{"id":30066,"date":"2026-10-26T12:00:19","date_gmt":"2026-10-26T11:00:19","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=30066"},"modified":"2026-10-21T17:18:55","modified_gmt":"2026-10-21T15:18:55","slug":"before-its-too-late","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/before-its-too-late\/","title":{"rendered":"Before It\u2019s Too Late"},"content":{"rendered":"

In his 1954 study\u00a0Vollendete Tatsache und V\u00f6lkerrecht<\/em><\/u><\/a> (\u201cFait accompli <\/em>and International Law\u201d),\u00a0the late director of the Max Planck Institute for Comparative Public Law and International Law, Professor Carl Bilfinger, stated that\u00a0fait accompli<\/em> \u201cundermines faith in the law\u201d. Fifty years later, the International Court of Justice (ICJ) introduced the notion in its Advisory Opinion<\/u><\/a>\u00a0on the\u00a0Wall<\/em>. Yet fait accompli <\/em>is given only limited attention in international law. Drawing on political sciences, this post\u00a0approaches\u00a0fait accompli<\/em> as a factual configuration of legal relevance, highlighting its importance in relation to the Israeli settlements in the Occupied Palestinian Territory (OPT) and indeed, for the international legal order as a whole.<\/p>\n

Fait <\/strong><\/em>A<\/strong><\/em>ccompli<\/strong><\/em> in International Relations<\/strong><\/p>\n

In recent years, fait accompli <\/em>has attracted scholarly attention in international relations. Although the concept lacks a settled definition, it is often\u00a0understood<\/u><\/a> as a calculated move \u201cthat seeks to revise a certain status quo while putting an adversary in a tough spot: accept the loss or try to fight back and risk a worse consequence\u201d. A fait accompli<\/em> strategy, it is argued<\/u><\/a>, seeks unilateral gains \u201cwithout crossing any redline\u201d. Its objective, whether pursued through a single move or incrementally over time, is to create a new reality on the ground and force other actors to adapt to it.<\/p>\n

Some authors distinguish\u00a0between fait accompli<\/em> and \u201csalami tactics\u201d, associating the former with a circumscribed<\/u><\/a>\u00a0action<\/u><\/a> and the latter with a gradual sequence of limited gains. Other authors\u00a0present \u201csalami tactics\u201d as the accumulation of several successive small <\/u>faits <\/em><\/u>accomplis<\/em><\/u><\/a>.\u00a0The first understanding is captured by the US Statement of Policy on Taiwan<\/u><\/a>, which defines fait accompli <\/em>as \u201cthe resort to force by [China]\u00a0to invade and seize control of Taiwan before the [US] can respond effectively.\u201d The second, processual understanding is illustrated by\u00a0China\u2019s bolstering of its territorial claims in the South and East China Seas through incursions into disputed waters and the creation of artificial islands, as explained here<\/u><\/a>, here<\/u><\/a> and here<\/u><\/a>. Such actions, it is argued<\/u><\/a>, do not individually constitute a casus belli<\/em>, but their accumulation silently brings about a fundamental change.\u00a0In our view, the salami tactics then culminate in a fait accompli<\/em>.\u00a0This processual dimension\u00a0deserves particular attention in international law, because successive steps may be visible in isolation while remaining difficult to apprehend legally, even as their cumulative effects become difficult, if not impossible, to reverse in practice.<\/p>\n

The US Statement on Taiwan further highlights that fait accompli <\/em>dynamics are not confined to the immediate victim. They are also shaped by the reaction \u2013 or paralysis \u2013 of third states and the international community. This is of particular importance where a fait accompli<\/em> policy results in a violation of obligations erga<\/em> omnes<\/em>.<\/p>\n

Fait Accompli<\/strong><\/em> in <\/strong>International La<\/strong>w<\/strong>: A<\/strong>n<\/strong>\u00a0<\/strong>E<\/strong><\/em>x-<\/strong><\/em>P<\/strong><\/em>ost <\/strong><\/em>A<\/strong>pproach<\/strong><\/p>\n

