Processes of International Negotiation Network Perspectives 40/2014

PIN•Points Processes of International Negotiation Network Perspectives 40/2014

Remembering Nelson Mandela

The Ukraine crisis as a threat for the European negotiation web

The South-China Sea: options for negotiations

Winning at nuclear negotiations 2 PIN•Points 40/2014

EDITORIAL

Nelson Mandela passed away on 5 successes. These simply do not exist to seize the opportunity and manage December 2013. This is the first PIN- in the Syrian conflict. This serves as a the process to achieve an agreement. Points to be released since his death reminder for anyone involved in what and therefore the first opportunity Bill Zartman calls the mediation craze One other element in which Syria dif- to take stock of Mandela’s legacy in in one of his two contributions in fers from the South African struggle terms of negotiation processes. South this PINPoints that having the chops is geopolitical developments, regional Africa’s transition from apartheid to an of a mediator will not be enough if interventions and larger regional inclusive democratic system remains the conditions of a conflict cannot be instability. As Anstey mentions, talks an astounding accomplishment and changed. While an understanding of partly became possible in South Af- an example for everyone studying mediation processes is growing and rica because of the end of the Cold conflict resolution and reconciliation. the training of mediators is becoming War and hence the disappearance With Mark Anstey’s contribution to normal, the old saying of carrots and of a major source of support for the this PINPoints, the PIN group salutes sticks should not be forgotten. ANC. At the moment we are seeing one of the greatest negotiation a revival of Cold War thinking and practitioners ever. May his memory Also mentioned by the Syrian partici- increased rivalry between the West serve as a reminder of what can be pants as differences to South Africa and especially Russia. This not only achieved through negotiations. were the pain of the struggle in Syria affects the Syrian conflict. In this is- and the crimes committed by the Syr- sue of PINPoints, for example, Paul On the day when news broke that ian regime. This seemed to suggest Meerts expresses concerns that the Mandela had passed away, the that the steps that Mandela needed Ukraine crisis is derailing the Euro- Clingendael Institute was using PIN to take to leave his hatred behind pean regime for cooperation. Mikhail knowledge and insights to train the were somehow smaller than those of Troitskiy discusses Sino–Russian National Coalition for Syrian Revolu- the Syrians. Although it is impossible cooperation, mostly as an alliance tionary and Opposition Forces (SOC) to say whether this is true or not, as of convenience against American in negotiations, with an eye on the it is very much a perception and in no domination. Anthony Wanis-St John, then upcoming peace talks in Gene- way measurable, it did offer a good who wrote a contribution to the PIN va. The training session was not just opportunity to discuss how reconcili- book Unfinished Business on the fail- for the peace talks, but was also to ation and recognizing the opponent ure of the previous round of nuclear show negotiation as a valid and use- as human and a viable negotiation negotiations between the 3/EU and ful political coordination mechanism partner is a tough and difficult, but Iran, looks at the previous causes of to limit internal tension and disagree- vital, choice. It is a path to be taken failure and assesses the differences ment. During an improvised session, and to remain on level-headedly, de- with the current round of talks. His is we discussed together (the members spite opposition and obstacles, often a hopeful contribution, but he warns of the SOC and trainers) what Man- from one’s own constituency. This that geopolitical manoeuvring, in- dela meant for the Syrian struggle leads to the other misconception that cluding the Syrian conflict, can cause and what lessons we could learn needed to be addressed. The Syrian a breakdown in talks. from the South African situation. participants had the impression that Mandela was leading a monolithic Guy Olivier Faure analyses a re- While showing their respect and and unified opposition, yet nothing gional conflictual situation when he admiration, the participants were was further from the truth. Staying describes the contested sovereignty also quick to emphasize that Syria’s the course of reconciliation was as of small island groups in the South situation is different from the South much a negotiation with his own sup- China Sea. There is no regime to African struggle. This is absolutely porters as it was with the apartheid make negotiations truly work, and the true. As Anstey mentions in his con- regime. This also shows the impact conflict could easily get out of hand, tribution, in South Africa there was that leaders have on these kinds of with global ramifications. Whether ripeness and a mutual hurting stale- processes. Although structural fac- this will actually happen partly de- mate – fundamental structural pre- tors have to align to make solutions pends on US power and willingness. conditions for possible negotiation possible, it is up to the negotiators The annexation of Crimea, which was

www.pin-negotiation.orgwww.pin-negotiation.org 3 3

PINPoints is the biannual publication 4 PAUL MEERTS of the Processes of International WILL PUTIN’S STRATEGY ON UKRAINE DISINTEGRATE Negotiation Program (PIN). THE EUROPEAN NEGOTIATION WEB?

PIN is a non-profit group of scholars 8 ANTHONY WANIS-ST JOHN and practitioners that encourages WINNING AT NUCLEAR NEGOTIATIONS and organizes research on a broad spectrum of topics related to 12 MARK ANSTEY international negotiation seen as MANDELA’S LEGACY OF NEGOTIATION a process. The PIN network includes more than 4,000 scholars and 18 GUY OLIVIER FAURE practitioners of international THE SOUTH CHINA SEA: OPTIONS FOR NEGOTIATION negotiation. The organization is presided over by a Steering Committee, 28 MIKHAIL TROITSKIY which organizes its many activities and THE SINO–RUSSIAN PIVOT AND AMERICAN POWER edits the PINPoints.

32 MORDECHAI (MOTI) MELAMUD PIN is a project of the Netherlands TO VERIFY OR NOT TO VERIFY: A MAJOR ISSUE IN Institute of International Relations THE DEVELOPMENT OF WMD ARMS CONTROL REGIMES ‘Clingendael’, a leading think tank and academy on international affairs, 42 I. WILLIAM ZARTMAN European integration and security THE MEDIATION CRAZE issues based in The Hague.

46 WILBUR PERLOT Issue editor: VISIT TO THE 26TH SESSION OF THE HUMAN RIGHTS COUNCIL Wilbur Perlot

48 RUDOLF SCHÜSSLER Editorial committee: FOCAL POINTS IN THEORY AND NEGOTIATION: PROSPECTUS Paul Meerts & Tim Masselink OF A CONFERENCE Language editing: 51 PAUL MEERTS Rebecca Solheim THE NETHERLANDS NEGOTIATION NETWORK (NNN) SYMPOSIUM ABOUT NEGOTIATING THE FUTURE Design and lay-out: Symon Maks - www.maksimaal.nl

Contact The Netherlands Institute of Interna¬tional Relations ‘Clingendael’ Wilbur Perlot, PIN Coordinator Clingendael 7 2597 VH The Hague The Netherlands

T +31 70 374 6681 E [email protected] W www.pin-negotiation.org 4 PIN•Points 40/2014

more or less supported by China, solutions. In climate change negotia- tember during a conference organ- and contested but also accepted by tions, the two degrees Celsius maxi- ized by PIN, CIRC and Clingendael. the US, is seen in the region as an mum temperature increase is such We hope to see you there, or at other indication of how the global theatre a focal point. The 38th parallel was events and training sessions. If you is changing. such a focal point in the Korean War. have any questions or comments, do The role, nature and understanding not hesitate to contact us through In PIN’s work and PINPoints maga- of focal points is the topic of the new [email protected]. zine, changes on the geopolitical level PIN book project that is described have been mentioned many times by Rudolf Schüssler in this edition of as causes of concern in undermin- PINPoints and that launches in Sep- STEERING COMMITTEE: ing negotiation processes, because of a lack of ripeness, especially for conflict negotiations and multilateral cooperation. In his second contribution to this PINPoints, Bill Zartman F. O. HAMPSON O. F. M. ANSTEY M. FAURE G. O. offers a possible instrument to sup- ALBIN C. plement or even replace some of the deadlocked negotiation processes with dialogues. Another possibility lies within the introduction of focal points in negotiations. T. MASSELINK T. MEERTS P. PERLOT W. M. MELAMUD M.

Focal points are elements that are introduced in negotiations to shape the remainder of the negotiations. They are not necessarily a solution, but

they do determine the range of the ROSOUX V. SCHÜSSLER R. TROITSKIY M. ZARTMAN W. I

PAUL MEERTS WILL PUTIN’S STRATEGY ON UKRAINE DISINTEGRATE THE EUROPEAN NEGOTIATION WEB?

If negotiation is war by peaceful regime, is hardly adequate for pre- land before it was partitioned by the means, then the present situation in venting a power shift that would up- surrounding powers in 1939. Eastern and around Ukraine can be described set the European security structure Ukraine is divided over its prospects as negotiation by warlike means. The created after the Second World War for the future, although it seems to pressure on Ukraine by the Russian and the disintegration of the Soviet be in favour of a federal Ukrainian Federation is enormous and the Union. state in which autonomous republics threat to its security and survival pro- will have a high degree of self- vides the Russians inside and outside In order to understand the positions governance, while western Ukraine Ukraine with a very strong negotiat- of the parties, it might be useful to might go along with this provided ing position. The negotiation fabric of look briefly into the interests of the that the federal structure will not Europe, which is provided by – inter concerned factions. Ukraine itself is mean complete loss of control by the alia – the European Union, the United divided and this weakens its negoti- central government in Kiev, which is States and the North Atlantic Treaty ating position to a point where it can caught in between. Organization (NATO) as counterbal- hardly be considered as being at the ancing powers and the Organiza- table, but rather as being more on Western Ukraine has good arguments tion for Security and Cooperation in the menu – a very uncomfortable for federalization as well. Federaliza- Europe (OSCE) as an encompassing situation that is reminiscent of Po- tion would enable it to protect its www.pin-negotiation.org 5

Central European heritage against be cut short because of the looming land. Even if the Russian moves are the richer eastern regions, while still danger of being swallowed by Russia, conscious attempts to regain parts of controlling part of Ukraine’s destiny. meaning no autonomy at all. their lost lands, at least by bringing It is telling that the western region them under Russian influence again, coincides with the old borders of the The Russian Federation seems to be it might well be that the process Austrian–Hungarian Empire before driven by its present incapacity to started by Russia’s President Putin the First World War, as well as with accept the loss of so much Soviet will overwhelm him and drag him the regions that belonged to eastern territory in 1991, including regions into entrapment through ‘egotiation’. Poland, eastern Czechoslovakia and that had been part of Tsarist Russia It will be difficult to stop, but it seems north-eastern Romania before the for centuries, apart from western to be in Putin’s interest to do so. Pu- Second World War. It will be central Ukraine, which had only been under tin still holds the steering wheel, but Ukraine that is hesitant to federalize, Russian rule for half a century. De- things could change dramatically and but that sees federalization as the colonization is difficult to swallow, lead to his downfall. Best Alternative to a Terrible Non- as we saw with Great Britain and negotiated Attrition (BATNA), while France, especially if the break-away The United States and NATO, which the east is aware of the fact that its regions were attached to the core of in the Russian eyes are identical striving for federalization might well the country, as observed with Ire- twins, are not only concerned about 6 PIN•Points 40/2014

the Ukrainian crisis for its own sake, and NATO. In a way this strength- 36/2011. This analysis also showed, but even more about the danger ens their negotiating positions however, that in the end the Rus- of the crisis spreading to NATO in the Ukrainian crisis. We have sians will balance the advantages countries with sizeable Russian already noted that this threat has and disadvantages in the present minorities, such as Latvia and Es- had an adverse effect on Ukraine crisis. The question then remains of tonia. If NATO allows the Ukrainian itself, but is also very detrimental to what extent today’s events are precedent to lead to the secession to the OSCE, which contains all an ad-hoc hiccup or a structural of Russian territories in eastern of the actors mentioned above, problem. Latvia and even Riga, as well as so theoretically it should be the in eastern Estonia (Narva), NATO negotiating organization that could Looking back over the centuries, we and the United States would lose bridge the gaps and bring the par- see Russia throwing itself into Cen- all their credibility and thereby their ties together. As noted in PINPoints tral Europe (such as in 1813 and negotiating position. Worse still, # 28/2007, however, the OSCE can 1945) and outside Central Europe NATO might implode, leaving other only deal with those issues that the (in 1917 and 1991) in a kind of reg- Eastern European NATO member main powers and most powerful ular tide. The crisis in Ukraine might states and non-member states international organizations allow. signal a new flood, but it might be (such as Finland) at the mercy of an extremely short one, as Russia Russia and thereby of authoritarian Although Russia is an integral part- – and more importantly its political and foreign rule. At the other end ner of the OSCE and actually the and business elite – has so many of the equation, one has to reckon power that took the initiative for vested interests in a reasonable with a Ukrainian scenario in Central the creation of its predecessor (the relationship with the rest of Europe, Asia as well. Kazakhstan’s northern CSCE, with the Helsinki Final Act North America and Central and regions have a vast majority of Rus- in 1975), it is telling that it did not East Asia, that going much further sian populations too. prevent OSCE monitors from being than annexing the Crimea seems taken hostage in eastern Ukraine. unlikely. Following this reasoning, All this would have an even more The OSCE, the pan-European nego- which is the most common opinion severe impact on the European tiation network to deal with these among Western policy-makers and Union. The Union could then be kinds of crisis situations, is power- politicians, the current crisis is a blackmailed, as the German Federa- less. It proves again that negotia- hiccup. It does depend, however, tion was taken hostage – to some tion will only be effective if major on the Ukraine accepting the loss of extent – by the German Democratic powers decide to move in the same the Crimean peninsula, in exchange Republic. In turn, the EU would direction, and this will only happen for Russia respecting the integrity lose its negotiating position as well, if their interests converge. This of Ukraine. A bigger flood might and more than that. Although the convergence can, in the case of the still be on the charts, considering EU is careful not to provoke Rus- Ukrainian crisis, only materialize if the writing: the strong rhetoric of sia too much because of its fear of these powers foresee or experience Russia and its geostrategic focus on war and of course because of its so much damage to their own inter- Eastern Europe, the EU and NATO, dependency on Russian gas, the EU ests that they will stop the present as described above. Perhaps the member states seem to be rather developments. only structural way to avoid Russia determined to stick together in a coming back into Europe in the way common position. In one way, the A new cold war between Russia and it did in the past is by a change outside threat is a godsend for the the West is unlikely as there is – a towards true democracy. Yet this EU (and for NATO) at a time when godsend again – too much mutual can only be done by the Russians civil society has doubts about the interdependence to allow for it, and themselves. Any obvious Western usefulness of these organizations, interdependence fosters inter-state attempts towards democratization fearing too much centralization and negotiation. Negotiation therefore in Russia might backfire and trigger too much expenditure in the linger- remains an essential ingredient in the flood. ing financial crisis. managing today’s crisis. Neverthe- less, it will be a difficult bargaining Outside threats create internal process. It is well known that nego- unity. This is true for the Russian tiating with the Russians is tough, Federation, the European Union as was analyzed in PINPoints # www.pin-negotiation.org 7

BANNING THE BANG OR THE BOMB? TABLE OF CONTENTS NEGOTIATING THE NUCLEAR TEST BAN TREATY Introduction, by I William Zartman & Mordechai Melamud

Although it has not yet entered into force, the CTBT has created Part I. Negotiation its own reality that is useful for its eventual implementation and for Chapter 1. Historical Context and Steps to Implement the CTBT, by subsequent negotiations through the process of its construction and Pierce S. Corden implementation. This book analyzes the CTBT regime negotiation Chapter 2. The Verification Debate and its Effects on the as a model of regime creation. The chapters in this book relate to Negotiation Process, by P. Terrence Hopmann issues representing past, present and future aspects of the Treaty Chapter 3. The negotiating process 1994–1996; a view from the related negotiations. It turns from analysis of what has happened Chair, by Ambassador Jaap Ramaker into a manual for what is about to happen. The purpose is to Chapter 4. The Importance of Coupling: The Limited Test Ban throw new analytical light on the initial process as a case of regime Negotiations, by Fen Osler Hampson | NEW PIN BOOK PIN NEW | building (Part I) and to draw new lessons from the very realistic trial Chapter 5. The role of civil society in negotiating the CTBT, by runs used for training inspectors (Part II). Rebecca Johnson Chapter 6. Formulas and Trade-Offs, by I William Zartman with This book analyses the negotiation processes associated with the Julia Lendorfer establishment of the Treaty, its Organization (CTBTO), and its Chapter 7. Framing the CTBT debate over the US Ratification of the on-site inspection procedures. It examines two phases of CTBT Treaty, by Chris McIntosh negotiations: the multilateral negotiations for regime creation Chapter 8. The Russian position on the CTBT, by Alexey Fenenko in the mid 1990s and the currently ongoing negotiations in the Chapter 9. Explaining Why India Opted Out, by Ulrika Möller policymaking organs. It goes on and studies the future function of inspector-inspectee negotiations associated with carrying out the Part II. Verification on-site inspection element of the verifications regime. Chapter 10. Chapter 10. Nuclear Test Ban Treaty implementation, by Hein Haak

ANNOUNCEMENT Part I presents a study of the task of translating the general consen- Chapter 11. How to enhance the legal status of the CTBTO, by sual mandate of the CD Ad Hoc Committee into a Treaty, beginning Franz Cede in 1994, a challenge that took two years of negotiations. This Chapter 12. Can a Monitoring and Verification System Be evolution is presented from several angles in Part I. This part covers Designed by Negotiation? by Nicholas Kyriakopoulos the larger historical picture of international efforts to pursue arms Chapter 13. Errors of the First and Second Kind in authorizing CTBT control and the core issue of intrusive inspections that stood as the On-Site Inspections, by Rudolf Avenhaus and major obstacle but was finally overcome, and it provides a first-hand Thomas Krieger view of the actual negotiations led in the CD in Geneva during Chapter 14. Preparations for negotiations on the noble gas 1995–6 from the position of the chair. Further, it explore the impact categorisation scheme, by Martin Kalinowski and of the wide variety of participants at the domestic and international Simon Hebel levels as actors in international negotiation processes. Chapter 15. The Case of Arcania: Perspectives in Point of Entry (POE) Negotiations, by Ariel Macaspac Penetrante Part II deals with the particular characteristic of the second-level Chapter 16. The negotiation hurdles on the inspection trail, by negotiations required for the verification regime building and Mordechai (Moti) Melamud management involved in treaty implementation. One group of Chapter 17. Negotiation training for inspectors, by chapters in Part II addresses problems of the nature of regime- P Terrence Hopmann building around the issue of verification with a view to seeking ways Chapter 18. Putting OSI on the Table, by Paul Meerts and and means to establish the authority of the treaty mechanism. Mordechai Melamud Chapter 19. Lessons from the CTBT negotiation process by The final group of chapters in this Part concerns the subject of Mordechai Melamud, Paul Meerts and I. William Zartman negotiation during on-site inspections - the act where the regime’s “rubber hits the road”- rarely analyzed as negotiations in the Appendix. literature, analyzing the need for negotiations, both inside the team Simulation of CTBT on-site inspection, By Paul Meerts and between experts as well as between the inspection team and the Mordechai Melamud inspected state representatives, underscoring the encounter that create an unproductive asymmetry. Analysis of a table-top exercise is presented (the outline provided in an Appendix), its specific characteristics and the special importance of this role-play tool for inspectors and the organization.

