Gibraltar, the EGALITARIAN SHARED SOVEREIGNTY and
government
If
sovereignty is not shared, then it is clear who elects representatives and chooses
them (the inhabitants if the territory is independent or the inhabitants as
part of a sovereign State).
What
happens when sovereignty is shared? Then, there are two different issues:
a)
representatives and administration; and
b)
law.
It
follows from this that the two most
challenging practical issues raised by shared sovereignty in relation to
government seem to be:
- What sort of governmental arrangements shared sovereignty requires; and
- How governmental authority can be shared and yet be workable.
In order to work out the principles of the
EGALITARIAN SHARED SOVEREIGNTY through these authorities and institutions in
Gibraltar, it seems reasonable to think of either granting
participation in all the institutions to every claiming party or to divide the
institutions amongst them (Gibraltar, the United Kingdom and Spain). In other
words, the two ways in which
sovereignty may be shared, in principle, are:
- The relevant parties are all members of an institution that possesses some form of sovereignty (for example, legislative sovereignty). They “share in” sovereignty by participating in its exercise. For example, they are all members of the legislature. This form of shared sovereignty does not divide sovereignty itself (the sovereignty of the institution remains undivided).
- The relevant parties divide sovereignty amongst them; i.e. they “share out” sovereignty. They might do so by each having sovereignty over a different sphere. Alternatively, they might have overlapping authorities or identical authorities.
The rest of this post and tomorrow’s review these
two options to consider their respective viability, take note of any conflicts
and either accept or reject them.
Two legal systems and one territory: to “share out” sovereignty
Núñez
2017 develops this point in detail. What follows is a very brief review of why
to “share out” sovereignty is not a viable option for Gibraltar.
Instead
of having institutions in Gibraltar in which all the parties “share in”
sovereignty by participating in them (tomorrow’s post will introduce this
option), the parties decide to divide sovereignty amongst them.
Suppose
the United Kingdom was in charge of the judiciary, Spain was in charge of the
executive power and Gibraltar elected its own Parliament or Congress. Is this a
viable option? What conflicts can arise, in particular in terms of law? If
there were conflicts, what would be the way to deal with them?
Clearly,
there would be not one but at least two legal systems with this way of
institutionalizing the EGALITARIAN SHARED SOVEREIGNTY—in the example, the legal
system of Spain and that of the United Kingdom. To have two legal systems
devised from two different and sovereign States operating in the same territory
will involve conflicts of law.
Indeed,
this is the crucial problem with shared sovereignty—arguably, a fatal one. What
legal system will be valid in the third territory? To what extent is it
possible that two legal systems are valid at the same time over the same
territory and in relation to the same population? What about the existence of a
new set of norms specially created for the third territory? Should Gibraltar
have a legal system that combined British and Spanish law? Should it only
follow British tradition? Controversy is clearly present here.
NOTE:
This post is based on Jorge Emilio Núñez, “Territorial Disputes and State
Sovereignty: International Law and Politics,” London and New York: Routledge,
Taylor and Francis Group, 2020 (forthcoming)
Previous
published research monograph about territorial disputes and sovereignty by the
author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and
Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor
and Francis Group, 2017.
NEXT
POST: Gibraltar: how to share the government
Wednesday 27th November 2019
Dr Jorge Emilio Núñez
Twitter: @London1701
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