The Israel-Palestine difference: Who counts?
Our last post introduced the “colorable 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 colorable 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
colorable claim recognizes 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 colorable claim needs
exploration. In broad terms, a colorable 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.
The post today introduces the first ground for a colorable
claim:
HISTORICAL ENTITLEMENT
A colorable 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
colorable 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.
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, the colorable claim and the legal basis
argument
Monday 06th January 2020
Dr Jorge Emilio Núñez
Twitter: @London1701
No comments:
Post a Comment