Gibraltar: how to share the government
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 organization (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 realize 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 defense 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:
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: final words
Thursday 28th November 2019
Dr Jorge Emilio Núñez
Twitter: @London1701
https://drjorge.world
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