The principle of just acquisition may work for individuals. For States, it may solve one problem, what one has to do, i.e. mix one’s labour. But leaves several other issues unresolved—e.g. a) who did it first? b) how much each does individual own? (new problem, e.g. if someone digs, can he claim that plot, the field or the whole island?), and c) who inherits the property—the inhabitants or their ‘mother community’?
Any version of just acquisition will have the same problems: people will never agree on the relevant facts and the relevant test, and therefore all this principle would do is guarantee endless conflict. So, the representatives in the original position would reject it.
Assuming there were negotiations between non-regional (for example, France and Spain) and regional states (for example, Comoro and Morocco) the representatives would have to decide how to allocate the sovereignty over the disputed territories (as we have seen so far in the blog, Ceuta, Melilla, and several islands and surrounding territories in land and water).
Whether they have access to historical records or not is irrelevant since they would only result in endless discussion concerning historical entitlement that in most—if not all cases—is highly difficult to be demonstrated. Governments and their representatives are aware of this issue. More precisely, non-regional states maintain the very convenient status quo to their interest by using the historical argument since they know it will not bring any changes to the current situation.
The advice here would be not to agree to rely on a principle that guarantees endless conflict, and therefore, to reject it as the principle to resolve these disputes. At the same time, by rejecting the historical entitlement argument, it leaves all the agents with an equal footing to continue the negotiations since none of them can argue a better or more robust right over the claimed territory.
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: @London170102nd November 2018