Today’s post introduces the second ground for a colourable
claim: moral standing.
A colourable claim is based on moral considerations
when any of the claiming parties based their right to claim sovereignty on
moral grounds. In other words, they have moral standing. That is because the
claim has to relate to the sovereignty of the third territory and the decision
that the parties will arrive at in the negotiations may make a difference,
morally, on how that party may be treated.
There is indeed a linked question to the idea of
moral standing: who counts? In general, there can be many answers, from the
narrowest by only granting certain populations participation (for example, only
human beings who fulfil a certain criteria); to the broadest (that is to say, any
human being, and hence any population may potentially have the right to claim
sovereignty anywhere).
Consider the following example: would Chile,
Slovenia or Tibetans have a right to claim sovereignty over Israel/Palestine based
on a humanitarian reason? The answer to this question depends on the frame of
reference.
The question is not about global justice or morality
but about particular sovereignty conflicts (in our case study, the
Israel-Palestine difference). Thereby,
the moral considerations are within
this context.
In
tune with this, the above questions are indeed interlinked as well as their
answers. Although at first glance it may seem unfair for someone to share what
is supposed to be his own, the reality is that the sovereignty of exactly that
object (in the case under study, the disputed territories between Israel and
Palestine, with Jerusalem being the most evident) is the centre of the whole
argument.
The starting
point is a piece of land populated by certain people whose sovereignty is being
argued over by several parties. These inhabitants do live there, but their
right to do so is under discussion.
Precisely, there are reasons that support the
inclusion of the inhabitants in the negotiation that go beyond that of human
rights. Indeed, they have a colourable claim. That is because they either
occupy the territory and have been there continuously (historical entitlement)
or because they have moral standing, or a combination of both.
There is room to argue some external populations
might be seen as a third party. For instance, Palestinians and Jewish people
living abroad. It is true that Jews outside Israel had to be considered in
drawing up the institutions and legal code (Israel would not make sense without
the Law of Return). However, these people were not involved in the actual
process of drawing up the code. Interestingly, the same is true of the
Palestinians. If there is a peace treaty and the setting up of a Palestinian
State, the Palestinians outside the West Bank and Gaza will have to be
considered.
So, what kind of claim, if any, do these external
populations have in this context? They are not a third party as that would be
a misconception. Rather, they would be part of any of the claiming parties
(Israel or Palestine).
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.
Jorge
Emilio Núñez
Twitter: @London1701
02nd May 2018
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