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
29th October 2018