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Negotiations among Parties



Direct negotiations among opponents are as old as conflicts between organized societies. Whereas the character of war and other aspects of international rela­tionships have changed greatly over the centuries, the techniques of diplomatic bargaining have remained essentially the same. Bilateral discussions between special emissaries or professional diplomats have been the historical rule, but since many conflicts involve more than two parties, multilateral conferences have been used extensively as well. The bargaining ploys and gambits used by diplomats or heads of state in direct negotiations are many and varied, so it is not possible to single out any that are particularly effective as means of achieving settlements.

The essence of the bargaining process involves the establishment of commitments to essential positions, determination of areas where concessions can be made, commissioning of credible threats and promises (even if only bluffs), and maintaining patience. The necessary, although not sufficient, condi­tion for the success of any negotiation, however, is a common interest on the

41577?e Interaction of States: Conflict and Conflict Resolution

part of the opponents to avoid violence, or if that has already occurred, to put an end to it. Without this minimal common interest, there can be no compro­mise. If negotiations are undertaken when such a common interest does not exist, the purpose can only be to deceive the opponent, to play for time, or to make propaganda. It should not be assumed, therefore, that all negotiations have the purpose of reaching some agreement.25

Much has been written on the theory, assumptions, and practices of bilateral or multilateral diplomatic bargaining. Bargaining strategies and tactics are varied and complicated, but case studies and controlled experiments suggest some conditions that are conducive to the arrangement of compromises. These findings suggest, for example, that compromises or successful negotiations are more likely to result if:

1. The issues or objectives under contention are specific and carefully defined rather than vague or symbolic

2. The parties avoid use of threats

3. In their general relationships, the states in conflict have many other common interests

4. The issues are defined in such a way that payoffs can be arranged for both sides, or that the rewards for both parties will increase through cooperation

5. In disarmament negotiations, at least, the parties are equal militarily

6. Similar negotiations have led to compromise outcomes previously26

Mediation

One of the potential consequences of international conflict is the "spillover" of violence between two or more parties into the territory or issue fields of third parties. We can imagine that several thousand years ago, the distribution of human population was so sparse that violent conflict between two tribes, rural communities, or city-states had little impact on surrounding areas. Anthro­pological and historical evidence indicates, however, that even in primitive politi­cal systems, mediation by third parties was often practiced as a means of prevent­ing involvement of additional parties in the conflict. In ancient China, India, Greece, and elsewhere, governments commonly recognized that they had an interest in limiting the violent excesses of warring communities. Some societies coped with the problem by formulating rules of neutrality; others, such as the Greeks, developed procedures for mediation and arbitration, whereby an emi­nent citizen of a noninvolved city-state would bring representatives of the warring communities together and bargain with them until some sort of settlement could be fashioned.27

25 Fred С Ikle, How Nations Negotiate (New York: Harper & Row, 1964).

26 Many of these findings are summarized in Jack Sawyer and Harold Guetzkow, "Bargain­ing and Negotiations in International Relations," in International Behavior: A Social-Psychological Analysis, ed. Herbert C. Kelman (New York: Holt, Rinehart & Winston, 1965), pp. 464-520.

27 Coleman Phillipson, The International Law and Custom of Ancient Greece (London: Macmillan, 1911).

416 The Interaction of States: Conflict and Conflict Resolution

Efforts to institutionalize mechanisms for interjecting third parties into crises and conflicts have been, in the European historical setting, sporadic. Prior to the development of the nation-state, when Europe was carved into a patchwork of duchies, free cities, city-states, aspiring monarchies, and semi-independent provinces, mediation services were often available and occasionally involved the pope. By the end of the seventeenth century, the states of the European international system had achieved some measure of independence and, through the legal doctrines of sovereignty, recognized no higher authority over their internal affairs or external relations. The international law of the period regarded force as a legitimate instrument for achieving or defending state objectives, and no sovereign would admit that a third party had any right to intervene diplomatically in a crisis or war. The only protection against drawing more parties in was the specific rights and duties ascribed to neutral states.