F<\/em>ait accompli<\/em> is very much a blind spot in international law.\u00a0It is not an international legal notion, yet it may take many forms of legal relevance. Salami tactics leading to a fait accompli<\/em> may consist of lawful or unlawful acts. A\u00a0fait accompli<\/em> itself may qualify as illegal, or as legal but raising issues of legitimacy,\u00a0such as the provisional entry into force of a treaty\u00a0upon signature which\u00a0imposes itself on the authority in charge of ratification.<\/p>\n

What\u00a0we are\u00a0interested in are actions creating a situation of\u00a0prolonged\u00a0illegality\u00a0that\u00a0is\u00a0(almost) impossible to revert, and thereby ridicules the law. How does international law\u00a0address\u00a0the acts and omissions\u00a0preceding the fait accompli<\/em>, when\u00a0there\u00a0is\u00a0still time to prevent the facts\u00a0taking\u00a0precedence over the law?<\/p>\n

What comes closest to the concept is the breach of an international obligation consisting of a composite act. Theoretically, the regime of composite acts could contribute to the legal conceptualisation of fait accompli, <\/em>insofar as it recognises that certain internationally wrongful acts may be constituted through accumulation. Article 15 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), however, fails to deliver in this respect. It\u00a0provides that such a breach takes place \u201cwhen the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act\u201d. This means that, as observed\u00a0in the\u00a0International Law Commission\u2019s\u00a0Commentary<\/u><\/a> (\u00a77), the characterisation as a wrongful act is\u00a0retrospective<\/em>: only once the series of acts or omissions has occurred\u00a0can it be characterised as a composite act constituting, as a whole, a breach of an international obligation. It\u00a0does not, in real time,\u00a0capture ongoing <\/em>practices that lead progressively and cumulatively to an irreversible situation, and\u00a0thereby fails to grasp the essential issue of fait accompli<\/em>.<\/p>\n

The same applies to the legal regime of obligations of prevention. As provided in ARSIWA Article 14.3, a breach of such obligations arises only when the event to be prevented actually occurs. In the Bosnian Genocide case<\/u><\/a>, the ICJ accordingly observed that, while the obligation of prevention is logically triggered before the event to be prevented occurs, \u201ca State can be held responsible<\/em> for breaching the obligation to prevent genocide only<\/em> if genocide was<\/em>\u00a0actually committed<\/em>\u201d (\u00a7431 \u2013 emphasis added). This means that third States may invoke the responsibility of the responsible State and adopt countermeasures only when it is too late.<\/p>\n

These rules neglect the dynamic nature of\u00a0fait accompli<\/em>\u00a0policy as a device to move from ex in<\/em><\/u>j<\/em><\/u>uria <\/em><\/u>j<\/em><\/u>us non <\/em><\/u>oritur<\/em><\/u><\/a> to ex <\/em>factis<\/em> jus <\/em>oritur<\/em> \u2013 the normative force of facts. Rather than adopting\u00a0an\u00a0ex<\/em>–<\/em>ante<\/em> view to protect its effectiveness,\u00a0international law summarily proclaims that it will not yield to the force of time and fact, as stated in ARSIWA Article 41.2, according to which no State shall recognize as lawful a situation created by a serious breach of a peremptory norm of international law.<\/p>\n

