Who may
take part in the negotiations about the sovereignty over Khemed?
Sovereignty
conflicts or disputes have a particular feature: all the involved parties have
an identity of interest, which at the same time is the centre of the conflict
itself. In other words, the sovereignty over the claimed territory is the
subject matter that seems to offer a mutually exclusive relationship among the
involved parties and at the same time a jointly or collectively exhaustive one.
Sovereignty conflicts have a mutually exclusive nature amongst the claiming
parties since it seems that the sovereignty over the claimed territory must be
acknowledged to only one of the involved parties. That means that in principle
the parties cannot be sovereign at the same time over the same territory. Sovereignty
conflicts have a jointly exhaustive nature as it seems that at least one of the
options must happen, that is the sovereignty must be acknowledged at least one
of the claiming parties.
In one case or the other, who is the rightful sovereign
over a populated territory when we have more than one claiming party? Directly
linked to this point, what kind of procedure (if any) should the claiming
parties follow should they want to end peacefully and definitely the dispute?
Finally, this question leads to many more: who should be the legitimate
decision maker? How would this decision maker be chosen? And so on.
Previously, we
introduced a fictional story… Once upon a time, there was a world with three
peoples, the Khemedians, the Syldavians and the Bordurians.
We are going
to assume that, for whatever reason, the three populations—Khemedians,
Syldavians and Bordurians—have decided to move from the zero sum game they have
been involved in relation to the sovereignty over Khemed and have agreed to
start negotiations so as to reach an ultimate and final agreement to settle the
dispute.
First things first: who can
participate in the negotiations
Like any
negotiations, in the case of sovereignty disputes or conflicts, before the
parties agree to decide on discussing anything, first they will have to agree
on WHO has a right to participate in the negotiations. In our example, do all three
parties have automatically a right to participate? All three, Khemedians, Syldavians
and Bordurians participate by default? Alternatively, only the parties that are
already sovereign? Or, only the party that is the centre of the
dispute/conflict?
In short, it
is still undefined who has the right to claim sovereignty. Assuming that all the three claiming parties, that is Khemed, Syldavia and
Borduria finally decided to leave behind egoistical interests and were looking
for a real, definitive and peaceful solution for the dispute, before going into
any negotiations, they would need to agree on who would be able to participate.
Indeed, this is the key question we have to answer first, particularly
important to all the claiming parties because Borduria and Syldavia opposed to
each other.
Any claiming party in any sovereignty conflict should have what I call a “colourable claim.” (Núñez 2017)* In other words, they must have a valid reason to claim sovereignty over Khemed—obvious examples are effective occupation, consent by the other agent in the dispute, consent by other States, and/or consent by the international community. That reason should be “colourable” enough to prove that their intended rights are at least plausible to be acknowledged, and they can be based on any reasonable circumstances—e.g. political, historical, legal, geographical arguments to name a few.
A colourable
claim recognises surface legitimacy to claim sovereignty to a party. But it
does not need to be the case that Khemed, Syldavia and Borduria have equal
claims in respect of Khemed. In fact, one of them could have a claim that
entitled it to double the weight of the other party or that of Khemed, for
whatever reason. That is because a colourable claim refers only to the right to
claim sovereignty, and that is prior to any negotiations. It is in the
negotiations when the parties may discuss the weight of their claims.
Broadly, a
colourable claim can be based on: 1) historical entitlements; 2) the legal
status of these claims; and 3) moral considerations. Note that this list is not
exhaustive and only includes some of the most common examples in sovereignty
conflicts. That is because a colourable claim refers to surface legitimacy and
hence can be based on any prima facie reasonable circumstance related to the
sovereignty over Khemed.
Some questions
may arise, in particular, in relation to the participation of Khemedians in the
negotiations. On the one hand, would it be fair for them to negotiate the
sovereignty of the territory they are inhabitants of? On the other hand, do we
need some minimum criteria here to help us determine when the residents of the disputed
territory get a vote?
Intuitively,
it may sound unfair for someone to negotiate what is supposed to be his/her
own. However, the reality is that the sovereignty over Khemed is the centre of
the whole dispute. These inhabitants do live there, but their right to do so as
an independent, sovereign state is under discussion. Nevertheless, that does
not mean that they can be left outside the negotiations. They are rational
beings and human beings and hence they have human rights, even though
sovereignty disputes are not an issue of human rights only. Therefore, it would
be simply unfair to ask them to leave or not to take their claimed rights into
consideration. In the hypothetical scenario there were negotiations and the Khemedians
did not participate, Borduria and Syldavia would be deciding the future of a
whole population (and for the next generations) with various consequences at
different levels—e.g. territory, exploitation of natural resources, law, taxes,
etc., and that seems completely unfair.
If we pursue a
solution both possible and fair, to ask Khemedians to go into negotiations about
their sovereignty is fair, provided that their right participate is welcomed by
all the claiming parties—i.e. they have a colourable claim.
In our next
post, Khemed, Syldavia and Borduria set the rules for the negotiations about
the sovereignty over Khemed.
*Núñez, JE, Sovereignty
Conflicts and International Law and Politics: A Distributive Justice Issue, ©
2017 – Routledge Taylor and Francis.
Jorge Emilio Núñez
02nd October
2017
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