Fluent Essays

Present a current international dispute in which you think conciliation might be useful. How could principles of conciliation be applied? What are the advantages and disadvantages of this method (comparing it with mediation, for example)? tThe attached lesson and article https://www.mediate.com/articles/sgubinia2.cfm should be utilized. additional resources are acceptable.350 words. Turabian author/date reference list style. irls613_lesson_3_notes_co2.docx Unformatted Attachment Preview WEEK 3: Conciliation in International Disputes Conciliation in International Disputes INTRODUCTION This week we begin a new course objective with CO2: Apply theories of conflict, war, mediation, and diplomatic negotiation to issues in the international political environment. Specifically, we look at the process of conciliation and will apply that concept to relations between China and Taiwan with our supplemental journal articles. Additionally, as we continue to look at alternative methods of international negotiation, Ian Brownlies article The Peaceful Settlement of International Disputes offers an overview of many of the processes. Brownlies article will serve as a general review as you head into the midterm in Week Four. Lesson Topics: • • • • • • Conflict Resolution The Importance of Crises in International Negotiation Conciliation in the 20th Century Non-judicial Methods of International Dispute Resolution Parties in Conciliation Conciliation and Its Place on the Continuum of Conflict Resolution Key Terms: • • • • • • • Conciliation Reconciliation Investor-State Dispute Settlement (ISDS) Mediation Inquiry Customs Norms Conflict Resolution The international legal term conciliation is a technique that may be used before a conflict erupts (during peaceful negotiations), during conflict, and afterward in the peacebuilding process. Some may use the terms conciliation and reconciliation interchangeably but reconciliation occurs within post-conflict or peacebuilding process. According to Merril (2011), there are several phases of conflict - prevention, management, resolution, and transformation - but they all are generally precipitated by a crisis that induces change. Conciliation is one of the first methods on an ascending scale in which the parties themselves try to solve the conflict. It usually occurs before the real crisis erupts, and might go on for years in the background as diplomats, trade representatives, and other personnel try to solve issues. The Importance of Crises in International Negotiation As we move about our daily lives, we avoid crisis. But in the world of international relations, change precipitated by crises is an everyday occurrence. Within the international system, governments (and the institutions that go along with them) resist change - primarily because governments are too big and complex to change quickly. It takes something major to get things to happen. The Paris and Brussels attacks (January 2015; November 2015; March 2016) are good examples of crisis forcing change. How many governments, transnational organizations, non-governmental organizations (NGOs), and other multi-party entities were forced to re-evaluate security and immigration procedures because of those attacks? There is a very basic definition of “crisis” in the international environment – either things will get better, or things will get worse - but something’s going to change (big or small). Sometimes crisis brings a tweak to the system - a potential shoe bomber on a plane, for example, means we all need to take off our shoes at airport security. Conciliation in the 20th Century Conciliation is a relatively recent phenomenon in international dispute resolution. The first instance was in 1920 in a treaty concluded by Sweden and Chile (Merrills 2011, 58). The essence of conciliation is that it is guided by a third party. Conciliation as a method is primarily used to prevent misunderstandings rather than address them after theyve become conflicts. Reconciliation, as mentioned above, occurs post-conflict. • CONCILIATION Cot (1968) defines conciliation as “intervention in the settlement of an international dispute by a body having no political authority on its own, but enjoying the confidence of the parties to the dispute and entrusted with the task of investigating every aspect of the dispute and of proposing a solution which is not binding on the parties” (Reif 1990, 580). Since the time of Cots writing, alternative dispute resolution methods have evolved. Today conciliation is applied in a variety of governmental and business situations. Cot’s definition was predominantly applied to the practice of states but may be applied also to non-state parties. Conciliation is a more informal process and sometimes may be achieved between parties with an individual whom they both trust to hear the issues and provide a recommendation. Between states, the process is more complex. COT’S CONCILIATION PRINCIPLES (COT IN REIF 1990, 583) • • The conciliator (or conciliation commission) must have the confidence of the disputants in order to be able to perform her function. The function of the conciliator is to examine the entire dispute, including clarification of the facts and a survey of both the applicable law and the nonjuridical elements. • • The recommendations of the conciliator need not be based purely on the application of law. The relevant legal principles may be supplementary grounds or may be absent altogether. The resolution proposed by the conciliator is not binding on the disputants, who can refuse to implement the recommendations. • THE MONTREAL PROTOCOL One trend-setting example from the late 1970s was the initiatives by the Organization for Security and Cooperation in Europe (OSCE, formerly known as the CSCE or Conference on Security and Cooperation in Europe). The structure and procedures