Thursday, 19 April 2018

Territorial disputes: Gibraltar (Part 9) [Post 39]


Last time we started with how the EGALITARIAN SHARED SOVEREIGNTY applies to government and law in Gibraltar. We introduce how to “share out” sovereignty. Today we introduce how to “share in” sovereignty.

Division of powers: to “share in” sovereignty

(Based on the Constitution of the Principality of Andorra)

In choosing the way in which power will be shared in Gibraltar, the possibilities are various. In this post, the representatives of the population are divided into three branches: executive, legislative and judicial power. Then, this choice offers an ample spectrum. Thus, it assumes the third territory would have representatives divided in different functions and levels to create, execute and apply law.

The territory in which both sovereign States will have equal sovereignty will already have its own government and administrative organisation (as in the case of Gibraltar). The main problem for a shared sovereignty paradigm to be developed and accepted by all the involved agents and, at the same time, to avoid conflicts of law, is to grant all of them a certain level of participation in the law making process (in particular for Gibraltar, the principle of “two flags, three voices”). In that sense, the model here opts for an eclectic vision by combining elements of the classical legal systems and the fact that the source of law is multiple rather than singular. In any case, the legal system for the third territory would be autonomous in relation to those of the sovereign States part in the original dispute. They would only participate through representatives in certain areas to grant them equal presence and control over the issues pertaining the third territory.

There may be many ways in order to realise the EGALITARIAN SHARED SOVEREIGNTY in what has to do with government. The one presented below is only an example of its application. Therefore, the agreement will have the face of a constitution, and it will be alterable only with the consent of all the three parties—only this meets the EGALITARIAN SHARED SOVEREIGNTY requirements.

A compound executive power constituted by several representatives designated in equal number by each sovereign State, and at the same time a government elected by the population of the third territory. In other words, two (or more) co-governors would be head of the third territory and would have joint and indivisible authority with equal powers. On the one hand and out of theoretical interest only, they would symbolically represent the shared values of the enterprise. On the other hand, and in more practical terms, they would secure an actual balance in the relationship between the sovereign States. Together with the co-governors there could be a governmental body of authorities that would secure a fair and just representation for the population of the third territory. They would be in charge of the third territory administration.

A legislative power or council, that would be responsible for the creation of applicable law, could either be elected by only the population of the third territory or have also representatives from the two States. In the former case, this body would have representatives elected directly by the population of the third territory by universal, free and equal vote. To that extent, the population would have their interests protected and the two sovereign States would be equally situated, since neither of them would have any participation in the legislative process. In the latter case, the population of the third territory would still elect their representatives but the two sovereign States would designate also delegates to participate in the legislature.

A judicial power elected as per internal procedures with lower and upper magistrates and a Higher (and multi-competent) Court of several members, being designated in equal number by each sovereign State and the third territory. As the ultimate authority within the legal hierarchy in the third territory, the Higher Court would secure the representation of all the involved agents—namely, Gibraltar, the United Kingdom and Spain.

With this model the equal participation of the two sovereign States (Spain and the United Kingdom) and the defence of the interests of the population in Gibraltar are granted. Administratively, the third territory would be fully autonomous. The sovereignty would remain with the two sovereign States so they would have an equal status.

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Jorge Emilio Nunez

Twitter: @London1701
19th April 2018

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