III. Territorial Settlements in Peace Treaties

korean journal of international and comparative law 6 (2018) 76–79 brill.com/kjic

Seokwoo Lee Professor, Inha University Law School, Korea [email protected]

Wars are an inescapable aspect of human history. There are many reasons why States go to war, but traditionally one of the main reasons is territory – territory after all being one of the elements of a State under international law.1 Victory does not however establish legal title to the territory by itself.2 Thus, mere belligerent occupation is not the same as legal title.3 After the defeated State surrenders, the victorious army typically occupies the enemy’s territory while waiting for a territorial settlement in a peace treaty.4 The occupying power may exercise its power, subject to the provisions of ius in bello.5 However, legal title passes from the defeated State to the victor by means of territorial provisions in a peace treaty.6

* Professor, Inha University Law School, Korea; Executive Editor, Korean Journal of International and Comparative Law, Korean Society of International Law. This note is based on ongoing research on “Territorial Settlements in Peace Treaties”. 1 1933 Montevideo Convention, art. 1 (“The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) govern- ment; and (d) capacity to enter into relations with the other States.”). See Lassa Oppenheim, International Law 563 (Robert Jennings and Arthur Watts eds., 9th ed. 2008). 2 Id. See also Oppenheim, supra note 1, at 681–82; Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice (1996). 3 See Eyal Benvenisti, The International Law of Occupation (1993). 4 Y. Frank Chiang, One-China Policy and Taiwan, 28 Fordham International Law Journal 1, 21 (2004). 5 Hague Convention Respecting the Laws and Customs of War on Land, with Annexed Regulations, art. 55, Oct. 18, 1907, 36 Stat. 2277, § iii (“The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricul- tural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”). 6 See Lassa Oppenheim, International Law: Peace 452, § 216 (Hersch Lauterpacht ed., 8th ed. 1955).

State practice shows cases in which there were unilateral annexations of territory after hostilities occurred. However, these procedures were not recog- nised as valid, as the example of the annexation of Bosnia and Herzegovina in 1908 from the Ottoman Empire by the Austro-Hungarian Empire reveals. A further treaty7 between Austria-Hungary and the Ottomans was necessary to legalise this acquisition.8 Equally, in the aftermath of World War ii, the Nuremberg War Crimes Tribunal declared that annexations occurring before the end of a war were invalid and ineffective.9 The United Nations Charter now prohibits the threat or use of force by States in their international relations,10 rendering the acquisition of territory by conquest illegal under international law. Even when conquest was a valid method to acquire territorial sovereignty, peace treaties were the last necessary condition to produce the transfer of sovereignty. Territorial dispositions are matters of considerable importance to nations, and most would doubtless desire that the disposing document be of substantial solemnity, namely, a treaty. As territorial questions are often a threat to peaceful international relations, methods that result in an unequivo- cal settlement are necessary. Peace treaties often deal with many subjects – setting forth various arrange- ments such as war reparations, establishment of demilitarized zones, resource access and allocation, refugee status, prohibited behavior, debt settlement, re-application of already existing treaties, dispute resolution mechanisms, transit rights, and so on – but they are mainly concerned with the allocation of

7 Protocol between Austria-Hungary and Turkey, 3(4) a.j.i.l. Supp. 286–89 (1909), avail- able at http://www.jstor.org/stable/2212637. 8 Luigi Albertini, The Origins of the War of 1914: Volume I, 277 (Enigma Books 2005). 9 Malcolm Shaw, International Law 501 (Cambridge 6th ed. 2008). See also In re Goring, 13 i.l.r. 203 (1946). 10 Charter of the United Nations, art. 2(4), Oct. 24, 1945, 1 u.n.t.s. 16. See also Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 94 u.n.t.s. 57 [1928 Kellogg-Briand Pact] (banning war as a tool of national policy); S. C. Res. 242, u.n. Doc. S/RES/242 (Nov. 22, 1967) (emphasizing the “inadmissibility of the acquisition of territory by war”); 1970 Friendly Relations Declaration, u.n. Doc. A/RES/25/2625 (Oct. 24, 1970) (“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.”); g.a. Res, 3314 (xxix), art. 5(3), u.n. Doc. A/RES/3314 (Dec. 14, 1974) [hereinafter Consensus Definition of Aggression]; Vienna Convention on the Law of Treaties, art. 52, 1155 u.n.t.s. 331 (May 23, 1969) (providing that treaties procured by du- ress may be void).

korean journal of international and comparative law 6 (2018) 76–79