During the nineteenth century, a number of states concluded treaties that called for arbitration of disputes, and almost 300 unimportant international disputes were resolved through ad hoc arbitral proceedings. In the latter part of the century, owing partly to the influence of the successful arbitration of a dispute verging on conflict between the United States and Great Britain (the Alabama Claims case, 1871), a number of private groups began to agitate for creation of permanent international institutions for handling conflicts and dis­putes. They argued that establishment of a permanent international tribunal, armed with enforcement powers and supported by limitations on armaments, would give rise to a new era of peace. These sentiments eventually influenced some governments, and in 1899 and 1907, they reluctantly convened interna­tional conferences at The Hague to discuss plans for such institutions. The only important result of the first meeting was the "General Act for the Pacific Settlement of International Disputes" (amended in 1907), to which almost fifty states eventually adhered. The delegates also drafted a convention establishing the Permanent Court of Arbitration, which was neither permanent nor a court, but a list of arbitrators (nominated by members of the convention) who could be selected by disputing states to decide a particular case. The convention also delineated common rules of procedure for all arbitral cases. Even though Article 38 of the General Act urged the signatories to use arbitral procedures for "ques­tions of a legal nature, . . . especially in the interpretation or application of international conventions," the same document exempted states from submitting disputes or conflicts involving questions of "national honor." It was left to the states themselves to decide which situations involved "national honor." These arrangements thus gave only a weak basis for the court's jurisdiction and failed to provide it with means for enforcing those few decisions referred to it. As today, submission of cases to arbitral procedures was based on the principle of voluntarism.

The most far-reaching innovation in establishing procedures for peaceful resolution of international conflicts, as well as disputes, came with the creation of the League of Nations in 1919. The major new principle of the League's

417 The Interaction of States: Conflict and Conflict Resolution

covenant was that the international community had not only a right but a duty to intervene in international conflicts and, correspondingly, that the parties to a conflict or dispute also had the obligation to submit their differences to some procedure for pacific settlement, ranging from bilateral negotiations to submis­sion of the case to the Permanent Court of International Justice. Primary respon­sibility for recommending solutions to disputes and conflicts was lodged in the League Council, made up of some of the major powers plus other elected coun­tries, whose number ranged from six in 1922 to eleven in 1936. Under Article 13 of the covenant, which provided for judicial or arbitral procedures, the mem­bers accepted the obligation not to resort to force to challenge the decisions or awards of international tribunals. To help prevent noncompliance with such decisions, Article 16 empowered the Council to order economic or military sanctions. Under Article 15, the Council was authorized to consider any matter brought before it, even if one party did not accept the "jurisdiction" of the League. Once the case came before the Council, it could attempt to effect a settlement through any means it wished. In practice, the Council used a variety of procedures, including mediation (often performed by the president of the Council), commissions of inquiry, and conciliation commissions. In one case (the conflict between Poland and Lithuania in 1921 over the city of Vilna), it planned to send an international force to the scene of hostilities to separate the combatants and organize a cease-fire. In other instances, the League super­vised plebiscites to determine the outcome of territorial claims. If the Council could not achieve a settlement through these methods, it was authorized to submit a report recommending the terms of settlement. If the report was adopted unanimously by the Council (parties to the conflict or dispute had no vote), no member of the League could use force against the party that complied with the report, upon penalty of having economic or military sanctions imposed upon it. But if the Council could not agree unanimously on the report and its recom­mendations, the parties to the conflict were free to do as they wished, provided they did not go to war for a period of three months following the vote on the report.

Article 16 of the Covenant provided for automatic sanctions if any mem­ber should "resort to war in disregard of its covenants under Articles 12, 13, or 15." All members of the League were to consider the use of force in violation of these articles as an attack on themselves. While the provisions for economic and military sanctions were designed to deter aggression and assure compliance with all decisions or plans of settlement reached through the various settlement procedures, the history of the League in fulfilling these commitments was disap­pointing. In 1921, three Scandinavian states introduced a resolution proposing that each member of the League, rather than the Council, should decide for itself when a breach of the Convenant had occurred; in 1923, the Canadian government sponsored a resolution that further reserved for each member the decision as to whether or not aggression had occurred and whether or not each should apply sanctions. Although the resolution did not pass, it had only

418 The Interaction of States: Conflict and Conflict Resolution

one vote (Persia) against it, indicating clearly that the vast majority of states were not ready to delegate to the Council the authority to order sanctions— or even to determine that an act of aggression had occurred. Thus, the League Council was stripped of whatever authority it had under the Covenant to under­take action on its own authority. From 1923 to 1939, European governments displayed repeatedly that they, rather than the League council, would make all final decisions relating to implementation of the League's efforts in the pacific settlement of disputes and collective security. The League of Nations was notable for introducing flexible procedures to help reach accommodations in disputes and conflicts involving small nations; but when action had to be taken against the aggressions of the major powers, it was powerless.

