Our last post introduced the “colourable 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 dispute over
Crimea. In other words, WHO counts?
NOTE two things:
1. Today’s post:
for the readers that follow this series, we have already covered this point
when we presented the Israel-Palestine difference (Part 5) [Post 45]. I
intentionally include this again taking into account your comments (here,
Reddit and Twitter). Many readers are only interested in one particular
conflict. Hence, unless they go back to previous posts in order to have a
better understanding of what we mean by certain key concepts, tangential
arguments will occur. That is to say, they may agree or disagree based on
different assumptions about meaning, context, perception, etc. which would
defeat the point of offering an open and informed ground for discussion. I aim
the starting point to be the same for all participants in these discussions.
2. The post tomorrow will be
slightly longer than usual in order to demonstrate how the “same” facts may be
introduced differently to argue in favour or against the historical claim. To
demonstrate this point the post tomorrow will include two “academic” accounts
of the historical facts concerning Crimea.
A colourable
claim: who counts?
In brief, a party has a colourable 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
colourable claim recognises 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 dispute over Crimea
presents three parties: Ukraine (sovereign de jure), Russia (sovereign de
facto) and Crimea. The two sovereign parties (Russia and Ukraine) argue about
sovereignty de jure and de facto over the same.
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 colourable claim needs
exploration. In broad terms, a colourable 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.
Today’s post introduces the first ground for a
colourable claim: HISTORICAL ENTITLEMENT.
A colourable 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 (in our case, Crimea) and their intention
to be its sovereign. These past facts may related to actual occupation—for instance,
effective occupation. However, they do not exclude claiming parties that do not
currently occupy the third territory. In the event they did not occupy the
third territory, their continuous intention to do so would be enough to grant
them a colourable claim. That is because they may have been removed or expelled
from the third territory. The dispute over Crimea 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 annexation.
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.
To demonstrate the importance of factual
evidence (the basis for the historical claim) and the way in which this “same”
evidence is interpreted differently, we are going to review tomorrow two very
different “perceptions” of these facts concerning Crimea. Both these “perceptions”
come from academic “rigorous” analysis.
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
05th
June 2018
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