Tuesday, 24 April 2018

Territorial disputes: the Israel-Palestine difference (Part 2) [Post 42]

 


There are many academic and non-academic articles in many languages about the Israel-Palestine difference. Today we focus on academic studies about this TERRITORIAL DISPUTE.

Previous post about the Israel-Palestine difference (part of the TERRITORIAL DISPUTES series):


Today’s post include several interesting articles and studies that offer a variety of views about the same difference.

The first document introduces the key elements in law and realpolitik. The factsheet by BICOM (British Israel Communications and Research Centre) offers a very brief insight into the Israel-Palestine difference focusing on Jerusalem.

The second article introduces “Donald Trump’s Generous Offer on Jerusalem.” Until very recent, Jerusalem was not a de jure capital for Israel or Palestine. At best, it was the de facto capital of Israel. The article explores Trump’s recent announcement.

The third article presents a research conducted by CIA back in 1978. It only came to the open in 2013. “Jerusalem: Some Aspects of a Complex Problem” concluded compromise between the opposing parties is unlikely.

The fourth article reviews the significance of the sovereignty question which is legal and political in nature. A concept that can play a role in a future solution by having an ample conception of “sovereignty”: internationalization.

“Is Jerusalem Really Negotiable?” brings a fifth analysis. The positive outcome seems to be the acknowledgement the Israel-Palestine difference is not a zero sum game. Yet, negotiation is an international dispute settlement procedure that cannot guarantee a solution.

Last but not least, I include a link to a final article that presents the US views about the dispute by examining presidential speeches from Clinton to Obama.

 

Briefing by BICOM (British Israel Communications and Research Centre)

History and politics of Jerusalem (2017)

“Israelis and Palestinians both claim Jerusalem as their capital. The State of Israel has proclaimed Jerusalem to be the “undivided, eternal capital of Israel” and maintains its primary governmental institutions there. The Palestine Liberation Organisation (PLO) ultimately foresees the eastern part of the city as the capital of the State of Palestine. The international community has accepted the de facto application of Israeli law in West Jerusalem while the claim to internationalise Jerusalem is not seriously raised anymore.”

“There are no legal documents that clearly resolve the status of Jerusalem. The Israeli-Palestinian Declaration of Principles (DoP), signed between Israel and the PLO in September 1993, leaves open the status of Jerusalem. Article V of the DoP says that the permanent status of Jerusalem is one of the issues to be agreed by both parties in bilateral negotiations.”
History and politics of Jerusalem (link to complete article)
 

Donald Trump’s Generous Offer on Jerusalem

Editorial

Jerusalem Quarterly

“We write this editorial as Israel celebrates, and the rest of the world condemns, Donald Trump’s declaration of U.S. recognition of Jerusalem as the capital of Israel. It is pertinent to recall on this issue Arthur Koestler’s famous quip, made a century ago in reference to the Balfour Declaration, that “one nation solemnly promised to a second nation the country of a third.””

“Two unintended consequences emerge from the new U.S. position: first, it brings the status of Jerusalem back to the limelight, after it was pushed to the back burner by the Syrian and Yemeni wars; and second, it has clearly placed the United States outside of the international consensus with regard to any future peace process over the status of the city, or indeed within the Arab-Israeli conflict. This has opened the door to other global and regional actors, particularly Europe, Russia, and Turkey, as future mediators.”

“Underlying the objections of the majority of countries, including the United States until recently (that is, until Trump’s election), to Israeli control of Jerusalem has been UN General Assembly resolution 181, which affirmed the partition plan for Palestine and the creation of an international zone in Jerusalem known as the corpus separatum. That notion established in the city a special international regime in which both Palestinians and Israelis would have a dual national identity in the city. Given the slow death of the peace process and the de facto withdrawal of the United States from a mediating role, is it time – seventy years later – to revive this plan for Jerusalem?”

Donald Trump’s Generous Offer on Jerusalem (link to complete article)

 

Jerusalem: Some Aspects of a Complex Problem

A research Paper

(Original: 1978. Approved for release CIA historical collections division November 2013)

There are some Israelis who would give up the Golan, some Israelis who would give up the Sinai, and some would give up the West Bank. But I do not think that you can find any Israelis who are willing to give up Jerusalem."-Mayor Teddy Kolleri (July 1977).”

“The oficial position of the PLO toward Israel has continued to be insistence on the replacement of the state of Israel with a multiracial secular state.”

In sum, the positions of the parties on the Israelis have not significantly altered the status of question of sovereignty, over Jerusalem are irreconcilable. Without dramatic and fundamental form political changes in Israel, the Arab states, or both, any compromise on Jerusalem appears unlikely.”
Jerusalem: Some Aspects of a Complex Problem (link to complete article)

 

Sovereignty in Jerusalem

Catholic University Law Review

States recognizing Israel have not recognized Israeli sovereignty over either the western or eastern sector of Jerusalem, despite nearly half a century of Israeli control in West Jerusalem, and nearly thirty years in East Jerusalem.”