The ICJ\u2019s approach in provisional measure proceedings further illustrates this.\u00a0Conceptually, provisional measures can protect a right before it has been breached, and thus apprehend the dynamics of fait accompli<\/em>. However, in Pulp Mills on the River Uruguay<\/em>, the Court addressed the request for protection against a fait accompli<\/em> in its order<\/u><\/a> on provisional measures, only to dismiss it as essentially irrelevant. Argentina contended that the construction of the mills \u201cwould set the seal on Uruguay\u2019s unilateral effort to create a \u2018fait accompli\u2019\u201d (\u00a718). The Court denied this, stating that the construction could not\u00a0\u201cbe deemed to create a fait accompli because (\u2026) the possibility cannot and should not be excluded\u00a0a priori<\/em>\u00a0of a judicial finding that such works must not be continued or must be modified or dismantled\u201d (\u00a778). The Court subsequently stated in its\u00a0judgment<\/u><\/a> that, in view of its earlier finding on fait accompli<\/em>, it was, in pronouncing on the merits, \u201cthe ultimate guarantor of [the parties\u2019] compliance\u201d with their international obligations (\u00a7156).\u00a0It is a\u00a0profession of faith in the power of\u00a0international law and adjudication that prompted the Court\u2019s denialist stance towards the power of fait accompli<\/em>.\u00a0This fails to recognize the nature of fait accompli <\/em>as the law\u2019s silent enemy, which gradually creates the conditions for its own powerlessness and undermines the\u00a0very faith\u00a0that the Court professes.<\/p>\n

G<\/strong>limmer<\/strong>s<\/strong> of<\/strong> H<\/strong>ope for an <\/strong>E<\/strong><\/em>x-<\/strong><\/em>A<\/strong><\/em>nte <\/strong><\/em>A<\/strong>pproach <\/strong><\/p>\n

International law is\u00a0not inherently ill-equipped to\u00a0address fait accompli<\/em>\u00a0ex-ante<\/em>. The Security Council\u2019s power under Chapter VII of the UN Charter to address \u201cthreats to the peace\u201d before a breach of the peace materializes, is conceptually at the apex of international action against fait accompli<\/em> policies.<\/p>\n

Judicial practice also offers glimmers of hope. In the Indus Waters <\/em><\/u>Kishenganga<\/em><\/u> Arbitration<\/em><\/u><\/a>, Pakistan argued that provisional measures were necessary to \u201cprevent the creation of a\u00a0fait accompli\u201d\u00a0which risked rendering any remedy ordered by the Court ineffective in the \u201creal world\u201d (\u00a799). The PCA Court of Arbitration found that\u00a0provisional measures were necessary indeed in the face of a \u201crisk of a\u00a0fait accompli\u00a0that compromises the liberty of the Court of Arbitration to render its Award in the manner it considers to be legally warranted, or the Parties\u2019 ability to implement such award without prohibitive delays or costs\u201d (\u00a7139, \u00a7148).<\/p>\n

The ICJ, in turn,\u00a0first used the expression\u00a0in its\u00a02004 <\/u>Advisory Opinion<\/u><\/a> on the Wall<\/em>.\u00a0It noted \u201cthe assurance given by Israel that the construction of the wall does not amount to annexation and that the wall is of a temporary nature\u201d, then to discard that assurance owing to the risk of a fait accompli<\/em>:<\/p>\n

\u201c[The Court] nevertheless cannot remain indifferent to certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine\u00a0(\u2026) the construction of the wall and its associated r\u00e9gime create a \u2018fait accompli\u2019 on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to de facto annexation.\u201d (\u00a7121)<\/em><\/p>\n

The Court quoted this passage in full in its 2024 Advisory Opinion<\/u><\/a>\u00a0on Legal consequences arising from the policies and practices of Israel, <\/em>to conclude that these\u00a0policies and practices were \u201cdesigned to remain in place indefinitely and to create irreversible effects on the ground\u201d and \u201c[c]onsequently amount to annexation\u201d (\u00a7\u00a7172-173).\u00a0This is arguably unexceptional:\u00a0the notion of fait accompli<\/em> may have assisted\u00a0in determining how an accumulation of seemingly separate facts culminate in a de facto<\/em> annexation. However, as Brunk and\u00a0Hakimi observe<\/u><\/a>, the Court stopped short of using this insight\u00a0to detach annexation from the prohibition on the use of force.<\/p>\n

