C. Current Legal Situation
16 This position is also confirmed by subsequent consistent State practice. Various resolutions of the United Nations General Assembly (United Nations, General Assembly; ‘General Assembly’) and the United Nations Security Council (United Nations, Security Council; ‘Security Council’) confirm this viewpoint. Already in 1967, Security Council Resolution 242 (1967) emphasized the ‘inadmissibility of the acquisition of territory by war’ (UNSC Res 242 [22 November 1967] UN Doc S/RES/242 ). Although they are not to be regarded as binding international law, General Assembly resolutions show how States interpret the prohibition of the use of force and its consequences. The Friendly Relations Declaration (1970) declares, within the scope of the principle forbidding the use of force, that ‘the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal’. This is also confirmed by Art. 5 (3) General Assembly Resolution 3314 (XXIX) on the Definition of Aggression, which states that ‘[n]o territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful’. Moreover, the principle of sovereign equality of States (States, Sovereign Equality) includes territorial integrity as one of its elements and states that this is inviolable. In its Arts 4 and 5, the Declaration on the Strengthening of International Security (UNGA Res 2734 [XXV] GAOR 25th Session Supp 28, 22) reaffirms this solemnly. On the regional level, the Helsinki Final Act (1975) recognizes in its principles I–IV the sovereign equality of all States, the obligation of States to refrain from the threat or use of force, as well as the inviolability of frontiers and the territorial integrity of States and, thereby, adds to the general ban on annexation as a lawful means for acquisition of territory.
17 The illegality under international law of any annexation based on an unauthorized use of force was also confirmed by developments in connection with the occupation and annexation of Kuwait by Iraq (Iraq-Kuwait War [1990–91]). Security Council Resolution 662 (1990) ([9 August 1990] SCOR 45th Year 20) unanimously declared Iraq’s annexation of Kuwait to be null and void and called upon States and institutions not to recognize the annexation and to refrain from any action that might be interpreted as an indirect recognition of it. Moreover, the European Community, in its Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, adopted as a common position on 16 December 1991 in Brussels, established as one condition for such recognition the ‘respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement’ and confirmed that it would not recognize entities that ‘are the result of aggression’.
18 Attention should also be drawn to Art. I of the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) in which the States Parties to that treaty explicitly recognized their obligations to ‘fully respect the sovereign equality of one another’ and ‘to refrain from any action, by threat or use of force or otherwise, against the territorial integrity or political independence of Bosnia and Herzegovina or any other State’; moreover, in Art. X, the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina agreed to ‘recognize each other as sovereign independent States within their international borders’. The strong commitment of the international community to outlaw annexations is also reflected in numerous Security Council Resolutions, eg Resolution 1244 (1999), establishing international civil and security presences in Kosovo, which reaffirms, in its preamble, ‘the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and the other States of the region’ (UNSC Res 1244  [10 June 1999] UN Doc S/RES/1244 ), or Resolution 1472 (2003) on the situation in Iraq which reaffirms, in its preamble, ‘the commitment of all member states to the sovereignty and territorial integrity of Iraq’ (UNSC Res 1472  [28 March 2003] UN Doc S/RES/1472 ).
19 Moreover, Art. 52 Vienna Convention on the Law of Treaties (1969) (‘VCLT’) states that a treaty is void ‘if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’ and, thus, rejects the validity of even a treaty-based annexation.
20 Finally, the obligation of third States not to recognize as lawful any territorial changes brought about by means of annexation can also be based upon Art. 41 (2) Draft Articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission (ILC), according to which States must not recognize as lawful a situation created by a serious breach of an obligation arising under a peremptory norm of general international law, nor render aid or assistance in maintaining that situation (State Responsibility).
21 In view of the pertinent consistent and uniform State practice it is beyond any doubt that, under present international law, the prohibition of annexation and the obligation not to recognize it as lawful (Stimson Doctrine) extend beyond treaty obligations and form part of customary international law. Considering the essential relevance of these two principles in terms of the effective implementation of the prohibition of the threat or use of force as the most fundamental norm of present international law, there are convincing reasons to consider them as ius cogens norms.