Under the Charter of the United Nations, provision is again made for use of diverse procedures for handling disputes and conflicts. Chapter VI, enti­tled "The Pacific Settlement of Disputes" (Articles 33 through 38), obligates the parties to a conflict or dispute "likely to endanger . . . international peace and security" to submit it to some procedure for pacific settlement, whether negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, re­sort to some regional agency, or any other method the parties can devise. Under Article 2, the members are prohibited from using force, even if these procedures should fail. There is no assumption in the Charter that the United Nations should, or would, become involved in most threats or breaches of the peace, although Article 37 stipulates that conflicts or disputes not resolved outside the United Nations must be referred ultimately to the Security Council. Any party, whether or not a member of the United Nations, can submit an issue to the organization; the General Assembly may notify the Security Council of any dangerous situation; and under Article 99, the Secretary-General may also bring to the attention of the Security Council any matters that in his opinion threaten the maintenance of peace. On its own authority, the Security Council may, if the five permanent members agree, investigate any situation (Article 34) and may recommend at any time "appropriate procedures or methods of adjustment" (Article 36). Any action taken under Chapter VI, including dispatch of mediators or commissions of inquiry, is of a recommending nature only, however, and can be carried out only with the consent of the states directly involved in the conflict or dispute.

In Chapter VII, however, the Security Council is provided with enforce­ment powers if it has previously determined that there exists a threat to the peace, a breach of the peace, or an act of aggression. If it comes to such a conclusion, as in the Congo crisis of I960, it can order the parties to a conflict and all member states to accept "provisional measures" (Article 40), such as a cease-fire or an order prohibiting intervention by outside powers. Under Article 41, the Security Council may "decide what measures not involving the use of armed force are to be employed to give effect to its decisions" and may call upon the members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations, that is, boycotts

419 The Interaction of States: Conflict and Conflict Resolution

and embargoes. If these measures are considered inadequate as a means of halting aggression or obtaining implementation of provisional measures taken under Article 40, the Security Council can use force. Under Article 43, which has never been implemented, the members of the United Nations are to make available to the Security Council "on its call . . . armed forces, assistance, and facilities, including the right of passage, necessary for the purpose of maintaining international peace and security."

These forces are not to be confused with the international peace groups created for the Suez, Congo, Cyprus, and Middle East conflicts. The latter forces were formed primarily to effect cease-fires, separate combatants, supervise with­drawal of forces, and patrol frontiers. They are not fighting forces in the sense that their function is to halt aggression. The efforts of UNEF, UNOC, UNFICYP, and the Middle East Force have been taken under Chapter VI of the Charter, which deals with pacific settlement of disputes. The forces, made up of contin­gents from many nations, have no directives to engage in hostilities except in self-defense, and have been able to function only because the parties directly involved in the conflicts have accepted their presence. Without this consent, which is the basis of all action and decisions taken under Chapter VI, the peace forces could not operate. It remains, however, for the United Nations to organize an international army that could be used as an instrument of collective security to repel aggression through force of arms.

The Charter gives to the General Assembly only a secondary role in handling international conflicts. Although the Assembly may discuss any situation, it can recommend procedures or terms of settlement only if the Security Council is not considering the situation. Under the Uniting for Peace resolution of 1950, however, the General Assembly has given itself the authority to determine the existence of a threat to the peace or an act of aggression; and it may recommend appropriate action to its members in case the Security Council, on account of the veto, fails to act. It was under this resolution that the General Assembly organized the United Nations Emergency Force for the Suez crisis to supervise cessation of hostilities and secure a line dividing the combatants. The Hungarian question (1956) was also considered in the General Assembly, although its rec­ommendations were never accepted by the Soviet Union. In 1960, the General Assembly played a key role in the Congo crisis after the agreement of the major powers in the Secirity Council had broken down.

