Today’s post introduces the second ground for a
colourable claim: law.
A colourable claim is based on the legal status of
these claims when any of the parties use or may use law to support their right
to claim sovereignty. In this case, they may use international customary law or
treaty law to support their position. For instance, the case of one of the
parties that did not have effective current occupation of the third territory
but had continuously claimed sovereignty in international forums such as United
Nations following international public law regulations.
Sumner (2004) brings an excellent article that
covers TERRITORIAL DISPUTES before the International Court of Justice. An
extract of the text and the link to the complete article below:
TERRITORIAL DISPUTES AT THE INTERNATIONAL COURT OF JUSTICE
BRIAN
TAYLOR SUMNER (2004)
“Cases may come before the ICJ, an independent subsidiary organ
of the United Nations, by referral through a compromis (special
agreement) between two or more states, by a treaty provision committing
disputes arising under the treaty to the court, or by the parties’ statements
of compulsory jurisdiction. Under Article 38 of the Statute of the International
Court of Justice (Statute), when deciding cases “in accordance with
international law,” the court applies the following sources of law:
a. international conventions, whether general or particular, establishing
rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
Furthermore, if the parties agree, the court may decide a case
under equity principles, ex
aequo et bono.
Territorial claims before the ICJ usually
fall within one of the above four categories.”
What does all this mean in relation to the
Israel-Palestine difference?
The next lines centre only on Jerusalem to keep it
brief and, at the same time, to show the level of complexity.
- Before Jerusalem’s partition, the city was part of the former British Mandate for Palestine.
- The Partition Resolution: The UN General Assembly (Resolution 181) introduced a “separated body” (corpus separatum) for Jerusalem.
- Sovereignty (de jure and de facto) over that part of the former British Mandate for Palestine, with the exception of West Jerusalem, passed to Israel.
- The rest of the former British Mandate for Palestine: Palestinians have de facto sovereignty (not de jure).
- Israel’s occupation of West Jerusalem since 1948 has not been recognised de jure (arguably, most states accept Israel’s de jure sovereignty).
- East Jerusalem is a separate issue according to UN Security Council Resolution 242:
“1. ii. Termination of all claims or
states of belligerency and respect for and acknowledgment of the sovereignty,
territorial integrity and political independence of every State in the area and
their right to live in peace within secure and recognized boundaries free from
threats or acts of force; […]”
In short, the legal status of the
complete area remains open. Meanwhile, both parties enforce by different means
sovereignty de facto."
Tomorrow, the third ground for a colourable
claim: moral standing.
For a
reference to a “colourable claim” and its ground see these previous posts from
the TERRITORIAL DISPUTES series:
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.
01st May 2018
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