Crimea and the different claims
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 Ukraine 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 disputes
territory, do these opposing parties have any grounds for their claim? Do they
have what I call a “colorable 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 Israel and Palestine 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 “colorable 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 “colorable” 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 colorable 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:
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: Crimea and the colorable
claim: who counts?
Monday 24th February 2020
Dr Jorge Emilio Núñez
Twitter: @London1701
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