نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار گروه حقوق بینالملل، دانشکده حقوق، دانشگاه قم، قم، ایران
2 دانشجوی دکتری حقوق بینالملل عمومی، دانشکده حقوق، دانشگاه قم، قم، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Introduction: Territorial expansion through annexation has historically been a key aspiration and desire of statesmen and political officials in countries. In the past, territorial annexation was one of the consequences of state conquests and victories, and gradually, during the United Nations era, it has been addressed as one of the forms of exercising the right to self-determination. Therefore, the evolution of the concept of territorial annexation, from conquests and state-building to its recognition as one of the expressions of the right to self-determination in General Assembly Resolution 1541, clearly demonstrates the historical trajectory of this concept. Hence, annexation can be examined in two dimensions: Forcible annexation, which results from war and conquest and is currently illegal in the modern system of international law due to the prohibition of war and the prohibition of aggression, nd is not a source of legal effect; and the legal annexation of territory, which can be achieved through the will and consent of nations and states and is a source of legal effect. What is addressed in this research is: What requirements exist for the legal annexation of territory? In other words, what criteria exist for the legal annexation of territory? Since the main actors in territorial annexation are the two elements of the people and the state, the issue must be sought within these two main elements. In addition to these two elements, the element of recognition must not be overlooked. The hypothesis or theoretical framework of this discussion will be that any territorial annexation resulting from the use of force is prohibited, illegal, and devoid of any source of effect, and on the other hand, that form of territorial annexation which is based on the will and consent of the people and the state and adheres to the rules of human rights and international law is legal and legitimate and creates effects
Methods: The main question of this research is the legal requirements for the annexation of territory to a foreign state. In other words, what criteria or requirements must be observed for that annexation to have a legal form? Using a descriptive-analytical method, the authors have reached the following conclusions.
Findings: Through a legal and logical interpretation of the texts, following a positivist approach in the discussion of respecting the right of nations to self-determination, the findings can be stated as follows: Annexation of territory as a result of exercising the right to self-determination in cases where the rules of international law have been observed is an acceptable matter and there is little doubt about it. However, the issue must be examined separately in each case. On the other hand, in situations that are not in accordance with the will of the nations and do not comply with international standards, a nullification approach will be responsible. Finally, the reaction of the international community within the framework of recognition will also be very decisive in this regard.
Results: The results of this research are crystallized in examining the role of each of the elements of the people, the state, and recognition. If consent exists from both the state and the people of that territory, there is little doubt about the validity of the annexation. However, if annexation occurs with the consent of the annexing state and without the explicit consent of the people, the annexation may be legitimate if a democratic mechanism exists in the country. Suppose annexation occurs with the consent of the people and without the consent of the state. In that case, it can be said that in situations of colonialism, occupation, and trusteeship, and in cases of non-self-governing territories and racist regimes, permission for annexation is conceivable. However, regarding states that systematically violate human rights, the answer depends on whether annexation is considered an institution independent of secession or connected to secession. If secession is assumed to be an indispensable prerequisite for annexation, the conditions for the legitimacy of secession, including remedial secession, are necessary. Where there is a fundamental violation of human rights concerning a minority residing in a country, in the view of proponents of the remedial secession theory, the possibility of proposing remedial annexation can exist; of course, this theory will be defensible only if we believe that annexation is a process relative to secession. In discussing the role of recognition in the validity or unacceptability of the status of territorial annexation, it must also be said that the issue cannot be examined solely within the framework of the classical theories of recognition, namely the constitutive and declaratory theories. Rather, in such a situation, the issue must be examined within the framework of recognition of the situation.
کلیدواژهها [English]
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