D. Specific Legal Problems
22 Notwithstanding the unequivocal prohibition of annexation and the corresponding equally clear obligation not to recognize it as legal, there remain some specific legal problems. The most relevant concerns the question of whether the annexation of territory of an aggressor State might, as an exception to the general rule, be considered lawful under present international law and whether an initially unlawful annexation may be turned into a lawful cession of territory by the subsequent conclusion of a (peace) treaty. Moreover, it might be argued that the factual recognition by the international community of an unlawful annexation eventually results in the lawfulness of the territorial change in question. Finally, the legal situation of the population of the territory annexed raises a number of intricate questions.
1. Annexation of Territory of an Aggressor State
23 Since present international law prohibits only the unauthorized use of force, it has been argued that it is only the use of such force which confers no legal title. Consequently, a right to annexation might be acknowledged in a situation of legitimate self-defence, as permitted under Art. 51 UN Charter or, provided that such a right exists, as an exercise of a customary law right to (preventive) self-defence, or in the case of military sanctions authorized by the Security Council acting under chapter VII UN Charter, if the territory affected belongs to the aggressor State. Ultimately, this position is based upon the consideration that the prohibition of annexation should be limited to acts of an aggressor State, because a State acting in legitimate self-defence should be entitled to annex territory of the aggressor State in order to protect itself against future aggressions; moreover, the reluctance of States to take recourse to acts of aggression would be enhanced if they, as aggressor States, were not protected by the prohibition of annexation against loss of their territory in case of military defeat.
24 However, this position is not in conformity with present international law. First, the right to legitimate self-defence is, as a result of the application of the principle of proportionality, limited to the restoration of the status quo ante (status quo), ie of the situation before the unlawful armed attack. This view is, secondly, also confirmed by the pertinent State practice, at least in recent times, as shown, in particular, in Security Council Resolution 686 (1991), establishing the requirements to end hostilities in Iraq, which affirms, in its preamble, ‘the commitment of all Member States to the independence, sovereignty and territorial integrity of Iraq and Kuwait’ while, at the same time, demanding that Iraq ‘rescind immediately its actions purporting to annex Kuwait’ (UNSC Res 686  [2 March 1991] UN Doc S/RES/686 ). So, notwithstanding the fact that Iraq had committed an act of aggression, it remained protected against any kind of annexation of its territory.
2. Annexation and Subsequent Conclusion of Peace Treaties
25 Even more controversial is the situation regarding the question of whether an initially unlawful annexation can be turned into a lawful cession of territory by the subsequent conclusion of a (peace) treaty. Obviously, the conclusion of any peace treaty involves an element of coercion—be it only the implicit threat to re-open hostilities. Therefore, the legal validity of treaties procured by such threat of force seems to depend on the legality of such threats of force at the time when the treaty in question was concluded. Applying the principles of inter-temporal law and, therefore, irrespective of subsequent changes in the law, such treaties concluded before the recognition of the unlawfulness of annexations remain valid, whereas treaties concluded after such recognition do not effect the lawful cession of territory. Therefore, it is clear that such treaties concluded before the emergence of the prohibition of the use of force in international relations and the corresponding recognition of the Stimson Doctrine remain legally valid, whereas under present international law, such treaties would have to be considered unlawful. This assessment is also supported by Art. 52 VCLT. The situation is different, however, if it can be shown that the State affected has freely accepted the cession of territory; pertinent examples might include the peace treaties (1947) or the Peace Treaty with Japan (1951).
3. Subsequent Conduct and its Effects on the Illegality of Annexations
26 Whereas more recent State practice consistently condemns acts of annexation and seems to recognize the Stimson Doctrine as a binding rule of international law, there have been cases such as the annexations of Hyderabad in 1948 and of the Portuguese colonies of Goa (Goa, Conflict), Daman and Diu in 1961 by India (the sovereignty of India over these territories has been, however, recognized by Portugal in a treaty signed on 31 December 1974) or the incorporation of Tibet as an autonomous region into the People’s Republic of China in 1951 which did not meet with an equally clear position expressed by the international community. This raises the question of whether the explicit or tacit acceptance of such acts by the international community cures the defects of the annexing State’s title to the territory in question. While there seems to be consent that explicit or tacit recognition by third States in itself is not a sufficient explanation for the possibility of the eventual acquisition of territory in spite of unlawful forceful annexation, opinions are divided as to whether the application of the principle of effectiveness results in a reversal of the illegal situation. It is argued that the mere passage of time and undisturbed possession leads to a historical consolidation (in the sense referred to by the International Court of Justice (ICJ) in the Fisheries Case [United Kingdom v Norway]) of the initially unlawful territorial title. However, in view of the essential relevance of the ban on annexation for the respect and implementation of the prohibition of the threat or use of force as a fundamental pillar of present international law, the more convincing view, also based on the general principle ex iniuria jus non oritur, consists in rejecting the applicability of the legal institute of historic consolidation with respect to the acquisition of territory by annexation.