“Regarding West Jerusalem, states maintaining diplomatic relations with Israel have avoided locating their embassies there, placing them instead in Tel Aviv, precisely because they consider the status of Jerusalem to be undetermined. As for East Jerusalem, objection to Israel's control is exhibited through collective criticism of Israel at the United Nations.”

“To assert its legitimacy in Palestine, Israel relies primarily on the 1947 General Assembly resolution, but this resolution yields no argument for sovereignty in Jerusalem,75 since the resolution proposed internationalization.”

“From the standpoint of territorial right, as this notion is understood in international law, Palestine has a valid claim to Jerusalem. That does not mean that it could not agree to a solution whereby the City would be internationalized, or whereby it would be divided or controlled jointly. Jerusalem is one issue among several to be resolved between Palestine and Israel, and the parties are free to make concessions on one issue in order to gain an advantage on another.”
Sovereignty in Jerusalem (link to complete article)

 

Is Jerusalem Really Negotiable?

Jewish Political Studies Review

“Despite the many proposals for negotiating the Jerusalem issue, any agreed plan for resolving the future status of the Holy City has defied generations of negotiators.

Israel’s formal position proved paradoxical. While the Oslo Agreements in September 1993 made Jerusalem one of the subjects for the permanent status negotiations between Israel and the Palestinians, Prime Minister Yitzhak Rabin made clear in his final Knesset address in October 1995 that Jerusalem was to remain united under Israeli sovereignty. But by formalizing past understandings with the Hashemite Kingdom of Jordan over its role in the administration of the Muslim holy sites, through instruments like the Washington Declaration, he appeared to be drawing a distinction between sovereignty over Jerusalem, which in his view had to be retained by Israel, and an international administrative role for the holy sites, which he was prepared to explore with Israel’s eastern neighbor.

Thus, while insisting on Israeli sovereignty over a united Jerusalem, he did not view the issue of Jerusalem as a “zero sum game.” 


 

Final article for the reader (ref. presidential speeches from Clinton to Obama)
Jerusalem in the Courts and on the Ground (University of Missouri) [link to complete article]
 

Jorge Emilio Núñez
24th April 2018

Monday, 23 April 2018

Territorial disputes: the Israel-Palestine difference (Part 1) [Post 41]



The Israel-Palestine difference is one of the longest-running TERRITORIAL DISPUTE (arguably, the longest). Arguments about the rightful sovereign of Jerusalem and surrounding areas have been present for generations. See for example Genesis 14: 18-20 in which Jerusalem (or Salem) has already enemies. Since Biblical times the region has been centre of disputes in relation to the rightful settlement of different populations. Should these agents go back to Biblical times in order to prove the current legitimate occupancy of the territory?

As with the previously reviewed TERRITORIAL DISPUTES, the following posts will introduce: different academic and non-academic views; the current situation; the views of the inhabitants (because in any case they are the ones who will live the consequences of any decision); coverage by the media including all parties in the dispute; the ideal methodology to solve the difference (what I call Egalitarian Shared Sovereignty); its application to some controversial elements; and some conclusive remarks.

The following paragraphs will introduce the historical background. The Israel-Palestine difference has been present for generations. The paragraphs below centre the attention only on the more recent history (since World Word I) because the reader may easily find a wide variety of academic and non-academic sources about it if he/she is interested in learning more about the dispute and have an educated opinion.

In doing this research I have had access to many books, journal articles, newspapers, and many other sources (academic and non-academic). I will present some of them in later posts. In order to present the account today, I decided to use “Truth against Truth. A Completely Different Look at the Israeli-Palestinian Conflict” by Uri Avnery. I have to concede it may not be an academic and the references upon which the publication is written are not always offered by the author. Yet, the text offers an unusually balanced view about the recent history behind the dispute and, in any case, a thought provoking one. I am indebted to one of my Reddit readers for facilitating this source. The link to the complete text below.

Truth against Truth. A Completely Different Look at the Israeli-Palestinian Conflict
Uri Avnery

“The core of the conflict is the confrontation between the Israeli-Jewish nation and the Palestinian- Arab nation. It is essentially a national conflict, even if it has religious, social and other aspects.”

“The Zionist Movement was, essentially, a Jewish reaction to the emergence of the national movements in Europe, all of which were more or less anti-Semitic. Having been rejected by the European nations, some of the Jews decided to establish themselves as a separate nation and, following the new European model, to set up a national State of their own, where they could be masters of their own fate.”

“Traditional and religious motives drew the Zionist Movement to Palestine (Eretz Israel in Hebrew) and the decision was made to establish the Jewish State in this land.”

