The Israel-Palestine difference, the colorable claim and the moral standing argument
The post today introduces the second ground for a colorable claim: moral standing.A colorable claim is based on moral considerations when any of the claiming parties based their right to claim sovereignty on moral grounds. In other words, they have moral standing. That is because the claim has to relate to the sovereignty of the third territory and the decision that the parties will arrive at in the negotiations may make a difference, morally, on how that party may be treated.
There is indeed a linked question to the idea of moral standing: who counts? In general, there can be many answers, from the narrowest by only granting certain populations participation (for example, only human beings who fulfil a certain criteria); to the broadest (that is to say, any human being, and hence any population may potentially have the right to claim sovereignty anywhere).
Consider the following example: would Chile, Slovenia or Tibetans have a right to claim sovereignty over Israel/Palestine based on a humanitarian reason? The answer to this question depends on the frame of reference. The question is not about global justice or morality but about particular sovereignty conflicts (in our case study, the Israel-Palestine difference). Thereby, the moral considerations are within this context.
In tune with this, the above questions are indeed interlinked as well as their answers. Although at first glance it may seem unfair for someone to share what is supposed to be his own, the reality is that the sovereignty of exactly that object (in the case under study, the disputed territories between Israel and Palestine, with Jerusalem being the most evident) is the centre of the whole argument.
The starting point is a piece of land populated by certain people whose sovereignty is being argued over by several parties. These inhabitants do live there, but their right to do so is under discussion. Precisely, there are reasons that support the inclusion of the inhabitants in the negotiation that go beyond that of human rights. Indeed, they have a colorable claim. That is because they either occupy the territory and have been there continuously (historical entitlement) or because they have moral standing, or a combination of both.
There is room to argue some external populations might be seen as a third party. For instance, Palestinians and Jewish people living abroad. It is true that Jews outside Israel had to be considered in drawing up the institutions and legal code (Israel would not make sense without the Law of Return). However, these people were not involved in the actual process of drawing up the code. Interestingly, the same is true of the Palestinians. If there is a peace treaty and the setting up of a Palestinian State, the Palestinians outside the West Bank and Gaza will have to be considered.
So, what kind of claim, if any, do these external populations have in this context? They are not a third party as that would be a misconception. Rather, they would be part of any of the claiming parties (Israel or Palestine).
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: The Israel-Palestine difference: who counts? Do Israelis only count? Do Palestinians only count?
Wednesday 08th January 2020
Dr Jorge Emilio Núñez