27 The institute of historical consolidation might, however, be relevant as regards annexations which took place in the inter-war period, ie at a time when the evolution of international law towards the position that annexations do not constitute valid title to territory had not yet been completed. With respect to such situations, it is argued that States should not be entitled today to claim sovereignty over territory forcibly taken by another State at a period of time when the illegality of annexation was still disputed; this argument is convincing provided that the State concerned has not protested against the annexation but acquiesced with the change of sovereignty over the territory concerned (Prescription; Protest). As an illustration see the separate opinion of Judge Fortier in the Case concerning the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Separate Opinion of Judge Fortier) ( ICJ Rep 458; Maritime Delimitation and Territorial Questions between Qatar and Bahrain [Qatar v Bahrain]) who, in contrast to all other judges, was of the opinion that the disputed area of Zubarah had been forcibly taken, in 1937, by Qatar from Bahrain but held that forcible takings of territories in the pre-UN Charter times cannot be protested today (the Court did not need to deal with this issue since it held that Qatar had lawfully exercised, in 1937, sovereignty over this area of Zubarah [Case concerning the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) (2001) ICJ Rep 40, paras 96–97]).
4. The Legal Situation of the Population of the Annexed Territory
28 Since, under present international law, annexations are unlawful and do not constitute a valid title to territory, any exercise of sovereign authority by the annexing State concerning the population of the annexed territory would, in principle, seem to be legally null and void unless it could also be effected on a different legal basis. Since annexations are, as a rule, the result of military occupation, the legal situation of the inhabitants of the annexed territory would, in principle, be governed by the rules of belligerent occupation and occupation after armistice, respectively. Before the cessation of hostilities, the pertinent provisions of the Hague Regulations and of the Geneva Convention IV (Geneva Conventions I–IV ) provide for a considerable set of rules protecting the civilian population in particular against being forcibly transferred from the occupied territory or being required to show allegiance to the occupying State (see also Civilian Population in Armed Conflict). Therefore, any bestowal of citizenship of the occupying State would have no legal effect under international law. The legal situation becomes more complex after the cessation of hostilities: the rules of belligerent occupation will continue to apply unless they are superseded by the provisions of an armistice or comparable agreement. Still, the mere fact of annexation does not entitle the annexing State to bestow its citizenship on all inhabitants of the annexed territory. Thus, such persons remain, in principle and unless they acquire the citizenship of the annexing State subsequent to a pertinent application, citizens of the State whose territory has been annexed.
29 This situation, which seems to be a logical consequence of the obligation not to recognize the lawfulness of an annexation, might result in a number of serious legal and practical problems for the persons concerned. Therefore, there is considerable State practice which, based on humanitarian considerations and taking into account the principle of effectiveness, would allow for some pragmatism regarding the legal status of the inhabitants of annexed territories. So, before the re-establishment of the sovereignty of the Baltic States, courts in Western countries would in cases involving Soviet citizens who had previously lived in these territories under Soviet occupation, and in which the applicable conflict of laws rules would demand the application of the laws of the State of citizenship, apply Soviet law without prejudice to the official position of not de iure recognizing the annexation of the Baltic States by the Soviet Union. A similar pragmatic approach was followed by many States, including the Federal Republic of Germany, concerning the legal position of inhabitants of territories annexed by Israel (in particular: East Jerusalem; Israel, Occupied Territories) who, as a rule, would benefit from the application of provisions of international treaties concluded by these States with Israel. Finally, States would usually recognize personal documents issued by authorities of the annexing State in the annexed territory including the citizenship of such persons.