“Palestine was not an empty land - not at the end of the 19th century nor at any other period. At that time, there were half a million people living in Palestine, 90% of them Arabs. This population objected, of course, to the incursion of foreign settlers into their land.”

“The Arab National Movement emerged almost simultaneously with the Zionist Movement, initially to fight the Ottoman Empire and later the colonial regimes built on its ruins at the end of World War I. A separate Arab-Palestinian national movement developed in the country after the British created a separate State called "Palestine", and in the course of the struggle against Zionist infiltration.”

“Since the end of World War I, there has been an ongoing struggle between two national movements, the Jewish - Zionist and the Palestinian - Arab, both of which aspire to accomplish their goals - which are entirely incompatible -within the same territory. This situation remains unchanged to this day.”

Truth against Truth. A Completely Different Look at the Israeli-Palestinian Conflict (link to the complete text)

To the reader, following two of our previous posts of this series about TERRITORIAL DISPUTES:


a)   What are the issues at stakes in this a territorial dispute?

b)  Which remedy could be used to solve this particular territorial dispute?

For reference to these questions see:

POST 9: Territorial disputes: issues at stake


NOTE: This post is based on Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Jorge Emilio Núñez
23rd April 2018

Friday, 20 April 2018

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


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 centres 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 always 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).

Next post will introduce another TERRITORIAL DISPUTE. In the meantime, links to some informative sites and the previous posts about the Falkland/Malvinas islands below.

For an interactive map of TERRITORIAL DISPUTES see
 
 
 

For current information about TERRITORIAL DISPUTES see CIA’s The World Factbook at:



Previous posts of the TERRITORIAL DISPUTE series (only about the Gibraltar below):









 

Jorge Emilio Núñez
20th April 2018

Thursday, 19 April 2018

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

 


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 organisation (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 realise 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 defence 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: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Jorge Emilio Núñez
19th April 2018

Wednesday, 18 April 2018

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

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

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 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 institutionalising 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: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.
 
Jorge Emilio Núñez
18th April 2018
 

Tuesday, 17 April 2018

Territorial disputes: Gibraltar (Part 7) [Post 37]



The financial system presents much controversy. In TERRITORIAL DISPUTES, it is often the case that different parties will introduce very different financial realities. Gibraltar, the United Kingdom and Spain are a clear example. The latest financial global crisis with still visible results in Spain and Brexit in the United Kingdom paint an uncertain future. Assuming the three parties settled the dispute and decided to apply the EGALITARIAN SHARED SOVEREIGNTY, what financial system should apply in Gibraltar?

The possible choices that could be taken in relation to this financial system are many: a financial system anchored to one of the sovereign states, an independent financial system or one linked flexibly to both sovereign states. As it is highly improbable that any of the sovereign states would agree to the third territory having its financial system anchored or linked flexibly to only one of them, these options are discarded for instrumental reasons—ruling out extreme options. However, it is possible that they would accept a more conservative scenario.

The egalitarian shared sovereignty states that the allocation of sovereignty is given by: a) the equal right to participate (egalitarian consensus principle); b) the nature and degree of participation depends on efficiency of accomplishing the particular objective/area/activity at issue (principle of efficiency); c) each party receives a benefit (in terms of rights and opportunities) that depends on what that party cooperates with (input-to-output ratio principle); and d) provided the party with greater ability and therefore greater initial participation rights has the obligation to bring the other two parties towards equilibrium (equilibrium proviso).

In the case of Gibraltar, there are several differences in relation to the financial system of the parties—e.g. strength of the currency, international credit rating, international debt, Brexit, etc. As in all the previous elements and sub-elements, the shares of sovereignty are represented as bundles of rights and obligations, benefits and burdens. Therefore, all the parties have both the right and obligation to participate and support the financial system of the third territory (egalitarian consensus principle).

The EGALITARIAN SHARED SOVEREIGNTY will work in two ways: first, following the most efficient combination in relation to contributions (principle of efficiency): e.g., the currency of the third territory could be anchored to the strongest currency (input-to-output ratio principle) or anchored to a basket of other currencies. Second, as the application of the principle does not imply any investment from the two sovereign states in the third territory, the latter has no obligation to divide with them any internal or international revenues—unless a form of compensation was agreed, e.g. investments, exclusive privileges. There is efficiency in the financial system but without allowing any form of domination (equilibrium proviso).

What is specific to regulating the financial institutions is introduce next time when law as an element is analysed. It may imply either the creation of a higher financial institution that regulates Gibraltar with equal representation granted to the three parties; or a procedure in which the financial institutions of the three parties will have the opportunity to be equally involved in the creation, amendment or cancelation of financial policy.

NOTE: based on Chapter 7, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Jorge Emilio Núñez
17th April 2018