Our last post introduced the “colourable claim” in
the context of TERRITORIAL DISPUTES. In particular, we aim to determine WHO
should be included in case of peaceful negotiations to solve the
Israel-Palestine dispute. In other words, WHO counts?
In brief, a party has a colourable claim if prima
facie they have the right to claim sovereignty, that is to say they appear
to have a probable cause to support their intended right to claim. REMINDER: a
right to claim (admissibility stage) is different from saying that they have a
right to sovereignty (substance of the case).
It is important to make clear that because a
colourable claim recognises surface legitimacy to claim sovereignty, it does
not need to be the case that the sovereign States or the population of the
third territory have claims sufficiently equal in strength to give them roughly
equal claims in respect of the third territory. The Israel-Palestine difference
presents two main parties: Israel (sovereign de jure and de facto) and
Palestine (sovereign de facto) and both argue about sovereignty de jure and de
facto over the same territory (or part of the territory to be more precise).
It is indeed in the negotiations when the parties
may discuss the weight of their claims. It is in the negotiations they will
present evidence (facts, law, politics, finance, history, etc.) and discuss
whether they agree or disagree with their counterpart and why.
Each particular ground for a colourable claim needs
exploration. In broad terms, 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.
Today’s post introduces the first ground for a colourable
claim: HISTORICAL ENTITLEMENT.
A colourable claim is based on historical
entitlements when any of the claiming parties bases its right to claim on past
facts related to the third territory and their intention to be its sovereign.
These past facts can be related to actual occupation—for instance, effective
occupation. But they do not exclude claiming parties that do not currently
occupy the third territory. However, in the event they did not occupy the third
territory, their continuous intention to do so would be enough to grant them a
colourable claim. That is because they may have been removed or expelled from
the third territory. The Israel-Palestine difference is a clear example of two
parties continuously arguing about the sovereignty (de jure) over the same
territory when in actual facts (sovereignty de facto) one of these populations lives
there and the other one argues forced removal.
Effective current occupation or past occupation and
continuous intention to occupy the territory, they may have a basis strong
enough to have a reasonable chance of being sovereign of that third territory.
In other words, the facts they use to support their right to claim sovereignty
may be proven in the negotiations. It
is the same kind of test used in British law to determine whether there is a
possible cause to move forward—i.e. if there is a case to answer.
Tomorrow, the second ground for a
colourable claim: legal status.
NOTE: based on Chapter 6, Núñez, Jorge Emilio. 2017. Sovereignty
Conflicts and International Law and Politics: A Distributive Justice Issue.
London and New York: Routledge, Taylor and Francis Group.
30th April 2018
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