Time to untangle Crimea. The last five posts introduced very briefly
the background situation of this TERRITORIAL DISPUTE (Posts 66-70).
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 (Post 70).
The Israel-Palestine
difference called 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.
Crimea is similar to the
Israel-Palestine difference on this point. Russians claim exclusive sovereignty
over Crimea and do not accept Ukrainian’s involvement. Likewise, Ukraine claims
exclusive sovereignty over Crimea and condemns Russian annexation. Meanwhile,
Crimean are under de facto Russian
sovereignty and de jure Ukrainian
sovereignty. Evidently, Russians would not accept Ukrainians and Ukrainians
would not accept Russians in any negotiations about the sovereignty over
Crimea. Regardless of their rhetorical arguments which will only guarantee an
endless dispute and legal and political limbo for the inhabitants of the
disputed territory, do these opposing parties have any grounds for their claim?
Do they have what I call a “colourable claim” to go into negotiations?
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 recognise 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 Russia and Ukraine dispute these grounds for different reasons in
relation to their opponent. For example, Ukrainians do not have effective
occupation and therefore, have no right to claim. Russia does not count with
the consent of the other agent in the dispute (Ukraine) and most of the
world; hence, Russia 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 the situation in Crimea. In my latest monograph (Núñez
2017) I develop the idea any claiming party in a sovereignty conflict should
have what I call a “colourable 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 “colourable” 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 colourable claim over that territory.
Similarly, in the case of Crimea it would be unreasonable for the United States
or the United Kingdom to participate. They do not have a colourable claim.
I will
introduce next time more details about the colourable claim and its different
grounds. I aim to show how and why Crimea, Russia and Ukraine have the right to
claim sovereignty. The reader should not I refer to the RIGHT TO CLAIM
SOVEREIGNTY and not SOVEREIGNTY itself. Remember a right to claim anything is
prior to having the right acknowledge. 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). It is only then when the EGALITARIAN SHARED SOVEREIGNTY
will apply to Crimea.
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
04th
June 2018
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