The Israel-Palestine difference and the egalitarian
shared sovereignty
Time
to untangle the Israel-Palestine difference. The
last four posts introduced very briefly the background situation of this
TERRITORIAL DISPUTE.
With the previous case studies part of the TERRITORIAL DISPUTES series
(so far Kashmir, the Falkland/Malvinas islands, and Gibraltar), we covered
population, territory, government and law and how to address these conflicts by
means of the EGALITARIAN SHARED SOVEREIGNTY.
On this occasion, the Israel-Palestine difference calls for a prior
clarification: who counts? For some in Israel, sovereignty over certain areas
does not need any discussion with Palestinians. For some in Palestine,
sovereignty over the same areas does not need discussion with Israel. Each of
these parties consider the land to be theirs and the opponent does not have any
legitimate claim.
In domestic law (and this is applicable to international relations too)
before going into the negotiations to solve any conflict it is imperative
to decide who will be able to be part of them. In other words, who is a
legitimate claiming party? This has to do with the “admissibility” steps prior
to any negotiation or discussion. In simple terms, if I do not recognize you to
have right to claim over “X” I will not discuss who owns “X.”
So
far, this long standing difference has been in a legal and political limbo.
Yet, if we were finally reasonable and wanted a peaceful end to the dispute,
who counts? Who can be part of the discussions about the sovereignty over the
disputed territories?
The
usual grounds in international law to acknowledge legitimacy when disputes of
the kind we see here are effective occupation, consent by the other agent in
the dispute, consent by other States, and/or consent by the international
community.
Without
entering into too much detail about them (simply to avoid making this post too
academic and littered with technical jargon), it is easy to see that Israel and
Palestine dispute these grounds for different reasons in relation to their
opponent.
For example, Palestinians do not have effective occupation and
therefore, have no right to claim. Israel does not count with the consent of
the other agent in the dispute (Palestine) and most of the regional neighbors;
hence, Israel does not have any right to claim sovereignty. And so on…
The
issue, I believe, is that the usual grounds for legitimacy do not capture the
whole complexity of Israel-Palestine difference. In my latest monograph (Núñez
2017) I develop the idea any claiming party in a sovereignty conflict should
have what I call a “colorable claim.” The expression comes from the domestic
Courts in the US and, to an extent, in Scotland.
In
basic terms, any party claiming sovereignty (whether Israel or Palestine) must
have a valid reason to claim. That reason should be “colorable” enough to prove
that their intended rights are at least sufficiently plausible to be
acknowledged, and they can be based on any reasonable circumstances—e.g.
political, historical, legal, geographical arguments to name a few.
For
example, in the case of the Falklands/Malvinas islands dispute it would be
unreasonable for Russia to participate in the negotiations in relation to their
sovereignty since they do not have any colorable claim over that territory.
I
will introduce next time more details about the colorable claim and its
different grounds. I aim to show how and why both Israel and Palestine have the
right to claim sovereignty.
To
be more precise, I refer to the RIGHT TO CLAIM SOVEREIGNTY and not SOVEREIGNTY
itself. Remember a right to claim anything is prior to having the right
acknowledged. First, we have to prove we can claim (admissibility). It is only
after this step we can argue who has the right (the substance of the case).
NOTE:
This post is based on Jorge Emilio Núñez, “Territorial Disputes and State
Sovereignty: International Law and Politics,” London and New York: Routledge,
Taylor and Francis Group, 2020 (forthcoming)
Previous
published research monograph about territorial disputes and sovereignty by the
author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and
Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor
and Francis Group, 2017.
NEXT
POST: The Israel-Palestine difference: Who
counts? (available on Monday 06th January 2020).
Friday 06th December 2019
Dr Jorge Emilio Núñez
Twitter: @London1701