A Lessons Identified chapter wraps up this volume presenting some salient characteristics of the CTBT regime development that can be of assistance in negotiations and in post-agreement negotiations for future agreements. 8 PIN•Points 40/2014

ANTHONY WANIS-ST JOHN1 WINNING AT NUCLEAR NEGOTIATIONS

As negotiations with Iran on its Proliferation Treaty (NPT) in order come, while Iranian political turmoil nuclear capabilities came closer to to assess whether Iranian nuclear and the persistence of hardliners in their 20 July deadline, it appeared activities were for peaceful, civilian the 2009 Iranian elections provided likely that negotiators would come uses (permitted under the NPT), or the other bookend. In the past, the to an agreement at the very last for the purpose of developing nu- most constructive US stance had moment. In my contribution to Guy clear weapons (prohibited under the been to offer direct negotiations if Olivier Faure’s edited volume Unfin- NPT). Mastery of the nuclear fuel Iran ‘fully and verifiably suspend[ed] ished Business: Why International cycle is inherently dual use. Iranian its enrichment and reprocessing Negotiations Fail2, I explored the compliance with IAEA inspections is activities’7. Although US participa- negotiations between the E3/EU3 therefore critical in reassuring other tion in negotiations at that time and Iran over its nuclear programme. countries of its peaceful intentions5. might have proven beneficial, such These negotiations, which began In my chapter ‘Nuclear Negotiations’ preconditions amounted to asking optimistically in 20034 , resulted in in Faure’s volume, I noted at least the Iranians to give everything up some immediate short-term gains three reasons why the E3/EU nego- before direct negotiations would in the form of interim agreements tiations had not succeeded: 1) ‘con- even begin. to freeze temporarily uranium en- strual’ problems; 2) an incremental richment, but ultimately failed to negotiation process; and 3) a zone The Obama administration entered conclude a comprehensive agree- of possible agreement that was far the White House in 2009 while Track ment regarding Iran’s mastery of too narrow6. The US preference to II talks with Iran were already tak- the nuclear fuel cycle. The Interna- remain aloof from negotiations and ing place under the auspices of the tional Atomic Energy Agency (IAEA) pursue coercive diplomacy from the Pugwash Conferences on Science was seeking greater cooperation beginning of the process served as and World Affairs8. The US held of- from Iran under the Nuclear Non- one bookend of the negative out- ficial back-channel talks with Iran at least during 2013 and seemed to take a lead role in nuclear diplomacy 1 Associate Professor, and Director, International Peace and Conflict Resolution Program, School of with Iran9. A ‘Joint Plan of Action’ International Service, American University. I gratefully acknowledge the research assistance of Suzanne Ghais, doctoral candidate at SIS. (JPOA) on Iran’s nuclear program, 2 See Guy Olivier Faure (ed.), Unfinished Business: Why International Negotiations Fail (Athens, GA: University announced in November 2013, has of Georgia Press, 2012). 3 The UK, France and Germany, plus the EU High Representative. the US as one of the direct parties to 4 Statement by the Iranian Government and Visiting EU Foreign Ministers, 21 October 2003, available online at the negotiation10, and there is more http://www.iaea.org/newscentre/focus/iaeairan/statement_iran21102003.shtml. moderation among the new political 5 Report by the Director General to the IAEA Board of Governors, ‘Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran’, GOV/2003/75, 10 November 2003. leaders in Tehran since Iran’s 2013 6 Anthony Wanis-St John, ‘Nuclear Negotiations: Iran, the EU (and the United States)’, in Guy Olivier Faure election11. In addition to the partici- (ed.), Unfinished Business: Why International Negotiations Fail (Athens, GA: University of Georgia Press, 2012). pation of the UK, France, Germany 7 US Secretary of State Condoleezza Rice, ‘Remarks on Iran’, 31 May 2006, transcript available online at and the EU High Representative (that http://www.nytimes.com/2006/05/31/world/middleeast/31cnd-rice-text.html?pagewanted=print&_r=0. is, the E3/EU), China and Russia are 8 Laura Rozen, ‘Revealed: Recent US–Iran Nuclear Talks Involved Key Officials’, 29 January 2009, available online at http://thecable.foreignpolicy.com/posts/2009/01/29/americas_secret_back_channel_diplomacy_ part of the deal, effectively creating with_iran a wide international coalition on one 9 Thomas Erdbrink, ‘Praise in Iran All the Way to the Top, Where Efforts Reportedly Preceded a President’, 12 New York Times, 24 November 2013, available online at http://www.nytimes.com/2013/11/25/world/mid- side: the so-called ‘P5+1’ . The dleeast/in-iran-mainly-praise-for-nuclear-deal-as-a-good-first-step.html?ref=nuclearprogram. incrementalism remains in place – 10 Joint Plan of Action’, Geneva, 24 November 2013, text available online at http://eeas.europa.eu/statements/ and is likely to persist – as long as docs/2013/131124_03_en.pdf. 11 For a possible precursor to the JPOA, see the Pugwash document ‘Main Points of a Possible Agreed trust is absent and as long as some Framework’, 4 June 2013, available online at http://www.pugwash.org/reports/rc/me/Iran_Moscow_2012/ internal constituencies among the Iran_AF_proposal_update.htm. 12 The term ‘P5 + 1’ refers to the five permanent members of the Security Council (the US, UK, France, P5+1 powers and in Iran oppose Russia and China) plus Germany. any compromise. www.pin-negotiation.org 9

THE ZONE OF POSSIBLE that an Iranian civilian nuclear EU negotiations with Iran seemed AGREEMENT programme is a fait accompli, and to offer evidence that negotiators However, the other two factors that instead of trying to ‘close the barn suffered from several psychological I identified have changed in signifi- door after the horse has bolted’, barriers to information-processing cant ways. The prior negotiations’ the emphasis in negotiation is on and decision-making: divergent failure can at least be partially increased Iranian cooperation with construal and reactive devaluation. traced to Iranian insistence on its the IAEA, as well as technical steps As partisans in a long-standing expansion into all parts of the nu- to diminish the dual-use potential conflict pattern, Iran, the E3/EU clear fuel cycle, and E3/EU and US of the Iranian nuclear programme. and the US were inclined to view insistence on prior renunciation of There is a gap between the number their own actions and offers as key aspects of the cycle – specifi- of centrifuges (that enrich uranium) reasonable, while denigrating those cally the enrichment of uranium for which Iran wants to retain and the from the other side13. In the prior use as a nuclear fuel. The Iranians number the P5+1 would accept. negotiations, the E3/EU demands have consistently declared their Additional concessions and creativ- for Iranian denuclearization were intention of achieving and main- ity would be required to bridge such clear, concrete and immediate, taining self-sufficiency in atomic a gap. while the trade and sanctions’ con- energy, and their communications cessions offered to Iran were both to the IAEA convey a deep sense of OFFER CONSTRUAL ambiguous and to be delivered in grievance regarding past dealings I argued that negotiators had paid a remote future. Iran’s cooperation with the West on this issue. insufficient attention to how their with the IAEA demands for informa- The zone of possible agreement, counterparts would perceive of- tion and access to nuclear facilities however, now seems considerably fers and moves taken during the was temperamental at best. The US wider. The P5+1 now acknowledges negotiations. Specifically, the E3/ absence from the negotiation table also contributed to the fuzziness of E3/EU attempts to reach a final 13 See, for example, Christer Jönsson’s chapter ‘Psychological Causes of Incomplete Negotiations’, in the deal, since key components of any Unfinished Business book; and Lee Ross and Andrew Ward, ‘Psychological Barriers to Dispute Resolution’, Advances in Experimental Social Psychology, Vol. 27 (1995), pp. 255–304. such deal would involve reduction 10 PIN•Points 40/2014

and elimination of US sanctions have at least the potential to cre- Saudi Arabia in the Syrian civil war; on Iran. While this was impossible ate the goodwill necessary for a Hezbollah – always a latent threat five years ago, it is now part of the comprehensive deal that makes to Israel from the northern border architecture of the current interim the Iranian nuclear programme as with Lebanon and now active in the arrangement14. ‘proliferation-proof’ as possible. Syrian civil war on the side of Syria’s Assad government – is supported The current negotiation process is INCREMENTALISM AND by Iran; while Israel consistently now predicated on very concrete NON-LINKAGE decries any negotiation with Iran offers by the US and the EU in There are numerous bilateral and on the nuclear issue as outright exchange for equally concrete multilateral problems that are going capitulation. measures to be taken by Iran. to be neglected while Iran and the The way in which the negotiations Modest relief from the sanctions P5+1 concentrate on their nuclear are framed is part of the manage- and increased trade are already contention. The Syrian civil war is ment of both external and internal taking effect, while the Iranians just one of many regional issues on opponents. The Obama administra- have quickly moved to reduce the which the US and the EU continue tion has successfully stymied ef- quantity and degree of uranium to oppose Iran. In the absence of a forts by lawmakers to impose new enrichment. US sanction relief will solid linkage strategy that resolves sanctions on Iran, but to reassure include repatriating US$ 4.2 billion every issue at once, the parties this group, the administration’s of Iran’s overseas frozen funds, seem to have accepted working congressional testimony is char- facilitating Iran’s oil trade to the on one major controversy while acterized by tough talk about Iran EU, and granting US trade licenses continuing to be adversaries on the and promises of issue linkage that for civil-aviation spare parts, which others. Each issue, however, if not are probably not feasible in the are badly needed in Iran. Iran has resolved, could derail the JPOA, short term. Still, the US has for the already stopped enriching uranium while progress on any of them moment kept both external and above ‘5% U-235’ as well as dilut- could be part of a virtuous cycle of internal opponents of real nuclear ing and converting its more highly collaboration. This is the essence of diplomacy sidelined. It remains to enriched stocks of uranium, among incrementalism in negotiations. On be seen how well Iran manages its other compliance activities15. the other hand, the crisis in Iraq own internal opponents and scep- with the ISIS attacks in June and tics of nuclear diplomacy, but the As the current agreement (the July 2014 seem to at least tempo- early compliance is promising. JPOA), like the one before it, is an rarily align US and Iranian interests interim arrangement, it is meant to in Iraq. CONCLUSION create space for more negotiations In summary, several major obsta- rather than to be an end in itself. If INTERNAL AND EXTERNAL cles that were in the way of the last the JPOA does not result in a com- OPPOSITION negotiations towards a comprehen- prehensive agreement, US and EU Besides incrementalism, the other sive arrangement have been lifted, sanctions can (and probably will) be factor that has not changed is the while others remain in place. The US reinstated and the Iranian nuclear external opposition to any nuclear is now directly invested in the nego- capabilities can (and probably will) deal. Saudi Arabia, other Gulf coun- tiations, the offer construal problem be rebuilt. On the other hand, the tries and Israel are all opponents of seems to have been ameliorated by de facto recognition of the Iranian these negotiations, in part because the exchange of specific relief from civilian nuclear capability and the of geopolitical realities: Iran, for sanctions for specific acts of coop- immediate relief from sanctions example, is on the opposite side of eration on the fuel cycle, and the zone of possible agreement seems slightly larger while the parties seem 14 White House Office of the Press Secretary, ‘Summary of Technical Understandings Related to the Implemen- tation of the Joint Plan of Action on the Islamic Republic of Iran’s Nuclear Program’, 16 January 2014, avail- more realistic about their demands. able online at http://www.whitehouse.gov/the-press-office/2014/01/16/summary-technical-understandings- These are extraordinarily promising related-implementation-joint-plan-action. developments that do not by them- 15 Testimony of Wendy R. Sherman, Under Secretary for Political Affairs, ‘Written Statement before the Senate Committee on Foreign Relations: Iran Policy and Negotiations Update’, Washington, DC (4 February 2014), selves guarantee success, but they available online at http://www.state.gov/p/us/rm/2014/221217.htm. Also see Report by the Director General certainly strengthen the chances of to the IAEA Board of Governors, ‘Status of Iran’s Nuclear Programme in Relation to the Joint Plan of Action’ (20 January 2014), GOV/INF/2014/1, available online at http://www.iaea.org/Publications/Documents/ de-nuclearizing diplomacy between Board/2014/govinf2014-1.pdf, and subsequent reports. the P5+1 and Iran. www.pin-negotiation.org 11

RECONCILIATION AS PREVENTIVE NEGOTIATION

Post-conflict situations are precarious. Crises of commitment and practice are inextricably linked. As scholar-practitioners the editors capacity drive the shift in attitudes required for peace agreements of this text are both from nations wrestling with issues of social and between adversaries. But sustaining these shifts into longer-term political reconciliation – South Africa and Belgium. These states do peace-building processes is difficult, especially where structural con- not share a lot of common features. However, they both reflect long ditions limit capacity to distribute resources and opportunities in ways term struggles to develop and sustain a strong national identity. that meet needs and aspirations across stakeholder groups. The tip- Their common, but diverse experiences raise important questions ping point is reached when one or more parties believe violence will about the prospects for negotiated accords and deeper processes of yield greater benefits than continued efforts within a shaky peace. In reconciliation, and the links between them. Finally, the purpose of the such contexts how might reconciliation between groups with a long book is exploratory and pragmatic rather than to offer a normative history of conflict be achieved? What kinds of conditions must be or prescriptive view. The intention is to raise and address questions | NEW PIN BOOK PIN NEW | negotiated to develop and sustain peaceful relations between parties about the practical limits of the notion of reconciliation when ap- to carry them jointly into a non-violent future? Is reconciliation actu- plied on a societal rather than an individual level. Some provocative ally negotiable? If yes, under what circumstances? These questions questions can indeed be raised. How can negotiators deal with such are at the core of the next PIN book project. an ambitious goal? Can reconciliation be detrimental to peace and/ or democracy? Is reconciliation always possible, desirable or even In the context of an avalanche of texts on the subject of recon- necessary in all circumstances? ciliation, this book makes a unique contribution in three respects. Firstly it seeks an articulation between the notions of negotiation and There is much at stake. We consider that without a fundamental reconciliation. Both subjects reflect expanding bodies of theory and clarification, the notion of reconciliation may turn out to be counter- research but the interaction of the two remains relatively unexplored. productive. Beyond a theoretical interest, this question has a direct Secondly it gathers contributions from both scholars and practition- impact for practitioners; a better understanding of the issue is actu- ers in the fields of both negotiation and reconciliation – theory and ally a sine qua non condition for more efficient interventions. ANNOUNCEMENT

AUTHORS CHAPTER TITLE

Rosoux, Valerie (UCL) and Anstey, Mark (NMMU) Negotiating perilous relations: quandaries of reconciliation

FUNDAMENTALS

Rosoux, Valerie (UCL) Reconciliation as a puzzle: walking among definitions Schussler, Rudolf (University of Bayreuth) Ethics in Reconciliation Anstey, Mark (NMMU) Power as a reconciliation dynamic Rosoux, Valerie (UCL) Timing in reconciliation processes Feron, Elise (Kent University) Gender

ISSUES

Cristal, Moty (NEST Negotiation Strategies) Security Bradshaw GJ and Haines R (NMMU) Land issues in national reconciliation projects Anstey, Mark (NMMU) Development as the key to sustainable reconciliation Rosoux, Valérie Justice

DIMENSIONS OF RECONCILIATION: CASE-BASED INSIGHTS

Melamud, Moti and Melamud, Aviv Reparations and Israel-Germany Reconciliation Bucaille, Laetitia (Université de Bordeaux) Accountability and Israel-Palestine Reconciliation Gretsky, Igor (St Peterbsurg State University) Russian-Polish Reconciliation Rubin Richards (South African Practitioner) ‘Social fragmentation: challenges of reconciliation at a grassroots level’ a South African experience Stef Vandeginste (University of Antwerpen) Negotiating reconciliation without truth: Burundi’s bumpy road to peace Lewer, Nick (Durham Global Security Institute [DGSi] and Sri Lanka: ‘Negotiation and Reconciliation: School of Government and International Affairs [SGIA) Short Term Outcomes vs Long Term Goals’ Anstey M and Rosoux V Lessons for practice and for theory 12 PIN•Points 40/2014

MARK ANSTEY MANDELA’S LEGACY OF NEGOTIATION

partnership to his erstwhile oppressors in negotiating a future in which they could feel secure was his most powerful means of persuasion.

Mandela’s tactics of escalation earned him a sentence of life imprisonment at the conclusion of the Rivonia Trial in 1964. Yet as a prisoner of principle for the next 27 years, he remained integral to the African National Congress (ANC)’s campaign against apartheid, a beacon for national and international mobilization, and when conditions eventually ripened, he resumed organizational leadership to negotiate South Africa into a liberal democracy. It was a campaign against oppression that was brought to a slow boil within and beyond South Africa’s borders, but by the mid- 1980s its heat was intense. Mandela will be remembered as one of the world’s great statesmen; a man of deep principle, able to put aside his South Africa’s four Nobel Peace Prize is common to many political strug- own interests in pursuit of justice; winners – Albert Luthuli (1960), gles. What set his leadership apart and, when opportunity eventually Desmond Tutu (1984), and F.W. de were the choices he made once arose, to use justice to negotiate the Klerk and Nelson Mandela (jointly, in the heat was on, to bring about a end of a pernicious system of racial 1993) – were all involved in seek- peaceful outcome in a context of separatism – and remarkably, when ing a peaceful end to apartheid. escalating violence. These were not civil war seemed inevitable, to do it Interestingly, however, even as choices of opportunism in a crisis. within a frame of reconciliation that Luthuli’s commitment to non-violent They reflected the deeply held set he had signalled 30 years earlier. resistance was being recognized, of values that he had espoused 30 Mandela was among those persuad- years earlier – that a resolution to Differences informing the content ing the ANC of the failure of 50 South Africa’s conflict would depend of a negotiation may be difficult, years of such tactics, and the need less on defeating his oppressors but these must be dealt with within for a campaign of armed strug- than on creating a society without a complexity of interpersonal and gle and targeted sabotage to end repression. He understood that intergroup dynamics, which are trig- racial repression. Part of Mandela’s ‘push’ strategies targeting whites gered as parties try to persuade one legacy to negotiation is reflected in would harden resistance, and that another into a deal that serves their his understanding that sometimes greater prospects lay in ‘pull’ strate- interests. Power asymmetry may see the temperature must be raised to gies that were responsive to their weaker parties unable to convince induce another to negotiate, but this fears. He recognized that offering stronger ones that negotiations are www.pin-negotiation.org 13

even necessary. Conflict escalation convinced to consider negotiations, from society in the early stages of his dynamics may see parties entrapped and it took wisdom to entertain their campaign and conditions were not in their own posturing and rhetoric, cautious overtures when he must yet ripe for change in the manner irrationally eschewing negotiation have realized that they emanated that they were 30 years later. Yet he opportunities for more contentious from a regime in trouble, and when and other ANC leaders understood tactics. Tensions within constituen- a refusal to enter discussions might the importance of principled vision, cies may limit the capacity to engage have seemed a better option. and of political martyrdom – the in negotiations across an identity time was riper for mobilizing an es- divide, as well as limiting the space Before his imprisonment, Mandela calation in struggle tactics than for for concession exchanges and later persuaded the ANC’s leadership to an end to apartheid, but struggles stability. Negotiators require com- take the struggle against apartheid need direction and anchors for mo- petence in persuading opposition to a new level; during his trial, he bilization purposes. What Mandela groups in direct interface situations, offered a vision for change in South left in the public domain in 1964 as well as a capacity to understand Africa that over time rallied people was a vision for the future and an and leverage wider intergroup dy- internationally and across ideological identity for the ANC as a principled namics – deals are premised in the divides to his cause; during his im- organization that was concerned ability to frame proposals in a man- prisonment, he served as a beacon with justice for all. His statement ner that has resonance with both for mobilization and, despite long during the course of the Rivonia Trial one’s own constituency but also years of incarceration, managed inspired several decades of national an opponent’s. In managing these the first phase of negotiations with and international mobilization and complexities through time, Mandela the regime without compromising informed the negotiation strategy of demonstrated his mastery of nego- himself or the cause; and after his the ANC in the transition period: tiation processes. release, he guided negotiations into During my lifetime I have dedi- liberal democracy for South Africa, cated myself to this struggle of As the leader of a liberation move- and initiated a process of nation- the African people. I have fought ment without a capacity to defeat a building based on reconciliation. against white domination, and regime founded on an ideology of He did not do this alone of course. I have fought against black racial separatism, Mandela’s mission He did so in interaction with his domination. I have cherished the was to persuade the regime that its own team, and eventually across ideal of a democratic and free beliefs were wrong, and as a con- an identity divide with the regime’s society in which all persons will sequence its policies and practices, team, which was seeking to survive live together in harmony and and then to bring about a radical its own courageous decision to re- with equal opportunities. It is an change in its behaviour and beliefs. linquish power. Moreover, he did so ideal I hope to live for and to see Simply to seek the violent defeat of within a particular political context. realized. But my Lord, if it needs the regime would have been coun- His consistency of vision, ability to be, it is an ideal for which I am terproductive, confirming the fears recognize the opportunities offered prepared to die1. and perceptions of those supporting by changing conditions, his skills it, and evoking violent resistance. in mobilization and organizational LEVERAGING CHANGING Persuasion is the core skill of both building, and his capacity to engage CONDITIONS: RECOGNIZING effective leaders and negotiators. generously with an opponent that RIPENESS Both are goal-driven processes, and had treated his people and himself both involve the conscious use of cruelly over a long period set him Mandela understood that a social power to change the behaviour and apart as a great leader – and a great system can be maintained unilater- beliefs of others to particular ends. negotiator. ally only if there is compliance and, Mandela’s was a life of persuasion in the absence of free consent, – as a lawyer, a warrior–activist, a PRINCIPLED DIRECTION through coercion. Yet coercion is prisoner, a political actor and a hu- only feasible if those in charge have man rights activist. He led through The Rivonia Trial occurred long be- the power needed to do so, and to negotiation. It was decades, how- fore South Africa’s conflict was ripe keep doing so. Power-holders pass ever, before his oppressors could be for resolution. Mandela was removed laws to achieve order and afford regime legitimacy, but as Edmund 1 Nelson Mandela, Long Walk to Freedom (Randburg: MacDonald Purnell, 1994), p. 354. Burke (in 1777) famously observed: 14 PIN•Points 40/2014

