Territorial disputes: Gibraltar (Part 10) [Post 40]

Gibraltar: final words

A TERRITORIAL DISPUTE, in simple terms, is a disagreement about “who owns a territory.” Yet, a TERRITORIAL DISPUTE is not that simple.

In international relations, this means in principle there is a disagreement between at least two parties in relation to whom the sovereign is over a piece of land. Gibraltar is a TERRITORIAL DISPUTE that includes Gibraltar, Spain and the United Kingdom.

The previous posts introduced a brief historical chronology, mentioned some key domestic and international reasons behind this case, included references to other regional and international agents that have played (and in some cases, still do) a central role, and explored an ideal solution called EGALITARIAN SHARED SOVEREIGNTY.

This last post about Gibraltar as a TERRITORIAL DISPUTE centers the attention on why this difference is still ongoing. The answer is as simple as complex. The combination of domestic, regional and international elements make this dispute a stalemate. 

We have an already complex situation with Gibraltar, Spain and the United Kingdom in terms of geostrategic location, tax evasion, fishing rights, financial situation, only to name very few. If we add the European Union and Brexit the picture is extremely intricate. Although in principle a stalemate may seem negative, the status quo in Gibraltar may continue for now.

Huth explains the dynamics clearly:

“[…] very often political leaders are not willing to take risks and undertake diplomatic initiatives that will break a long-standing stalemate in negotiations. Furthermore, leaders themselves are socialized into viewing the target as an adversary and, as a result, they are not predisposed to view concessions as a legitimate option.

Furthermore, […] a history of military conflict with the target can be used by the military to justify larger budgets […]. The combined effect, then, is that the idea of offering concessions and proposing a unilateral initiative to break the stalemate is a policy option quite difficult to get on the policy agenda of political leaders within the challenger. Few voices are advocating such policies within the challenger, and the prevailing climate of opinion (both mass and elite) is opposed to such a change in policy.”

 “[…] leaders were typically constrained by domestic political forces to be very cautious in moving toward a compromise settlement, since popular and elite opinion, and often the military, was opposed to such a policy. [...] In most situations the leader’s position of domestic power and authority was better served by continuing confrontation […]”

Huth, Paul K. 2001. Standing Your Ground. Territorial Disputes and International Conflict. The University of Michigan Press.

There is another option: to think about how to solve this dispute. This series TERRITORIAL DISPUTES intends to offer a platform for discussion.

With all this in mind, I introduced the overall idea I call EGALITARIAN SHARED SOVEREIGNTY. I develop this approach in full in Núñez, Jorge Emilio. 2017. “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue.” London and New York: Routledge, Taylor and Francis Group. Briefly, all parties share sovereignty in equal ideal terms. To get to that, these parties go into negotiations themselves (not UN or any other party alien to the conflict).

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

Friday 29th November 2019

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Gibraltar (Part 9) [Post 39]

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

Territorial disputes: Gibraltar (Part 8) [Post 38]

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:

1. 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).
2. 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

https://drjorge.world