Although the United Nations Charter has covered some of the gaps found in the League Covenant, the procedures for pacific settlement are re­stricted by the necessary agreement among the five permanent members of the Security Council and by the principle that any actions taken under Chapter VI need the consent of the parties to a conflict. In effect, two agreements normally have to be achieved before the Security Council can deal effectively with a danger­ous situation or a breach of the peace: The antagonists, with some exceptions, should agree to submit their conflict to this body, and then the five permanent members of the Council have to agree on the procedures to be used in attempting

420 The Interaction of States: Conflict and Conflict Resolution

to effect reconciliation. The Security Council can discuss any situation brought to its attention, but any recommendations or actions, such as establishing com­missions of inquiry, are subject to the veto.

We will see below to what extent the United Nations has worked effec­tively in the fields of conflict prevention, crisis management, and conflict resolu­tion. Before we do so, however, let us review in more detail some of the services and functions that third-party mediators may provide in helping arrange compro­mise outcomes.

It is generally recognized that in any social conflict, whether between husband and wife, trade union and industrial firm, or two nation-states, the attitudes and patterns of behavior commonly exhibted during the "crisis stage" are precisely those most likely to lead to violence and destruction. We have already noted how, in the international crisis, communications are constricted, symbolic actions replace explicit discussions, and certain attitudes predispose the opponents to overreact to each other's actions. Thus, the most important functions of the third party—a party outside the "emotional field" of the conflict28—are to restore communications between the disputants, impose cool-ing-off periods, investigate conditions in the area of conflict, and provide, if necessary, a variety of services to the parties in conflict. From a bargaining point of view, third-party intervention into a conflict or crisis may provide a feasible avenue of retreat for governments that wish to withdraw gracefully with­out appearing to back down before threats from the main opponent. As in all conflict relationships, a compromise yielded to a third party may be easier to arrange than withdrawing in the face of the enemy. Finally, a mutually acceptable third party whose sole objective is to achieve a compromise settlement will probably be perceived as a more trustworthy bargaining agent than will a tradi­tional rival.

The role and tasks of the mediator are extremely complex, and the initiatives and bargaining strategies the mediator adopts vary greatly from case to case. Intervention ranges from passing messages between the parties to active engagement in the bargaining and attempts to place pressure on the antagonists to accept peace proposals that the mediator himself has formulated. The activities of the third party may thus vary along several dimensions, such as formality-informality, extensiveness of resources committed, directness of penetration into the bargaining, and identity.29 The following list, summarizing a fuller exposition by Oran Young, sets out some of the roles and functions that mediators may play in helping to resolve crises and conflicts:

I. Actions taken to help the opponents begin or continue bilateral discussions, or to help implement any agreements already reached. Here, the third party does not become involved in the essential bargaining.

28 Boulding, Conflict and Defense, p. 316.

29 Young, The Intermediaries, p. 31.

421 The Interaction of States: Conflict and Conflict Resolution

A. "Good Offices. " This refers to the procedures whereby third parties act as channels of communication between the opponents, passing messages between them. In addition, the third parties may propose sites for formal diplomatic sessions and urge the antagonists to begin formal discussions.

B. Data Source. This role involves providing opponents with relevant infor­mation of an undistorted character. Young cites the activities of the United Nations representative in Jordan during the crisis of 1958, the efforts of Connor Cruise O'Brien in the Congo, and U Thant's messages during the Cuban missile crisis of 1962 as examples of third parties' bringing to the attention of the antagonists information and facts they might other­wise have ignored.

C. Interposition. This action, illustrated by the quick dispatch of the United Nations Force to the Middle East after the Arab-Israeli war in 1973, is designed to place military barriers between the forces of the parties that are already employing violence and to supervise the withdrawal of hostile forces from contested areas.

D. Supervision. This service comes after the parties to a conflict have already negotiated a preliminary armistice or cease-fire agreement. The third party then delimits truce lines, polices them, handles violations according to established procedures, and occasionally administers contested territory. The long history of the United Truce Supervisory Organization in the Middle East is one example. Others involving supervision and temporary administration of contested territory are the League of Nations Commis­sion, which, during 1933 and 1934, administered the disputed province of Leticia between Peru and Colombia, the international force and plebi­scite commission for the Saar in 1934 and 1935, and the United Nations Temporary Executive Authority, which operated in West Irian in 1962 and 1963.

