Thursday, 24 May 2018

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


The last two posts started with the aim of proposing a way in which governmental authority could realise 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, in regard to 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 maximise 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: 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

Twitter: @London1701




24th May 2018

Wednesday, 23 May 2018

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


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 institutionalising 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 organisation. 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 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 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: 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 Nunez


Twitter: @London1701


23rd May 2018

Tuesday, 22 May 2018

Territorial disputes: the Israel-Palestine difference (Part 22) [Post 62]


This series introduces TERRITORIAL DISPUTES and attempts to solve them as a matter of ideal theory. That means we conduct a theoretical experiment to evaluate what reasonable people would decide given some facts. When we addressed Kashmir, we centred the attention on population (religion, ethnicity, etc.). When it was the time to deal with the Falkland/Malvinas islands, we focused on territory (borders, natural resources, etc.). In turn, with Gibraltar, the analysis was about government and law.

The Israel-Palestine difference if the first case study in this series to introduce all the elements by means of applying the EGALITARIAN SHARED SOVEREIGNTY. So far, we have covered population and territory. It is time to address government and law. By considering government and law, we complete the assessment of our current understanding in legal and political sciences of a “sovereign state.”




Post 6: Territorial disputes: State and its elements. Law

Government can be defined as a person, group of people or body that create and apply the law for the population in a given territory. Together with population and territory, it completes the necessary elements that constitute a minimal political and societal organisation. Government offers some controversial features in any TERRITORIAL DISPUTE. The following posts will review some of these features using the Israel-Palestine difference to show their implications. The focus will be only on the specificities about power share. The main reason to proceed this way is that power sharing has many different implications, and amongst other sub-elements law.

Government and law:

The globe offers a wide spectrum of examples in which although the form of government differs, in all cases they are still States. There is no controversial feature at this point. In the particular context of this TERRITORIAL DISPUTE (Gibraltar), this sub-element does not offer controversy either. However, other sub-elements part of any government may not be so straightforward.

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 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, the two ways in which sovereignty may be shared, in principle, are:

 

·       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).

·       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.

 

Tomorrow’s post will start the assessment of these two options and combine both (the EGALITARIAN SHARED SOVEREIGNTY and the elements mentioned above) to offer a potential ideal solution.

 

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

Twitter: @London1701

22nd May 2018

Monday, 21 May 2018

Territorial disputes: the Israel-Palestine difference (Part 21) [Post 61]

Today’s post will cover defence:
What would happen if another party with no part in the original Israel-Palestine difference decided to invade the disputed territories? In the hypothetical scenario a third party such as Iran, the United States, the United Kingdom or Russia decided to invade these territories, who would defend them?
The ways in which the situation may develop are as follows:
a) both Israel and Palestine may remain neutral; consequently the new agent would take over the territories if the inhabitants were unable to defend themselves;
b) one, either Israel or Palestine, may respond to the invasion and defend the territories;
c) both Israel and Palestine may respond to the invasion and defend jointly or independently the islands.
 
At the same time, States have the right and are obliged to defend their own interests and their population. Consequently, any act of defence is fair and just as long as it is a result of an illegitimate threat or attack. However, in a TERRITORIAL DISPUTE, it seems difficult to determine the one who could/should be defending the disputed territory in the event of an attack on what appears to be a common interest for all the involved parties.
 
In addition to the way in which the parties would defend the third territory,  there are two other crucial elements that need to be agreed, even if joint defence was the case:
a) the extent to which the burden can be made proportionate, with those with more of the appropriate resources taking the larger share (if they can be trusted not to turn their forces against the other two parties);
b) and the extent to which one considers what combination of contributions will be the most efficient, using, e.g., both the local knowledge of the people in the territory, and the equipment best adapted to defending it.
 
Indeed, if they take on sovereignty, they must take on the obligation to defend. However, how would Israel and Palestine share the defence? The EGALITARIAN SHARED SOVEREIGNTY addresses the three elements that seem to be crucial in order to have shared defence: a) Resources; b) Training and opportunities; c) Safety of the other two parties (how to avoid misuse of power). What does it mean if the agents have different level of development? The differences in the case of defence are numerous. For example, geostrategic location; economic resources; level of military development; training and facilities; number of troops; etc. In the case of Israel and Palestine, the differences are self-evident. A combination of contributions can make these differences work together in an efficient form.
 
In the Israel-Palestine difference, it will be highly probable that the parties have a different level of development in terms of their respective defence systems (input-to-output ratio principle). Then, the egalitarian shared sovereignty can be fulfilled in two ways: a) following the most efficient combination in terms of contribution (principle of efficiency)—for example, using both the local knowledge of the people in the territory (Palestinians), the geostrategic location (Israel and Palestine), and the equipment, resources and any means best adapted to defending it (Israel); b) the agent with the better comparative situation—in whatever aspect—may contribute in developing the other parties or granting them exclusive privileges (equilibrium proviso)—for example, Israel could train Palestinian troops in exchange for the use of certain locations.
 
It is clear that the egalitarian shared sovereignty aims only to achieve the same level of opportunity and development for all the involved parties so they are able to defend the third territory (not the territory that is already part of the sovereign States). Thus, even if there were variations in the future in terms of wealth status and defence development among the involved participants, the reciprocal obligation would always be the same for all the agents. In other words, to combine in order to to produce the most efficient result.
 