Perhaps, then, the 2004 Opinion\u00a0is more remarkable. Although the Court refrained from concluding that the wall qualified as annexation, it relied on the issue of\u00a0fait accompli<\/em>, among other elements, to find that Israel had the obligation to cease the construction works (\u00a7151). What the Court cautiously did, we cautiously suggest, was to try and\u00a0grant legal protection against the future effects of aggregate facts given their irreversible nature on the ground.<\/p>\n

Fait<\/strong><\/em> Accompli<\/strong><\/em> as a<\/strong> Call for Action: <\/strong>the<\/strong> Israeli Settlements Today<\/strong><\/p>\n

F<\/em>ait accompli<\/em> affects the conditions under which law is assessed, applied, and rendered effective \u2013 or indeed, ineffective. It is the policy instrument par excellence<\/em> to make might prevail over right. As such, international law-makers and international courts and tribunals would benefit from a more thorough engagement with the phenomenon and its legal implications. It deserves more attention in provisional measure proceedings, in the concretization of obligations to prevent and of early warning mechanisms, and in the legal apprehension of preparatory acts to violations of international law \u2013 with a view to bolstering the effectiveness of, and trust in, international law, not therefore to broaden the licence\u00a0to use force unilaterally\u00a0as in the \u2018accumulation of events\u2019 doctrine<\/u><\/a>.<\/p>\n

The\u00a0main lesson is that the international community has a paramount legal interest in fighting\u00a0fait accompli<\/em> by all lawful means,\u00a0because as Bilfinger stated<\/u><\/a>,\u00a0\u201cit undermines faith in the law itself\u201d and curtails the international community\u2019s power to take future action to uphold international law.<\/p>\n

This is acutely relevant today as\u00a0Israel approves further settlements in the West Bank, prompting condemnation by, i.a., the UN Secretary-General<\/u><\/a> and\u00a0OHCHR<\/u><\/a>.\u00a0As Ephstain\u00a0observes<\/u><\/a>, several phenomena in the OPT \u2013 the settlements, settler violence, the obstruction of humanitarian relief, the fragmentation of Palestinian governance \u2013 are \u201ctoo often treated separately\u201d whereas together, they create a system of coercion in which territory is unlawfully acquired and controlled. As Ephstain underlines, \u201cIsrael\u2019s land title settlement process \u2013 which \u201cmay sound technical<\/em>\u201d \u2013 uses planning rules to turn unrecognized Palestinian ownership records into a tool of dispossession\u201d.\u00a0This is fait accompli <\/em>pur<\/em> sang<\/em>.<\/p>\n

Now is therefore the time for resolute action. This is in the interest of the Palestinian people, in the interest of the people of Israel whose outgoing government reportedly \u201cseeks to cement West Bank gains before election<\/u><\/a>\u201d, and in the interest of the international community, whose influence is\u00a0weakened by Israel\u2019s\u00a0fait accompli<\/em> policy. An essential feature of that policy is that third States stand idle while their influence crumbles before their feet.<\/p>\n","protected":false},"excerpt":{"rendered":"

In his 1954 study\u00a0Vollendete Tatsache und V\u00f6lkerrecht (\u201cFait accompli and International Law\u201d),\u00a0the late director of the Max Planck Institute for Comparative Public Law and International Law, Professor Carl Bilfinger, stated that\u00a0fait accompli \u201cundermines faith in the law\u201d. Fifty years later, the International Court of Justice (ICJ) introduced the notion in its Advisory Opinion\u00a0on the\u00a0Wall. Yet […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[7957,3743,7150,4631,3880],"authors":[8135,8134],"article-categories":[6000],"doi":[],"class_list":["post-30066","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-advisory-opinion","tag-icj","tag-international-relations","tag-israel","tag-state-responsibility","authors-margot-ange","authors-nicolas-angelet","article-categories-article"],"acf":{"subline":"Fait Accompli, International Law, and the Israeli Settlements"},"meta_box":{"doi":""},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30066","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30066"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30066\/revisions"}],"predecessor-version":[{"id":30077,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30066\/revisions\/30077"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30066"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30066"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30066"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30066"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30066"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30066"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}