Tuesday, 10 March 2020

Territorial disputes: Crimea (Part 17) [Post 82]

 
 
Crimea, negotiations and a proviso
 
The previous post referred to the arrangements that Crimea, Russia and Ukraine could have in place in order to achieve a peaceful and permanent solution: the egalitarian shared sovereignty. However, the post finished with a remedy that still needed some guarantees to secure it cannot be used as a subterfuge for domination or imposition by the strongest party.
 
 
 
The egalitarian shared sovereignty includes a proviso
 
If we added a proviso in order to make sure that the party with greater ability and therefore greater initial participation rights would have the obligation to bring the other two parties towards equilibrium, the proposal becomes reasonable.
 
That is because it ensures the most efficient current distribution of rights and obligations but also ensures the party that currently benefits most has an obligation to bring the other two parties up to a position where they can contribute equally, that is, it has the burden to assist the other two parties to acquire the ability to contribute equally to that particular objective/area/activity of sovereignty over the third territory.
 
Therein, the party with the greater ability in whatever area would agree to this because there is no other way of having the cooperation of the other two, and the other two parties would agree because this arrangement requires they receive something immediately and will eventually gain the ability to have an equal share, and they would otherwise get nothing.
 
 
 
It is true that the obligation is potentially onerous:
  • what justifies the ascription of that obligation to the better off party? For example, if A is the stronger, and B and C are the weaker parties, is A obligated to raise the standards of B’s and C’s economies so that they can afford to invest in the exploitation of natural resources;
  • or is it enough that A gives B and C a specific sum equivalent only to what B and C need to exploit resources on terms equal with A?
  • If A gives that sum to B and C, are they obliged to spend it on exploitation, or can they spend it on something else and so forfeit any future claim to be assisted with the exploitation of natural resources?
  • Why cannot B and C simply issue leases to commercial companies to exploit the resources on their behalf; why do they have to rely on help from A?
  • What does the obligation imply in relation to unalterable inequalities, such as one state’s being geographically closer to the third territory than the other?
 
 
The way in which the parties fulfil the final agreement or how the parties use the outcomes of the exploitation of their shares have to do with either practical matters that depend on each real scenario or with decisions pertaining internal sovereignty and therefore are out of the scope of this article. Similarly, to think of every possible factual difference amongst the parties such as geographical proximity would be out of the scope of an academic writing of similar nature, in particular when this is only a theoretical exercise.
 
 
 
In what matters the justification for the obligation owed by the more advantaged claimant, two clarifications must be made.
 
  1. Firstly, I do not claim that any obligation is prima facie owed amongst the parties. I believe the most advantaged party would accept the agreement or better said, it would be unreasonable for this party to argue it is not fair to accept it. Whether the most advantaged party actually accepts the arrangement or not is a different matter.
  2. Secondly, it is reasonable to believe that if the three parties in the original position agree on: a) equal standing; b) making the nature and degree of participation dependent on efficiency; and therefore c) at first the party with more ‘input’ will receive more ‘output’; the more advantaged claimant—whoever that turns out to be—will accept to have an obligation to bring about equilibrium in the shares since, in the absence of that equilibrium, the more advantaged claimant would or could dominate the other claimants so there would be hardly a good reason for the other two parties to accept any other arrangement that somehow did not contain a degree of equilibrium.
 
That is because anything less than shares in equilibrium would potentially imply a smaller share in comparison to those of the other parties. Therein, the bigger the share, the riskier the case for any of the parties to have more control on a particular issue pertaining sovereignty or the sovereignty of the third territory as a whole.
This is directly linked to the idea of non-domination since the possible monopoly of power with regards to a particular issue pertaining sovereignty or the sovereignty of the third territory as a whole could degenerate into arbitrary power by the decisions being made mainly by the strongest party or in benefit only of the strongest party.
 
In consequence, the freedom of the least advantaged parties with regards the choices they could make with their shares and the originally agreed equal standing could potentially be reduced to the ‘rubber-stamping’ of the decisions made by the strongest claimant. Therein, it is reasonable to believe that the representatives of the parties would find the equilibrium proviso a fair solution to safeguard the interests of the three populations involved.
 
This way of approaching sovereignty conflicts like the ones discussed in this blog I call egalitarian shared sovereignty.
 
 
 
NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).
 
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: Crimea, negotiations and “similar” or “identical” shares of sovereignty
 
 
 
Tuesday 10th March 2020
 
Dr Jorge Emilio Núñez
 
Twitter: @London1701
 
 

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