‘People crushed by laws have no Constitution; and they gave hope Relations were in a moment of ripe- hope but by power. If laws are their and built commitment to South Afri- ness – a mutually hurting stalemate. enemies, they will be enemies to ca’s new democracy among not only Parties have to recognize such mo- laws; and those who have much to Mandela’s followers, but also his op- ments, of course, and use them. hope and nothing to lose, will al- ponents and erstwhile oppressors. If either misjudges its power and ways be dangerous more or less’. In believes that there are better pros- complex multi-stakeholder societies, Mandela contributed to, but of course pects for victory through coercive power is seldom so concentrated in did not create all the changes that means, they may be entrapped in a the hands of any one party that it eventually persuaded the apartheid spiral of escalation that negates the can act unilaterally. If they are to be government to initiate secret ‘talks negotiation option. South Africa was functional, plural societies require about talks’ with him and the ANC in fortunate to have leaders in the re- ongoing mutual accommodation exile in 1985. His skill lay in under- gime and in opposition groups who among their interest groups. In this standing the changes that informed had the wisdom to see and use the reality, intergroup relations move this choice and his responses. A criti- opportunity for talks. through unending phases of conflict, cal moment arose in 1989 with the competitiveness and cooperation collapse of the communist empire, BUILDING AND SUSTAINING – and if violence is to be averted, removing an important source of INTERNAL COHERENCE negotiation is the means through ideological and financial support for which they work things out. the ANC. South Africa’s government As Tom Lodge points out, Mandela saw opportunity in this, thinking that did not start his political career as a Demographics, political and eco- it would weaken opposition groups. ‘broad church’ activist2. He was ini- nomic conditions, weak internal or- The pace quickened in the ‘talks tially resistant to working with com- ganization among opposition groups, about talks’, and at the end of 1989, munists, Indians and whites, instead and ambivalence in the international the ANC publicly declared the terms seeing the struggle in terms of black community saw power firmly in the under which it would enter negotia- liberation. His position softened, hands of South Africa’s Nationalist tions with the government through however, through experience of oth- Party in 1964 – but not moral power. the Harare Declaration, before in ers’ commitment to ending apartheid For a time it appeared that the February 1990, President de Klerk and his experience of the humanity regime’s control was unshakeable. declared the release of Mandela and of some whites, even among those Yet things changed. After a period other political prisoners, unbanned who removed his freedom. Through of growth, South Africa’s economy the ANC and other political organiza- small gestures of respect and kind- stalled in the 1970s in the context of tions, and invited them to negotia- ness, even among his persecutors demographic changes, thus harden- tions to determine a way forward for and jailers, he came to recognize ing international sentiment by the South Africa. that ‘deep down in every human 1980s, combined with a tidal wave heart, there was mercy and gener- of internal dissent. Conditions may The key to progress was a shared osity. No one is born hating another have changed but the principles for recognition that while the ANC was person because of the colour of his which Mandela had gone to jail had unable to defeat the regime militar- skin, or his background, or his reli- not. They informed his response to ily, the regime was increasingly gion. People must learn to hate, and government overtures for talks from unable to control the townships and if they can learn to hate, they can be 1985; his approach to negotiations was economically in a downward taught to love, for love comes more during the transition years between spiral. After a series of reforms that naturally to the human heart than 1990 and 1994; and his presidency deepened divides rather than healed its opposite3’. This recognition of a of national reconciliation. They them, the South African government core of decency in all men informed ensured a political negotiation that had come to realize that the future his mission of reconciliation and how was lifted beyond crude concession- of whites in South Africa depended he framed the struggle. ary exchanges of expedience; they on securing a future for its black Negotiating on behalf of a constitu- informed the Bill of Rights in the population. Unilateralism had run ency is difficult at the best of times, its course, negotiation would be but it is especially so if one is unable required, as well as responsiveness to communicate freely with that con- 2 Tom Lodge, Mandela: A Critical Life (Oxford: to the terms demanded by those stituency and if it is a ‘broad church’ Oxford University Press, 2006). 3 Mandela, Long Walk to Freedom, p. 615. the government had repressed. embracing a wide cross-section of www.pin-negotiation.org 15

identity groups with a unified cause but to simultaneously negotiate ten- with others, and quick deals across but uneasy ideological compat- sions within one’s own side to ensure the table may prove unworkable if ibilities. It is testament to Mandela’s internal coherence. The framing of they create internal divisions within status as a leader within the wider priorities, the shaping of demands sides. struggle that, despite his long in- and proposals, and each stand on carceration, South African President principles and exchange of conces- Unable to communicate directly with P.W. Botha secretly reached out to sions with an opponent may foster the ANC leadership in exile or lead- him in 1985 to ‘talk about talks’, and internal tensions and division. Move- ers of the struggle in the country, it is testimony to his wisdom and ment without a mandate can see a Mandela was vulnerable when the personal integrity that he reminded leader quickly discredited as a non- regime initiated ‘talks about talks’ his jailers that he could not negoti- trustworthy representative. Achiev- with him while he was still incarcer- ate as a prisoner and certainly not ing a clear mandate, however, may ated. He did not misstep. When he without the mandate of his party, be as complex a task as doing a deal was released in 1990, his speech most of whose leaders were in exile. with an ‘old enemy’. Parties within a was far less conciliatory than many Communication was eventually ena- side have to find themselves before whites had hoped, but he knew that bled by the nationalist government they can enter coherent agreements he first had to reassure his people through Mandela’s lawyer, George Bizos. The government was also using channels to engage in exploratory talks with ANC leaders in exile. They were difficult steps, wide open to division between leaders who were physically separated and unable to communicate directly with one another, and to gaps between leaders in exile and resistance groups on the ground that were involved in the popular upsurge and were sustaining the energy for change.

The ANC based its struggle on building a broad non-racial movement embracing nationalists, communists and capitalists, tribal groupings, peaceniks and soldiers. Potentials for division are higher within sides that comprise a wide spectrum of identity groups sharing a broad objective but that are unsettled in terms of appropriate strategies, not least the use of violence. The ANC’s core mobilizing document, the Free- dom Charter, was sufficiently open to allow each such grouping to find some identity with it. The fragility of widely inclusive coalitions is often exposed at the moment of an offer to negotiate, but continues throughout a process. Effective leadership demands of leaders the capacity not only to negotiate powerfully with an opponent across a conflict divide, 16 PIN•Points 40/2014

that he had not sold out on the flight. By the time Mandela engaged one thing to mobilize internal coher- struggle or the principles for which in negotiation with the regime, he ence for a struggle and negotiation he had been incarcerated in 1964. had philosophically embraced the with another during a deep conflict, He had to convince them that no idea that inclusiveness must extend but it is another to do so in a manner personal deal had been struck to to those who had voted for and that offers security to, and achieves secure his freedom. actively implemented the system of support from, an opponent. oppression of which he had been THE CRITICAL ISSUE OF a victim. In short, it is not simply The consistency of Mandela’s vision FRAMING: INCLUSIVENESS AND inclusiveness within a side that mat- over 30 years confirms its philosophi- RECONCILIATION ters, but inclusiveness in searching cal foundations, but it was also re- Across North Africa and the Middle for solutions and in decision-making: flected pragmatism. His observations East, recent uprisings have been ‘To make peace with an enemy, one that killing the white parts of the ze- driven by demands for the removal must work with that enemy, and that bra would as surely mean the end for of regime leaders. In Tunisia, Egypt enemy becomes your partner’4. its black parts were carried through and Libya, these demands met with in the shape of the deal achieved in quick success; in Bahrain, Yemen Mandela came to see his oppressors 1993 and beyond. He understood and Syria, however, they did not. as just as entrapped as he was: that while political control could Rapid change in the first group has […] the oppressor must be liberated be quickly transformed, economic translated into (relative) political just as surely as the oppressed. A changes would be slower; that a stability; in the latter there has only man who takes away another’s free- sunset arrangement retaining white been continuing violence, repression dom is a prisoner of hatred; he is skills for a period would be neces- and tragedy. Campaigns directed locked behind the bars of prejudice sary for stability in the public service; ‘against’ a longstanding despot or and narrow-mindedness. I am not and that if white capital took fright dominant group may temporarily truly free if I am taking away some- and fled, it would have very negative enable the unity that is necessary one else’s freedom, just as surely as consequences for the economy. His among rebels for regime change, I am not free when my freedom is reaching out to the white population but in victory competing ideologies taken from me. The oppressed and through the national sport of rugby and interests are laid bare, and sta- the oppressor alike are robbed of is powerfully captured in Clint East- bility remains elusive. their humanity5. wood’s filmInvictus .

The struggle of the ANC, as Man- What was remarkable, of course, Mandela understood that peace pro- dela defined it in the Rivonia Trial, was the lack of bitterness with cesses are premised on power – on was not a struggle against whites which he approached the task of a capacity for coercion but coupled or particular heads of state, but a negotiating a democracy and then with a deep commitment to clearly struggle ‘for’ a common justice. This the nation-building mission that defined principled goals that make enabled the emergence of a ‘broad lay ahead. This comes through in not only claims on an opponent, church’ ANC, a coalition with other philosophical terms, but was an act but offers. In Dudley Weeks’ terms opposition groups and with inter- of selflessness. He knew as he left where negative power is focused national support across ideological prison that if he did not free himself on removing power from others, boundaries. This is what opened the from bitterness, he would remain positive power offers it6. Mandela’s door for the regime to participate psychologically a prisoner. Internal strategy empowered his oppressors in the design of a polity that ended shackles would limit his capacity to to free themselves by participating apartheid, and offered a future to help free both the oppressed and in the negotiation of a new system everyone. Premising change on the their oppressors in South African and a dispensation that would elimination of particular leaders or society, perpetuating rather than protect all into the future. Coercive identity groups leaves them no fu- ending their conflict. South Africa strategies may have value for get- ture – only the options of fight or was freed in many senses because ting the attention of an adversary, Mandela and other key figures who but a long-term peace requires not had spent many decades in jail or in just its compliance, but its commit- 4 Mandela, Long Walk to Freedom, p. 604. exile framed their struggle as one of ment to any new system. Mandela 5 Mandela, Long Walk to Freedom, p. 617. 6 Dudley Weeks, The Eight Essential Steps to Conflict ‘justice for all’ rather than simply a understood that to have long-term Resolution (New York, Penguin Putnam, 1992). crude defeat of their oppressors. It is prospects as a platform for nation- www.pin-negotiation.org 17

building, closure of the difficult spectre of violent breakdown upon organization for the long struggle. As political negotiations between 1990 them, Mandela and F.W. de Klerk a philosopher, he brought wisdom to and 1993 would require responsive- rekindled negotiations. a struggle that in its closing stages ness to the fears of those conceding could have seen a collapse into power, and recognition of the cour- CONCLUSION civil war, but instead was delivered age of those making this concession. through negotiation and the ballot Mandela’s legacy of negotiation is box. He understood power dynam- Mandela’s commitment to inclusive- extraordinary – and a legacy that his ics – when to step up pressure, when ness saw the flexible accommoda- successors and wider South African to take a stand of principle, when to tion of a defiant Buthelezi at the society are struggling to live up to. offer an opponent a back door, and eleventh hour before voting in 1994. He provided principled direction for when he had enough power to lever- He responded to the fears of resist- the wider struggle; he understood age a negotiation but not a defeat of ant whites with the offer of a Truth the need to raise the temperature to an opponent. Most importantly, he and Reconciliation Commission on get the attention of his oppressor and understood and lived out a strategy the basis of a confessional amnesty, rally support to the cause; he under- of reconciliation. This cannot be done in response to fears among ele- stood and used changing conditions unless it is directed from a set of ments in the armed forces that they effectively; he was able to work the deeply held personal values. would be hung out to dry by their interfaces between his constituency References political masters, for whom they had and his enemy with integrity; and Lodge, T., 2006, Mandela: A Critical Life, enforced apartheid policies. Man- he was able to frame the negotiation Oxford: Oxford University Press, 2006. Mandela, N., 1994, Long Walk to Freedom, dela maintained reconciliatory focus process in a manner that reduced Randburg: MacDonald Purnell, 1994. when the popular leader Chris Hani resistance and offered his opposition Sparks, A., 2004, Tomorrow is Another was assassinated by right-wingers in security into the future. He moved Country: The Inside Story of South Africa’s Negotiated Revolution, Sandton: Struik a deliberate effort to polarize race flexibly between the roles of warrior– Books, 2004. relations in 1993, reminding angry activist and negotiator–conciliator. He Weeks, D., 1992, The Eight Essential Steps to Conflict Resolution, New York: Penguin black supporters that while it was a understood the importance of his role Putnam, 1992. white man who had murdered Hani, as a prisoner of principle in the wider it was a white woman who had led mobilization strategy of the ANC. As the police to his killers. With the an activist, he helped to build his 18 PIN•Points 40/2014

GUY OLIVIER FAURE THE SOUTH CHINA SEA: OPTIONS FOR NEGOTIATION

are also important because of their situation in the South China Sea, which has almost half of the world’s merchant-fleet tonnage and nearly one-third of its crude oil transit. By controlling the Spratlys and the related sea area, a country would gain an invaluable strategic position.

The Paracels are a group of around 30 small islands, sandbanks and reefs in the northern part of the South China Sea (Quan Dao Hoang Sa in Vietnamese and Xisha Qundao in Chinese). This archipelago lies roughly 200 miles equidistant from With the Spratly and the Paracel have to desist from the conflict and the Vietnamese and Chinese coast- Islands, the South China Sea offers engage in a cooperation where the lines. The Paracels are not inhabited a huge potential for resources to effects should be extremely positive. on a permanent basis, but have a be shared and, as a consequence, This article deals with the complexi- potential for oil and gas develop- for future cooperation. At the same ties of the dispute and the ways to- ment. Their surrounding waters are time, the important number of wards a possible cooperation. particularly rich in fishing resources. stakeholders and their relative pow- Sovereignty over the Paracels has er asymmetry make any partnership The Spratly Islands are located never been precisely established or collaborative action extremely at the southern end of the South throughout history: Chinese cultural difficult, if not unlikely. The issue is China Sea, within the 200 nautical artefacts dating back to the Tang territorial sovereignty over a dusting miles exclusive economic zones of Dynasty have been found off the Xi- of islands and reefs, not only for Vietnam, the Philippines, Malaysia sha Islands; and during the fifteenth what they are physically, but mainly and Brunei, and within the extended century the Vietnamese established for the importance of their potential territorial claims of China, Taiwan commercial activities such as fishing natural resources and for their stra- and Vietnam. Their potential to be on the Hoang Sa (Golden Sandbank) tegic position. The wealth that they the cause of World War III has been Islands, although Vietnamese fisher- represent tremendously increases seriously considered by international men had probably already harvested the competition to possess them, relations experts such as Samuel these seas for centuries. The Para- and the more that this wealth goes Huntington. The Spratly Islands con- cels are claimed by China (the PRC), from virtual to tangible, the more sist of over 700 islets, coral reefs, Vietnam and Taiwan. Before the conflict is aggravated between some cays and sea mounts that are spread Second World War, the islands were of the region’s countries. The fact over 425,000 sq km of sea, but the part of French Indochina and served that one of the parties to the current total land area is no more than 4 sq as a weather station. During the war dispute, China, weighs more alone km. The Spratly Islands have con- they were occupied by Japan but than all the others put together does siderable natural resources: oil; gas; returned to France, then transferred not invite trust, but rather generates and seafood. Oil and gas reserves to the newly independent South Vi- a growing fear. However, at a certain in the region are estimated at 17.7 etnam. The South Vietnamese kept stage, all of the countries that are billion tons, thus more than Kuwait’s the weather station and maintained directly or indirectly involved will or Qatar’s reserves. These islands a small garrison there until 1974, www.pin-negotiation.org 19

when they were attacked and driven ing China, Vietnam, the Philippines, the South China Sea and its islands. out by Chinese armed forces who Malaysia, Taiwan and Brunei, and This position has been held by the have remained there ever since. because it addresses overlapping Chinese government as being based Nowadays, China has established an areas of claimed rights. on historical facts and international administrative centre on the largest law. Nowadays, China is asserting its island, Woody Island, and has put all China maintains that the islands, sovereignty over the Spratlys through of the Paracels under the adminis- which it calls the Nansha Islands, an intensified presence at sea, with trative authority of China’s province were discovered by Chinese naviga- both naval and paramilitary fleets of of Hainan. tors during the Han dynasty in the vessels. third century AD, used by Chinese Map of the South China Sea fishermen for centuries, were labelled Other stakeholders, however, con- tend that China’s historical claim to the islands is weak, and particularly the undefined ‘nine-dotted line’ claim (because of its design, this is also sometimes called the ‘U-shaped line’ or the ‘cow’s tongue line’.) As shown on a Chinese map issued in 1947, which depicts dotted lines made of nine segments, this delimitation line is not continuous, and includes most of the region’s islands and also areas such as Natuna archipelago, which other nations do not generally consider to be in the South China Sea. China’s underlying claim is ambiguous and thus strongly contested. China’s strong military presence has furthermore made it a key player in the Spratly Islands disputes.

Vietnam contends that Chinese records on Qianli Changsha and Wanli Shitang are in fact records about non-Chinese territories. The Chinese records do not constitute a declaration and exercise of sovereignty, and China did not declare sovereignty over the Spratlys until after the Second World War. In Vietnam’s understanding of international law, a state must effectively occupy a terra nullius (land belonging to no one) Source: China Tourist Maps, available at http://www.chinatouristmaps.com/china-maps/china- to express valid claims. Vietnam ar- sea-maps/south-china-sea-map.html. gues that it has occupied the Spratly and Paracel Islands since at least AN UNCLEAR AND as Chinese territory during the Yuan the sixteenth century, when they TURBULENT HISTORY dynasty (in the thirteenth century) were not under the sovereignty of and have been under the administra- any state, and that it exercised sov- The Spratly Islands form a much tion of China since the fifteenth cen- ereignty over the two archipelagos more complicated case, because it tury. As a result, China contends that continuously and peacefully until involves many stakeholders, includ- it has indisputable sovereignty over they were invaded by the Chinese 20 PIN•Points 40/2014

armed forces. Vietnam currently occupies 31 In 1956, a private Filipino citizen, islands, which are organized as a Tomas Cloma, unilaterally declared district of Khanh Hoa Province. In a state on 53 features in the South July 2012, Vietnam’s National As- China Sea, calling it ‘Freedomland’. sembly passed a law demarcating As Taiwan moved to occupy the main Vietnamese sea borders to include island in response, Cloma sold his the Spratly and Paracel Islands. In claim to the Philippines’ government, 1974, while taking over the Paracel which annexed de jure the islands Islands from South Vietnam, China in 1978 as part of the Philippines’ claimed most of the islands of the territory, calling them Kalayaan. South China Sea, including the Since 2013, the Philippines has filed Spratlys. In 1975 after the reunifica- a number of diplomatic protests to tion of Vietnam, Vietnamese forces Chinese actions concerning what occupied several of the Spratlys that they label as the West Philippines had previously been administered Sea, including the establishment of by South Vietnam. China responded a new city to administer almost all of by sending troops to seize the Viet- the disputed territories. The Philip- namese Spratlys in 1976. Then, in pines refuses to stamp new Chinese 1988, China and Vietnam engaged passports that include maps of the in the first naval battle, whereby questionable nine-dotted line shown 70 sailors were killed in the stand- as Chinese territory, and Vietnam off at Johnson Reef and a number has joined the Philippines in this of small Vietnamese boats were refusal. Moreover, the Philippines sunk. The intermittent war over the has a mutual defence pact with the Spratlys continued: in 1992, China United States that could strengthen seized twenty Vietnamese cargo its position if the conflict escalates. ships heading to the Spratlys from Hong Kong; and in 1994, China and Taiwan, another major party to the Vietnam had another standoff over a disputes, has a position quite similar section of international waters that to that of China and claims all of appeared to have a significant un- the islands in the Spratly region. dersea oil reserve. In the meantime, Since 1956, Taiwan has maintained Vietnam made several concessions a garrison on the largest island, Itu to Indonesia and Malaysia to settle Aba. Like China, its claims to the territorial disputes over the southern Spratlys is based on its affirmation Spratlys. that the islands were discovered by Chinese navigators, used by Chinese The Philippines contends that fishermen for centuries, and have these islands were terra nullius, as been under the administration of there was no effective sovereignty China since the fifteenth century. over them until the 1930s when Later, the Kuomintang sent a naval France and then Japan took pos- expedition to the islands and took session. After the Second World formal possession in 1946. Taiwan War, when Japan also renounced thus believes that the islands belong sovereignty under the terms of the to Taiwan and not to the PRC. Its San Francisco Treaty, no specific main concern besides sovereignty beneficiary was mentioned as - tak is also that China alone, or China ing over. Therefore, the Philippines and Vietnam together, might gain a argues that the Spratly Islands be- monopoly over the South China Sea. came terra nullius and available for annexation. www.pin-negotiation.org 21

Map of Competing Claims in the Brunei claims the Louisa Reef in the been led to reconsider radically its South China Sea Spratly region, close to its coastline. policy of disengagement, and this Brunei’s position is also based on the new trend has been accelerated by Law of the Sea. It states that the the Senkaku/Diaoyu Islands dispute. southern part of the Spratlys is actually part of its continental shelf and Many members of the Association of therefore belongs to its territory. South-East Asian Nations (ASEAN) Brunei has only recently involved are directly involved in the current itself in the Spratly disputes. disputes. They are strongly concerned about what they perceive as The United States has the issue US indecisiveness, lack of interest, of freedom of navigation among its hesitancy, self-restraint, or its timid priorities. The South China Sea is a attitude with regard to the PRC’s strategic corridor, through which oil tactical moves. They tend to feel and many other vital resources flow that the US is not doing enough to from the Middle East and South-East counterbalance China’s growing as- Asia to Japan, Korea and China. The sertive power. Most ASEAN members freedom and safety of navigation are anxious about the US adminis- are crucial concerns for the United tration’s quick acceptance of China’s States, as US Navy and Air Force decision to set up a new Air Defence military bases in East Asia and the Identification Zone between China Indian Ocean are connected through and Japan, which could one day be the South China Sea. In August extended to South-East Asia. Wash- 2012, the US Senate voted for a ington even alerted US commercial resolution declaring that China’s airlines to comply in order to avoid recent actions to impose its control accidents, although the US Air Force unilaterally on the disputed parts of has not been asked to do so. Korea the South China Sea ‘are contrary to and Japan have refused to submit to agreed upon principles with regard this new unilateral rule. to resolving disputes and impede a peaceful resolution’. The US has Russia, after the Soviet Union’s

Source: Nam Viet News, available a ‘national interest in the mainte- disintegration, did not maintain a online at http://namvietnews.wordpress. nance of peace and stability, respect major influence in the South-East com/chinas-rise-is-a-big-reason-to- for international law, freedom of Asia–Pacific region, while still sup- ratify-the-law-of-the-sea-convention/ refuting-chinas-nine-dash-claim/. navigation, and unimpeded lawful porting Vietnam’s claims against commerce in the South China Sea’. China. Although Sino–Russian ties A GROWING NUMBER OF The US does not, however, take a are deepening, at least when facing STAKEHOLDERS position on territorial claims, but the United States, Russia has softly presses all of the parties to clarify but persistently disapproved of Malaysia claims three islands and and pursue their claims in accord- Chinese encroachments and is now four rock groups among the Spratly ance with international law. forging a deeper military–political Islands, and has been involved in relationship with Vietnam. In 2012, the disputes since 1979. It cur- Japan, similarly to the United Russia announced its interest in rently has control over three of the States, has a vested interest in the regaining a naval base at Cam Ranh islands. Malaysia’s case is based on resolution of the Spratly disputes Bay in Vietnam, to facilitate its mari- the fact that the islands are part of because of the shipping lanes, time energy projects and probably its continental shelf, which under which supply Japan with 70 per cent to maintain a better check on China. the Law of the Sea Convention gives of its imports from the Middle East. Russia is also helping Vietnam to it rights to the islands. Malaysia was Moreover, Japanese companies are build a submarine base. In return, also the earliest oil operator in the involved in exploration projects for China has repeatedly asked Moscow South China Sea. potential resources in the disputed to stop oil and gas explorations in region. Japan has thus recently the South China Sea. 22 PIN•Points 40/2014

Map showing Occupation of the Spratly Islands thus wrapping up the island like the leaves of a cabbage. Deprived of ways to get basic supplies, the former occupiers have to abandon the island, and – with so many layers of security around it – will not find it easy to come back.