Next time: government and law in the context of the Israel-Palestine difference.
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
Twitter: @London1701
21st May 2018

Friday, 18 May 2018

Territorial disputes: the Israel-Palestine difference (Part 20) [Post 60]

 


It is arguably a truism in international law and politics that an ultimate sovereign, with a common legal bond or system of norms, will govern one territory with population. What would happen if that one territory and population had two ultimate and hierarchically equal sovereigns (legally speaking) and, at the same time, two valid sets of norms?  Would it be possible, for instance, that Israel and Palestine had sovereign authority at the same time over Jerusalem?

If the answer were positive, what would the consequences be—in terms of territory, population, government and law?

So far, we have introduced the Israel-Palestine difference in the context of this blog series about TERRITORIAL DISPUTES.

Today I include a short video to introduce myself, discuss a few points and share some thoughts. Next week: territory (defence), government and law in relation to the Israel-Palestine difference and now the EGALITARIAN SHARED SOVEREIGNTY would apply to them to solve the dispute.
 

Previous posts of the TERRITORIAL DISPUTE series (only about the Israel-Palestine difference below):



















 

Jorge Emilio Núñez

Twitter: @London1701

18th May 2018

Thursday, 17 May 2018

Territorial disputes: the Israel-Palestine difference (Part 19) [Post 59]


Today’s post will cover BORDERS (as a sub-element that has to do with territory) in the context of the Israel-Palestine difference and introduce how the EGALITARIAN SHARED SOVEREIGNTY applies to this issue.

Borders are volatile (to say the least) in the already tense Israel-Palestine difference. With communities presenting very different living standards and the myriad of checkpoints the situation deteriorates on an ongoing basis. This past few weeks’ events are self-evident.

A general approach previously used in the region (and in many others around the world by former colonial powers imposing them to former colonies) has to do with partition solutions. They work under the assumption that the hostilities between opposing ethnic groups makes it impossible for them to live peacefully together in a single state (Haklai and Loizides, ed., 2015).

“The territories contested between Israel and Palestinians are the ones Israel conquered from Jordan in the 1967 war, including those commonly referred to as the West Bank and East Jerusalem (Israel unilaterally withdrew from the Gaza Strip in 2005 and makes no ownership claim of this territory). Many Jewish Israelis, religious and secular, view these territories as part of their ancient homeland, Eretz Israel (Land of Israel).”

In recent years, all the solutions explicitly or implicitly suggest partition:

·       The “two-state solution” presented by President Bill Clinton during the Camp David Summit and Taba talks (2000).

·       The Roadmap to Peace introduced by President George W. Bush (2003) and endorsed by the United States, the United Nations, the European Union, and Russia.

·       The UN Security Council Resolution 1397 (2002).

·       The UN Security Council Resolution 1515 (2003).

·       The Arab Peace Initiative, endorsed by the Arab League (2002 and 2007).

Haklai, Oded and Loizides, Neophytos. 2015. Settlers in Contested Lands. Territorial Disputes and Ethnic Conflicts. Stanford, California: Stanford University Press.

There are many reasons to disagree with the partition solution. For an academic reference see for example Laitin (2004), Sambanis (2000), Sambanis and Schulhofer-Wohl (2009), and others.
The EGALITARIAN SHARED SOVEREIGNTY may rule out extreme situations such as:


1.   Sovereignty of the disputed territories to be totally in the hands of only one of the claiming parties either Israel or Palestine.

2.   Existing sovereignty should automatically continue, or that everything should remain in a status quo.

 
3.   United Nations or any other party alien to the dispute. Several problems immediately arise.



United Nations (UN): although UN aims to grant sovereign equality amongst the States its own system reveals a contradiction: veto power in the Security Council is only granted to certain sovereign States.

This may be translated (in the perception of at least one of claiming parties, either Israel or Palestine) as an unbalanced and unfair starting point to have negotiations, and with a predictable result.

Not only does the Security Council present these problems but also other UN organisations. Even the UN General Assembly, at first glance a fair environment for sovereign States to participate in, has been regarded as ineffective or irredeemably biased because of the different bargaining powers of its members.

Finally, in cases of contested sovereignty over populated territories, stateless people are not UN members.

Other parties: in terms of other parties alien to the dispute (for example, the United States, the United Kingdom, Russia, the Arab League) history is self-evident in demonstrating their policies in the region have been far from successful, have taken little care about the local population and their needs, and have been more (only) centred on their geostrategic domestic policies rather than taking Israel and Palestine into consideration.

In brief, in order to acknowledge the controversial features the EGALITARIAN SHARED SOVEREIGNTY advises to remove the borders and any checkpoints in the disputed territories. As we discussed when assessing population in the context of the Israel-Palestine difference, by applying the EGALITARIAN SHARED SOVEREIGNTY, the inhabitants of the disputed territories would be citizens of both sovereign states, they would have a common passport (an Israeli/Palestinian passport) valid in the disputed territories. In terms of religion, as the second pre-requisite recognises basic non-political liberties, freedom of movement and residence would be adopted at a constitutional level. The lexically prior prerequisite of non-political liberties controls this.



A reminder to the reader: First, we have maintained in all these posts that Israel is de jure and de facto a state whilst Palestine is a de facto state. Israel would continue having de jure and de facto sovereignty over any non-disputed territories that are not part of the original difference. Israel and Palestine, therefore, would share de jure and de facto sovereignty only over the disputed territories. That means that Palestine would have de jure sovereignty recognition (and all that this implies).

NOTE: based on Chapters 5, 6 and 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

Twitter: @London1701
17th May 2018