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
Twitter: @London1701
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