elsewhere outside the United Nations system, the concepts of territorial integrity and political independence may also be found in most regional arrangements in international relations. These include: the Non-Aligned Movement (NAM) (1961); the Organization of the Islamic Conference (OIC) (1973); the Treaty of Amity and Cooperation in Southeast Asia (1976); the South Asian Association for Regional Cooperation (SAARC) (1985); the Andean Community of Nations (CAN) (1989–present); the Commonwealth of Independent States (1991–present), Conference on Interaction and Confidence Building Measures in Asia (‘CICA’) (1999); the GUUAM/GUAM Organization for Democracy and Economic Development (2001); the South-East European Cooperation Process (2000); and the Shanghai Cooperation Organization (‘SCO’) (2000).

31  The most comprehensive approach to date to the concepts of territorial integrity and political independence outside the United Nations system is to be found in the Helsinki Final Act (1975). In this important document on East–West relations, the concepts of territorial integrity and political independence enjoy the status of rights under international law, while the notion of territorial integrity unequivocally acquires the status of a principle guiding the relations of the participating States.

33  Section II combines the concepts of territorial integrity and political independence together with the notion of the prohibition of the threat or use of force in the traditional manner. Section IV is dedicated to a circumscription of the principle of territorial integrity. The text is rather awkward in that it follows a wording which, instead of defining the notion and delimiting its scope, generally refers to the Charter of the United Nations and to the practice established therein. The wording of this section was a compromise between the views of a number of Eastern European countries, which had intended to broaden the scope of the concept; and the views of the Western countries, which had intended to keep the notion within the orthodox limits set down by the UN system.

34  While the Helsinki Accords were concluded in the period of the Cold War (1947–91), they remain an important element in international law and relations in the post-Cold War environment in which Europe has seen the emergence of several new States (New States and International Law) and in which the notions of territorial integrity and political independence feature prominently. Indeed, to the extent that the Final Act outlines general principles of international behaviour and security, its contents remain valid today as they did in the Cold War. In the words of US Secretary of State Rice, the Final Act provides the ‘foundations of peaceful democratic’ transformation and ‘lasting security’.

1.  Self-Determination and Territorial Integrity

36  Self-determination defined as ‘the right of a people to freely determine their political status and freely pursue their economic, social and cultural development’ is generally regarded as an operative legal right in international law. The principle was used as the primary basis for decolonization. In the colonial context, self-determination was used by ‘freedom fighters’ under international law as a right and not a violation of territorial integrity (see also National Liberation Movements). Its legal status was thus narrowly defined and confined to colonial territories. In the post-colonial context, a claim by a section of a State for self-determination is generally secessionist in character and presents a major challenge to the concepts of territorial integrity and political independence. The Canadian Supreme Court in the Reference re Secession of Quebec case thus declared that ‘international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states’ and that the right to unilateral secession ‘arises only in the most extreme of cases and, even then, under carefully defined circumstances’ (Re Reference by the Governor in Council concerning Certain Questions relating to the Secession of Quebec from Canada (1999) 115 ILR 536). In Africa where secessionist self-determination claims are a feature of the post-colonial political environment, the States have persistently rejected the principle as being inconsistent with concepts of territorial integrity and uti possidetis until the recent case of Eritrea and, potentially, the case of the Southern Sudan.

37  There is no clear rule of international law that supports or rejects self-determination in the post-colonial context on the grounds that it breaches territorial integrity. On the other hand, when viewed as a human right, it is arguable that self-determination of a people within a sovereign State is a necessary pre-condition for the proper exercise of their democratic rights. This provides weight to the view that where a people are subject to ‘extreme and unremitting persecution’ coupled with the ‘lack of any reasonable prospect for reasonable challenge’ the demands of territorial integrity and political independence may give way to self-determination. Thus in general, cases of self-determination that have succeeded with subsequent international recognition for the claimants are characterized by three features: an effective claim process, clear evidence of an inability or unwillingness of the parent State to regain control over the claimants, and the absence of protest against international recognition of the claimant. For instance, in the secession of East Pakistan from the rest of Pakistan to form Bangladesh, once it became clear after the Indo-Pakistan war in 1971 that Pakistan had lost control over the territory and was not able to regain it, the way was paved for its acceptance into the United Nations. Pakistan as the parent State did not mount an international campaign against the recognition of Bangladesh.

