Crimea and colorable claims based on moral standing (cont.)
Russia does not accept Ukraine and Ukraine does not accept Russia 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?
To recapitulate, a party has a colorable claim if prima faciethey have the right to claim sovereignty, that is to say they appear to have a probable cause to support their intended right to claim. REMINDER: a right to claim (admissibility stage) is different from saying that they have a right to sovereignty (substance of the case).
We introduced last week the colorable claim in the context of Crimea based on historical arguments and based on law. The post today introduces the third ground for a colorable claim: moral standing.
A colourable claim and 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 dispute over Crimea). 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 territory of Crimea and all that this implies) is the center of the whole argument.
The starting point is a piece of land populated by certain people whose sovereignty is argued 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.
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 colorable claims based on moral standing: who counts?
Monday 02nd March 2020
Dr Jorge Emilio Núñez