of the OSCE provide a window into the conciliation process (Merrills pp. 75-79). A novel approach in conciliation developed over the last 30 years with the establishment of “compliance procedures” (Merrills 2011, 78). One of the first and most dynamic examples is the “Montreal Protocol on Substances that Deplete the Ozone Layer.” Under the protocol, signatories agree to cut back on the production of CFCs (chlorofluorocarbons) used in industrial development and production. CFCs are those nasty chemicals produced by refrigeration processes. Prior to 1974, with development in the industrialized states having occurred at a much earlier date, there was little concern for the impact of CFCs on the ozone layer. But once the science proved that they were indeed causing significant damage, the dilemma became: how do developing states continue to develop without using them? On the Montreal Protocol: “As far back as 1974, Molina and Rowland (the Mexican and American Nobel Chemistry Prize winners in 1995) had indicated that CFCs were capable of destroying the ozone layer. After the first ozone hole had been observed over the Antarctic, a meeting between states was organized under the aegis of the United Nations Environment Programme (UNEP) to establish principles for international cooperation to act against the destruction of the ozone layer. The principles laid down by the Vienna Convention (1985) then found practical expression with the signature of the Montreal Protocol on ozone-depleting substances (1987), which drew up a schedule for phasing out ODS in the signatory countries” (FFEM). So the idea of “compliance” was created within a treaty framework, where states willingly concede to limiting their actions, usually in actions that including phasing in or phasing out certain measures and processes over time. Merrills points out that this method within conciliation has proved useful in over twenty cases since the Montreal Protocol and works well when treaties need to account for new technologies and shifting concerns such as environmental change (Merrills 2011, 79). Check on learning: Conciliation occurs before a conflict as a preventative measure, while reconciliation occurs after a conflict as a peace building measure. True Non-judicial Methods of International Dispute Resolution Traditional methods of conflict resolution include hard and soft techniques to be applied depending on the type of dispute, how amenable the parties are in solving it, and how much time and money is available for an extended process. Negotiation: Negotiation may be bilateral or multilateral. The process may be formalized by treaty or agreement - or it may occur ad hoc. For example, the new Trans-Pacific Partnership dispute resolution negotiations are modeled on formal procedures found in the World Trade Organization (WTO) and may include bilateral or multilateral negotiations among the twelve participating member governments as well as mechanisms to solve disputes between states and investors. The United States Trade Representative Office serves as the USs intermediary under a process known as Investor-State Dispute Settlement (ISDS). Conversely, the United States could agree to negotiations with specific Asian states (like Vietnam) over tariff levels on clothing and footwear. Note that prior negotiation often is also required as a condition precedent to the exercise of jurisdiction by international courts (Buergenthal and Murphy 2007, 67). Mediation or Good Offices: A third-party approach to help the parties resolve the dispute on their own. In Week 6, we’ll look at the Northern Ireland Peace Process through the lens of Senator George Mitchell’s account, Making Peace (Mitchell 1999) The process leading to the Good Friday Agreement (Belfast Agreement) used the approach of mediation to achieve multilateral agreement – although conciliation became (and remains) the ultimate goal in the Northern Ireland conflict. As we saw in Week 2, inquiry involves a specific process in which a group of individuals or an organization oversee fact-finding when an accident or crisis has occurred. When the parties consent to the inquiry and then agree on its fact-finding, this will “more than likely lead to the resolution of the dispute” (Buergenthal and Murphy 2007, 68). Larissa van den Herik argued in the Week 2 journal article that inquiries may be “diplomatic and policy-driven” or “historical and scientific” in orientation (van den Herik 2015, 296). But as we’ve seen, inquiries usually contain both political and fact-finding aspects that are used for issues in accountability and perhaps, criminal prosecution. Inquiry: Conciliation: Efforts and methods in conciliation are more formal than negotiation, mediation, or inquiry. Although conciliation follows inquiry in the Merrills text, it more often is the last phase in conflict resolution. In the use of conciliation as a process, author Eric Patterson (2012) applies it to post-conflict situations. Reconciliation is generally the term for these processes as part of transitional justice approaches. But as we saw with the term inquiry, international law today accepts multiple uses of these terms as both strict technical approaches in solving disputes as well as in larger processes. Parties in Conciliation Bercovitch, Kremenyuk, and Zartman (2009) edited a well-known text in conflict resolution for SAGE. Its a handy resource if you have further interest in conflict resolution strategies. They focus on systems theory and sovereign states, and for our purposes in conciliation, that is a valid focus, too. But as J. David Singer argued in his classic work on levels of analysis in international relations in 1961, there are other parties who trigger conflict and crises beyond just states. Individuals, groups, religious and ethnic communities, and even geographical regions also are subjects