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
No comments:
Post a Comment