Blanca Garrido Martín. Opositora a Carrera Diplomática.
Juan Bodino, en el siglo XVI, acuñó el concepto de “soberanía” para referirse a los estados independientes. Si bien no existe una definición general de lo que es un “Estado”, según el artículo primero de la Convención de Montevideo (1933) existen tres elementos básicos que todo Estado debe poseer: población permanente, organización política efectiva y permanente y, por último, pero no menos importante, un territorio definido.
Juan Bodino, in sixteenth century, coined the concept “sovereignty” to refer to independent states. Although it does not exist a general definition of what is a “State”, according to the first article of the Montevideo Convention (1933) there are three basic elements every State must own: permanent population, an effective and ongoing political organization and, last but not least, to hold a defined territory.
The Korean Demilitarized Zone, Kashmir, South China Sea, among others… All of them carry borders disputes which include conflicts over territory, natural resources, and political interests.
In all this, what happens if a territory in which there is a settled population with an administration is invaded by another State under the pretext that they own that land? Might this country disappear? Who says which lands belong to one or another? And what is more, does the land belong to anybody?
To begin with, international law guarantees sovereignty of every State thanks to its laws and treaties ratified by States. Nevertheless, historically, humans have been nomads and migrants in order to find the best resources to ensure the survival of their line. If there were a community already in place, either they could fight to gain ground or they could continue on their way. Nowadays, it is difficult to pursue a terra nullis and, as the borders are strictly protected by nations, looking to the future, it is important to maintain a coalition between those which want a status quo to contain illegal invasions.
According to the International Court’s case law, traditionally, sovereignty corresponds to historical origins, and to do so, the State should hold a title with a map which indicates the borders. However, this title should be underpinned by the existence of an effective administration. Thanks to that title, the State would be able to sell the land or give it to another State.
Those “historical origins” could have been come about because of the discovering of the land or its conquest. However, since the General Assembly of the United Nations approved Resolution 2625, it is stated that no territorial acquisition resulting from the use of force will be recognised as legal. In this context, more than 50 years ago, 193 States agreed on the prohibition of the use of force to conquer a territory.
Nonetheless, numerous States have invaded areas that they consider as a part of their territory, but that had been divided because of colonial partition. They have alleged that there were already social relations between the population, and they have shown evidence to prove that the land belongs to them. It is the case of the Western Sahara that, though the Moroccan Sultan did not exercise political control over all the territory, the Moroccan government alleges that the Sultan was a religious figure and there was a relationship of subordination under the Sultanate.
Furthermore, the Israeli and Palestinian conflict has demonstrated the failures of the International Law when both parties agreed on some specific border and one of the parties does not deliver it, especially when there is not an agreement between the populations.
Looking to the future, in an emergency context, borders should be open to refugees fleeing from wars, environmental crisis and so on, but it is important to establish an international order for the purpose of enforcing treaties and maintaining peace and security for civilians. Borders should be protected to guarantee a legal protection to society and the only way to do so it is to punish, in an effective way, those regimes that do not respect the sovereignty of other States. In cases of disputed territories, it should be under the administration of an international organisation such as the United Nations to keep safe civilians from the bombs and armed conflicts.
To sum up, the international community has elaborated a suite of rules and laws to guarantee the sovereignty of States in order to maintain peace and security order in the world. However, in a world led by humans territorial disputes are inevitable and the winner will demonstrate hegemonic power. In spite of protests from other countries, the measures adopted do not deter some States to invade other territories.
It has yet to be determined how the invasion of Russia in Ukraine will end, nevertheless in other cases, the strongest has taken the effective administration such as the monetary system and the monopoly of force. These are the cases of the disappeared Western Sahara or the West Bank where Morocco and Israel respectively are the strongest with a significant difference, but which is the strongest (not only because of the armaments, but also because of their will) in this conflict: Ukraine and its allies or Russia?
7 Junio 2023
ISSN: 2340 – 2482
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