30 Thus, the interests of both inter-State relations and the population affected are served by a modicum of contact with the annexing State and some acknowledgement of the legal acts it takes within the annexed territory. This is why a kind of pragmatic and provisional de facto recognition of annexation is practised by many States without prejudice to their official policy of de iure non-recognition.
E. Some Past and Present Issues
31 As concerns the legal situation of Germany after 1945 (Germany, Occupation after World War II), it is important to note that the assumption of supreme authority with respect to Germany by the Four Powers by their declaration of 5 June 1945 was clearly not intended to effect the annexation of Germany. Then, it was decided at the Potsdam Conference (1945) to determine a special status for parts of the Soviet zone of occupation by placing under the administration of the Soviet Union the northern part of East Prussia including the city of Königsberg (now Kaliningrad Oblast), and by placing under the administration of the Polish State all other German territories east of the Oder-Neisse Line. The legal status of these territories was the subject of some controversy. Unlike the German Democratic Republic and her socialist allies, the Federal Republic of Germany insisted that a final settlement could only be agreed with a unified Germany (Germany, Unification of). This final settlement was brought about by the Treaty on the Final Settlement with Respect to Germany (Two-plus-Four Treaty) of 12 September 1990 (1696 UNTS 115): the existing outer frontiers of the two German States were declared to be final, and Germany undertook not to raise any territorial claims. The pertinent formal German-Polish Boundary Treaty, signed on 14 November 1990, entered into force on 16 January 1992.
32 The Baltic States of Estonia, Latvia, and Lithuania were incorporated into the Soviet Union in early August 1940 following their military occupation by Soviet troops in June 1940. Since this incorporation was not based on a free expression of the will of the peoples concerned, most Western countries considered this incorporation as an unlawful annexation and did not give de iure recognition of Soviet sovereignty over the Baltic countries whereas all socialist countries and most developing countries gave such de iure recognition. Under the reform policy introduced by Gorbachev, the population of the Baltic States began to demand true national sovereignty. On 16 November 1988, the Estonian Parliament adopted the Declaration on the Sovereignty of Estonia which was followed by similar declarations in Lithuania and Latvia on 18 May 1989 and 28 July 1989, respectively. Finally, on 6 September 1991, the Soviet Union formally recognized the independence of the three Baltic States and, thus, terminated the unlawful annexation. Fully in line with present international law, the three Baltic States consider that these acts have only restored their full sovereignty, which had been lost in 1940, and do not consider themselves as newly independent States.
33 Whereas the State practice concerning the Baltic States had been inconsistent, the international community reacted quite differently in reference to annexations effected by Israel concerning Jerusalem and the Golan Heights. Subsequent to the cessation of hostilities in 1949, the international community did not give de iure recognition to the annexation of West Jerusalem by Israel but only recognized that Israel exercised de facto authority in the part of the city under its control. This position explains why only a few States had established embassies in West Jerusalem, which were, however, moved to Tel Aviv after 1980. Those States which retain Consulates-General in Jerusalem do not regard them as diplomatic missions to Israel or the Palestinian Authority but as diplomatic missions to the corpus separatum Jerusalem. On 6 December 2017, US President Trump, implementing the provisions of the 1995 Jerusalem Embassy Act, recognized Jerusalem as capital of Israel and announced that the US embassy would be moved from Tel Aviv to Jerusalem. This measure was effected on 14 May 2018. As of the time of writing, only Guatemala has followed the example set by the US. Largely the same view was held with respect to the annexation, in 1949, of East Jerusalem by Jordan. The steps taken by Israel to incorporate East Jerusalem after the June 1967 war were rejected as illegal acts of annexation unable to alter the status of the city under international law. This is clear from the pertinent resolutions adopted by both the General Assembly (see eg Resolutions 2253 [ES-V] [4 July 1967] GAOR 5th Emergency Special Session Supp 1, 4 and 2254 [ES-V] [14 July 1967] GAOR 5th Emergency Special Session Supp 1, 4) and the Security Council (see, in particular, Resolution 252  [21 May 1968] SCOR 23rd Year 9). This position has been consistently upheld in later resolutions. As concerns the annexation of the