How valid are historical claims when applied to territorial disputes?

Gabriel Chan

Gabriel Chan, well read

Répondu il y a 185w · L'auteur dispose de réponses 4.3k et de vues de réponses 19.9m

Zero validity. Absolutely essential.

Might is right. That has been the story of territorial gains, disputes, and resolutions since the beginning of time, and will be forever.

Sir Winston Churchill correctly foresaw that the empires of the future are the empires of the mind, based on what he saw in Nazi Germany.

Today and likely from now on, support for claims is fought via propaganda, by competing narratives, by pushing your narrative to the top. If your rival's own citizens do not support your rival's claim, then you have casus belli, then the final hurdle is to actually take the territory. Uncle Sam and Ivan are very willing to help depending on who you are more friendly with. Unless you are China, because everyone hates China.

And even if you are not interested in an actual war, political goodwill is currency in global trade and economics, which is really what matters at the end of the day.

Legal succession is another major area. A new state could take over the assets and liabilities of a defunct state. But during the transition, before the new state has the chance to consolidate everything, regions can breakaway or be annexed by other players. This is why the 20th century is the source of many disputes, with states and sovereigns dying and new ones being born.

I think the best form of conflict resolution for disputed territories is joint sovereignty or a form of free trade zone or an application of One Country Two Systems. There would be lots of negotiating and paperwork involved, but it would be beneficial to all parties.

I would start by making Kashmir a Joint Administrative Region of India and Pakistan, and demilitarize Kashmir JAR and turn it into an entrepreneurial hub and take advantage of the desire for regular Indians and Pakistanis to do business with each other, and Kashmir's ideal location as the entrance into South Asia from the Silk Road... basically recreate Shenzhen there.

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The world today is more or less in a state of equilibrium, as the remaining territorial disputes are not critically strategic. If it was, and it could change time to time, then people would actually fight over it.

Case in point: Ukraine.

Greg Burch

Greg Burch, lawyer, "Old China Hand," amateur roboticist

Répondu il y a 185w · L'auteur dispose de réponses 1.3k et de vues de réponses 1.5m

I'm not an expert in this area of the law (few are -- it's pretty arcane), but I would say that a number of factors seem to influence how much impact a "historical claim" has:

  • how recent the claim is;
  • how well-recognized the claim is/was by states other than the claimant state
  • the circumstances of "losing" the territory (e.g. was it in an aggressive war initiated by the claimant?; was the territory taken by another state in a war of aggression?);
  • whether there has been a continuity of sovereignty for the claimant state reaching back to the period of the "historical" claim;
  • how the claimant state goes about asserting its claim (i.e. through legal process or some other means).

I would say that when all of these factors favor the claimant state, that "historical claims" can have quite a bit of "validity," in the sense of carrying weight in the overall internation system of inter-state relations.

Joseph Boyle

Joseph Boyle

Répondu il y a 184w · L'auteur dispose de réponses 27.6k et de vues de réponses 20.4m

In general they are trumped by explicit agreements if any, and if the claim does not involve continuous occupation and habitation, it is weak. I do not know whether historical claims have any particular status of their own.

Certainly many places have multiple historical claims and no definite way of judging between them. For example, in the Israeli-Palestinian conflict, historical claims are often argued to influence public opinion, but there does not seem to be any solution other than agreement of both the parties.

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Most European boundaries are based on explicit treaties, usually after wars, often of the actual parties but often involving other great powers. After the World Wars, there was massive restructuring of states in Eastern and Central Europe and the Middle East.

Most African, Middle Eastern, and Southeast Asian boundaries were set by British, French, and other European colonialists, within the last century or century and a half, and retained on independence, with later changes extremely rare.

Most Latin American boundaries are based on mutual agreement on the breakup of the earlier states, though a few disputes led to later wars. Some boundaries were based on earlier administrative boundaries, but these were not authoritative.

Rob Weir

Rob Weir, Aphorist

Répondu il y a 185w · L'auteur dispose de réponses 11.8k et de vues de réponses 21.1m

I'd refer to the Montevideo Convention on the Rights and Duties of States, especially Articles 1 and 11:

1. The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.

11. The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

Convention de Montevideo sur les droits et devoirs des États

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Note that this tries to have it both ways. It recognizes nations based on possession and having effective government, and deprecates the use of force to acquire territory, while ignoring the fact that most nations acquired at least a portion of their territory by force, if you are willing to look back far enough, even to antiquity.

The way I look at it is this: We have a modern conception of liberal relations among states, including free trade. We recognize that perpetual war harms everyone. So we have conventions that establish norms and dispute resolution mechanisms, while also recognizing that we are not capable of applying such norms retroactively to every historical use of force back to antiquity.

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