38  Similarly, in the case of the secession of Latvia, Estonia, and Lithuania from the former Soviet Union, evidence of the inability of the Soviet Union as the parent State at the time was an important determining factor in the success of their claims. Before their secession, the three had maintained their right to self-determination on the basis of their earlier (pre-Soviet annexation) status as independent States. While most Western States objected to the Soviet annexation of the three States, they stopped short of formal recognition of the States given the Cold War environment at the time. However, after the February 1991 referendum in Lithuania in which the country voted overwhelmingly for independence, the conditions changed. In spite of an initial statement by the Soviet Union that the referendum was illegal, it took no effective protest measures against the spate of recognitions of the three States that followed the Lithuanian referendum. The three States were subsequently admitted into the United Nations in 1991 without any queries as to their right of self-determination, notwithstanding the obvious impact on the territorial integrity of the then Soviet Union.

39  The case of the Baltic States contrasts sharply with the case of the Turkish Republic of Northern Cyprus (‘TRNC’) in which both the Republic of Cyprus and the United Nations have consistently discouraged any form of recognition of the territory with continuing efforts by Cyprus as the parent State to reunite the territory. Cyprus has consistently maintained its right to territorial integrity with respect to northern Cyprus and the duty of non-recognition of TRNC by other States. In the case of the TRNC, unlike the Baltic States and Bangladesh, the parent State has persisted in its efforts to regain control and has consistently opposed recognition by other States while affirming its territorial integrity. While there is no duty to recognize in international law, there is a duty of non-recognition. Recognition of the TRNC in such circumstance would be a breach of the duty of non-recognition and constitute an interference in the domestic affairs and the territorial integrity of Cyprus.

40  The reaffirmation of sovereignty and territorial integrity constantly brings up the tensions between the two concepts on the one hand and the right to self-determination on the other hand. The potential for the tension was recognized in the General Assembly as long ago as in Resolution 1514 (XV) Declaration on the Granting of Independence to Colonial Countries and Peoples in the 1960s when the General Assembly declared that all peoples ‘have the right to self-determination’ (para. 2), but then noted also that, any ‘attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’ (para. 6). The tension is reflected in the practice of the Security Council with an apparent bias by the Council to favour territorial integrity over self-determination claims unless dictates of human rights and peace and security demand otherwise. In the case of the Kurdish demands in Iraq, the Security Council consistently affirmed the dependence, sovereignty, unity, and territorial integrity of Iraq in Resolution 688 (1991) of 5 April 1991 and Resolution 1546 (2004) of 8 June 2004 without reference to the demands of the Kurdish people to self-determination.

41  In general, balancing the competing demands of self-determination and territorial integrity is a delicate process that may also be dictated by pragmatism to meet the interest of international, or regional, peace and security. For instance in dealing with the Kosovo conflict in 1999, the Security Council affirmed the ‘commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia’ in Resolution 1244. Thus, in responding to the demands of Kosovo for self-determination, which was one of the underlying causes of the conflict, the Council only affirmed ‘substantial autonomy and meaningful self-administration for Kosovo’. The substance of Resolution 1244 was however temporary. In the Resolution, the Security Council placed the Kosovo province under UNMIK’s administration pending a determination of its final status. In the Ahtisaari Plan in 2006, which was adopted by the Council to deal with the status of Kosovo, the province was allowed its ‘meaningful determination’ in apparent conflict with the territorial integrity of Serbia by being granted the right to a national flag and anthem and the right to conclude international agreements and to seek membership in international institutions (‘Letter Dated 26 March 2007 from the Secretary-General Addressed to the President of the Security Council’ UN Doc S/2007/168).

42  The choice of ‘meaningful self-determination’ for Kosovo over a strict adherence to territorial integrity in favour of Serbia in the Ahtisaari Plan may be considered a pragmatic recognition that forcing Kosovo Albanians back into a constitutional relationship with Serbia to honour its territorial integrity would potentially reignite violence, and thereby undermine peace and security in the region and the stability of Serbia itself.

