Territorial disputes: the Israel-Palestine difference (Part 25) [Post 65]

The Israel-Palestine difference: final words

The longstanding and still unresolved TERRITORIAL DISPUTE between Israel and Palestine has several dimensions. The current nomenclature in legal and political sciences used the term TERRITORIAL DISPUTE.

Yet, the Israel-Palestine difference is a clear example of an ongoing dispute that has to do with territory as well as population, government and law domestically, regionally and internationally.

This blog series TERRITORIAL DISPUTES originally aimed only to briefly introduce conceptual elements (first ten posts of the series) and thereafter present a succinct overview of relevant and current examples. Before we covered the Israel-Palestine difference, we had addressed Kashmir, the Falkland/Malvinas islands and Gibraltar. 

The plan was to write and publish only ten posts (like with the rest of the case studies) for the Israel-Palestine difference. Thanks to the comments made by our readers, I decided to extend the assessment of this particular case study.

Because of the nature of this series and its platform (a blog), I have covered the basis in relation to the Israel-Palestine difference and the application of the EGALITARIAN SHARED SOVEREIGNTY to evaluate a solution. However, there are questions that are more complex and more serious problems to address. I am addressing some of these questions with dedicated research (to be published by Routledge Taylor & Francis in 2020).

To give an answer to these points deserve a more in-depth analysis that will have to include technicalities in terms of statistical information, methodology and content based on the disciplines of reference. In addition to this, I do my best to keep this blog series as accessible as possible for anybody (at least, most people) to be able to get a grasp and participate in the discussion.

Having said that, the last 24 posts (all links below) have enabled us to:

• Be familiar with a brief historical chronology.
• Distinguish historical facts from religious account.
• Understand some key domestic, regional and international reasons behind this difference.
• Introduce the concept of “colorable claim” and explore three different grounds: historical entitlement, legal basis and moral standing. Its main outcome is that both Israelis and Palestinians ought to be part of any negotiation concerning the sovereignty (de jure and de facto) over the disputes territories.
• Introduce the solutions presented in recent years by the United States, United Nations and Arab League.
• Learn that all the aforementioned solutions suggest explicitly or implicitly partition.
• Assess why partition is not a recommendable and fair solution.
• Evaluate by means of an abstract experiment how the EGALITARIAN SHARED SOVEREIGNTY may solve the difference and could materialize in terms of population, territory, government and law.

With all this in mind, three main partial conclusions leave the door open for future reflection and analysis:

1. Sovereignty of the disputed territories should not be totally in the hands of only one of the claiming parties either Israel or Palestine.
2. If existing conditions in terms of sovereignty continue, they will only perpetuate a status quo and therefore, a legal and political limbo securing only one result: a volatile area in many ways.
3. United Nations or any other party alien to the dispute (for example, United States, United Kingdom, Russia, Arab League) should not interfere.

There is nothing completely unresolvable if we look together for a solution. Indeed, if we choose not to solve the difference and we do not look for ways to move forward we are not going to find it. It is usually the case in this kind of differences that victory for one party means the other party has to suffer.

When we shift the focus, and understand we are all human beings and we are all fathers and mothers, sons and daughters, brothers and sisters doing our best to let our future generations live in a better world we may have a chance. It is not only up to Israelis to find a solution. It is not only up to Palestinians to do it either. It is up to all of us.

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: Crimea (available online from Monday 17th February 2020)

Friday 31st January 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: the Israel-Palestine difference (Part 24) [Post 64]

The Israel-Palestine difference: partial conclusions about government and law

The last two posts started with the aim of proposing a way in which governmental authority could realize the EGALITARIAN SHARED SOVEREIGNTY. They presented two ways in which sovereignty may be shared:

a) the claiming agents Israel and Palestine “share in” sovereignty by each of them participating in all the institutions in the third territory (executive, legislative and judicial powers); and

b) the claiming agents “share out” sovereignty by each party having sovereignty over a different sphere.

 

Indeed, we discarded the latter but draw some positive conclusions along the analysis:

1) the disputed territories will have one legal system;

2) this legal system will not be one of the existing ones;

3) it will be created by the legislator;

4) Israel and Palestine will “share in” sovereignty;

5) the legal system will have certain notes (acceptability, humanity, effectiveness, simplicity, and justice).

 

What is clear is that the question related to law is a matter not of equality but of acceptability to all parties by applying the EGALITARIAN SHARED SOVEREIGNTY. As in the previous cases, the EGALITARIAN SHARED SOVEREIGNTY addresses the controversies introduced when selecting the applicable law. In what is specific to government and law, in the context of the Israel-Palestine difference, it means:

 

Firstly, the disputed territories will have an independent legal order based on pre-existent systems, in the sense it uses what is best (so defined by its acceptability, humanity, effectiveness, simplicity and justice) provided it coheres with the rest of the system (egalitarian consensus principle and principle of efficiency).

 

Secondly, that all parties are involved in the administration (they “share in” sovereignty). Therefore, the shares will be represented as bundles of rights and obligations. In this case, the three agents have equal rights and obligations to participate in every step in the creation, execution and application of the law. Thus, as the second pre-requisite must be respected, the liberties of the inhabitants of the disputed territories are protected. Following the general aim of the model proposed here, the legal order would be divided into three branches (one for each step in relation to the creation, execution and application of the law). Thus, each branch should secure the representation of both Israel and Palestine. Besides, in case of conflicts of law there would be a Superior Tribunal or Higher Court with representatives of Israel and Palestine. The details in respect of the election of the authorities and their internal procedures would be reached in a new agreement that cannot contradict in any sense the principles agreed in the original position.

 

Thirdly, the rights of all the parties must be respected. Then, as all the agents will participate in the making and decision process, the elected authorities of the disputed territories would create, execute and apply law with the only limit being the principles agreed in the original position. Therefore, in any instance in which there was a contradiction between a norm and the agreement reached in the original position, the contradictory norm would be automatically invalid—safeguarding the interests of all the parties. Israel and Palestine (through their representatives in the institutions of the disputed territories) would have a further safeguard given by the veto power should their wishes were being systematically overridden in the decision-making process used in the institution.

 

In summation, the previous paragraphs demonstrate how it is both possible and advisable to deal with conflicts of law in a sovereignty dispute as a way of solving the difference. By recognition of equal actual and potential rights and burdens over the disputed territories (egalitarian consensus principle), each agent (Israel and Palestine) would be in a relative similar situation, including the inhabitants of the disputed territories.

 

In particular, about the law, among several options, the establishment of an independent legal system appears as a reasonable choice since it would secure the interests of the population of the disputed territory and, at the same time, the presence and equal relative position of both Israel and Palestine. Although it would be an independent legal system, it would be recommendable that the authorities in charge of the creation, execution and application of law had representatives of the all the involved agents. By doing so, there is a shift from equality to acceptability.

 

Therefore, it would give the legal system a permanent feature that would support its predictability and would result in the stability of the model as a whole since it would embrace the interests of all the parties and would not leave any of them in a comparable disadvantageous situation (equilibrium proviso). Indeed, the combined working of the legal system, and in some ways the political one, seem to require less use of the EGALITARIAN SHARED SOVEREIGNTY than other areas and more use of choosing and combining elements from existing systems in order to maximize and have a more efficient running of the system. But, these are still parts of the solution proposed here, the egalitarian shared sovereignty in the form of a) egalitarian consensus; and b) principle of efficiency that result in c) equilibrium amongst the parties.

 

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: final words

 

Thursday 30th January 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: the Israel-Palestine difference (Part 23) [Post 63]

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

https://drjorge.world