The Philippines has accused China of building up a massive military presence in the Spratlys. In early 2012, the Philippines and China engaged in a maritime stand-off, with each accusing the other of intrusions in the Scarborough Shoal. Chinese and Philippine vessels refused to leave the area for a number of weeks, leading to harsh rhetoric. In July 2012, China formally created the city of Sansha, an administrative body with its headquarters in the Paracels, which was meant to control the Para- cels and the Spratlys. Both Vietnam and the Philippines protested against this initiative. China has also signed contracts with foreign companies to explore energy resources in the

Source: GlobalSecurity.org, available online at http://www.globalsecurity.org/jhtml/jframe. disputed waters and has conducted html#http://www.globalsecurity.org/military/world/war/images/spratmap.gif%7c%7c%7c. military exercises in the Spratly area as a display of strength, thus generat- ing an even more negative image of PLAYING POWER ASYMMETRY China. The soaring Chinese military budget and the modernization of the Since the 1980s, most of the dis- PRC’s naval fleet and air force have puting parties have engaged in spread considerable anxiety in the a race to back up their claims to region, especially with the new Y-20 sovereignty by occupying some of transport aircraft and the J-20 and the islands or by placing landmarks. J-31 stealth fighters. China now has According to their circumstances, the world’s second-highest military parties have even built structures on budget behind the United States. rocks that are sometimes completely The Philippines has warned China submerged at high tide, thus trying that it will take the dispute over the to maintain a physical presence on Spratly Islands to the International these islets. On other occasions, Tribunal on the Law of the Sea (IT- a major player such as China has LOS) in an attempt to limit the con- played asymmetrically by resort- tested area. China has rejected this ing to so-called ‘cabbage strategy’, arbitration principle, but the Philip- which consists of surrounding the pines has nevertheless declared that contested islands with a huge it will still take the case to the ITLOS. number of vessels such as fishing Vietnam has joined the Philippines on boats, marine surveillance ships, this issue. administration ships and warships, www.pin-negotiation.org 23

South-East Asian parties are not US economic and strategic interests. of hawkish actions and speeches is united regarding the sovereignty While demonstrating a renewed part of Beijing’s ‘good cop–bad cop’ issue, but they are trying to build a concern for what is going on in this tactical ploy to influence diplomatic common front, at least in order to part of the world, the United States negotiations over the disputed ter- minimize the size of the contested has never clearly defined what its ritory. The so-called ‘salami tactics’ area and thus increase their lever- vital interests are. It is expected that China tests on the other parties age. However, while maintaining a that when the ‘rebalancing’ of forces through aggressive actions, then common position gives the South- from the Atlantic to the Pacific is backing off when it meets significant East Asian claimants a legal and dip- complete, 60 per cent of US military resistance, are typical illustrations. lomatic advantage over China, these assets, including the Navy, will be Furthermore, China’s ambiguity on countries have few concrete means based in the region – a 10 per cent the extent and nature of its claims to oppose China’s moves. One way increase from current levels. Bei- might be another tactical ploy to to compensate for this weakness jing strongly objects to this ‘pivot’ avoid having to come to an agree- is to get the United States involved strategy, stating that it makes China ment before it is strong enough to in the disputes, but China strongly bound to take parallel initiatives. get what it wants by force through objects to such an initiative. Having also read its Clausewitz, the fait accompli. Chinese government knows well that US INVOLVEMENT concentration of forces is usually a Other analysts stress that sover- determining variable and it therefore eignty is a particularly sensitive On the issue of sovereignty, the maintains its military growth policy. issue for the Chinese government United States has no particular in- in the current political period and terest in the contested islands, but STRATEGIC FUZZINESS requires domestic consensus. The this is not the case for the issue of various decision centres, such as rights over the maritime space. The China has never stated precisely and China’s Ministry of Foreign Affairs, US considers China’s interpretation officially what the ‘nine-dotted line’ the State Oceanic Administration, of the freedom of navigation in an means, the extent of its claims in the the People’s Liberation Army and exclusive economic zone to be far South China Sea, and what rights it the military–industrial complex, more restrictive than the US inter- claims within the disputed areas. have diverging objectives. Within pretation. However, as the US has China’s lack of transparency makes these constraints, the priority is to not signed the Convention of the the current situation most uncom- maintain a stable environment that Law of the Sea, it does not have fortable for all the countries in the is propitious to China’s economic such a strong legal basis to discuss maritime region, and for the United development. China’s strategy is still international maritime rights. The States. Even Singapore, which is not focused on continental defence. Chi- United States has, however, restated a party to the disputes, has urged nese initiatives in the South China its commitment to defending the China to clarify its claims regarding Sea area should be seen as primarily Philippines and has developed its the current ambiguity. defensive and as serving a delaying links with Vietnam. purpose, thus keeping China’s op- Since 2002, the Chinese decision- tions open. In its new strategy of regional as- making system and international sertiveness, some Chinese official moves have been more and more The South China Sea disputes may voices have questioned Japan’s sov- difficult to understand and any possibly not be solved without ad- ereignty over the island of Okinawa, global trend harder to infer. Some dressing the other maritime disputes which is home to 25,000 US troops. analysts of China’s strategy and in the East China Sea and the Yellow The latest session of the Shangri-La tactics regarding the Spratly Islands Sea. For over half a century, China dialogue in Singapore has shown tend to think that given China’s has been the target of a policy of that there is thunder in the air and limited capability to take and hold geostrategic containment that aims that the point is nothing less than so many islands, the current pat- to limit its ambitions in the region. a security issue. The current trend tern of implementing hot-and-cold China still strongly resents being en- therefore explains the new American tactics is meant to throw the other circled. Such a perception might make military and diplomatic ‘pivot’ or ‘re- contenders off balance until China is these maritime border disputes more balance’ towards the Asia–Pacific re- able to enforce its claim through in- difficult to settle because of these gion, which is intended to meet vital timidation or force. The emergence underlying strategic considerations. 24 PIN•Points 40/2014

Major Trade Flows of Liquefied Natural Gas (LNG) in the South disputes have far-reaching implica- China Sea, 2011 tions. Resolution of these disputes would not only impact upon the dis- tribution of sovereignty and exploration rights, but would also affect the magnitude of future economic cooperation and security issues.

Some negotiation attempts have already been made. In 1992, an ASEAN declaration, endorsed by China, underlined that Spratly- related territorial disputes would only be resolved by peaceful means. In 2002, China and the members of ASEAN signed the ‘Declaration on the Conduct of Parties in the South China Sea’, which aims ‘to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned’.

Recent events show that Vietnam and China have clearly failed to stick to the agreement. Further- more, ASEAN’s latest attempts to discuss new options for resolving the disputes appear to have left the coalition still divided. No accord Source: US Energy Information Administration; PFC Energy, available online at http://www.eia. gov/countries/regions-topics.cfm?fips=scs. on the thorny issue of sovereignty had been reached at the end of the discussions. However, the various Ultimately, with regard to US– OPTIONS FOR PEACE AND parties agreed to send a scientific China relations, in the case of a COOPERATION team to the disputed islands to as- crisis, either side might believe sess their resource potential and that displaying and possibly us- All the countries that are part of the environmental conditions, which is ing its conventional forces would Asia–Pacific region face the same already a first step towards more confer bargaining leverage. One dilemma. Asian countries depend on cooperation. could play on the other side’s fear China’s economic development, but of escalation, thus illustrating the they seek security aid from the US. To resolve disputes and regulate Schelling formula of competition in This ‘Asia paradox’ has led to the fol- issues, the United Nations adopted risk-taking. If each of the parties lowing reality: countries of the region the Law of the Sea Convention (UN- values more what is at stake than are developing closer economic links, CLOS) in 1982. The UNCLOS aims to the other, it might be willing to while political conflicts among them establish coastal boundaries, erect tolerate a higher level of risk. The have been increasing, especially be- an International Seabed Authority region might thus be heading for an tween China and its neighbours. to regulate seabed exploration that open confrontation. is not within territorial claims, and Even if it does not lead to a Third to distribute revenue from regu- World War, the Spratly Islands lated exploration. The UNCLOS also www.pin-negotiation.org 25

contains parameters for a country’s negotiations. China has systemati- jointly develop the resources with continental shelf (article 77). The cally tended to favour bilateral nego- China through bilateral discussions. continental shelf is defined as the tiations on the Spratly Islands’ issue, Strategically, the absence of a set- underwater portion of a country’s whereas the other countries have tlement gives China, as the party coastal land mass, including the pushed for multilateral negotiations with overwhelming hard and soft seabed as well as the subsoil of the or international mediation. History power, growing prospects to assert shelf. The deep ocean floor, however, plays a major part in Chinese and its control over the situation. is not considered part of a country’s Vietnamese cultures, much beyond continental shelf. legal considerations, and as a result An essential strategic dimension of the existence of the UNCLOS has not China’s approach is to maximize the In another domain, the UNCLOS deterred these two countries from size of the contested area. China’s confirms that all ships should be sticking to their historical claims. puzzling ‘nine-dotted line’ cov- given the right to conduct innocent ers most of the South China Sea. passage (unarmed, with no unload- The dispute over the Paracels and China’s recent interventions against ing of goods or people, etc.) on all the water rights attached to them is the Philippines at the Reed Bank territorial sea beds (Part II, Section a bilateral matter between China and and against Vietnam’s survey ships 3, Subsection A, Articles 17–19). Vietnam, and bilateral negotiations were conducted close to the Philip- Ships are allowed within twelve nau- should obviously be the appropriate pine and Vietnamese coasts. Given tical miles of the coast of a country, procedure. Likewise, the dispute over its overwhelming strength, China is as long as they are not a threat to Scarborough Shoal and its waters likely to ensure that its own inter- that country’s national security. The is a bilateral matter between China ests prevail. Facing the ‘divide and third important part of the UNCLOS and the Philippines, and could be re- conquer’ Chinese strategy that is is Part VI, which provides backing solved in a similar way. The Spratlys implemented through bilateral talks, to claims from Brunei, Malaysia and and their related waters are claimed the South-East Asian claimants are the Philippines, as it stipulates that wholly or partly by Brunei, Malaysia, at least trying to minimize the size of justification is based on proximity, the Philippines, Vietnam, Taiwan the maritime territory at stake. not history. Therefore, in the case and China, and these disputes are of arbitration, China’s, Taiwan’s and therefore of a multilateral nature. As The Chinese ‘cabbage strategy’ – Vietnam’s historical claims would not such, the resolution of the Spratly with its repeated incursions in con- have a very solid legal ground. Islands’ disputes requires a multi- tested areas – is enacted through lateral mechanism involving all the ‘salami tactics’. Each one of its moves The International Court of Justice claimants. However, Chinese experts is not supposed to trigger a dramatic (ICJ) could also serve as a channel believe that there are hardly any reaction that could turn into an open to resolve the Spratly-related dis- grounds in international law for mul- conflict. What happens is an endur- putes. In order for the ICJ to hear tilateral solutions to such disputes. ing nibbling process, which still has a case, however, all disputants must Furthermore, according to them, heavy consequences in the long previously agree to ICJ arbitration. if these disputes had to be settled run. Furthermore, if an open conflict China has repeatedly refused to take multilaterally with the involvement erupts, the responsibility is easily this conflict-resolution route, given of parties not directly concerned (in placed on the counterpart. that its territorial claims far exceed this case the US), it would only lead anything established in existing in- to chaos in the fragile international From a geopolitical point of view, ternational maritime law. order. if the South China Sea becomes dominated by China, or if South- The extent of the Chinese claims, It is also important to know what East Asian countries fall under with the fuzzy ‘nine-dotted line’ China means by ‘negotiating’ and Chinese dominance, there would be limitation that includes waters not how broad the scope of the discus- significant effects on the balance of considered by others to be in the sions can be. China’s starting posi- power in the Western Pacific. This South China Sea, nurtures a high tion is not to negotiate on the issue would raise high concerns from degree of confusion and anxiety. of sovereignty, but rather to press other major powers such as the US, This generates tensions and insta- for the following approach: first to Japan and even India. Given the bility in the region, but also leaves accept that sovereignty belongs to nature and complexity of the current enough room for flexibility in future China; and then the claimants could situation and the actual balance of 26 PIN•Points 40/2014

power, no legal procedure seems to the South China Sea Annual Informal principles of the Law of the Sea could be able to lead to a global accord. Meetings, which are held in Indone- be reached through negotiations. China’s ratification of the Law of the sia on managing potential conflicts in The prerequisite, however, is enough Sea Convention was simultaneously the South China Sea. Initiated in Bali political will on all sides. Perhaps the completed by a special provision on in 1990, these meetings have been current mutually hurting stalemate is the South China Sea’s maritime do- attended by government officials in not hurting enough to push the par- main, which is a most unusual prac- their private capacities. Technical ties to a more conciliatory attitude. tice in international negotiations. This experts have worked on aspects of However, if the situation escalates provision states that ‘this law shall not maritime cooperation, security and into a military confrontation, all par- affect the historical rights that China resource development in the South ties’ interests would be hurt, since enjoys’, making any agreement-to-be China Sea. Representatives from both the political and economic costs of political and thus most unlikely. Ris- China and Taiwan have participated war would be higher than any single ing nationalism will render it difficult since 1991, at least maintaining a party is currently willing or able to to find sufficient political support for dialogue, although the outcome has bear. Furthermore, relations in the the necessary painful compromises on so far been far from convincing. region are generally cooperative and sensitive issues such as sovereignty. everyone benefits from this context. The situation may simply not be ripe The creation of a Joint Resource The establishment of an overall for resolution. No evidence exists that Development Authority has been multilateral organization in charge of the parties are ready to meet at the strongly suggested by Chinese rep- managing resource exploration and negotiation table, given the ongoing resentatives. However, the Chinese exploitation in the Spratly Islands’ political situation in China and further- concept of ‘joint resource develop- region could be negotiated as a first more the need to focus on other more ment’ is understood as bilateral and enticing step towards a broader urgent problems. The best hope un- cooperation in disputed areas, while agreement that moves away from the der the present circumstances may be ASEAN claimants still insist on a mul- zero-sum game that is the current that any future disputes do not elicit a tilateral joint development format. framing. The likelihood of conflict in violent confrontation as has happened the South China Sea would then, at in the past. Providing that China, Taiwan and Viet- least, be drastically reduced. nam leave aside their ‘historical’ claim Informal tools may be used to explore to the maritime territory, a political ways to limited settlements, such as settlement based on the underlying

NEW BOOK PROJECT ON FOCAL POINTS As introduced elsewhere in this issue, PIN launches its new book project this September with a conference at CIRC in Denmark. Convenor of this project is Rudolf Schüssler. Two other projects have reached the end phase and are close to being published. Bill Zartman’s Arab Spring project is expected to be published late this year under the title: Intifadat: Negotiations under the shadow of social movements. Also scheduled for publication this year is the book edited by Mark Anstey and Valerie Rosoux on reconciliation (for more information, please see the announcement in this PINPoints).

PIN NEWS 2014 CLINGENDAEL POLICY BRIEFS PIN has started publishing Clingendael policy briefs. In principal two are scheduled per year. The first one has appeared in March and was written by professor Zartman about policy options for several Arab spring countries (Tunisia, Morocco, Egypt and Syria). Still planned for this year are a policy brief about necessary negotiations skills for weapon inspectors and the role of justice in international negotiations.

TIM MASSELINK The PIN team at Clingendael has been strengthened with the addition of Tim Masselink. Tim is an organisation psychologist by training. Before joining Clingendael he worked on EU affairs for the Dutch Ministry of Economic Affairs. Within the Academy he is responsible for intercultural communication and EU affairs training. Tim is also an accomplished negotiation trainer, especially on negotiation behaviour. www.pin-negotiation.org 27

INTERNATIONAL SKILLS TRAINING

International Skills Training helps professionals from government, business and other organisations, working in highly political sensitive environments, to better manage their interests. Skills Training provides a personal approach that helps professionals find their own answers to the new demands placed on them by the changing international environment. Professionals increasingly need to become T-Shaped [a term coined by Stanford University]. Professionals have to combine in-depth knowledge of a certain topic with broad social and communication skills to be able to be flexible in different circumstances. International Skills Training programmes at Clingendael help you to become T-Shaped for international environments. Our approach is based on the idea that in order to reach your goals effectively in a complex international setting you need to:

• Know the environment in which you operate; • Analyse the context of the situation; • Know your personal skills; • Know how to combine these three factors successfully.

We strongly believe that it is important to know the context and the environment in which you work, but it is equally important to know what makes you effective in reaching your goals in specific settings, because in the end, it is you who makes the deals.