Golan Heights by Israel effected by virtue of its Law on Golan Heights of 14 December 1981, the Security Council decided, in its Resolution 497 (1981), that the ‘Israeli decision to impose its laws, jurisdiction and administration in the occupied Syrian Golan Heights is null and void and without international legal effect’ (UNSC Res 497  [17 December 1981] UN Doc S/RES/497 ). A similar view was taken by the General Assembly in its Resolution ES-9/1 of 8 February 1982 (GAOR 9th Emergency Special Session Supp 1, 3). The position of the European Union (‘EU’) was formulated in, eg, an ‘Interpretative Notice of 11 November 2015 on Indication of Origin of Goods from the Territories occupied by Israel since 1967’ (OJ 2015/C 375/05), where it was stressed that the EU does not recognize Israel’s sovereignty over the Golan Heights, the Gaza Strip, and the West Bank, including East Jerusalem, although it seems noteworthy that there is no reference to West Jerusalem. This position is fully in line with the judgment of the European Court of Justice in the Brita case of 25 February 2010 on the territorial scope of application of the 1995 EU–Israel Association Agreement. In its recent judgment in Case C–363/18 Organisation juive européenne and Vignoble Psagot of 12 November 2019, the Court confirmed its position and ruled that foodstuffs originating from Israeli settlements in any of the occupied territories must bear not only the indication that they come from such territories but also their provenance from such settlements. Until very recently there had been no changes in the position of the international community as to the unlawfulness of the incorporation of the Golan Heights by Israel. However, by Presidential Decree of 25 March 2019, US President Trump proclaimed that the US recognizes that the Golan Heights are part of the State of Israel. While this action was welcomed by the Israeli government, it met with almost unanimous criticism, such as eg from UN Secretary-General António Guterres, who declared that the status of the Golan Heights had not been changed by the Decree.
34 Whereas the illegality of annexation has been of central relevance for the assessment of the legal position of the Baltic States under Soviet occupation and continues to be so as regards Jerusalem and the Golan Heights, there are situations which are predominantly discussed in the light of the right of peoples to self-determination notwithstanding that they involve elements related to acts constituting annexation. Pertinent examples include East Timor, Tibet, and the (Western) Sahara.
35 In contrast to the former Dutch colony of Western New Guinea (West-Irian), the territorial status of which as a province (Irian Barat) of Indonesia has been accepted by the international community (see UNGA Res 2504 [XXIV] [20 November 1969] UN Doc A/RES/2504 [XXIV]) notwithstanding some reservations as to the fairness of the collective consultations held in summer 1969 as the final step to implement an agreement signed on 15 August 1962 (Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea [West Irian] [signed 15 August 1962] 437 UNTS 273) under which the territory had been, first, transferred from Dutch administration to a United Nations Temporary Authority and, on 1 May 1963, placed under the administration of Indonesia (Decolonization: Dutch Territories), the international community never accepted the acquisition of the former Portuguese colony of East Timor by Indonesia (see also Decolonization: Portuguese Territories). Subsequent to the withdrawal of the Portuguese forces in summer 1975, Indonesian armed forces had invaded the area which was later annexed by Indonesia. This act, which was based on the argument that Portugal had abandoned the territory, was, however, never recognized as legally valid by the international community which, in a series of General Assembly (see eg Resolution 3485 [XXX] [12 December 1975] GAOR 30th Session Supp 34, 116) and Security Council (see eg Resolution 384  [22 December 1975] SCOR 30th Year 10) Resolutions, demanded that Indonesia recognize the right of the Timorese people to self-determination and withdraw its troops from the territory of East Timor. Consequently, the nominal status of East Timor in the United Nations (UN) remained that of a non-self-governing territory under Portuguese administration (Non-Self-Governing Territories). After years of bitter guerrilla warfare (Guerrilla Forces) and following the conclusion, on 5 May 1999, of agreements between Indonesia, Portugal and the UN, the East Timorese population expressed, in a consultation held on 30 August 1999, its wish to begin a process towards independence. This, however, was only achieved as a result of the establishment, by Security Council Resolution 1272 (1999) ([25 October 1999] SCOR 54th Year 130), of the UN Transitional Administration in East Timor (‘UNTAET’). On 22 May 2002, East Timor became an independent State and, on 27 September 2002, joined the UN.
