The Israel-Palestine difference, the colorable claim
and the moral standing argument
The post today introduces the second ground for a
colorable claim: moral standing.
A colorable 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 colorable 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).
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? Do Israelis only count? Do Palestinians only count?
Wednesday 08th January 2020
Dr Jorge Emilio Núñez
Twitter: @London1701
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