The Re-Emergence of Conquest: International Law and the Legitimate Use of Force
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The Re‑Emergence of Conquest: International Law and the Legitimate Use of Force Michael Mulligan1
© Springer Nature B.V. 2020
Abstract The re-emergence of the issue of conquest of territory is one of the most contentious debates surrounding contemporary international law. This article investigates certain developments in respect territorial conquests and the reaction of the international community to such acts. There is analysis of the key relationship between conquest and empire and speculates on the possibility that the re-emergence of conquest is further evidence that international society is reverting to a previous incarnation whereby Great Power politics is assuming its former pre-eminence, at the expense of the rules-based system which emerged after the Second World War. The article places conquest within the wider context of international law whilst discussing historical occurrences and contemporary instances. Keywords Conquest · Cession · Treaties · Recognition
Introduction The act of conquest is one of the most controversial subjects in the firmament of international law.1 It has recently re-emerged as one of the key debates in the international law discourse largely due to three situations; the emergence of the Islamic State in Syria and Iraq or Daesh and its campaigns in Iraq and Syria, Russian actions against Georgia and Ukraine and the Trump administration’s support for Israel’s annexation of territory, most notably the Golan Heights, occupied as a result of the Six Day War in 1967. 1 Conquest has, in effect, two components. The first is the annexation of territory followed by the subjugation of its inhabitants. With that, the territory comes under the sovereignty of the conqueror. This in contrast to mere occupation of territory were sovereignty is not transferred to the invader. As Thomas Lawrence noted ‘Annexation alone is incapable of giving good title’ (Lawrence, 1929).
* Michael Mulligan [email protected] 1
Cairo Research Centre, Cairo, Egypt
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The reaction of the international legal community to these events has been mixed, but perhaps the most significant issue is the re-emergence of the issue itself.2 The right of conquest may be defined as ‘the right of the victor in virtue of military victory or conquest, to sovereignty over the conquered territory and its inhabitants’ (Korman 1996). Conquest was a vital element of international society and underpinned empire building. It was invoked with an inherent reference to jus ad bellum, the right to wage war, and jus in bello, how war was fought, as a legitimate invocation of the use of force and conduct of that use of force.3 This may appear archaic now, but as Nehal Bhuta points out: ‘Unlike the post-United Nations Charter legal environment,4 classical international law did not restrain the state’s right to go to war against another state, or to acquire legal title to the territory of another state by means of war. Although the actual practice of intra-European land appropriation in the 17th and
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