Friday, 10 February 2012

Shared sovereignty over Falkland islands

There have been and are several worldwide attempts of a global organization from a legal, social, economic, etc. point of view. The best example is still the European Union. We also have other similar intents in Asia (ASEAN), South America (MERCOSUR), Africa (OUA or UA), America (OAS) to name a few.
We could go into detail and revise each of them and their structure. However, we do not need to know much about them so to realize that they are in each and every case regional organizations. Although the European Union could be considered as the most evolved of them from a legal and economic point of view, it is still regional.

The globalization process started a while ago. People that are not longer nationals of a State but citizens of the world are no longer an exception. Cities as London and New York and countries as England are the best paradigms. The latter provides a key example at this point: the archbishop of Canterbury raised controversy in February 2008 by suggesting that the United Kingdom had to consider allowing Muslims to decide disputes under Sharia by creating ‘plural jurisdiction’.

In brief, we do have international organizations and what we may call super States. Is that enough to be referring to the phenomenon of globalization? It is not. In order to have a real exercise on the issue we would without doubt ask at least interference between different territories, cultures, religions, legal systems, etc. from different points in the world.

The Falkland/Malvinas islands offer an excellent base to depart. Their territory has been disputed between Argentina and the United Kingdom for almost 200 years. With a population of about 2900 inhabitants, they have also territory, legal system and a government (currently under British legal hierarchy).

Without entering here into the historical references about the dispute between Argentina and the United Kingdom we shall discuss now the actual elements that we consider interesting for a case study. We have all the necessary requisites to be dealing with the notion of State and dual sovereignty at the same time: two sovereign States and one common territory under international dispute. Moreover (and that is one of the most important factors) the two involved States are in two different continents and both are part of different regional organizations.

We shall now detail the key factors we find following our notion of State within the frame of the case study under revision.
Having defined State as a group of people (population) located in a certain land (territory) ruled by the same authority (government) under the same norms (law) we have:

a) population: the Argentinean citizens; the British citizens; the islanders (currently, British citizens). In the hypothetical case we had dual sovereignty over the islands, the only ones affected would be the islanders. In that case, they would have to be granted dual nationality (Argentinean-British) with the implication of having the same rights and obligations any of the formers have in their States. There are several cases worldwide with citizens having more than one nationality. Even Argentina and the United Kingdom are good examples of this phenomenon.

b) territory: physically the territory would be exactly the same as nowadays. The difference would be that Argentina and the United Kingdom would share the sovereignty over the land and the maritime. There would be an overlap of sovereignty so it would be necessary to negotiate between both parties the geographical limits of the maritime space and its exploitation as well as the exploitation of the land.
c) government: the administrative authorities of the islands could perfectly continue their activities. They are currently following British procedures so if it was more beneficial for the islanders to continue with them that should not be an obstacle. The difference could arise with the following element (law) in matters of justice, appeals (jurisdictional and administrative, etc.).

d) law: as Kelsen would suggest, we would have two different legal structures or systems of norms: the Argentinean law and the British law. Without analyzing them in detail so to establish if they are similar or diverse, we have in any case two groups of sovereign norms.
Under this theoretical dilemma we visualize two options: 1) the creation of a third system of norms that coordinate the Argentinean and the British legal systems in cases in which the islanders are the subjects or issues occurred within the islands territory; b) to leave the decision to the interpretation of the Judge in each case in any branch of law.
What about the appeal cases? Which one would be the ultimate authority: the Higher Court in Argentina or in the United Kingdom?

The elements to start working are there. The theories to support the enterprise are there. The population of the three international agents is there. What are the governments waiting for then?

1 comment:

  1. Just to say the FAlklands have their own leagal system, it is based on the english system, though there are links to european laws as well