Would you like to know more about Clingendael International Skills Training? Please visit cllingendael.nl/ academy for more information and an overview of the courses 28 PIN•Points 40/2014

MIKHAIL TROITSKIY THE SINO–RUSSIAN PIVOT AND AMERICAN POWER

The ties between China and Russia plicitly disagreed with that argument threats. According to Blank, this have recently been receiving in- by criticizing the Obama administra- imposes clear limits on the Sino–Rus- creased attention from international tion for its overzealous attempts to sian rapprochement, even if Moscow analysts against the backdrop of a reassure China in the aftermath of never publicly admits to harbouring crisis in Moscow’s relations with the the Crimean crisis. Arguing that Rus- such concerns5. Blank sided with West. Russia’s apparent readiness to sia has few bargaining chips to woo another expert on Russian foreign rupture its relationship with the Eu- China and that Washington went policy, Jeffrey Mankoff, who called ropean Union and the United States too far in positing similarity of inter- Sino–Russian cooperation ‘mostly over Ukraine can only be explained ests between China and the United tactical’. Mankoff explained: by Moscow’s hopes to compensate States, Charap and Ratner consid- for these losses by upgrading its ered Obama’s intensive outreach to The two countries approach relations with Beijing. Russia expects China in early 2014 an overreaction2. the world from quite different such an upgrade to involve both in- vantage points. China is a rising creased trade and mutual investment A far more numerous group of astute power, with a fast-growing, with China and enhanced coopera- US observers pushed that argument export-driven economy eager tion in the field of security. further, by suggesting that the Sino– to benefit from globalization. Russian rapprochement has always Russia is a stagnating petro-state DEBATING THE ‘MYTH’ been transactional and that there is seeking to insulate itself from no way for it to evolve into a mean- the forces of change. Moscow American pundits have long been dis- ingful strategic alliance. Washington touts its partnership with Beijing cussing the prospects for Sino–Rus- analyst and long-time observer of mostly to prove to the rest of the sian partnership. Dmitri Simes and Russia Andrew Kuchins called such world that Russia still matters, Leslie Gelb expressed grave concerns an alliance ‘a myth’3. Kuchins used while China views it as a low-cost about the possibility of a full-fledged this term as a title for his review of way of placating Russia 6. Sino–Russian alliance. They called on a monograph by Australian–British the United States to prevent it from international affairs expert Bobo Lo, All of these (and many other) authors materializing and warned against ‘tri- who, in his turn, characterized the have pointed out that China puts angular diplomacy’ whereby ‘Moscow Sino–Russian relationship as merely enormous value into its economic and Beijing could dangle the prospect an ‘axis of convenience’4. engagement with the United States. of a potential alliance or ad hoc coop- Indeed, the availability of the US erative arrangement with the other More recently, US Army War College market and investment capital has to gain leverage over Washington’1. Professor Stephen Blank argued that, fuelled China’s economic growth over for Russia, China’s growing power the last two and a half decades. Ac- Samuel Charap and Ely Ratner im- overshadows all other strategic cording to this viewpoint, Beijing will be hedging its bets when considering participation in any anti-US activity, 1 Leslie H. Gelb and Dmitri K. Simes, ‘Beware Collusion of China, Russia’, The National Interest, July/August and will certainly turn down any pro- 2013, http://nationalinterest.org/article/beware-collusion-china-russia-8640. posals for direct confrontation with 2 Samuel Charap and Ely Ratner, ‘China: Neither Ally nor Enemy on Russia’, The National Interest, 2 April 2014, http://nationalinterest.org/commentary/china-neither-ally-nor-enemy-russia-10168. the United States. 3 Andrew Kuchins, ‘Sino-Russian Myths’, Survival, vol. 51, no. 5, November/December 2009, pp. 185–192. 4 Bobo Lo, Axis of Convenience: Moscow, Beijing, and the New Geopolitics (London: Chatham House; and Washington, DC: Brookings Institution Press, 2008). However, while containing many 5 Stephen Blank, ‘The Context of Russo-Chinese Military Relations’, American Foreign Policy Interests: The useful indicators and highlighting Journal of the National Committee on American Foreign Policy, vol. 35, no. 5, October 2013, pp. 243–253. important trends, these analyses do 6 Jeffrey Mankoff, ‘The Wary Chinese–Russian Partnership’, The New York Times, 11 July 2013, available online at http://www.nytimes.com/2013/07/12/opinion/global/the-wary-chinese-russian-partnership.html. not fully capture the salience of the www.pin-negotiation.org 29

key factors shaping the Sino–Rus- sian partnership. These are not only common perceptions of international security challenges, but also procedures, including negotiating routines, that largely determine the proximity of Moscow and Beijing in the international arena. This proximity cannot be explained by classical realist-style concepts that have difficulty accounting for the issue of mutual trust that is embedded in the procedures of engagement. The realist perspective also underestimates the impact of the low-intensity yet persistent commonality of strategic aspirations of two or more states. In the case of China and Russia, the common aspiration is balancing US power on the global scale – a goal that serves not only as a driver of the Sino–Rus- sian partnership, but also as a useful means of mutual reassurance for Moscow and Beijing.

MITIGATING ‘DEMOCRATIC UNPREDICTABILITY’

There are a number of important ways in which the processes of Rus- sia’s relations with the United States are different from those underlying sia formally remains a democracy, set to remain in place in the medium Sino–Russian relations. First, there is elections with unpredictable results to long term. This clearly pertains to little or no policy-making uncertainty have not been held there since 2000. the largest oil and gas companies – generated by electoral cycles in the The presidential term was extended Rosneft and Gazprom in Russia, and two countries, so both sides believe in 2011 to six years, with Vladimir CNPC and Sinopec in China – as well that they are not susceptible to the Putin having started his first term (in as the biggest state-controlled banks negative consequences of such cy- the current sequence) in 2012. Given in both countries7. cles. In post-Mao China, top national Putin’s high approval ratings, which leadership has been changing once have never fallen below 60 per cent, Second, there are no serious two- a decade. This has been happening it would be a safe bet to predict that level games in Chinese and Russian not through free and competitive he will remain the dominant figure in politics. Foreign policy-making in elections, but rather as a result of Russian politics at least until 2018 or, both countries seems almost unaf- an intricate bureaucratic selection if he so chooses, until 2024. The low fected by competition for influence and promotion process and a shared risk of change in political leadership among branches of government and understanding among the Chinese implies that the high-ranking bureau- a variety of non-state actors. This is political elite of the inviolability of the crats surrounding the top political a result of the substantial concentra- informal two five-year terms’ limit on leaders – both in the government tion of power in the hands of the the chairman’s tenure. Although Rus- and major state corporations – are executive branch in both Beijing and Moscow. Despite the presence of constraints on presidential authority in 7 Mikhail Troitskiy, ‘The Building and Unraveling of Security Communities’, Carnegie Europe Blog, 7 July 2013, available at http://carnegieeurope.eu/2013/07/09/building-and-unraveling-of-security-communities/gdzg. the Russian Constitution and formally 30 PIN•Points 40/2014

ity in US politics and economic policy caused by the inability of the US president and Congress to find mutually acceptable compromises on the debt ceiling, taxation, free trade and a number of foreign policy issues.

There is also, however, usually high unpredictability of decision-making in unbalanced and monopolized political systems. It arises first and foremost from the whims of uncon- strained leaders, which in the long democratic elections to the lower of the US political system. Both run bodes ill for both the system and chamber of Russia’s parliament, the Russian and Chinese leaders have its counterparts. Politics in unbal- actual control over parliament by the repeatedly complained about the un- anced systems is usually opaque: un- pro-Kremlin party eliminates all risks predictability of policy-making in the accountable leaders often indulge in of legislative opposition to presi- United States that arises from both ideational constructs or manipulative dential foreign policy (or any other) the regular change of elected officials instincts, little information is pub- initiatives. Business communities in and bargaining – indeed sometimes licly released, and informal tasking is Russia and China strongly depend on an all-out tug-of-war – between the widespread. As a result, virtually no the regulatory power and goodwill of executive and legislative branches one outside the government can ex- their government and have limited of government. Moscow has claimed plain or predict the course of action avenues for effective lobbying in the that only Congressional guarantees of the country in question. Indeed, it parliament. As a result, leadership in could alleviate Russia’s concerns can be argued that the main adhe- both countries appears unhindered about US missile defence projects. sive force keeping security alliances in making grand foreign-policy Senior members of the Russian gov- and security communities together decisions, such as the annexation ernment routinely criticize the United derives from the mutual transpar- of Crimea, a move that almost cer- States for refusing to honour Wash- ency of decision-making in member tainly aroused widespread (if muted) ington’s purported commitment not countries. It is not necessary – and concern and discontent among the to enlarge NATO after the end of the in many cases is detrimental – for the Russian business community, which Cold War. Even if such a commitment decision-making procedures to be ultimately has to pay the price of had in some form been extended to transparent to those outside the alli- sanctions imposed on Russia by the Mikhail Gorbachev by the George ance or community. But the ‘insiders’ West. H.W. Bush administration some time are only fully reassured of mutually in 1989 or 1990, the subsequent benign intentions when they have a The absence of the ‘election factor’ Clinton administration would not satisfactory grasp of the motivations and struggle for policy-making roles have wanted to accept any respon- and processes behind major foreign among government bodies in Mos- sibility for these promises. In their policy decisions in the counterpart cow and Beijing are in sharp contrast turn, Chinese commentators have a country. with the principal operational modes long record of deriding dysfunctional- Having declared their common intention to counterbalance the United 8 See Russian–Chinese Joint Declaration on a Multi-polar World and the Establishment of a New International 8 Order, adopted in Moscow on 23 April 1997, available online at http://www.fas.org/news/russia/1997/a52-- States in 1997 , Moscow and Beijing 153en.htm. have remained markedly sensitive 9 For example, former US Treasury Secretary Henry Paulson recalled receiving information in the aftermath of the August 2008 war in Georgia about Russia’s proposal to Beijing to begin massively selling US Treasury to the possibility of the other side’s bonds in the hope of unravelling the US financial system, which was already under stress by late 2008. See foreign policy priorities being revised. Henry Paulson, On the Brink: Inside the Race to Stop the Collapse of the Global Financial System (New York, In 2009–2011, China was eyeing the NY: Business Plus, 2011), p. 161. 10 Minxin Pei, ‘How China and American See Each Other and Why They Are on a Collision Course’, Foreign US–Russia ‘reset’ with significant Affairs, March/April 2014, available online at http://www.foreignaffairs.com/articles/140755/minxin-pei/how- concern. Beijing mistrusted Dmitry china-and-america-see-each-other. 11 ‘Address by the President of the Russian Federation Vladimir Putin to the Federal Assembly’, 18 March 2014, Medvedev as he pursued ‘reset’ with available at http://eng.kremlin.ru/news/6889. the US in his capacity as Russian www.pin-negotiation.org 31

president; China clearly preferred to indeed occurs, it is happening behind community firmly believes that US believe that Vladimir Putin was the the scenes with hardly any evidence policy in (and – possibly – also be- one really calling the shots in Moscow available to non-vetted observers. yond) Asia is driven by Washington’s even during Medvedev’s presidency. However, there are a number of determination to contain China10. In a similar way, the Russian leader- facts that indirectly confirm this Russian approaches are very similar, ship and mainstream experts have hypothesis. and a long list of grievances about never stopped trying to convince Russia’s treatment by the United their Chinese counterparts to side Each side clearly possesses plenty States over the past two decades unequivocally with Russia in taking of valuable information collected was presented by President Putin in on the United States, and were often by electronic and other means. It is his ‘Crimea address’ to the Russian annoyed by China’s ambiguity and also likely that the information avail- Federal Assembly in March 201411. positioning as a ‘developing nation able to one side often complements As long as the primary foreign policy with limited global ambitions’9. that available to the other. There is goal of both Moscow and Beijing no reason why at least some of this remains to balance US power on the MEANS OF REASSURANCE information cannot be shared with a global scale, the two sides will be partner that has credibly committed attracted to each other by a potent Moscow and Beijing, however, have itself to counterbalancing a com- force. Only if and when one of them undertaken to reduce unpredictabil- mon rival. Members of NATO have resolves to reconcile itself with a ity in mutual policies and ensure suf- established formal structures and world in which the United States ficient decision-making transparency procedures to exchange sensitive is the only superpower (or the US – even in the absence of formal rules information. Such sharing has always objectively ceases to be such), will – by cementing trust and undertaking remained one of the pillars of the alli- the Sino–Russian international policy a number of costly signals – meas- ance, especially during periods when coordination begin to fade away and ures that would generate significant the perception of a common outside mutual suspicions cease. This coordi- losses for one side should it try to threat was fading away (such as be- nation of balancing postures vis-à-vis rock the relationship or disturb the tween 1991 and 2014). In a similar the United States plays a key role in other side. way, information-sharing between sustaining the quasi-alliance between China and Russia could be (and very Russia and China. Over the last fifteen years, Moscow likely is) a powerful signal of mutually and Beijing have reassured each benign intent, as well as of the will- For the moment, both sides have other of the commonality of their ingness to continue down the path of credibly committed to counterbal- overarching declared foreign policy counterbalancing the United States ancing US influence despite diverg- goal: balancing the United States and its allies. This exchange both sig- ing regional aspirations – with China in the international arena. The first nifies and reinforces trust in relations focused on the maritime spaces and type of costly signals exchanged by between Moscow and Beijing. islands to the east and south, and Moscow and Beijing included rhetori- Russia on post-Soviet Eurasia. As of cal anti-Americanism and symbolic CONCLUSION June 2014, Moscow was bracing for moves vis-à-vis the US, such as ef- a frontal assault against the United forts to convince third states of the In the absence of formal collective States, accusing Washington of anti- waning influence of the United States defence commitments and despite Russian policies across the former (and the West in general) and to a number of contradictions between Soviet area, while Beijing seemed recruit these states into the counter- China and Russia, Beijing and Mos- unprepared for abrupt shocks in balancing coalition. Such rhetoric and cow are seeing eye-to-eye on the key relations with Washington. At the action have been useful as means of contemporary global issue: the role same time, China was reaping clear testing each other’s intentions and of the United States in the world. benefits from a crisis in US–Russian reaffirming mutual support. relations, as American diplomats Both China and Russia are fixated and the military were reaching out The second type of costly signals on American power – as opposed, to China in the hope of hindering between Russia and China has been for example, to their own security, Beijing’s continued rapprochement an extensive exchange of informa- which arguably can be ensured even with Moscow. tion between the sides on the topic in a world dominated by the United of mutual interests. If such exchange States. The Chinese policy-making 32 PIN•Points 40/2014

MORDECHAI (MOTI) MELAMUD TO VERIFY OR NOT TO VERIFY: A MAJOR ISSUE IN THE DEVELOPMENT OF WMD ARMS CONTROL REGIMES

As an important mechanism by stressed in the Verification Yearbook and International Studies (CSIS) which states can be assured of 2000 by VERTIC: ‘ever since the regarding the cause for a delayed the desirability and feasibility of term arms control was “invented” negotiation, ‘It’s verification, stupid’ a disarmament or arms control in the 1960s, verification has been (CSIS, 2009). Indeed, the existence regime (ACDA, 1976), the creation a vital consideration in decisions of a verification regime would be a of a verification system is one of about whether or not to negotiate substantial aid in assuring potential the foremost issues to be tackled particular treaties and how to cast treaty parties of the value of the in negotiations for an arms control them once the decision was made to regime and of other parties’ compli- treaty. It gets attention already at proceed’ (Findlay, 2000, p. 15). ‘Trust ance (or non-compliance) with it, the pre-negotiation phase. A verifi- but verify’ is thus a motto underlying thus reducing the risk of signing on cation regime is an important part many arms control treaties nego- to an agreement that would worsen of arms control treaties, functioning tiations1. Yet despite verification’s their standing; yet an incompetent as a confidence-building measure, crucial importance in arms control verification regime that might ensuring that treaty requirements regimes, verification is sometimes provide a false sense of security are actually implemented by each an impediment to the negotiation could be much more harmful than a member state, and also as a deter- of these regimes. Verification is treaty without verification. Since the rent against potential violators (But- described by Linton Brooks2 as the technical challenges for reaching the ler, 2000, p. 12). Verification assures most difficult part of negotiations, elusive ‘effective’ level of verification implementation, and assured im- as based on his experience negoti- and the differing opinions of what plementation enhances the validity ating the Strategic Arms Reduction that would actually constitute are and thereby the effectiveness of the Treaty (START)3, or, as bluntly re- daunting, verification often becomes negotiation process for a treaty. As ferred to by the Center for Strategic an impediment to the conclusion of arms control treaties.

1 This well-known expression, which was made famous by former US President Ronald Reagan (who used the phrase at the signing of the Intermediate-Range Nuclear Forces (INF) Treaty and on many other occasions), Verification is indeed a most cru- is a translation of the Russian rhymed-proverb: Доверяй, но проверяй (doveryai, no proveryai), allegedly cial element in an arms control or used by Lenin. 2 Linton F. Brooks is an independent consultant on national security issues, a senior adviser at CSIS; he is a disarmament treaty, yet as a highly former US Ambassador and former Under-Secretary of Energy for Nuclear Security, and Administrator of the technical aspect of the negotiation National Nuclear Security Administration (NNSA). See online at http://csis.org/expert/linton-brooks. 3 START was a bilateral treaty between the United States and the USSR on the reduction and limitation of process, it can be explored and strategic offensive arms. designed in the very early stages www.pin-negotiation.org 33

Mikhail Gorbachev (left) and Ronald Reagan signing the Intermediate-Range Nuclear Forces (INF) Treaty, December 8, 1987. of the treaty negotiation process tiation process includes more than VERIFICATION AND ITS PER- – even without the political agree- just political will, but is a state that CEIVED ROLE IN ARMS CONTROL ment and will that are necessary for requires parties to perceive the ne- AGREEMENTS the negotiation process itself – thus gotiation process as one that could affecting (or being affected by) possibly conclude with a negotiated Verification encompasses the gath- the political aspect of the negotia- solution4. ering of information (monitoring) tions. Indeed, the conclusion of a about treaty implementation by substantial multilateral effort to ex- This article presents the idea that in member states, and analysis of this plore verification aspects prior to an arms control and disarmament ne- information in order to make judge- official treaty negotiation process gotiations, which are heavily reliant ments about the parties’ compliance has historically been an extremely on the verification regime aspect with the terms of an agreement useful model. When the technical of a treaty, the perception of the or treaty. The information may details are thoroughly explored technical possibility or capability be provided by the parties to the before political negotiations begin, of verification by the parties would agreement themselves, or it could different solutions and options are strongly support the achievement be obtained by remote technical generated, which later enhance the of ripeness. The development of means, or by inspectors in the field ripeness of the negotiation process. a verification rationale and the (Melamud, 2000). Based on the in- Ripeness as a concept of the nego- technical details of the verification formation gathered and the technical regime at a very early stage of the analysis of its meaning, specifically negotiation process, or even prior designated persons or bodies are 4 According to Zartman, ‘If the parties to a conflict (a) perceive themselves to be in a hurting stale- to it, can therefore be a meaningful charged with passing compliance mate and (b) perceive the possibility of a negoti- step towards getting negotiations (or non-compliance) judgements. ated solution (a way out), the conflict is ripe for resolution (i.e., for negotiations toward resolution off the ground and reaching an Verification of international agree- to begin)’ (Zartman, 2000, p. 228, Proposition 2). agreement. ments is usually implemented by an 34 PIN•Points 40/2014

by the discovery of atomic energy’. This resolution included already at this early stage all the seeds for the verification requirements as they were developed in later years by the international community in trying to curb the development and proliferation of WMD, including the requirement for verification that appears in the Terms of Reference: ‘The Com- mission shall make specific proposals […] (d) for effective safeguards by way of inspection and other means to protect complying States against the hazards of violations and evasions’ (UNGA, Resolution 1(I), 24 January 1946). In 1959 under the title ‘Pre- vention of the wider dissemination of nuclear weapons’, a UNGA resolution suggested considering appropriate means, ‘including the feasibility of an international agreement subject international body that is specifically affect civil nuclear-power generation, to inspection and control’ (UNGA, established for this purpose. and has a major bearing on progress Resolution A/RES/1380(XIV), 20 towards a nuclear-weapon-free world November 1959). In 1997, the UNGA Some of the relevant means for (Milne, 2002). Verification methods reaffirmed ‘the critical importance of, verifying disarmament or arms related to nuclear disarmament are and the vital contribution that has control agreements for weapons of especially challenging issues because been made by, effective verification mass destruction (WMD)5 are well of their relation to national security measures in arms limitation and understood and known to be largely interests. disarmament agreements and other effective (for example, the Interna- similar obligations’ (UNGA, Resolution tional Atomic Energy Agency (IAEA) Effective verification – generally un- A/RES/52/3, 1997). In this resolution, safeguards), but they are rarely full derstood as the ability to detect non- the UNGA also reaffirmed its support proof. Verifying chemical or bio- compliance that would be militarily for the sixteen principles of verifica- logical disarmament is complicated or politically significant and in time to tion (non-exhaustive list) drawn up because of the widespread pres- take corrective action –became one of by the Disarmament Commission in ence of precursors to chemical and the key criteria for the establishment 1988 (UNGA, 15th Special Session, biological warfare agents in the civil of arms control regimes during the A/S-15/3, pg. 49) The second of the and commercial industries. In the nu- second half of the twentieth century. sixteen principles states that ‘Verifi- clear case, the potential for diverting The importance of verification has cation is […] an essential element in materials from a civil nuclear power been recognized by the UN General the process of achieving arms limita- programme into military uses is a Assembly (UNGA), and the need for tion and disarmament agreements’; complicating factor that will always effective verification has consistently and its ninth principle states that appeared in many UNGA resolutions ‘Verification arrangements should be 5 The term WMD was defined in 1948 by the UN on the establishment of arms control addressed at the outset and at every Commission for Conventional Armaments by defin- treaties since the end of the Second stage of negotiation on specific arms ing weapons that do not fall within its jurisdiction: ‘weapons of mass destruction should be defined World War. limitations and disarmament agree- to include atomic explosive weapons, radioactive ments’. The list includes principles material weapons, lethal chemical and biologi- The first resolution adopted by the relating to the employment of differ- cal weapons, and any weapons developed in the future which have characteristics comparable in UNGA during its first session on 24 ent techniques, and the development destructive effect to those of the atomic bomb or January 1946 ‘established a commis- of procedures to be implemented in other weapons mentioned above’ (UNSC, Resolu- tion S/C.3/32/Rev.1, p. 2, 18 August 1948). sion to deal with the problems raised accordance with international law, www.pin-negotiation.org 35

