Thursday, 17 January 2013
Falklands: another never ending story? (part 2 of 2)
In any case in which we have to allocate something most of us-if not all- would immediately apply Ulpian’s maxim "give everyone his due." In matters of sovereignty seems that States have the same idea. And indeed, what can be fairer than to give each one his due? However, it is an issue that brings several difficulties. Indeed, these very difficulties leave the Falklands’ conflict unresolved if we only focus on the just acquisition argument. The result is a legal and political limbo with negative implications in other areas such as society and natural resources’ exploitation.
The just acquisition principle has been formerly associated with territorial sovereignty but originally comes from individual property. While it is a principle that has some virtues and may be considered fair in some cases, it is not the appropriate for sovereignty issues. This is why Falklands will never find a solution if we persist with this approach.
For a better understanding of the meaning of a term like just acquisition, Nozick offers his theory. While his ideas are a subtle revision of the just acquisition theory, its examination helps us to understand why the latter does not apply to sovereign conflicts. In Nozick's words, just acquisition is the first of three principles. In Anarchy, State and Utopia he maintains that an individual acquires the ownership right of an object that is not owned by any other individual by mixing his work with the object and, as a result of that property, no other individual is left worse off. Establishing whether the object in question was previously owned by an individual is one of the main problems Nozick’s model presents-like in sovereignty conflicts. The problem is not that the principle is not just . We can even maintain that Nozick’s just acquisition principle is useful in cases of individual ownership. However, as sovereignty conflicts are not individual problems, the principle is then at least inappropriate for situations of this nature.
In the case of individual property, to determine the right and just owner of, for example, a particular bike seems to offer no major problems and fair acquisition is directly visible: anyone who can demonstrate how he became owner of the bike will be considered fair and just owner, and it would simply require conducting inquiries with previous owners or in the establishment where the bicycle was originally acquired. However, to try to apply the same principle to a whole territory such as Falklands is a completely different enterprise.
Assuming that Argentina and the United Kingdom were looking for a real solution to the Falklands’ conflict by applying arguments based on the just acquisition principle leads to the claimant States to two main problems. Firstly, we need to agree on the historical chronology of the events-e.g. What did really happen?, Who was the first to discover the territory, population or settle there?, etc. Secondly, even if they agreed on the facts, to decide which of them would make their claim fair-e.g. the first to see the islands, the first to set foot on land, the first to have settled population there, etc. In addition to this second problem: a) the claimants would need to decide the background framework to determine which facts are fair (res nullius or res communis); and b) if there were any conflicts in the past, they would need to decide whether they were fair or not and if the victorious party took fairly the territory (in the case of the Falklands, for example, if the Spaniards had a fair settlement or invaded unjustly American territory against the interests of original inhabitants).
In relation to the first problem –agreement over the historical chronology- every sovereign State maintains that has a better right to claim sovereignty over the Falklands. As a result, the conflict does not move from a zero-sum game in which the only benefited agents seem to be both the governments of Argentina and the United Kingdom. In order to determine the original acquisition of the land, we must go back in time and solve ancient historical claims to have again more problems: the claimant States will never agree on the "correct" version of events. Thus, one party may argue that whoever was the first should be the sovereign over territory. Against this, the other party, based on historical, political, cultural, geographical evidence, will argue that: a) they were the first, or b) that being first does not make the acquisition fair unless, for example, has established a permanent civilian population.
Therefore, the application of the just acquisition principle to sovereignty conlficts guarantees only an ad eternum dispute since in response to the arguments of one of the claimants we would have the counter-arguments of the other side, and so on in an infinite chain of events. Consequently, in addition to assessing the moral weight of the facts presented, the problem of agreeing on what should be accepted appears. The application of the nozickian model in sovereignty conflicts is counterproductive, i.e. it results in an outcome far from the expected (if what is expected is truly a real and peaceful solution).
As an example, the arguments about sovereignty over Jerusalem and neighboring areas have been around for generations. Even the Bible (Genesis 14:18-20) mentions them. Should we then go back to biblical times in order to determine the current legitimate occupant of the territory? Similarly, we find arguments and counter-arguments in cases like Kashmir, Gibraltar, and many others. In particular, the Falklands: How far back should we go to determine the first inhabitants? What happens to the original populations who have disappeared? What about civilizations that were nomads?
In short, the use of the just acquisition principle, the argument used by both the governments of Argentina and the United Kingdom, is useless to solve the Falklands’ conflict. On one side, it is at least difficult to prove in a reliable way. On the other hand, proved or even agreeing on the factual basis, the way justice is valued involves discussing these facts in terms that are irreducible. Both governments know and have known this. To keep current a conflict like the Falkland Islands can only be understood as stemming from the selfish interests of these governments so as to generate a fictional element for national unity that only serves to hide local realities such as inflation, recession, insecurity, corruption, unemployment, and many others-and that has little to do with what really matters to the three populations that are affected by arguments that only serve to perpetuate the political-legal limbo in wich the Falklands are.
Argentinians, Britons and islanders are the victims of a conflict that could become a landmark in international relations if we changed the way in which the dispute is viewed, and be precedent for many other similar disputes.