2.  Humanitarian Intervention and Territorial Integrity

43  Humanitarian intervention typically involves the use of force by one or more States to intervene in or enter a sovereign State with the stated objective of assisting a resident population in the State who are subject to gross human rights abuses. By its very nature, forceful intervention poses an immediate challenge to territorial integrity and political independence. Apart from the conflict with the two concepts, such intervention also potentially conflicts with the principle of the prohibition of force (Use of Force, Prohibition of) under Art. 2 (4) and the non-intervention provision of Art. 2 (7) UN Charter. In spite of the potential conflicts, the debate over humanitarian intervention has persisted in international law because of human rights imperatives and the commitment of the international community to humanitarian causes.

45  The traditional international law position does not favour humanitarian intervention. This has been made clear by United Nations General Assembly resolutions, declarations, and assertions, as well as by frequent condemnation of States that have employed humanitarian arguments to justify their actions in the domestic affairs of other States. However, in the clearly humanitarian interventions in the 1970s and 1980s, particularly the Vietnam invasion of Cambodia (Cambodia Conflicts [Kampuchea]) and the Tanzanian invasion of Uganda, the international community appear to have recognized the actions as warranted by the gravity of the humanitarian circumstances.

46  The traditional international law resistance to humanitarian intervention was premised more on the absence of clearly defined rules for such intervention and the concern that the intervening States might use the intervention to serve their own interests in breach of the territorial integrity and political independence of the intervened State. It is by no means clear that States opposed humanitarian intervention purely to preserve territorial integrity and political independence irrespective of the humanitarian implications for the beneficiary population.

47  Whatever the traditional international law position may have been, it is arguable that there are now emerging trends that favour humanitarian intervention as a qualification to territorial integrity and political independence. In the Military and Paramilitary Activities in and against Nicaragua Case the ICJ admitted the permissibility of ‘strictly humanitarian aid’ as an exception to unlawful interventions (para. 242). In the Iraqi Kurds’ rebellion against the Iraqi government after the liberation of Kuwait (Iraq–Kuwait War [1990–91]), the Security Council did not sanction forceful intervention to assist the Kurds. It permitted only humanitarian aid. This notwithstanding, allied forces claiming the authority of Resolution 688 (1991) of 5 April 1991 and the earlier Resolution 678 (1990) of 29 November 1990, distributed food to the refugees, set up camps for them, and more importantly defended them against Iraqi attacks by creating a protective zone and excluding Iraqi troops from the Kurdish region. In 1995 the massacres in Markale triggered the North Atlantic Treaty Organization (NATO) bombing in Bosnia and Herzegovina. In 1999 NATO justified its bombing of Yugoslavia on the necessity of protecting the Kosovo Albanian people from what was described as aggression and ethnic cleansing, by the military of the Federal Republic of Yugoslavia and Serbian paramilitary police forces.

49  Security Council Resolution 1674 of 28 April 2006 reaffirmed ‘the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcomes Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity’.

50  It is to be noted that para. 139 of the World Summit Outcomes clearly stated that any ‘collective action’ must be in ‘accordance with the UN Charter including Chapter VII’. To the extent that Art. 2 (4) permits the use of force not inconsistent with the Charter, such collective action for humanitarian intervention will accordingly be consistent with the Charter and a significant qualification to the concepts of territorial integrity and political independence.

51  The rhetoric at the United Nations suggests that the Organization is evolving towards a less rigid adherence of territorial integrity and political independence. The principal test for any change in the UN’s approach to the concepts of territorial integrity and humanitarian intervention after the World Summit was Darfur in Southern Sudan. However, the rhetoric of the UN has not been matched by any realistic or practical action of humanitarian intervention in the case of Darfur.

3.  Terrorism and Territorial Integrity and Political Independence

53  The increasing incidents of terrorism and the ability of terrorist groups to secure training camps and facilities in sympathetic States have brought important implications for territorial integrity and political independence. In the need to combat terrorism, the issue arises as to whether a State is entitled to pursue suspected terrorists in another State without infringing the concepts of territorial integrity and political independence. The situation is well typified in the US commando attacks to capture suspected Al Qaeda terrorists in Mogadishu, Somalia; the US invasion of Afghanistan (Afghanistan, Conflict) to overthrow the Taliban in 2001; and Israel’s attacks against Lebanon’s main airport, highways, military bases, and other targets, in retaliation for attacks by Hezbollah guerrilla rockets against Israel in July 2006.