all to be relevant within the context regime already before official nego- of the Development, Production and of the specific agreement; it already tiations begin, or its development Stockpiling of Bacteriological (Biologi- envisaged the possible establishment during the pre-negotiation phase, cal) and Toxin Weapons and on their of a special organization to imple- can prove to be very meaningful in Destruction (known as the BWC), ment the verification and refers to allowing the negotiation to proceed which entered into force in 1975. In the sensitivity of this implementation and eventually to reach conclusion. conjunction with the 1925 Geneva and the avoidance of abuse. All of While there may, of course, be other Protocol, the BWC banned member these principles can be found in one issues that carry weight in postpon- states from developing, producing, way or another as part of actual veri- ing a negotiation process or pro- or possessing biological weapons. fication regimes in later agreements crastination therein, the actual ne- Based on a report of the Disarmament and treaties. A UNGA resolution that gotiation towards resolution cannot Committee, the UNGA, in a resolu- was adopted recently and titled ‘To- begin without some scheme, even if tion titled ‘Question of Chemical and wards a nuclear-weapon-free world: minimal, or the accepted exclusion Bacteriological (Biological) Weapons’ accelerating the implementation of of a verification regime. Verification commends taking steps towards the nuclear disarmament commitments’ issues go hand in hand with political prohibition of biological weapons, calls upon all states to support ‘the motivation along the road towards their development, production and development of appropriate nuclear reaching an international arms con- stockpiling. The resolution stresses disarmament verification capabili- trol treaty; even if the political will the importance of verification and ties and legally binding verification is there, the under-development of commends the international verifica- arrangements, thereby ensuring a verification regime may be an im- tion measures in order to provide that such [fissile] material remains pediment on the way to finalizing a ‘an acceptable system that would permanently outside military pro- treaty (see the example of the fissile ensure the effective implementation grammes in a verifiable manner’ material treaty below). of the prohibition’ (UNGA, Resolution (UNGA, Resolution A/RES/67/34, A/RES/2662(XXV) 5, 7 December Para. 8, 4 January 2013). The development of a verification re- 1970). Yet the eventual convention gime occurs at different stages of the that was concluded following the ne- The above examples of the UNGA’s development of a treaty regime, and gotiation process contained no such references to verification show that a survey of central arms control trea- mechanism to verify compliance of the notion of verification and its im- ties, as presented below, shows the the states parties. This was a result portance in arms control agreements different manifestations along a gen- of the recognition that the technical was on the agenda during the second eral spectrum, ranging from ‘Trust, methods available at the time were half of the twentieth century and but don’t bother to verify’ (which not sufficient for implementing an remains so today. The key properties relieves the negotiating parties from international verification regime, and of a verification regime – namely, the burden of developing an agreed the available procedural methods inspection, control, effective safe- verification regime), through diverse were too complex. This resulted in a guards and compliance – can be methods and timelines for develop- status of ‘trust but do not bother to traced through UNGA resolutions on ing a verification regime, all the way verify’ for the BWC, thus paving the WMD mechanisms to be negotiated, to dragging the pre-negotiation stage road for a reasonably fast process of thus illustrating the importance that out (as long as no good solution for negotiation on the treaty’s text. The is attached to this concept in the the required verification is found) member states were not, however, development of international means without a foreseen resolution. fully satisfied with this situation, and to prevent proliferation. the search for an appropriate verifi- The Biological Weapons Conven- cation regime has continued since VERIFICATION AS A tion (BWC) was the first multilateral the entry into force of the BWC. A SUBSTANTIAL CONTRIBUTION disarmament treaty to ban the pro- group of governmental verification IN THE PRE-NEGOTIATION duction and use of an entire category experts (VEREX) was established at PHASE of weapons. Starting in 1969, the the Third Review Conference in 1991 Eighteen Nations Disarmament to identify and examine potential As already included in the sixteen Committee (later to become the verification measures from a scien- principles of verification mentioned Conference on Disarmament, CD) tific and technical standpoint (VEREX, above, the existence of a concept conducted negotiations on the text 1993). Then, at a special conference for a particular treaty’s verification of the Convention on the Prohibition in September 1994, the states par- 36 PIN•Points 40/2014

in September 1992, although this proliferation commitments and that arrangement ceased to exist in April their peaceful uses are not diverted 1996 (Kelly, 2002). into military uses (NPT, Article III). A contributing factor to the NPT’s rela- Included within the BWC was the tively swift negotiation process was stipulation that countries commit the fact that the IAEA was already a themselves to negotiating an interna- working organization with safeguards tional treaty banning chemical weap- protocols to ensure peaceful uses of ons. Such a convention had been nuclear technology since long before the subject of nearly twenty years of the NPT was negotiated6. negotiations within the Conference on Disarmament in Geneva, but ‘[u] In efforts to prevent the spread of nlike the BWC, the negotiators of the nuclear weapons, the international chemical weapons ban reached an community undertook to conclude understanding that this ban would be an agreement preventing nuclear subject to international verification. testing. The UN General Assembly’s Jawaharlal Nehru To this end, trial inspections of both decision from 1959 to mandate ne- industrial and military facilities were gotiations on a test-ban treaty called ties agreed to establish an ad-hoc undertaken, starting in late 1988’ for ‘discontinuance of nuclear tests group of the states parties in order to (OPCW, 1997). The realization of a with effective international control’ negotiate and develop a legally bind- treaty text was thus contingent on the (UNGA, Resolution A/RES/1380(XIV), ing verification regime for the BWC. trial inspections to prove the useful- 20 November 1959). Intensive ef- Although scientific developments ness of the verification concept. The forts to negotiate a Comprehensive have brought in new methods that Chemical Weapons Convention Test-Ban Treaty (CTBT) were car- may help in developing verification (CWC) entered into force in 1997 ried out from 1958 to 1963. These techniques, the complexity of such a and a fully functioning implementing efforts involved complex technical regime, technically and procedurally, organization, the Organization for problems with verification and the and particularly its anticipated intru- the Prohibition of Chemical Weapons difficulties of reconciling deep-seated siveness ward off states parties from (OPCW) based in the Hague, is cur- differences in approaches to arms reaching a decision on any manner rently in operation, in charge of the control and security, which included of implementation. The draft protocol treaty’s elaborate verification regime. seismological methods for monitoring developed by this ad-hoc group was the underground environment that rejected in 2001 by the US (under The Treaty on the Non-prolifera- were thought to be inadequate, and the Bush administration), which tion of Nuclear Weapons (or NPT) difficulties in reconciling varied ap- also holds the view that the BWC is is the most widely adhered to arms proaches to arms control verification non-verifiable (Bailey, 2002; Findlay, control agreement. The NPT entered techniques, mainly the former USSR’s 2006). Another effort on BWC verifi- into force in 1970, adopting as a veri- resistance to on-site inspections cation was the Trilateral Agreement fication mechanism the IAEA’s safe- (Richards and Zavales, 1996). The in the form of a Joint Statement on guards system. According to the NPT, negotiations resulted in the Partial Biological Weapons by the govern- nuclear-weapon states are obliged Test-Ban Treaty (PTBT) (or Limit- ments of the United Kingdom, the not to transfer nuclear weapons, ed Test-Ban Treaty, LTBT), which United States and the Russian Fed- other nuclear explosive devices, or prohibits nuclear explosions in all eration, which was issued after a their technology to any non-nuclear- environments, not including under- meeting in Moscow of senior officials weapon state (NPT, Article I). Non- ground. As a result of the difficulties nuclear-weapon states parties, while mentioned above, the PTBT does not bestowed by the treaty with the right provide for international verification, 6 The second pillar of the NPT, according to Article to peaceful uses of nuclear energy, but it is understood that each party VI, states that all states are obliged to ‘pursue undertake not to acquire or produce may do so by its own national techni- negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an nuclear weapons or nuclear explosive cal means. The PTBT was signed and early date and to nuclear disarmament’ and calls devices and to conclude agreements entered into force in 1963 and was for a future verifiable complete disarmament, but this provision has no verification component to it with the IAEA for the application of the first major multilateral arms con- in the NPT. IAEA safeguards to verify their non- trol agreement of the Cold War. The www.pin-negotiation.org 37

problem of negotiating an agreed agreement on a verification regime toring of the whole globe by an In- verification regime to ensure compli- for the TTBT and PNET – was an ternational Monitoring System of 321 ance with a complete ban on nuclear additional landmark on the road to stations. These stations provide data weapon tests in all environments the desired comprehensive test-ban to an International Data Centre (IDC) proved to be intractable at that time7, treaty; although not a full test-ban in Vienna, which characterizes all but the goal was pursued further, and but a verifiable partial control on signals in order to detect any signal the next step in negotiations towards nuclear tests. The search for an ac- that may point to non-compliance. the sought-after comprehensive ceptable verification regime for a full An on-site inspection mechanism is test ban was the accomplishment of test-ban was still developing. provided for by the treaty, along with the Threshold Test-Ban Treaty allowed techniques and procedures. (TTBT), which was signed in July In 1954, India’s Prime Minister Based on the GSE’s positive results, 1974, establishing a threshold on Jawaharlal Nehru became the first the CTBT negotiations started in underground nuclear weapon tests statesmen to call for a ‘stand still’ 1993 and were concluded in 1996 by prohibiting underground nuclear agreement on nuclear testing, and (Melamud, Meerts and Zartman, explosions with a yield exceeding 150 this concept was in the background 2014). The CTBT has not yet entered kilotons (Ifft, 2009). The Peaceful of the PTBT, TTBT and PNET nego- into force, however, as it is still wait- Nuclear Explosions Treaty (PNET) tiations (as described above). While ing for eight specific states to ratify was a companion treaty, which ap- these other international treaties on it (according to a provision in Article plied the same threshold to peaceful nuclear test-bans were negotiated XIV and Annexe 2 to the Treaty). nuclear explosions that were being based on the understanding that a explored at the time, such as for verification regime for a comprehen- Parallel to the efforts to conclude constructing canals, etc. These two sive test-ban is not yet achievable, the CTBT, nuclear weapon-free treaties already contained protocols the search for such a regime was zones (NWFZ) have been established about limited verification arrange- being studied all along. In July 1976, around the globe. The first of these ments that include the interchange of long before the political negotiations regional agreements was the Treaty information about tests and possible on the CTBT started in 1993, the of Tlatelolco, defining Latin America on-site inspections, based on the Conference of the Committee on and the Caribbean as a NWFZ, which verifying party’s national technical Disarmament in Geneva created an was opened for signature in 1967. means, to be carried out during the international Group of Scientific -Ex Verification for this treaty is based planned test. For many years, neither perts (GSE) to specify the character- on the IAEA’s safeguards, which the the US nor the former USSR ratified istics of an international monitoring ratifying states had the obligation to the TTBT or the PNET, but in 1976 system to provide the groundwork join, while a regional organization, each side agreed to observe the on verification for a CTBT. The CTBT, OPANAL, is in charge of overseeing 150-kiloton limit, pending ratification. more than any other international compliance with the treaty. While In 1987, after a series of six rounds treaty, is dependent on a diverse adherence by all regional states was of negotiations, the US and the USSR number of scientific and technologi- necessary for the treaty’s entry into agreed to revise the PNET Protocol cal methods for its exceptional verifi- force, any party could have brought to include more effective verifica- cation regime. Although the concept the treaty into force on its territory at tion provisions that were based on for a monitoring system had already any time after its ratification by waiv- technological advancement since the been suggested in 1958 by a British ing the provision described in Article 1970s. Another series of six rounds of scientist, Sir William Penney, it was 28. It took Argentina 26 years and talks, which took place between 1987 discarded then for not being reliable Brazil 27 years (in 1993 and 1994, and 1990, resulted in the signing in and sensitive enough. Critics of that respectively) to become full parties June 1990 of a new protocol that proposal contended that the system’s to the Treaty of Tlatelolco after ac- provides for an enhanced regime of limitations were not strongly present- cepting the special waiver in Article verification. The TTBT and the PNET, ed, and the idea of deliberate evasion 28. These two states, with the most with the new verification protocols, was not discussed (Richards and Za- advanced nuclear programmes in entered into force on 11 December vales, 1996). The regime developed Latin America and the potential to 1990. This achievement – of the by the GSE over the period of two develop nuclear weapons, remained decades responds to the concerns outside the treaty’s purview for a

7 See the discussion at http://www.state.gov/t/ raised regarding the original proposal long time, and became full parties to isn/4797.htm#treaty. from 1958. It is based on 24/7 moni- the treaty only after they decided to 38 PIN•Points 40/2014

give up their military nuclear option treaty will cover existing stocks of uranium and plutonium’. According to and when they were able to reassure fissile materials (targeting the stocks the group, ‘successful development themselves that the other nation held by the nuclear-weapon states, of nuclear weapon and fissile mate- would also be in compliance. This which could be used for construc- rial verification procedures and tech- was achieved by reaching the Quad- tion of future nuclear weapons) or nologies will likely require more such ripartite Agreement8 of 13 December only future production starting from collaborative R&D efforts’ (IPFM, 1991 involving Argentina, Brazil, the the cut-off of the treaty’s entry into 2009). This group (and other exist- Agency for Accounting and Control of force. Each scenario would require a ing national initiatives) is reminiscent Nuclear Materials (ABACC)9 and the very complex verification regime that of the GSE, except that in this case IAEA for the application of IAEA safe- has yet to be developed, because of it is not mandated by the CD as an guards and additional, strengthened, the extreme technical complexity and official international research group, bilateral verification provisions, which necessarily high levels of intrusive- although it underscores the need for were a requirement for Argentina ness. IAEA safeguards’ methods may progress in the search for a verifica- and Brazil to cover their mutual con- be relevant for part of this regime, tion regime in order to advance the cerns before fully applying the Treaty but the management of stocks on a FMCT negotiations. of Tlatelolco on their territories. This global scale is to date an unsolved is- example demonstrates the high sue. Notwithstanding the scope of a A Nuclear Weapons-Free World significance that states confer on FMCT when it is agreed, the verifica- (NWFW) is an objective for which verification arrangements and their tion regime is a major issue and may much public and political pressure completion before fully embracing a have different objectives and imple- has been wielded for many years, non-proliferation and arms control mentation methods depending on but the concepts of verification for treaty. the achieved agreement’s scope. In such a treaty are still far from fully any case, dwelling on FMCT verifica- developed: ‘Not surprisingly, verify- A Conference on Disarmament (CD) tion is a complex mission even from a ing, monitoring and enforcing agree- mandate was drawn in 1995 for ne- technical aspect, and if negotiations ments on the path towards a world gotiating a Fissile Material Cut-off are to conclude successfully, this mis- free of nuclear weapons will be com- Treaty (FMCT), with the objective of sion should be undertaken as soon as plex and challenging’ (Hinderstein, negotiating a treaty to ban the pro- possible. 2010, p. xx). Parallel to the political duction of fissile material for nuclear issues to be dealt with on the way weapons. According to the mandate, Parallel to the political developments to a NWFW, the issue of verification the treaty was to be ‘non-discrimina- regarding the FMCT pre-negotiation is of high priority, and it is clear that tory, multilateral and internationally phase, work is being done by differ- verification is an important require- and effectively verifiable’ (Shannon ent agencies on developing a concept ment for a future Nuclear Weapons Report, CD/1299, 24 March 1995). for a FMCT-applicable verification Convention to establish a NWFW This was based on a 1994 UNGA regime. One example is the Inter- (Scheffran, 2010; Burroughs, 2010). resolution, recommending the ne- national Panel on Fissile Materi- The drive towards a NWFW can be gotiation of an ‘internationally and als (IPFM), which was founded in found in UNGA resolutions relating to effectively verifiable treaty banning January 2006 to deal with developing accelerating the implementation of the production of fissile material’ verification concepts for a FMCT. This nuclear disarmament commitments (UNGA, Section L, p. 15, in UNGA A/ is an independent group of arms (UNGA, Resolution A/RES/67/34, 4 RES/48/75, 7 January 1994). The CD control and non-proliferation experts January 2013), which tie these com- is still at the stage of pre-negotiation from eighteen countries, including mitments to Article VI of the NPT and on the FMCT, which has been in both nuclear weapon and non-nu- are targeted at the nuclear-weapon stalemate for many years because of clear weapon states, the mission of states. As the UN Secretary-General diverging views, technical difficulties, which is ‘to analyze the technical ba- Ban Ki-moon said in an address on 24 as well as political linkages. One is- sis for practical and achievable policy October 2008: ‘the nuclear-weapon sue that is delaying the negotiation initiatives to secure, consolidate and States, to fulfil their obligation- un is the question of whether the future reduce stockpiles of highly enriched der the [Nuclear Non-Proliferation] Treaty to undertake negotiations on effective measures leading to nuclear 8 The Quadripartite Agreement is described in the IAEA document INFCIRC/435; see online at http://www. disarmament [...] could pursue this iaea.org/Publications/Documents/Infcircs/Others/inf435.shtml. 9 The ABACC was established as a bilateral agency for verification between Brazil and Argentina in 1991. goal by [...] negotiating a nuclear- www.pin-negotiation.org 39

weapons convention, backed by a with the contribution of international difficult to negotiate a verification strong system of verification, as has organizations and civil society, in- provision. For the time being, long been proposed at the United Na- cluding an action plan for a NWFW: to put on hold the verification tions’ (NTI, 2013). ‘to attain the goal of nuclear disar- issue until conditions are ripe, mament in a universal, time-bound, and to negotiate a treaty without A NWFW verification regime presents non-discriminatory, phased and veri- verification provisions, could be a a new challenge for verification fiable manner’ (UNGA, Resolution A/ practical alternative (Writz, 2012). experts that will require attending AC.281/2, 9 September 2013). Such to the issue of dismantling existing verification measures have so far This comment was made in relation nuclear weapons and their delivery only been developed on a bilateral to negotiations on the treaty for systems, thus requiring verification basis between the US and the USSR the Prevention of an Arms Race in and monitoring methods that have (Russia today) for some nuclear Outer Space (PAROS), which is still not yet been fully studied. This issue arms reduction agreements, but will deadlocked in the CD (NTI, 2014). It is being studied by different agencies: need significant upgrades in order suggests a way out that is similar to ‘policy-makers and technical special- to become part of an international that chosen during the path to the ists try to devise effective elements verification regime. nuclear test-ban treaty, where par- of a viable warhead dismantlement tial arrangements (PTBT, TTBT and verification regime’ (Fuller, 2010). The importance of the verification PNET) were reached that excluded One example is the Open-ended regime has been stressed by China’s verification arrangements while post- Working Group, which was estab- representative to the CD, who noted poning the final agreement, including lished in Geneva in 2013 to develop in 2006: an accepted verification regime (the proposals to take forward multilateral CTBT), until acceptable scientific nuclear disarmament negotiations for Due to the complex nature of solutions were achieved by the GSE. the achievement and maintenance verification of outer space activi- of a world without nuclear weapons ties, […] currently it is extremely 40 PIN•Points 40/2014

CONCLUSION in relevant techniques. The research signed towards the end of the twen- and technical capabilities required tieth century (such as with the CTBT A verification regime for detecting for the development of a specific and OPCW). non-compliance is a fundamental verification system may take a very element of a weapons control treaty. long time in some cases, but without This development was obviously This principle became a common an agreement on the type and func- backed by scientific developments understanding during the second half tion of the verification regime (or its during the second half of the twen- of the twentieth century and the no- absence), a negotiation process for tieth century and the research done tion of verification, as can be seen in a weapons control treaty may not about their application to verifying the UNGA resolutions quoted above, reach ripeness, as demonstrated non-proliferation and arms control continuously developed. Since the by the case of the test ban. In this treaties. When referring to the mid-twentieth century, negotiations case, intermediate agreements technology revolution, Findlay lists for any WMD arms control agree- were achieved that did not fulfil the relevant technical developments hav- ment have included the requirement sought-after ‘effective verification’ ing a marked effect on verification, for the agreement to be verifiable. for a comprehensive test ban until and states: ‘If these developments technical developments provided the together do not constitute a verifica- Nevertheless, on a practical level, technology for an acceptable verification revolution, then they at least it became evident that negotiating tion regime, thus making possible the represent large evolutionary leaps in a single treaty containing both the conclusion of the CTBT. The above many directions’ (Findlay, 2000, p. basic treaty objectives and commit- examples demonstrate the variety 20). The development of monitoring ments and the details of the verifica- of circumstances, which are spread and verification concepts is usually tion regime may cause a long delay on a spectrum from a decision to entrusted to expert groups that have before negotiations can actually start ‘trust, but don’t bother to verify’ (the been and are being created spe- (about twenty years in the case of BWC) through diverse methods and cifically for a negotiated agreement. the GSE’s work on the CTBT). The timelines for developing a verification The GSE international team for the CTBT case provides an example of regime, all the way to dragging out study of CTBT verification proved the development of intermediate, the pre-negotiation stage without a that it was indeed most useful to partially or non-verified, treaties that foreseen resolution (the FMCT). conduct preparatory scientific and only partly cover the target concept. technical analysis prior to political The alternative approach, which was However, the cases of the BWC, negotiations; similar efforts such as demonstrated very successfully by PTBT, TTBT and PNET demonstrate the VEREX for the (already signed) the NPT, is to include the basic po- that – notwithstanding the practical BWC or IPFM, or the (future) FMCT, litical commitments in an ‘umbrella’ decision to aim for a treaty text lack- followed. In many cases it can be treaty and to rely for a verification ing a verification regime for technical seen that similar concepts are rel- regime on secondary agreements reasons – the hunt for verification evant for the verification regimes of such as the IAEA safeguards agree- options continues even after the different arms control treaties and ments, or proposed additional trea- treaty’s entry into force. It can also that there is some overlap in the ties (such as the CTBT and FMCT) in be seen from these examples that work of these groups, which repeat the expectation that their verification – as the years went by towards the studies that have already been done. regimes will be ‘effective measures in beginning of the twenty-first century Therefore the establishment of an in- the direction of nuclear disarmament’ – perceptions of the verification re- ternational, multilateral apparatus or (NPT, preamble and Article VI). This gime as a required element in arms institution to coordinate research and approach separates the largely politi- control agreements developed and development for verification methods cal from largely technical aspects and matured. This can be seen in the de- may help in moving quagmired arms allows for an adaptable verification velopment from a notion of ‘effective control treaties forward, as proposed system (Carlson, 2005). safeguards by way of inspection and by Dahlman: ‘an International Sci- other means’, as was defined in the entific Network (ISN) to engage the Indeed, some treaties were eventu- 1946 UNGA resolution, all the way to global scientific community to- ex ally developed without verification the sixteen principles of a verification plore how scientific and technological mechanisms, while deferring the regime that were acknowledged by developments can support nuclear development of a verification regime the UNGA in 1997, and the detailed disarmament and non-proliferation’ to be based on future developments verification concepts of the treaties (Dahlman, 2013). Such an ISN may www.pin-negotiation.org 41

