We have three populations (Khemed, Syldavia, and Borduria) part of a sovereignty conflict or dispute over the same territory Khemed. Each of the parties has chosen a representative to go into the negotiations about the sovereignty over Khemed and agree to settle the question. We have assumed that the representatives do not know whom they represent and they have to accept that they might be representing any of the three populations. The representatives will review a series of possible options in order to make a decision about how to share the sovereignty over Khemed. The first idea all the representatives may think of if the historical entitlement.
Most people might think it obvious to give to each his due or to distribute to each one his share. What can be fairer than to give everyone what is due to them? However, to give to each his due is not as simple as it may appear to be at first glance. In addition to this, it may not be the case that this settles the question. It may be unclear who this person is and how much he should be entitled to and why. In brief, the representatives would see that by applying historical entitlement to decide who the sovereign is, even in the case they had agreed on dividing sovereignty amongst them, they would have to deal with at least two new problems:
1. The facts: first, all three representatives would have to agree on what the correct chronology of the historical facts is. For example, who discovered first the territory, who settled people there first, whether any of the previous people living there were forcefully removed, and many other.
2. The evaluation of the facts: even in the case we assumed all the representatives agreed on the correct chronology of the facts (and this is a huge assumption, specially in sovereignty conflicts or disputes) the controversy may continue. Why? Because a sovereignty conflict or dispute is not an issue of historical facts only. These facts will have to be weighted in any case. That is to say, the representatives will have to agree on the relevance of the facts in relation to the sovereignty over Khemed each party claims. The representatives would need to decide what type of act makes their claimed rights just. For example, the parties may agree that Syldavians arrived to Khemed before Bordurians. Would this fact give Syldavians “more” sovereignty rights? The answer: it depends. On what?, someone may ask. The answer will depend on how this particular historical fact is valued, judged, weighted. If the sovereign is the first one setting foot on the territory there is no doubt Syldavians are to be acknowledged. But if the sovereign ought to be the first one to have a permanent settlement and these are the Bordurians, the question remains unanswered. Syldavians would argue they had a better right because they simply got to Khemed first; Borduriands would disagree because although they were the second people moving to Khemed, they were the first to settle their permanently. Lesson: same facts, different evaluation of the facts. Same facts do not guarantee a common ground.
In relation to the first point we made (the agreement on the historical account) Khemedians, Syldavians and Bordurians are certain that each of them has ultimate and highest right over the Khemed. By implication, Khemed is due to them, each party claims. As a consequence, if Khemedians, Syldavians and Bordurians centred their negotiations on the historical account and only the chronology of the facts, they will not move from the zero sum game. That is because, in order to determine the original and correct historical account of the facts, the representatives have to go back and resolve old historical claims only resulting in a practical matter: the Khemedians, Syldavians and Bordurians are never going to agree on the “correct” historical version of the events. They will have to accept the historical account of the facts will only grant them one thing: controversy.
In relation to the second problem, that is to say in the event Khemedians, Syldavians and Bordurians agreed on the same historical account, they would still have to judge, value, weight these events. In order to value these events, they would have to make a preliminary decision: did the originally uninhabited Khemed belong to nobody or did the originally uninhabited Khemed belong to everybody? Depending on which answer they decided to follow, any of the parties could have had the right to take that which was unowned or they all had that right, and if anyone did it first, he would have to somehow compensate the others.
Finally, the representatives in the negotiations will see that all the parties (Khemed, Syldavia and Borduria) support their claims through historical, legal, political, cultural or geographical arguments and even a combination of many of them. The sovereignty over Khemed has to do with many more things than only history. For example, Syldavia may argue that whoever was the first one in Khemed is its sovereign. Result: Syldavians ought to be either the exclusive and highest sovereign over Khemed or have the largest share of sovereignty if the parties were to divide it by application of maximin. But, following the same example, Bordurians may counter-argue with historical, legal, political, cultural and geographical evidence that they were there first or that being first is not what makes any party sovereign.
We will continue the discussion about the historical entitlement in our next post. So far, we have seen that if Khemedians, Syldavians and Bordurians want to solve their conflict or dispute over Khemed their arguments over the historical account of the events is futile for providing a solution. On the one hand, it is hard to see how Khemedians, Syldavians and Bordurians would agree on the same account. On the other hand, even if we were over-optimistic and assumed the representatives had finally agreed on the chronology of the facts, it is very highly unlikely they would agree on how to “weight” them.
Jorge Emilio Núñez
23rd October 2017