36 Whereas the 1951 incorporation of Tibet as an autonomous region into China has been seen by some authors as an unlawful annexation, China consistently maintains that Tibet had always been an integral part of China and never an independent territory. This situation reflects the fact that the historical status of Tibet has always been most controversial. Notwithstanding the issue of the compatibility with international law of the 1951 act of incorporation as allegedly being an act of annexation, the question remains as to whether this act and the subsequent exercise of sovereignty by China over Tibet constitute a violation of the right to self-determination of the Tibetan population. It must be seen, however, that, notwithstanding an increase of public attention as concerns the situation in Tibet subsequent to the award of the Nobel Peace Prize to the Dalai Lama in 1989, this issue is pursued mainly by the governments of Western States, as part of their human rights dialogue with the Chinese government, and a number of non-governmental organizations (Human Rights, Role of Non-Governmental Organizations), but has not been the subject of any General Assembly Resolution since the adoption of Resolution 2079 (XX) in 1965 ([18 December 1965] GAOR 20th Session Supp 14, 3). The Chinese government has always maintained that the principle of self-determination is not applicable to Tibet as it was never subject to a colonial regime. This might also explain why Tibet was never entered onto the General Assembly list of non-self-governing territories.
37 The legal situation of the (Western) Sahara raises similarly intricate problems. They concern, however, not so much the question of whether the incorporation of this territory into Morocco is to be qualified as an unlawful annexation but rather the question of whether this act of incorporation violates the right to self-determination of the Sahrawi population. At the outset, it should be recalled that the ICJ, in its Advisory Opinion on certain legal aspects of the territory at the time of colonization (Western Sahara, 1975 ICJ Rep 12; Western Sahara [Advisory Opinion]), had held that the territory of the Western Sahara could not be considered terra nullius and that neither Mauritania nor Morocco had exercised territorial sovereignty over Western Sahara notwithstanding the existence of certain legal ties in a broader sense. However, these legal ties were not of such a nature as to prevent the decolonization of Western Sahara and the exercise of the right to self-determination by the Sahrawi people in accordance with the provisions of the General Assembly Resolution 1514 (XV) ([14 December 1960] GAOR 15th Session Supp 16 vol 1, 66) (Declaration on the Granting of Independence to Colonial Countries and Peoples). Notwithstanding this Advisory Opinion, Mauritania, Morocco and Spain concluded, on 14 November 1975, a tripartite treaty, dividing Western Sahara between Mauritania and Morocco (Declaration of Principles on Western Sahara by Spain, Morocco and Mauritania), which resulted in the occupation of most of the Western Sahara by Mauritanian and Moroccan troops and the integration of these territories into Mauritania and Morocco, respectively, subsequent to the Spanish withdrawal in February 1976. This was opposed by the Frente Popular para la Liberación de Sagia el Hamra y Rio de Oro (Frente Polisario) which began an armed struggle against the Mauritanian and Moroccan forces and proclaimed, on 27 February 1976, Western Sahara as the Sahrawi Arab Democratic Republic (‘SADR’). After Mauritania had abandoned, in 1979, its claims on the southern part of the Western Sahara, most of its territory is now administered by Morocco but sovereignty remains unresolved with the UN attempting—so far without success—to hold a referendum on the issue through the UN Mission for the Referendum in Western Sahara (‘MINURSO’) (established by Security Council Resolution 690  [29 April 1991] SCOR 46th Year 35; the mandate of MINURSO has been continuously extended and is, at present, based on Security Council Resolution 2468 [30 April 2019] UN Doc S/RES/2468). A cease-fire, administered by the UN and implemented by MINURSO, has been in effect since September 1991. At present, the UN still considers Western Sahara as a case of incomplete decolonization and keeps it on its list of non-self-governing territories (see most recently UNGA ‘Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples: Report of the Special Political and Decolonization Committee’ [20 November 2018] UN Doc A/73/532). The African Union (AU)—formerly the Organization of African Unity—has given the SADR full recognition and accepted it, in 1984, as a Member State, which led Morocco to leave this organization until it sought and achieved readmission on 31 January 2017. Morocco considers all of Western Sahara as an integral part of the Kingdom while Polisario maintains that it is an occupied territory. Information as to the number of States that have recognized the SADR (or recently withdrawn or frozen such previous recognition) varies considerably; at present, most sources indicate that there are fewer than 40 States that continue to recognize the SADR. It is not a Member State of the UN, but on 21 November 1979, the General Assembly recognized Polisario as the representative of the Sahrawi people in its Resolution 34/37 ([21 November 1979] GAOR 34th Session Supp 46, 203). Moroccan sovereignty over the territory is supported, but not formally recognized, by the League of Arab States (LAS) and some 50 States. The position of the EU is well reflected in the judgment of the European Court of Justice of 21 December 2016 in the Council v Front Polisario Case, where the Grand Chamber held that the 2010 EU-Morocco ‘Liberalisation Agreement on Agricultural Products, Fish and Fishery Products originating in Morocco’ ( OJ L241/4) does not apply to the territory of Western Sahara.