Destruction and the Global Crisis of Security, Milne, Tom Alexander Bruce, 2002, standardize the development of New York, NY: PublicAffairs, 2000. Verifying Nuclear Disarmament with Special verification regimes by setting prin- Carlson, John, 2005, ‘Can a Fissile Material Reference to the Potential Role for the Atomic ciples and standards that are based Cut-off Treaty be Effectively Verified?’, Arms Weapons Establishment Aldermaston, thesis on experience from previous cases. Control Today, January/February 2005, http:// submitted to the University of Manchester for www.armscontrol.org/act/2005_01-02/Carlson. the degree of Doctor of Philosophy (Ph.D.) in These will be used by all sub-groups CSIS, 2009, ‘It’s Verification, Stupid!’, the Faculty of Science, 2002, http://tommilne1. established to develop verification for Washington, DC: Center for Strategic and files.wordpress.com/2013/08/revised-draft.pdf. any arms control treaty, thus avoid- International Studies, 2 Dec 2009, http://csis. NTI, 2013, Proposed Nuclear Weapons ing possible overlap of efforts or loss org/blog/its-verification-stupid. Convention (NWC), of ‘institutional memory’. Dahlman, Ola, 2013, ‘How Can Science http://www.nti.org/treaties-and-regimes/ Support a Process Towards a World Free of proposed-nuclear-weapons-convention-nwc/. Nuclear Weapons?’, Science & Global Security, NTI, 2014, ‘Conference on Disarmament This review of the role of the de- 2013, 21: 95–105. (CD)’, velopment of verification regimes in Findlay, Trevor, 2000, ‘Introduction: The http://www.nti.org/treaties-and-regimes/ non-proliferation and arms control Salience and Future of Verification’, in Trevor conference-on-disarmament/. Findlay (ed.), Verification Yearbook 2000, OPCW, 1997, ‘Basic Facts on treaties demonstrates the progress London: VERTIC, 2000, http://www.vertic.org/ Chemical Disarmament’, http://www. made during the second half of media/Archived_Publications/Yearbooks/2000/ opcw.org/news-publications/publications/ the twentieth century, both in the VY00_Introduction.pdf. history-of-the-chemical-weapons-convention/. concept of international verification Findlay, Trevor, 2006, ‘Verification and Richards, Paul, and Zavales, John, 1996, and in the study of application of the BWC: Last Gasp or Signs of Life?’, Arms ‘Seismological Methods for Monitoring a CTBT: Control Today, Washington DC: Arms Control The Technical Issues Arising in Early Negotia- scientific methods to verification re- Association, September 2006, http://www. tions’, in E.S. Husebye and A.M. Dainty (eds), gimes. It became obvious during this armscontrol.org/act/2006_09/BWCVerification. Monitoring a Comprehensive Test Ban Treaty, period that a verification regime is a Fuller, James, 2010, ‘Verification on the Dordrecht: Kluwer Academic Publishers, prerequisite for any effective arms Road to Zero: Issues for Nuclear Warhead 1996, pp. 53–81, https://www.ldeo.columbia. control and disarmament agreement. Dismantlement’, Arms Control Today, edu/~richards/earlyCTBThistory.html. December 2010, https://www.armscontrol.org/ Scheffran, Jürgen, 2010, ‘Verification and Although the practical development act/2010_12/%20Fuller. Security in a Nuclear-Weapon-Free World: Ele- of a verification concept and regime Hinderstein, Corey, 2010, ‘Introduction’, ments and Framework of a Nuclear Weapons for a treaty may be a long process, in Corey Hinderstein (ed.), Cultivating Convention’, Nuclear Abolition Forum, a treaty negotiation process may Confidence: Verification, Monitoring and http://www.abolitionforum.org/site/ Enforcement for a World Free of Nuclear wp-content/uploads/2011/08/Verification- either be prolonged while waiting Weapons, Nuclear Threat Initiative publication and-security-in-a-nuclear-weapon-free-world- for the right verification concept to no. 596, Washington DC: Hoover Institution elements-and-framework-of-a-NWC_Scheffran. be included in the final treaty docu- Press, 2010. pdf. ments, or the ‘trust, but don’t bother IPFM, 2009, Global Fissile Material VEREX, 1993, ‘Summary of the Work of to verify’ concept may be utilized Report 2013: Seventh Annual Report of the the Ad-Hoc Group for the Period 30 March to International Panel on Fissile Materials, http:// 24 Sep 1993’, BWC/CONF.III/VEREX/9, Ad-Hoc initially while the search for an appli- fissilematerials.org/library/gfmr13.pdf. Group of Governmental Experts to Identify and cable verification concept continues, Ifft, Edward, 2009, ‘The Threshold Test Examine Potential Verification Measures for based on international groups of Ban Treaty’, Arms Control Today, March 2009, the BWC, http://www.opbw.org/verex/docs/ experts. http://www.armscontrol.org/act/2009_03/ CONFIII-VEREX-9.pdf. LookingBack_Ifft#16. Writz, J.J., 2012, ‘Arms Control and Kelly, David C., 2002, ‘The Trilateral Nuclear Weapons’, chapter 14 in E.W. Williams References Agreement: Lessons for Biological Weapons and P.R. Viotti (eds), Arms Control: History, ACDA (US Arms Control and Disarmament Verification’, chapter 6 in Verification Yearbook Theory and Policy, Vol. 1, Praeger Security Agency), 1976, Verification: The Critical 2002, London: VERTIC, 2002, pp. 93–109, International Series, Santa Barbara, CA: ABC- Element of Arms Control, Washington, DC: http://www.vertic.org/media/Archived_Publica- Clio, 2012, p. 212. Arms Control and Disarmament Agency, 1976. tions/Yearbooks/2002/VY02_Kelly.pdf. Zartman, I. William (2000), ‘Ripeness: Bailey, C. Kathleen, 2002, ‘Why the United Melamud, Mordechai, 2000, ‘Background The Hurting Stalemate and Beyond’, chapter States Rejected the Protocol to the Biological Paper on On-Site Inspections (OSI): Main 6 in International Conflict Resolution after the and Toxin Weapons Convention’, Fairfax, VA: Elements and Expectations’, The Independent Cold War, Washington, DC: National Academy National Institute for Public Policy, 2002, Commission on the Verifiability of the Com- Press, 2000, http://www.nap.edu/openbook. http://www.nipp.org/national%20institute%20 prehensive Nuclear Test Ban Treaty (CTBT) php?record_id=9897&page=R1. press/archives/publication%20archive%20pdf/ established by VERTIC in August 2000, http:// bailey%20protocol.pdf. www.vertic.org/media/assets/Publications/ Burroughs, John, 2010, The Nuclear IC_Verifiability_CTBT_Final_Report_Annex.pdf. Non-Proliferation Treaty and the Elimination Melamud, Mordechai, Paul Meerts and I. of Nuclear Weapons, New York, NY: Lawyers William Zartman (eds), 2014, ‘Banning the Committee on Nuclear Policy, http://lcnp.org/ Bang or the Bomb? Negotiating the Nuclear pubs/NPTIADLfinal3%5B1%5D.pdf. Test Ban Regime, Cambridge: Cambridge Butler, Richard, 2000, ‘Introduction’, The University Press, 2014. Greatest Threat: Iraq, Weapons of Mass 42 PIN•Points 40/2014

I. WILLIAM ZARTMAN THE MEDIATION CRAZE

for Effective Mediation1 (available at the website www.peacemaker. un.org) that summarizes best practices. It also mandated the creation of an Academic Advisory Council for the Department of Political Affairs (DPA), whose members currently are: Nimet Beriker (Sabanci Universi- ty, Turkey); Mely Caballero-Anthony (Nanyang Technological University, Singapore); Peter Coleman (Colum- bia University, US); Monica Herz (Catholic University of Rio, Brazil); Jean Paul Lederach (Notre Dame University, US); Laurie Nathan (Pre- toria University, South Africa); Peter Wallensteen (Uppsala University, Sweden); and I. William Zartman Inauguration ceremony, Turkey, 2012 (Johns Hopkins University, US). The Council meets once or twice a year Mediation is the flavour of the times the principal mediators; and a me- to review mediators’ needs and to these days. Since the UN’s World diation network of supporting insti- work on solutions, and the focus of Summit in 2005, mediation has been tutions – academic and NGOs – was the upcoming meeting in September rediscovered from its position in the established. In 2010, 35 member 2014 is ‘Dialogue’. UN Charter as a major means of set- states and seven regional organiza- tling disputes (Chap VI, art. 33, ¶1) tions formed a Group of Friends of The spirit caught on. An inaugura- and elevated to a position of choice Mediation under the initiative of Fin- tion ceremony was held by Turkey within the UN and beyond. land and Turkey, and introduced a in 2012 where Wallensteen, Zartman resolution to ‘strengthen the role of and Fen Osler Hampson (Carleton Within the UN, the World Summit’s mediation in the peaceful settlement University, Canada) participated and Report was picked up in 2008 by of disputes, conflict prevention and an annual conference on mediation Under-Secretary-General for Political resolution’ (A/RES/65/283 of 28 July is now held. Around the same time, Affairs B. Lynn Pascoe, who created 2011, followed by A/RES/66/291 Finland held its own ceremony. a whole new apparatus to promote calling for biennial consideration The presentation of the Guidance mediation: a small Mediation Sup- of mediation). In response, UN for Effective Mediation at the UN, port Unit (MSU) with a capacity Secretary-General Ban Ki-moon is- where Deputy-Secretary-General to provide technical assistance to sued a comprehensive Report on Jan Eliasson presided, was carried to Special Representatives and Envoys the Role of Mediation (A/66/811, 25 Washington, where former Under- of the Secretary-General (SRGR/ June 2012). Secretary-General Pascoe partici- SESG) and other mediators for the pated. At the same time, Spain and UN; a standby team of mediation The Secretary-General’s report Morocco announced a joint initiative experts ready to fly on-site to aid contained a pocket-sized Guidance on the promotion of mediation in the Mediterranean, with high-level

1 United Nations, Guidance for Effective Mediation, available at the website www.peacemaker.un.org. meetings in Madrid and Rabat, at www.pin-negotiation.org 43

which Hampson, Wallensteen and I. WILLIAM ZARTMAN Zartman have participated. The fo- 1 cus is mainly on research and train- CONCEPTS: DIALOGUE ing on mediation, carried out by the Centre d’Études et de Recherches en Sciences sociales in Rabat and the Toledo International Centre of Peace in Madrid. Moreover, PIN has proposed to hold road shows in both National Dialogue can refer to many not involve an external mediator. institutions. In December 2013, the things as long as they involve two Other definitions include ‘a dynamic Catholic University of Rio launched parties (dia-) talking (-log), but all process of joint inquiry and listening a project to foster mediation among of them involve some, usually loose, to diverse views, where the intention the BRICS countries (Brazil, Russia, form of negotiation. Dialogue is is to discover, learn and transform India, China and South Africa) and much in the news these days, in part relationships in order to address more broadly the Global South, because of its use with some effect practical and structural problems in a which members of the UN Academic in countries of the Arab Spring. It is society’3, an ‘argumentative interac- Council attended. A World Mediation well established in usage, however, tion of political and social elements Summit at the Universidad Politec- and fills an important gap when the of society in an institutionalized or nica of Madrid is organized for 1–4 conditions for more formal negotia- non-institutionalized setting (outside July 2014 by the World Mediation tions are not present. constitutional and interest pressures) Organization, which is run out of in order to confer on sociopolitical Berlin by David Erdman (mail@ Dialogue, as discussed here, is an in- questions which regard the whole of worldmediation.org), with an edited formal confrontation among a broad society’4, an event ‘to provide spaces book to follow. range of stakeholders in a conflict, and instruments for reconciliation, operating over an extended period develop joint visions between former In the field of research, attention without fixed membership quotas enemies, and slowly evolve an under- for mediation has also flourished. or votes and ending in a consensual standing of the needs, perceptions Princeton University and Oslo conclusion rather than a formal deci- and perspectives of the “other”’5, ‘a University held a workshop in May sion2. Despite the name, national negotiating mechanisms intended to 2014 on ‘Minefields of Mediation: dialogues are rarely two-party ne- expand participation in political tran- Involvement, Process and Out- gotiations, but rather multi-party sitions beyond the political and mili- comes’. Papers will be published in encounters, without fixed sides or tary elites’6, or a semi-public forum issues of the journal International even fixed parties. Dialogue is a sort in which ‘representatives from key Negotiation. As is well known, much of ‘internal track II’, when institu- political and civic groups are invited has been written recently about tional relations’ governance become to discuss and develop a plan for the mediation. For example, PIN’s Sage bogged down, but unlike the usual country’s future’7. As can be seen, Handbook on Conflict Resolution track II, the dialogue generally does characterizations focus on the Gestalt contained an excellent review article by the late Jacob Berkovitch. The 1 For previous Concept articles, see PINPoints 38 (2012) Alliances; 33 (2009) Partners; 32 (2009) Risks; 30 challenge is to say something new (2008) Cooperation; 29 (2007) Nash’s Bargaining Solution; 28 (2007) Demonization; 24 (2005) Mutually Entic- and significant; the task is to bring ing Opportunities; 18 (2003) Toughness Dilemma; 14 (2000) Negotiability; and 11 (1997) Ripeness. 2 For a fuller discussion, see Harold H. Saunders, ‘Dialogue as a Process for Transforming Relationships’, in J. the comprehensive knowledge that Bercovitch, V. Kremenyuk, and I.W. Zartman (eds), The SAGE Handbook of Conflict Resolution (London: Sage, already exists to the attention of 2009), pp. 376–390. 3 Maria Jessop and Alison Milofsky, Dialogue: Calming Hot Spots Calls for Structure and Skill (Washington, DC: national audiences not aware of it United States Institute of Peace, 2014), available online at http://www.usip.org/olivebranch/dialogue-calming- and of the practitioners who often hot-spots-calls-structure-and-skill (last accessed 12 May 2014). 4 see little need to read analytical ma- Jens Heibach (2011), ‘Der Nationale Dialog als Instrument zur Konflikt Regelung und politischen Transformation am Beispiel der arabischen Welt’, International Politics and Society, Friedrich Ebert Stiftung, No. 4/2011, online terial, having invented the practice, at http://library.fes.de/pdf-files/ipg/2011-4/09_a_heibach_d.pdf (12 May 2014). personally, themselves. 5 Hannes Siebert, ‘National Dialogue and Legitimate Change’, Accord, No. 25 (London: Conciliation Resources, 2014), pp. 36–39, available online at http://www.c-r.org/sites/c-r.org/files/Accord25_NationalDialogueAndLegiti- mateChange.pdf. 6 Katia Papagianni, ‘National Dialogue Processes in Political Transitions’, Civil Society Dialogue Network Discussion Paper No. 3 (Brussels: European Peacebuilding Liason Office (EPLO), 2013), available online at http://www. hdcentre.org/uploads/tx_news/National-Dialogue-Processes-in-Political-Transitions.pdf. 7 Michael Lund and Carlos Santioso, ‘Section 4.8 National Conferences’, in Democracy and Deep Conflict (1998). 44 PIN•Points 40/2014

[shape] of the encounter, with little tion or as instructions. Dialogue can from within or from some outside indication of its structure or process. establish decision-making structures source: within poses the question of Its purpose is to get away from the and timetables for formal institutions legitimacy and authority; while with- numerical formality of membership and act as a review process for their out makes the dialogue subject to and votes to allow a free exchange performance. It generally does not the authority of the institutions that of ideas heading toward consensus. replace formal institutions, but rather the dialogue is trying to reform. There are many other dialogues that precedes, parallels, guides and moni- The mandate is the authorization for fall outside this specific use. Notably, tors their work. As such, dialogue has dialogue to take place and cover spe- two-party diplomatic discussions are no constitutional standing, but rather cific subjects. The range of authori- often termed dialogues, particu- stands for the whole body politic, zations spans from a self-declared larly when there is no pre-constituted above or alongside institutions that purpose and scope to a delegation of agenda or expectation of a formal have been functioning inadequately. power and subjects from the state, accord. For example, Russian and US If constituted institutions functioned the latter often exceeded by the dia- foreign ministers held dialogues over properly, there would be no need for logue once under way. Once created, events in Ukraine, even resulting in extra-institutional dialogue. it must be able to convene itself and the shaky Geneva agreement of May set its agenda. The dialogue’s ef- 2014. CHARACTERISTICS fectiveness depends on maintenance of its autonomy from constituted Dialogue can have a number of tasks, Nonetheless, for all its informal- authorities, but also on its informal both substantive and procedural. It ity, there are a number of specific authority over them in substance. can focus on the generation of new elements associated with dialogue ideas and undiscovered points of that pose a challenge to its nature: The question of membership or par- common understanding, away from mandate; agenda; membership; de- ticipation is more complicated. While formal instructions and established cision rules; structure; process; and the dialogue must have the authority agendas and positions, to be then con- outcome. All of these items require to include those it wishes, that ques- veyed to official bodies for considera- a decision, which has to come either tion is a circular matter: who is to decide who is to be included? Usually dialogue begins with a core group, 8 Stephen Stedman, ‘Spoiler Problems in Peace Processes’, in Paul Stern and Daniel Druckman (eds), International Conflict Resolution after the Cold War (Washington, DC: National Academies Press, 2000); and David Lanz, which poses again the authorization ‘Who Gets a Seat at the Table?’, International Negotiation, Vol. XVI, No. 2 (2011), pp. 275–295. question, but that group then faces www.pin-negotiation.org 45

