The Israel-Palestine difference: 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 Israel-Palestine, it seems reasonable to think of either granting participation in all the institutions to every claiming party or to divide the institutions amongst them (Israel and Palestine).
In other words, Israel and Palestine may “share out” or “share in” the sovereignty over the disputed territories. The following paragraphs will introduce briefly each of these two options and assess which one best addresses the difference.
Two legal systems and one territory: to “share out” sovereignty
I develop in extenso this analysis in my latest book Núñez 2017. What follows is a very brief review of why to “share out” sovereignty is not a viable option for the Israel-Palestine difference.
This solution assumes the parties decide to divide sovereignty amongst them. Suppose that Israel was in charge of the judiciary, Palestine was in charge of the executive power and people living in the disputed territories elected their 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 Israel and that of Palestine). To have two legal systems 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? Controversy is clearly present here.
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 the disputed territories, 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. 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 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 disputed 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 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 disputed territories 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 disputed territories 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 disputed territories 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.
With this model, the equal participation of the Israel and Palestine and the defence of the interests of the population in the disputed territories are granted. Administratively, the disputed territories 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: The Israel-Palestine difference: partial conclusions about government and law
Wednesday 29th January 2020
Dr Jorge Emilio Núñez