54  The pursuit of terrorists by a State into the territory of another State necessarily invokes the complex relationship between territorial integrity and political independence on the one hand, and the issues of aggression and the right of self-defence on the other hand. United Nations General Assembly Resolution 3314 (XXIX) defines aggression as ‘the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State’ (Art. 1). Materially, the ‘invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary’ qualifies as aggression (Art. 3). The Resolution also provides that the ‘action of a State in allowing its territory…to be used by [another] State for perpetrating an act of aggression against a third State’ also qualifies as aggression (Art. 3 (f)). Based on the Resolution, it would seem to follow that a State that permits its territory to be used by terrorists to commit attacks against another State ipso facto commits aggression against the State that is attacked by the terrorists. This would in turn permit the right of self-defence under Art. 51 UN Charter and allow an attack on the territory of the receiving State notwithstanding the concepts of, and the prohibitions against breaching, territorial integrity and political independence of the State. For instance in the case of the US attacks against Afghanistan, the US action was justified on the principle of self-defence and reinforced by the ambiguous language of Security Council Resolution 1368 of 12 September 2001 in which the preamble recognized the ‘inherent right of individual and collective self-defence’ in relation to the September 11 attacks against the United States. The UN High-level Panel on Threats, Challenges and Change thus noted that Resolution 1368 ‘opened the way for United States-led military action against the Taliban regime in self-defence’ (‘A More Secure World: Our Shared Responsibility. Report of the High-level Panel on Threats, Challenges and Change’, in UNGA, ‘Note by the Secretary-General’ [2 December 2004] UN Doc A/59/565, 8).

55  However, on the issue of terrorism and the question of aggression, one needs to tread carefully. The Resolution on the Definition of Aggression is very specific in its use of terminology. The Resolution specifically deals with the action of a State in allowing its territory to be used by another State as such against a third State. The difficulty is that terrorist organizations however efficient and well organized they may be in their structure and administration are not States. But on the other hand, terrorist organizations as non-State actors have become increasingly important agents of conflict and State failure (Failing States). More significantly, while they may seek sanctuary and training facilities within a State, they are likely to operate beyond the State’s control or sponsorship. The attack by the Hezbollah in Lebanon against Israel that prompted the conflict in 2006 is a typical example. The modus operandi of terrorist organizations thus does not necessarily trigger the definition of aggression. On the other hand, in both the UN Charter and in customary international law, the definition of armed attack that triggers the right to self-defence is not necessarily stated in terms of an attack by a State as such. It therefore leaves room for the conclusion that when an armed attack by a non-State actor occurs against a State, that State is entitled to the right of self-defence including action in pursuit of the non-State actors where they are resident in another State. Such an action will not be a breach of the principle of territorial integrity and political independence if it is confined to the destruction of the terrorist organization. While the action of the non-State terrorist actors may not be attributable to the host State, the failure or inability of the State to control the non-State actors in itself lends weight to the right of the aggrieved State to take measures against the non-State actors in the host State, without being in breach of the concepts of territorial integrity and political independence. To be consistent with the rules on non-aggression and respect for the concepts of territorial integrity and political independence, however, such action must be preceded by efforts to secure the assistance of the host State to abate the activities of the non-State actors. It is the failure or inability of the host State to abate such activities that would lend legitimacy to the action of the aggrieved State.

56  In the context of the so called ‘War on Terror’, it is thus arguable that a limited use of force that specifically targets a specific terrorist organization in the territory of a State would not violate that State’s territorial integrity or political independence and would be consistent with Art. 2 (4) UN Charter if the host State is unable to stop the action of the terrorist activity. Moreover, eliminating the threat of terrorism is consistent with the principles of numerous conventions and pronouncements of UN bodies that have condemned terrorism as a practice. For instance, Security Council Resolutions 1368 and 1373 of September 2001 reaffirmed that terrorist acts constitute ‘threats to international peace and security’ and resolved that States should take all necessary steps to prevent terrorist acts.

