Before we continue with other TERRITORIAL
DISPUTES in Africa we can already determine a pattern. Many of these disputes
have to do with non-regional states that had long ago presence in the continent
by means of colonialism and imperialism.
The posts this week will center on revising the
theory behind the historical claim and the consequent territorial acquisition
(that result nowadays in territorial disputes).
Most—if not all—individuals—and any
sovereign State—would think it obvious to apply Ulpian’s maxim Suum cuique
tribuere (Digest,
1.1.10)—to give to each his due or to distribute to each one his share—in the
case of any type of distribution. What can be fairer than to give everyone what
is due to them? However, to give to each his due is not a task without
difficulties. Thus, it does not necessarily mean that to try to do this
automatically produces the most just solution, because it may be hopelessly unclear
what each person (or State) is entitled to.
Faced with the idea of applying any
kind of principle based on a historical entitlement will confront the
representatives with two main problems. First, they would need to agree upon a
historical account—i.e. what actually happened, who was the first one to
discover the territory, or to have a population there, etc. Second, they would
need to decide what type of act makes their claimed rights just—i.e. the first
one setting foot on the territory, the first one to have a permanent
settlement, etc. Thus, in relation to the second problem, they would have to
choose the theoretical background to decide what is just: res nullius or res communis—i.e.
the originally uninhabited territory belonged to no-one or everyone had a
certain right over it. Besides, if there were conflicts in the past it would
need to be decided whether they were just or not and whether the just side won.
The posts will continue this analysis
tomorrow.
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
Twitter: @London1701
29th October 2018
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