38 A more recent case is the incorporation of Crimea by the Russian Federation, a permanent member of the UN Security Council. The relevant process began in the aftermath of the Maidan protests in Ukraine in late 2013. A chain of violent incidents culminated in the ousting of the elected Ukrainian President Yanukovych and the installation of an interim government in early 2014. Shortly thereafter, pro-Russian gunmen took advantage of the situation in Crimea by occupying key strategic infrastructure of the Crimean Peninsula. In a joint resolution, the Supreme Council of Crimea and the City Council of Sebastopol, which enjoyed a specific status of autonomy within the autonomous Republic of Crimea, expressed their intention to declare independence from Ukraine and to request incorporation into the Russian Federation, given a positive vote on this matter in a planned referendum on the future status of Crimea. In this referendum, held on 16 March 2014, only two options were available: reunification of Crimea with Russia as a federal subject of the Russian Federation; or restoration of the 1992 Constitution of Crimea and the status of Crimea as a part of Ukraine. The preservation of the status quo ante the crisis was not an option presented to voters. The internationally highly disputed referendum with a turnout of some 83%, with the majority of the Crimean Tatars abstaining, resulted in an alleged vote of almost 97% in favour of an integration of Crimea into the Russian Federation. On that account the Supreme Council of Crimea and the City Council of Sebastopol declared independence from Ukraine and requested accession to the Russian Federation. The pertinent Treaty on Accession was signed on 18 March 2014 and finally approved by the Russian Federation Council, and was ratified by President Vladimir Putin on 20 March 2014, with Crimea and Sebastopol becoming two new subjects of the Russian Federation.
39 Russian state officials as well as most Russian and a very few non-Russian international law scholars hold the view that the incorporation of Crimea did not constitute an annexation but a lawful exercise of the right to self-determination of the people of Crimea. In support of this view, it is argued that the outcome of the referendum expressed the free will of the population concerned. Furthermore, historical arguments are put forward to substantiate the territorial claim stating that the accession of Crimea only restored historical justice as Crimea had always been an integral part of Russia before it had been made a part of Ukraine in 1954. Therefore, it is held that the incorporation of Crimea into the Russian Federation constitutes a lawful accession based on the free will of the Crimean people to exercise their right to self-determination and effected in full compliance with the UN Charter and Art. 1 of the two 1966 UN Human Rights Covenants (International Covenant on Civil and Political Rights ; International Covenant on Economic, Social and Cultural Rights ).
40 In contrast thereto, the vastly dominant state practice, supported by an equally vast majority of legal scholars, considers the incorporation of Crimea into the Russian Federation as an illegal annexation. It is held that this act violated the sovereignty and territorial integrity of Ukraine as enshrined in Art. 2 UN Charter and in several treaties and international agreements to which the Russian Federation is a party, including the 1994 Budapest Memorandum and the 1997 Partition Treaty on the Status and Conditions of the Black Sea Fleet as well as the Helsinki Final Act (1975).
