The
last two posts started with the aim of proposing a way in which governmental
authority could realise the EGALITARIAN SHARED SOVEREIGNTY. They presented two
ways in which sovereignty may be shared: a) the claiming agents Israel and
Palestine “share in” sovereignty by each of them participating in all the
institutions in the third territory (executive, legislative and judicial powers);
and b) the claiming agents “share out” sovereignty by each party having sovereignty
over a different sphere.
Indeed,
we discarded the latter but draw some positive conclusions along the analysis:
1) the
disputed territories will have one legal system;
2)
this legal system will not be one of the existing ones;
3) it
will be created by the legislator;
4) Israel
and Palestine will “share in” sovereignty;
5) the
legal system will have certain notes (acceptability, humanity, effectiveness,
simplicity, and justice).
What
is clear is that the question related to law is a matter not of equality but of
acceptability to all parties by applying the EGALITARIAN SHARED SOVEREIGNTY. As
in the previous cases, the EGALITARIAN SHARED SOVEREIGNTY addresses the
controversies introduced when selecting the applicable law. In what is specific
to government and law, in the context of the Israel-Palestine difference, it
means:
Firstly,
the disputed territories will have an independent legal order based on pre-existent
systems, in the sense it uses what is best (so defined by its acceptability,
humanity, effectiveness, simplicity and justice) provided it coheres with the
rest of the system (egalitarian consensus principle and principle of
efficiency).
Secondly,
that all parties are involved in the administration (they “share in”
sovereignty). Therefore, the shares will be represented as bundles of rights and
obligations. In this case, the three agents have equal rights and obligations
to participate in every step in the creation, execution and application of the
law. Thus, as the second pre-requisite must be respected, the liberties of the
inhabitants of the disputed territories are protected. Following the general
aim of the model proposed here, the legal order would be divided into three
branches (one for each step in relation to the creation, execution and application
of the law). Thus, each branch should secure the representation of both Israel
and Palestine. Besides, in case of conflicts of law there would be a Superior
Tribunal or Higher Court with representatives of Israel and Palestine. The
details in respect of the election of the authorities and their internal
procedures would be reached in a new agreement that cannot contradict in any
sense the principles agreed in the original position.
Thirdly,
the rights of all the parties must be respected. Then, as all the agents will
participate in the making and decision process, the elected authorities of the disputed
territories would create, execute and apply law with the only limit being the
principles agreed in the original position. Therefore, in any instance in which
there was a contradiction between a norm and the agreement reached in the
original position, the contradictory norm would be automatically
invalid—safeguarding the interests of all the parties. Israel and Palestine
(through their representatives in the institutions of the disputed territories)
would have a further safeguard given by the veto power should their wishes were
being systematically overridden in the decision-making process used in the
institution.
In
summation, the previous paragraphs demonstrate how it is both possible and
advisable to deal with conflicts of law in a sovereignty dispute as a way of
solving the difference. By recognition of equal actual and potential rights and
burdens over the disputed territories (egalitarian consensus principle), each
agent (Israel and Palestine) would be in a relative similar situation,
including the inhabitants of the disputed territories. In particular, in regard
to the law, among several options, the establishment of an independent legal
system appears as a reasonable choice since it would secure the interests of
the population of the disputed territory and, at the same time, the presence
and equal relative position of both Israel and Palestine.
Although it would be
an independent legal system, it would be recommendable that the authorities in
charge of the creation, execution and application of law had representatives of
the all the involved agents. By doing so, there is a shift from equality to
acceptability. Therefore, it would give the legal system a permanent feature
that would support its predictability and would result in the stability of the
model as a whole since it would embrace the interests of all the parties and
would not leave any of them in a comparable disadvantageous situation
(equilibrium proviso). Indeed, the combined working of the legal system, and in
some ways the political one, seem to require less use of the EGALITARIAN SHARED
SOVEREIGNTY than other areas and more use of choosing and combining elements
from existing systems in order to maximise and have a more efficient running of
the system. But, these are still parts of the solution proposed here, the
egalitarian shared sovereignty in the form of a) egalitarian consensus; and b)
principle of efficiency that result in c) equilibrium amongst the parties.
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 Núñez
Twitter: @London1701
Jorge Emilio Núñez
Twitter: @London1701
24th
May 2018
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