the matter of inclusion: should it question, then, is the desired out- civil society organizations in August continue to operate exclusively in come, the form it will take, the target 2013 to draft a National Charter of order to be able to arrive at consen- to which it will be delivered and the Principles for the new state, but this sus, or should it seek to include the controls that the dialogue will wield to commission was unable to secure widest participation possible, includ- assure its impact. With the outcome, the participants’ agreement, despite ing recognized troublemakers and dialogue re-enters the formal world, repeated calls by organizations spoilers?8 As is frequently the case either taking it over or submitting its throughout the country. In Syria, with the inclusion question, the wid- findings to institutionalization. Bashar al-Assad invited political par- est involvement is advisable, with the ties to a so-called ‘dialogue’ towards aim of drowning the spoilers in the INSTANCES the beginning of the uprising in crowd, but irreconcilables can be left October 2011 and presented them out if their exclusion does not allow Dialogues have been important ele- with their conclusions when they them to upset the consensus. ments with varying success in the arrived, with no impact. In Egypt, course of the Arab Spring in Tunisia, the Muslim Brotherhood’s Freedom As one moves from the initial ques- Yemen, Libya, Syria and Egypt9. and Justice Party (FJP), in alliance tions, the decision rule is the prop- When the National Constituent As- with the Salafist Party of Light, rail- erty of the dialogue, but again, how sembly (NCA) in Tunisia slowed down roaded its own membership into the does it decide the decision rule? The its drafting process and was chal- constitutional committee and then, assumption has been a rule of con- lenged as illegitimate for overrunning after the election of Mohammed al- sensus, consensually adopted, again its mandate by forces outside the Morsi as Egypt’s president, continued a circular matter, but despite the Assembly, a self-constituted Quartet to railroad its own programme over aspiration of harmony, deep rifts and of civil society organizations – the repeated calls from at home and polarities may well appear, as they labour union, business association, abroad for dialogue with the secular presumably incapacitated the formal lawyer’s guilt, and human rights opposition. institutions, by inclusion or exclusion. organization – convened the National As with membership, the dialogue Dialogue, which worked with the NCA Two decades earlier, a similar experi- or its organizers must decide how to to produce the Tunisian Constitution ment with dialogue was undertaken handle divisions if the consensus rule in April 2014. As part of the succes- in eleven largely French-speaking gets stuck. sion of Ali Saleh in Yemen through African countries under the name of the Gulf Coordination Council (GCC)’s the Sovereign National Conference The structure and process of the dia- initiative in November 2011, the (Conference Nationale Souveraine, logue also fall within the decision and government – with the assistance CNS)10. The process began in Feb- agenda concerns. Plenary session of UN Special Representative Jamal ruary 1990 in Benin, ordered by the or dialogue organizers must provide Benomar – appointed a Technical authoritarian president who it then a structure to the proceedings, for Commission to organize a National unseated, and continued in Gabon, which Robert’s Rules of Order may be Dialogue Conference of civil society Congo-Brazzaville, Mali, Niger, too formal and plenary sessions may organizations and political parties in Burkina Faso, Togo, Zaire (Congo), be too cumbersome. Many of these March 2013, which set a path for Central African Republic and Chad questions point to an inner organi- national reconciliation and an end by October 1993, while spreading to zation – in the absence of an outer to regional rebellions with partial Ghana in August 1991. At the same organization – of the participants to success by January 2014. In Libya, time, a similar process was going on guide proceedings beyond simple the government appointed a National in the Conference for a Democratic talk (-log) to a conclusion. The final Dialogue Preparatory Commission of South Africa (CoDeSA)11. Participants ranged from nearly 1,000 (in Togo and Chad) to 3,000 (in Zaire) and 9 I am grateful to Katherina Francesca Prügel for these cases. See also I. William Zartman (ed.), Intifadat: Negoti- ating a Social Movement (Athens, GA: University of Georgia Press, 2015). the conferences lasted from ten days 10 I am grateful to Ayeda Wondimu for these cases. For more information, see I. William Zartman, ‘Security, (Benin) to seventeen months inter- Stability, Development and Cooperation in Africa: A Regional Expression of a Global Policy Network in Forma- mittently (Zaire). In almost all cases, tion’, a case study for the UN Vision Project on Global Public Policy Networks (GPP) (Berlin: Global Public Policy Institute, 1997), available online at http://www.gppi.net/fileadmin/gppi/Zartman_Regional_Expression.pdf. a new constitution was prepared 11 Timothy Sisk, Democratization in South Africa (Princeton, NJ: Princeton University Press, 1995); and I. William and new elections were held. In five Zartman, ‘Negotiating the South African Conflict’, in Zartman (ed.), Elusive Peace: Negotiating an End to Civil Wars (Washington, DC: Brookings Institute, 1995). cases the authoritarian ruler, skilled 12 Zartman, ‘Security, Stability, Development and Cooperation in Africa’. in running elections, won re-election, 46 PIN•Points 40/2014

but in another five cases alternation bate, often resembling a Truth and CONCLUSION was the result, although in all these Reconciliation process. Unlike the case except for Benin, a military coup Arab situation, the authoritarian ruler As shown, dialogue is a special followed some time later, reversing was part of the process in a number instance of negotiation with its the authoritarian overthrow12. of cases and, in half the cases, the own characteristics and skills. It is authoritarian ruler returned to office increasingly practised at the mo- The major characteristic of the CNS through a mastery of skills in winning ment, although perhaps this is a and related dialogues was that they elections over an unpractised opposi- temporary bubble and its successes claimed sovereignty in the n ame of tion13 (with Syria being the sole Arab are uncertain. Its lasting effects are the people, as represented by civil example). Other examples could be even less impressive, but it would be society organizations that had often cited, including the Afghan prelimi- poor history and improper analysis to previously been operating under nary Loya Jirga [Grand Assembly] in attribute events twenty, ten or even repression from the authoritarian Bonn in December 2001, and the Ta- five years later to the course of one regime, and then proceeded under jik dialogue process, which involved months-long encounter. Nonetheless, their own rules, with a ranging de- some 50 sessions running parallel to dialogue deserves deeper study, since official government negotiations with little is known about its typical course the militant opposition, both of which and even less about the skills needed 13 Harold Saunders, A Public Peace Process (New York, NY: St Martin’s Press, 1999). are inheritors of the Dartmouth to guide it to a good conclusion. 14 James Voorhees, Dialogue Sustained: The Multilevel Conferences of semi-official dialogue Peace Process and the Dartmouth Conference (Washington DC: United States Institute of Peace between the USSR and the US during Press for the Kettering Foundation, 2002). the Cold War14.

WILBUR PERLOT VISIT TO THE 26TH SESSION OF THE HUMAN RIGHTS COUNCIL

On 19 and 20 June I had the oppor- these documents lead to many frantic get it accepted by consensus by the tunity to visit the 26th session of the negotiations, informal consultations, 47 Council members with as many Human Rights Council. For two days strategy sessions, etc. co-sponsors as possible, no amend- he followed the Dutch delegation and ments and no vote. Of course a text observed their activities. Although the plenary room is not the of a resolution should reflect desirable place to observe for the most impor- outcomes, but compromise making is A session of the Council lasts three, tant action, at any moment there are inevitable. Otherwise the text itself is sometimes four, weeks. The Human diplomats in the main room talking to strong, but the manner of adoption Rights Council has 47 members. one another; having whispered chats, is weak. If a Council member asks a Only those members can vote or while looking around, seemingly vote on a resolution it can be adopted amend resolutions. However, in the checking who might be listening in. with a normal majority in favour of week leading up to the adoption of a These moments of interactions create the text, the same is true for amend- resolution, other UN members, NGOs a scene of secrecy. If you observe ments. A resolution is tabled one week and UN agencies try to influence the and pay attention well enough, it is ahead of the adoption, after which decision making process. Next to possible to quite clearly see what for changes to the text are only possible the regular reports to the Council on example an adversary is up to, to through amendments. Signing up for the human rights situation of certain whom they are talking and what your co-sponsorship is still allowed after countries of concern , there are next move should be. tabling, however co-sponsors signing interactive dialogues focusing on hu- on to the resolution before tabling ap- man rights violations in for example The most important goal with any pear on the document itself, which is Syria and thematic resolutions. All resolution is normally speaking to considered of significance in the UN. www.pin-negotiation.org 47

It is one of the many informal rules Somalia organised a public informal ficult. As in any negotiation, personal during the process. Agreed language, consultation after tabling the resolu- skills are an important factor in the coming from other UN resolutions, tion, which in itself is quite unusual. process, but in the multilateral set- should preferably not be renegoti- The goal of a consultation is to see ting the context, the jargon and the ated. However, countries opposing where everyone stands as regards to procedures rule the day. such a resolution will do their utmost the resolution and to negotiate spe- to undermine the outcome in other cific passages with an aim to reach The observations will infuse the UN fora. Where possible, one should consensus and gain co-sponsors. An Clingendael Academy’s skills training support like-minded countries, espe- informal consultation normally last on multilateral negotiations. Expect a cially when negotiations get tough. between 1 and 2 hours. In this case few negotiation simulations to emerge Similarly, introducing amendments to Somalia had scheduled two sessions from the visit, such as negotiating the a resolution of a like-minded country of an hour in two different rooms. resolution ‘protection of the family’ is a major no go and should only be Many delegations were discussing and a resolution on the elimination used in emergency cases. Even mak- this with one another, assuming a of violence against women. The next ing a statement of disappointment mistake and doubting which one in seminar of international negotiation towards the resolution of a like- the programme would actually take is scheduled for 10 to 13 November. minded country is a heavy diplomatic place. However, it was Eritrea who In the meantime, ten general tips to weapon. gave a whole different interpretation. ponder and chew on: While listing to the problems the Some of the informal rules are re- country had with the resolution, most 1. Cherish your victories; gional specific. At some point the of these were procedural in nature. 2. Strategize!; (and reach out to like delegation of Eritrea reminded the One of the issues was that Somalia minded countries/individuals that delegation of Somalia that African had to organise two informal consul- can lend support). countries do not submit resolutions tations and that two sessions after 3. Know the playing field; about another country if that country one another in different rooms would 4. Don’t make it personal (and don’t is in disagreement with the contents not count… read this sentence thinking ‘of of the resolution. The resolution course’. It happens to us all!); under discussion was a resolution For this kind of work it is good to have 5. Keep an eye on the prize; drafted by Somalia about the human the procedures and content in order. 6. Know the jargon; rights situation in Eritrea, a resolu- It allows manoeuvrability and playing 7. Play (by) the (informal) rules; tion that was adopted and the only with the rules. Being able to quote 8. Let the system work for you; one to make news headlines in the a significant number of relevant UN 9. MANAGE YOUR STRESS LEVELS! Netherlands. During the exchange resolutions works well in creating 10. Learn how to read lips. between the two delegations, some a position for the negotiations and of the formal rules became apparent. making counterarguments more dif- 48 PIN•Points 40/2014

RUDOLF SCHÜSSLER FOCAL POINTS IN THEORY AND NEGOTIATION: PROSPECTUS OF A CONFERENCE

Peace Treaty between Israel and For all who care about Schelling’s Egypt is a focal solution, as are the initial concerns, these developments many numerical focal points in inter- harbour some dissatisfaction. Theo- national negotiations, such as the 1 retical reflection and experimental per cent GDP contribution that was studies have not focused on the role promoted by a group of countries in of focal points in real negotiations the negotiations concerning the EU’s for several decades now. Most im- 2007–2013 financial framework. portantly, no array of questions from More abstract and more general the analysis of real negotiations has focal points are the ‘even split solu- apparently been investigated on the tion’ between different positions and basis of models or experiments. PIN simple ratios for voting thresholds. has discussed this problem for a while now and agreed to try to do Thomas Schelling (winner of the something about it. The result is a 2005 Nobel Prize in economics) conference on ‘Focal Points in The- in the 1960s spearheaded theo- ory and Negotiation’ to be staged Thomas Schelling retical reflection on the role of fo- on 20 September 2014 at – and in cal points in strategic thinking and cooperation with – the ‘Centre for In negotiations, an intricate web of negotiations.1 His approach was Resolution of International Conflicts’ the parties’ mutual expectations, mildly game-theoretical, introducing (CRIC) in Copenhagen. At the con- and expectations about expecta- formal concepts but refusing the ference, research on the role of focal tions, draws the parties towards or thorough mathematization that has points in international negotiations away from agreement. Sometimes become characteristic of modern will encounter theoretical models the dance of expectations is on the neo-classical economics and game and considerations of rationality, as table, visible in overt proposals, and theory. Subsequent research has well as experiments. This will hope- sometimes it has merely a shadowy been less reluctant in this respect. fully kick off renewed interest in the existence in the heads of the agents. In game theory, the strategic role issue of focal points in negotiations, Early in the history of game theory of focal points has mainly been in- as one conference cannot cover all and modern strategic thought it was vestigated for simple matrix games of the ground that remained untilled understood that some proposals, of coordination. It is still somewhat in the past. ideas, or circumstances function of a puzzle for theories of economic as attractors for expectations in rationality how ‘economic men and MAIN PRELIMINARY negotiations. If these items are women’ can coordinate in even QUESTIONS simple, unique and conspicuous for the simplest matrix games with no all sides, and are expected by all difference of interest but multiple Returning to Schelling’s old agenda to be conspicuous for all, they are Nash equilibria. Experimental game signals that significant questions called salient or focal points. Defined theory has shown that they can do remain unanswered. What are these in such a wide way, focal points are so by choosing focal equilibria if questions? Of course, nobody can ubiquitous in negotiations. The for- such equilibria exist, a fact that is aspire to formulate an authorita- mula ‘land for peace’ of UN Security also known from everyday life and tive list, because research interests Council Resolution 242 and the 1979 international negotiation practices. can differ widely. Nevertheless, it is possible to specify some interesting questions whose answers are insuf- 1 Thomas Schelling, The Strategy of Conflict (Cambridge, MA: Harvard University Press, 1960). ficiently known. Three questions, or www.pin-negotiation.org 49

rather clusters of questions, might provide a starting point for discussion without restricting an open search for further issues. The first question is the most basic: what is a focal point?

At first approximation, as already endorsed by Schelling, offers or outcomes are focal points if they express simple, prominent and often formulaic positions that catch the imagination of negotiators or their principals. As a further requirement, focal points have to be common knowledge among the parties. How- ever, such vague definitions, even if we do not require more precision, are too narrow for capturing the attractor property of focal points. A party still aspiring to realize maximum gain has an incentive to can be gleaned from an early debate of a focal point is used in several deny the salience of a focal point in about the interpretation of the articles therein, it is never defined.3 order to influence the expectations cease-fire line in the Korean War.2 of others (or its own expectations, US military officials denied that the A second question is: when is it if manipulating one’s own thinking 38th parallel, an obvious focal point propitious in negotiations to steer is possible). In theory, a point loses for the division of Korea, was a focal towards a focal solution? Focal solu- its focality through such denials, point in the cease-fire negotiations. tions are often only second-best (in which signal that a party does not In fact, the demilitarized zone does fact, case studies of negotiations regard the point as salient. However, not follow the 38th parallel, although have still to corroborate that this is thwarting the moves of the party in it seems to be anchored on this line. more than a preconception). Let us question may lead to the reinstitu- This is a general possibility for focal assume that the second-best is bet- tion of the focal point, because the points in negotiations. Even where ter than the agents’ best alternative party may give up unsuccessful de- they do not constitute a solution, to a negotiated agreement (BATNA), nials and accept a shared perception they may provide a baseline against so the question is actually when of the situation. Is this an indication which more differentiated solutions should agents drop lofty aspirations that focal points might be better can be sought. The denial of such and aim for a focal second-best so- defined via third-party assessment anchoring by a party may not con- lution instead of risking failure? This of a situation than via the views of vince researchers, because denial question appears familiar from game the involved parties themselves? It might serve the party’s cherished theory, either as a compromise in a could also be an indication that the (self-)perception of superiority. Ap- ‘war of attrition’ model or as motiva- attractor feature of a focal point parently, some work is still required tion for the endogenous construc- might not be inherent in the parties’ to improve our understanding of tion of conflict points. However, from expectations but in a power to trans- what focal points are. The Handbook a real negotiation perspective, there form these expectations. The practi- of Game Theory does not help much is more to the question than these cal importance of these suggestions in this respect, for while the concept aspects. The role of normativity in negotiations is hardly captured by formal models. Agents not only want 1 For the link between Schelling’s reasoning and the Korean War, see Robert Ayson, Thomas Schelling and the Nuclear Age: Strategy as Social Science (London: Frank Cass, 2004), pp. 19 and 92. to come to an agreement, but they 2 Robert Aumann and S. Hart (eds), Handbook of Game Theory with Economic Applications, vol. 3 (Amster- often also feel that they ought to do dam: Elsevier, 2002). References to focal points are mainly contained in volume 3 of the handbook (e.g., pp. 1996, 2337 and 2343). so. Do focal points have a special sig- 4 See Schelling, The Strategy of Conflict, p. 73. nificance in this respect? Moreover, 50 PIN•Points 40/2014

the perception of second-best is not principles of fairness, independently wanting to restrict the imagination a given in negotiations. It changes of the solutions’ salience. These of presenters, it helps to consider in the negotiating process, and often considerations lead to a tête-à-tête some issues for case studies. The not only concerning the likelihood of with traditional ethical theories, and example of cease-fire negotiations realization but also concerning its it will be discussed at the September in the Korean War is suggestive. Is value to the parties. Do focal points 2014 conference in Copenhagen it common practice to deny presum- as attractors of expectations behave whether focal points are related to able focal points, or are focal points in a special way in this respect? Kantian conceptions of morality. The usually recognized as such once they practical significance of this ethical are on the table? Which roles do fo- A third cluster of questions concerns outlook is, of course, at best indirect. cal points play in final agreements? the normativity of focal points. The Like all ethical assessments, its only Do they appear as plain outcomes or beliefs of some parties that a focal practical import is by influencing the rather as baselines from which more solution ought to be chosen may belief formation of agents. differentiated solutions are derived? significantly influence the outcome The second-best nature of many fo- of negotiations. Schelling briefly THE CASE OF CASES cal solutions suggests that a history discussed the possibility that focal of failure to come to an agreement points might have such a norma- The research questions formulated might precede focal solutions. Are tive role,4 but focal points have not so far are quite abstract – as they focal solutions hence a measure of figured prominently in theories of arguably should be at the interface last resort? In this case, they would justice or for that matter in theories between practical negotiation analy- probably follow some recognizable of fair negotiation. Is this an over- sis and game theory or theories of crisis – as in the Korean example. sight, or is there indeed a principled justice. Yet from the perspective of However, the 38th parallel had been difference that renders focal points negotiation studies, the questions accepted as the border between unsuitable as landmarks of justice? need to be parsed into something the Koreas even before the Korean The famed fairness of 50/50 solu- that possibly shows up at the ne- War. Was it already a crisis-solving tions would then depend on genuine gotiating table. Again, while not option when the border was first

4 According to Zartman, ‘If the parties to a conflict (a) perceive themselves to be in a hurting stalemate and (b) perceive the possibility of a negotiated solution (a way out), the conflict is ripe for resolution (i.e., for negotiations toward resolution to begin)’ (Zartman, 2000, p. 228, Proposition 2). www.pin-negotiation.org 51

established? These (and similar) gotiation probably need a more fine- (the 2012 PIN Project) involve scat- questions can be discussed on a grained understanding of the roles tered instances of focal points and case-by-case basis. Before the case of focal points before their practical saliencies. Determination of the studies, it is not clear whether all import becomes apparent, but the boundaries of a shattered Syria and indicated options regularly occur, or required conceptual work has to be a federated Libya and Yemen are whether some are more likely than informed by case studies. In short, geopolitical cases under discussion. others. Yet even if the whole range scholars from diverse fields have Legal cases involve specific word- of possibilities can be observed, the to be brought together to gauge ings in the formulation of constitu- specific form of their occurrence the significance of focal points for tions in Tunisia, Egypt, Libya and may prove instructive. negotiations – and this is precisely Yemen. Other applications can be what will happen at the Copenhagen identified, and will be discussed at THE CONFERENCE conference. the conference.

The foregoing questions provide Presenters from a variety of relevant Finally, the normative significance more than enough material for inter- academic subject areas have agreed of focal agreements in negotia- esting discussions at a conference on to come. Philosophers who study tions (and focal choice in strategic focal points in theory and negotia- games and underlying concepts of situations) will also be broached tion – and international negotiations rationality will contribute, as will ex- by several contributors. Spanning in particular. Focal points are impor- perimental economists. The roots of the outlined spectrum, the field of tant for the practice of negotiation research on focal points in Thomas presenters is set by now. Presenters and should hence not be neglected Schelling’s work will be assessed in include Marlies Ahlert, Cecilia Albin, in theory. They may not easily fit a presentation. Other contributors Joachim Behnke, Nik Emmanuel, the agendas of established branches will present case studies of the role Paul Meerts, Moti Melamud, Valerie of decision science. Focal points of focal points in international nego- Rosoux, Rudolf Schüssler, Mikhail are too psychological to be central tiations. The case-based discussions Troitsky, Bruno Verbeek, I. William for mathematical game theory, and will culminate in a roundtable on Zartman. Readers of this article are their role may depend too much on ongoing events in the Arab World. heartily welcomed to participate in complex strategic reasoning to suit The processes of conflict and nego- the conference. standard psychology. Scholars of ne- tiation arising out of the Arab Spring

PAUL MEERTS THE NETHERLANDS NEGOTIATION NETWORK (NNN) SYMPOSIUM ABOUT NEGOTIATING THE FUTURE

The Dutch PIN and GDN (Group Decision and Negotiation), which was created in 2007 with a first end-of-year symposium in 2008, organized its sixth meeting in December 2013. This time the topic was: ‘what will be the conditions for negotiation in the future?’ The previous colloquia were on international negotiation and research (2008), the differences between public and private processes (2009), the impact of culture (2010), training (2011), and the impact of social media (2012). The 2013 meeting on future developments was organized by the Dutch Employers Organization (AWVN). Scenarios, which had been developed to train employers and employees for negotiations in the coming decades, were applied to encourage understanding of the different circumstances in the future and their impact on international negotiation processes. After a keynote speech by Alexander Rinnooy Kan, the former president of the Dutch Social and Economic Council, the morning was devoted to lectures by German researchers. During the afternoon, the 50 participants worked in simulated environments on four different scenarios.

At the end of 2014, the seventh meeting will take place at Tilburg University, and will analyze the utility and outcomes of quantitative methodologies in laboratory experiments with university students.