in international relations (Bercovitch et al. 2009, 7). Its practical to keep these levels in mind and to base your analysis on where the key actors in any conflict fit into the levels. For example, if one party is an ethnic group and the other party is a state, does that power dynamic make a difference in what tools are used to approach the conflict? Of course. The relative power of entities also makes a difference - the level and amount of resources parties are able to throw at any crisis or conflict situation. Large states have vast resources but smaller countries may have a very limited diplomatic corps. Conciliation may fail if these power dynamics are considerably out of balance. Conciliation and Its Place on the Continuum of Conflict Resolution Jönsson and Aggestaum (2009) suggest that diplomacy and international negotiation dovetail in six functional areas. All international conflict has: • • • • • • a context (the issues or policies), the conduct (what decisions are made and their impact), negotiation (the management of conflict), diplomatic service (the institutions of diplomacy), manner (the method of interaction), and skill (like conduct but at the individual level, e.g. decision-making skills). The authors suggest there is a continuum that begins with diplomacy and ends with war - with all the coercive and persuasive tools nestled in the middle (Jönsson and Aggestaum in Berkovitch et al. 2009, 3334). (Merrills text follows this approach, too, but it is centered on legal techniques.) The most important element that Jönsson and Aggestaum introduce in their work is international norms and practices that evolve through custom. Its good to keep in mind how custom comes into being. Usually, there is a practice that over time becomes generally accepted by a large number of people or societies. Norms are the precursors to customs. Eventually, when enough societies are following the same norms, then custom emerges and then - when the issue is ripe - meaning, the parties are ready to address their dispute - codification of the custom in legislation or law may occur. Check on Learning: Which of the following is not correct? Conciliation is often the last stage in the international negotiation process. Investor-state dispute settlements refer to a third-party approach to mediation and conflict resolution. Mediation refers to a third-party approach to help states or parties resolve conflicts on their own, or outside of a formalized negotiation process. Inquiry can refer to a fact-finding mission that should ultimately lead to a resolution of a dispute. Conclusion Coexistence and reciprocity, open communication channels and a shared agenda, commitment to peace, diplomatic immunity, pacta sunt servanda - all are facilitating norms and practices that encourage conflict resolution (Jönsson and Aggestaum in Berkovitch et al. 2009, 38-39). But there are complicating issues that counter these norms including issue precedence, degrees of openness among the parties, constructive ambiguity (deliberately being vague in outcomes), and multilateralism (too many cooks in the kitchen) among others (Jönsson and Aggestaum in Berkovitch et al. 2009, 40-45, passim). In the end, choosing between diplomacy and war on the continuum depends on three factors: trust, worldview, and political will (Jönsson and Aggestaum in Berkovitch et al. 2009, 46). For conciliation to occur among or between parties, the challenges may be too great - and hard approach in third-party intervention is required - namely, arbitration, which we will discuss in Week 4. Mediation We will also be discussing mediation in this course. As opposed to direct negotiation between two or more parties, mediation is the first step to conflict resolution through third-party efforts. Mediation as a tool looks beyond the parties involved to manage or solve conflict. It involves an outsider to the party but the other” can be an individual, a group, or an organization. Mediation can occur at all stages of conflict resolution. For example, before a conflict erupts, mediation might be pursued through preventative diplomacy. In sustained conflict, mediation could be used in peacemaking activities. After the conflict ends, mediation could be used to help with the reconciliation and transitional justice process (Bercovitch 2004, n.p.). The important feature of mediation is that the thirdparty negotiator facilitates the resolution or process rather than dictates it. The parties are not obligated to follow the mediator’s advice and solutions. In next week’s lesson, we will look at arbitration – a type of binding third-party intervention. References Buergenthal, Thomas and Sean D. Murphy. 2007. Public International Law in A Nutshell. St. Paul, MN: Thomson West. Jönsson, Christer and Karin Aggestam. 2009. Diplomacy and Conflict Resolution.”. In The SAGE Handbook of Conflict Resolution, edited by Jacob Bercovitch, Victor Kremenyuk, & I. William Zartman. Los Angeles, CA: SAGE Publications Ltd. Merrills, J. G. 2011. International Dispute Settlement. 5th. Cambridge : Cambridge University Press. Mitchell, George J. 1999. Making Peace. Berkeley, CA: University of California Press. Reif, Linda C. 1990. Conciliation As A Mechanism For The Resolution Of International Economic and Business Disputes. Fordham Intl L.J. 14: 578-638. Van den Herik, Larissa. 2015. Accountability Through Fact-Finding: Appraising Inquiry in the Context of Srebrenica. Neth. Int. Law Rev. 62 : 295-311. Weekly readings Brownlie, Ian. 2009. The peaceful settlement of international disputes. Chi, Su. 2009. “Conciliation in cross-strait relations.” van Haersolte-van Hof, Jacomijn. 2007. “The revitalization of the Permanent Court of Arbitration.” Graham, Euan. “The Hague Tribunal’s South China Sea ruling: empty provocation or slowburning influence?” ... Purchase answer to see full attachment