II. Bargaining by a third party during negotiations between two or more disputants. Service functions may also be involved, but in this situation, the main task of the third party is to combine "the elements of a rules keeper and an interested mediator."30

A. Persuasion. Persuasion involves attempts to keep negotiations going and to persuade the opponents to make progress. For example, the Secretary-General of the United Nations and his staff have often made themselves available during a crisis to point out to the parties the potentially dangerous consequences of rash actions and to emphasize the common and overlap­ping interests of the opponents.

B. Enunciation. This task involves clarification of the issues surrounding a conflict. According to Young, mediators enunciate their understanding of the issues involved and sugest basic principles, procedures, or mecha­nisms that might be employed in formal bargaining. They may also work on both parties to obtain a common understanding of at least several critical issues.

C. Elaboration and Initiation. Here, mediators become actively engaged in the bargaining by helping to formulate common or overlapping interests and making, on their own initiative, substantive proposals for resolving the conflict. If there is no previous single isstie area or focus, mediators can create one by their power to make a Iramatic suggestion.31 If they

30 Ibid., p. 51.

31 Thomas C. Schelling, The Strategy of Conflict (Cambridge, Mass.: Harvard University Press, 1969), pp. 143-44.

422 The Interaction of States: Conflict and Conflict Resolution

succeed in initiating a proposal as the basis for discussion, they must then continue to focus the negotiations around these proposals rather than allow the opponents to concentrate on their unilateral demands. Even though League of Nations and United Nations efforts at pacific settle­ment have usually established only procedures for bilateral bargaining, these organizations have also passed resolutions outlining principles upon which to base a final agreement (e.g., the Security Council resolutions of 1967 outlining the principles for peace between Israel and the Arab states) or initiated peace proposals in private meetings involving a mediator (e.g., Gunnar Jarring's 1971 proposals for a Middle East settlement). In a few cases, such as the handling of the border conflict between Greece and Bulgaria in 1925, the mediator—this time the League Council and a commission of inquiry—is in such a powerful diplomatic and moral posi­tion in comparison to the two small states involved in the conflict that it can apply great pressure on the protagonists to accept terms of settlement. D. Participation. The last example cited above indicates that on occasion, mediators actually become one of the main parties to the bargaining. Not only will they point out areas of overlapping interest, break down stereotypes and images based on false information and initiate plans or proposals around which the discussions should revolve, but they will make efforts to get the parties to agree to their proposals. At this point there is three-way bargaining and, in a few cases, the mediator virtually domi­nates the negotiations. United Nations mediation of the Palestine truces of 1948, the solution of the West Irian problem, and the long and confused story of the Congo involved third parties that actively engaged in bargain­ing and put considerable pressure upon the protagonists to accept United Nations proposals.

These are some of the roles and tasks mediators can fulfill in crisis situations. The extent to which third parties "penetrate" a conflict depends upon many variables, none of which alone could explain success or failure. Since pacific settlement procedures in contemporary international organizations are based on the principle of voluntarism—both parties to a conflict must accept the role and functions of the third party—it is the protagonists themselves, through their responsiveness and willingness to be influenced, who will utlimately determine the third party's success. Power does not seem to be particularly relevant in mediation efforts. Small states as well as large have rejected the initiatives of third parties, a notable example being the unwillingness of Israel and Syria to accept certain formulas proposed by an American mediator during the crisis over Syrian antiaircraft missiles placed in Lebanon in 1981. Also, a weak state may be inclined to continue the conflict rather than agree to mediation if it can generate support for its position among allies and supporters. Impartial­ity, as perceived by the protagonists, is of course one critical element in creating responsiveness toward mediating efforts. Few parties to a conflict would be likely to accept intervention by an outsider if they perceived that party to hold views on the nature and sources of the conflict greatly at variance with their own or if that party is not disinterested.

Aside from impartiality, diplomatic prestige and the availability of service facilities are other important requirements for mediating efforts.

 




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