Select Bibliography

• LF Oppenheim Oppenheim’s International Law vol 2, Disputes, War and Neutrality (H Lauterpacht ed, 7th ed Longmans London 1952).
• A D’Amato Collected Papers vol 1, International Law and Political Reality (Kluwer The Hague 1995).
• N Krylov ‘Humanitarian Intervention: Pros and Cons’ (1995) 17 Loyola of Los Angeles International and Comparative Law Journal 365–407.
• A Cassese Self-Determination of Peoples: A Legal Reappraisal (CUP Cambridge 1996).
• F Francioni ‘Of War, Humanity and Justice: International Law after Kosovo’ (2000) 4 MaxPlanckUNYB 107–26.
• MW Zacher ‘The Territorial Integrity Norm: International Boundaries and the Use of Force’ (2001) 55 IntlOrg 215–50.
• T Modibo Ocran ‘The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping’ (2002) 25 Boston College International and Comparative Law Review 1–58.
• D Vesel ‘The Lonely Pragmatist: Humanitarian Intervention in an Imperfect World’ (2003) 18 Brigham Young University Journal of Public Law 1–58.
• BN Dunlap ‘State Failure and the Use of Force in the Age of Global Terror’ (2004) 27 Boston College International and Comparative Law Review 453–75.
• I Brownlie Principles of Public International Law (7th ed OUP Oxford 2008).
• A Orakhelashvili ‘Statehood, Recognition and the United Nations System: A Unilateral Declaration of Independence in Kosovo’ (2008) 12 MaxPlanckUNYB 1–44.
• MN Shaw International Law (6th ed CUP Cambridge 2008).

Select Documents

• AU, ‘African Union Non-Aggression and Common Defence Pact’ (10 July 2002).
• Comprehensive Peace Agreement between the Government of the Republic of the Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (9 January 2005).
• Conference for Security and Co-operation in Europe, ‘Final Act’ (adopted 1 August 1975) (1975) 14 ILM 1292.
• Convention on Rights and Duties of States (signed 26 December 1933, entered into force 26 December 1934) 165 LNTS 19.
• Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 October 1970) GAOR 25th Session Supp 28, 121.
• Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 December 1960) GAOR 15th Session Supp 16 vol 1, 66.
• Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, UNGA Res 2131 (XX) (21 December 1965) GAOR 20th Session Supp 14, 11.
• Definition of Aggression, UNGA Res 3314 (XXIX) (14 December 1974) GAOR 29th Session Supp 31 vol 1, 142.
• ‘Identic Notes from the United States Secretary of State to the Chinese and Japanese Governments, January 8, 1932’, in JW Wheller Bennett (ed), Documents on International Affairs 1932 (OUP Oxford 1933) 262.
• Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14.
• Treaty of Amity and Cooperation in Southeast Asia (with an Agreed Common Translation into English) (done 24 February 1976, entered into force 15 July 1976) 1025 UNTS 297.
• UNSC Res 678 (1990) (29 November 1990) SCOR 45th Year 27.
• UNSC Res 688 (1991) (5 April 1991) SCOR 46th Year 31.
• UNSC Res 822 (1993) (30 April 1993) SCOR 48th Year 70.
• UNSC Res 874 (1993) (14 October 1993) SCOR 48th Year, 72.
• UNSC Res 853 (1993) (29 July 1993) SCOR 48th Year 71.
• UNSC Res 884 (1993) (12 November 1993) SCOR 48th Year 73.
• UNSC Res 1244 (1999) (10 June 1999) SCOR 54th Year 32.
• UNSC Res 1297 (2000) (12 May 2000) SCOR 55th Year 145.
• UNSC Res 1368 (2001) (12 September 2001) SCOR [1 January 2001–31 July 2002] 290.
• UNSC Res 1373 (2001) (28 September 2001) SCOR [1 January 2001–31 July 2002] 291.
• UNSC Res 1546 (2004) (8 June 2004) SCOR [1 August 2003–31 July 2004] 60.
• UNSC Res 1559 (2004) (2 September 2004) SCOR [1 August 2004–31 July 2005] 34.
• UNSC Res 1674 (2006) (28 April 2006) SCOR [1 August 2005–31 July 2006] 228.