41 The latter view is based on a convincing analysis of currently applicable international law. Even if one considers the population of Crimea as a people legally entitled to the right to self-determination, it is clear that Crimea, as part of Ukraine, was not under colonial domination, and it follows from this fact that the Crimean ‘people’ had only been entitled to the right to internal self-determination, including possibly arrangements of autonomy, but not to the right to external self-determination, including the right to secede (Secession) from Ukraine—unless there had been gross and persistent violations of the most basic human rights of the Crimean people, including a risk of genocide (Gross and Systematic Human Rights Violations). Based on all the various reports of universal and regional (European) human rights treaty monitoring bodies, there is no evidence of such human rights violations (Human Rights, Treaty Bodies); moreover, the Autonomous Republic of Crimea was vested, under the Constitution of Ukraine, with far-reaching powers of internal self-administration. Furthermore, considering the presence of (pro-)Russian military forces, there are most serious doubts as to whether the population of Crimea was indeed in a position to freely express their will in a referendum held under such circumstances; while the presence of such (pro-)Russian military forces had been initially denied by President Putin, it was later stated that any hypothetical presence of such forces had been justified by an invitation from Mr Yanukovych, still being the legitimate President of Ukraine, and as a measure necessary to protect the Russian-speaking population of Crimea. In view of the factual circumstances in March 2014, it is clear that Mr Yanukovych could no longer be considered as representing the legitimate government of Ukraine, nor could he therefore be considered to be entitled, under international law, to invite the Russian Federation to an armed intervention into Crimea. Finally, in its Opinion adopted on 22 March 2014, the Council of Europe Commission for Democracy through Law (Venice Commission) concluded that the circumstances prevailing in Crimea did not allow the holding of a referendum in line with applicable European standards. Therefore, the declaration of independence by the Supreme Council of Crimea and the City Council of Sebastopol and the ensuing conclusion of the Treaty on Accession and its factual implementation, based on the approval by the Russian Federation Council and its ratification by President Putin, were not in compliance with the applicable international law rules on the preconditions and scope of the right to external self-determination or on the standards to be met for a referendum to qualify as the free expression of the will of the population concerned. Thus, the incorporation of Crimea into the Russian Federation constitutes an unlawful annexation.
42 This position was also reflected in a number of actions taken by the international community. Whereas the UN Security Council failed to adopt a resolution denouncing the validity of the Crimean status referendum (see UN Doc S/2014/189 of 15 March 2014) because of the negative vote of the Russian Federation, which, according to Art. 27 (3) UN Charter, possibly had a duty to abstain from voting as it was intensely involved in the dispute, the General Assembly set a clear signal towards the condemnation of the annexation of Crimea by adopting, with a huge majority, a resolution (UN Doc A/RES/62/262 of 14 March 2014) affirming its commitment to the territorial integrity of Ukraine within its internationally recognized borders and emphasizing the invalidity of the Crimea status referendum. Furthermore, on 24 March 2014, the membership of the Russian Federation in the Group of Eight (G8) was indefinitely suspended, as were, on 10 April 2014, the voting rights of the Russian members of the Council of Europe Parliamentary Assembly, which, however, are likely to be restored as a consequence of a decision of the Committee of Ministers adopted on 17 May 2019 in the context of a meeting held in Helsinki. In addition thereto, the EU, the US, and other countries and international organizations imposed various sanctions on individuals and businesses from the Russian Federation, Crimea, and Sebastopol, including measures targeting sectoral cooperation and exchanges with the Russian Federation, which responded with counter-sanctions such as a total ban on food imports from the EU, the US, Norway, Canada, and Australia (Economic Sanctions).
43 In order to ensure direct links for road and rail traffic between the Russian mainland and the Crimean Peninsula, the Russian Federation built a bridge spanning the Strait of Kerch, which was opened in May 2018. This strait constitutes the only access to the Ukrainian ports in the Sea of Azov, and its passage by non-Russian vessels resulted in a number of incidents, the best-known of which took place on 25 November 2018 when Russian coast guard forces fired on and eventually seized three Ukrainian naval vessels on their way to the Ukrainian port of Mariupol. The imprisoned 24 Ukrainian servicemen were charged with breaching Russian border regulations. On 25 May 2019, the International Tribunal for the Law of the Sea (ITLOS) issued an order, as a provisional measure and complying with a request by Ukraine, for the Russian Federation immediately to release the Ukrainian servicemen and to return the Ukrainian vessels (Case Concerning the Detention of Three Ukrainian Naval Vessels [Ukraine v Russian Federation]). The sailors were released on 7 September 2019 and the vessels returned on 18 November 2019.