The ACP, EPA, and The European Union Trade Agreements
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article traces the trade relationship between the European Union and the African, Caribbean and Pacific States, with particular attention to the Economic Partnership Agreement concluded with CARIFORUM. Situating the arrangement within the wider context of globalisation and liberalised trade, the author follows the sequence from the Lomé Convention of 1975 and the establishment of the Caribbean Community through the Treaty of Chaguaramas, to the end of non reciprocal preferences under the Cotonou Agreement and the signature of the Economic Partnership Agreement in 2008. The structure and objectives of that agreement are set out, together with its institutional machinery. The author then identifies the difficulties of implementation, including revenue loss from tariff reductions, competition from European exports, adjustment costs, and the absence of a unitary legal order on the Caribbean side comparable to that of the European Union. The conclusion is that the parties negotiate from positions of markedly unequal capacity and that no adequate process for resolving disputes has been established.
KEYWORDS *
CARIFORUM, Economic Partnership Agreement, European Union, Lomé Convention, Cotonou Agreement, Treaty of Chaguaramas, CARICOM, asymmetric negotiation, liberalisation, regional integration, dispute settlement, small states
INTRODUCTION
The impact of globalization and trade brought with it the neoliberal-laissez-faire dialogue and the pursuit of profit. The ACP, EPA, and European Union trade agreements may be described as fitting this description. They make up some of the countries that have entered into international agreements for national interests. These multilateral trade agreements are aligned with open markets, limited subsidies, and foreign direct investment. These factors should be appreciated when examining the African, Caribbean, and Pacific States (ACP) countries, trade agreements with the European Union. The ACP countries have a long history with the European Community. The purpose of the ACP is to foster collaboration and cooperation with these communities. The basic aim was to facilitate sustainable development and eradicate poverty in the countries (Nyomakwa-Obimpeh, 2017).
MAIN CORPUS
Negotiations
The negotiations for the Economic Partnership Agreement (EPA) between the ACP were based on the Cotonou Agreement and were conducted in two phases beginning with: (1) The ACP-EC phase; and (2) the EC Commissioners for Trade and Development and Humanitarian Aid. The CARIFORUM negotiating mandate went through a series of regional specifics at local and then international levels. In June 2002, the General Affairs and External Relations of the EU gave the mandate to negotiate an EPA.
The trade agreement and the implications of the EPA between CARIFORUM and the European Union are put in perspective of the LOME Agreement established between 1973-1975. The Lomé Convention is a comprehensive trade and aid agreement with developing countries in Africa, the Caribbean, and the Pacific (Gibb, 2000). The Caribbean Community and Common Market (CARICOM) was established in 1973, and it included most of the major Commonwealth Caribbean territories, such as Trinidad, Barbados, The Bahamas, Guyana, and Dominica (Payne, 1985).
The establishment of the CARIFORUM-EU trade agreement was brought about by a sequence of events that followed convoluted and almost impassable arrangements with the Caribbean and African states. They wanted to secure viability for the sugar and banana industries with Britain and France, who viewed the African nations as full of substantive resources. The Commonwealth Caribbean states signed the Treaty of Chaguaramas, establishing the Caribbean Community and Common Market. The Treaty of Chaguaramas came into effect on August 1, 1973, comprised of Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Belize, Grenada, Guyana, Haiti, Jamaica, Montserrat, and Trinidad and Tobago, amongst others.
The Caribbean States began negotiation with the African and Pacific States with a mutual understanding to build international relations. The signing of the Lomé Convention Agreement on February 28, 1975, brought multifaceted changes to ‘Less Developed’ countries and negotiations with the Common Market, the African, Caribbean and, and the Pacific States (Gruhn, 1976).
Negotiating the Cariforum-EC-EPA
The Lomé Convention was a functional tool in international trade relations and allowed less powerful states to present a fortitude of convictions and purpose to the European Community. This saw changes due to globalization and the expansion of the European State. In 2000, the Cotonou Agreement came to an end, and with it, the end of the non-reciprocal trade policy that was made under the Lomé Convention (Hurt, 2003). This was beneficial because multilateral negotiations promote trade and economic growth. The CARIFORUM countries are relatively small and dependent on foreign trade, and the Caribbean has fewer goods to export than the larger European market. It has been observed that, now that the Caribbean economies have been integrated into international trade, it has brought high trade to GDP ratios and dependency on imported goods (Brusse and Simon, 2007).
Structure and Provisions
The CARIFORUM-EU Free Trade Agreement between the EU and its former colonies provides a comprehensive and multifaceted international trade agreement. The agreement has four parts, inclusive of protocols and declarations. It provides a comprehensive list of the objectives, which include: (a) ‘Contributing to the reduction and eradication of poverty; (b) regional integration, (c) economic cooperation; (d) promoting the integration of CARIFORUM States; and (e) improving CARIFORUM States capacity in trade policy.’ The structure of the agreement and the provisions provided in this development area promotes cooperation in the ideals of partnership such as rules, procedure, and sources of funding standards.
It should be noted that the CARIFORUM-EU is an international agreement that provides the Europeans with the ability to display international diplomacy. However, it noted that “The European Commission was keen to use the EPA negotiations as an opportunity to lay down a marker in the context of international disputes, (Ben Garner, 2017). In terms of institutional provisions, the joint CARIFORUM-EC Council is the primary institution with the CARICOM-EC Trade and Development Committee and is the second-highest institution. It aims to demonstrate a mutuality of interests of the parties in bilateral, multilateral, or international matters.
This is done through the CARIFORUM-EU Agreement and liberalization policy, which was used to promote development through the EPA. Liberalization is the removal of trade barriers between the EU and EPA while enhancing cooperation in trade. CARIFORUM states have benefitted from the liberalization commitment via the Dominican Republic by satisfying the compatibility for trade. The challenge, however, is that the agreement attempts to balance agricultural products with WTO strict limits on agricultural tariffs and subsidies (Heron, 2011).
Challenges of Implementing the CARIFORUM-EC EPA
Implementing the CARIFORUM-EC Economic Partnership Agreement involved a series of processes that involved legal, procedural, and administrative mechanisms of the CARIFORUM States. The EPA’s schedule was an integral part of the Caribbean Single Market Economy (CSME). The plan to establish the CSME was part of a global integration framework to provide a framework for a Revised Treaty of Chaguaramas. The signing of the CARIFORUM EPA in 2008 was intended to gain access to the European market and developing trade capacity. However, there remain several challenges with the EPA. These include revenue loss from tariff cuts, competition from EU exports, adjustment, and implementation costs (Montoute, 2015). It is noted that Europe is a unitary system, and issues of the law are considered by the European Court of Justice (ECJ), a single body. On the other hand, the CARIFORUM States do not have a unitary system, and law issues may be adjudicated by a regional court. This is challenging because each country has laws that are consistent with national interests.
SUMMARY *
The article traces a single trajectory across five decades: from preferential access granted without reciprocity under Lomé, through the incompatibility of those preferences with World Trade Organization rules, to a reciprocal agreement in which small economies undertake obligations comparable in kind, though not in scale, to those of the largest trading bloc in the world. The difficulties the author identifies at the implementation stage, lost customs revenue, exposure to European competition, and administrative capacity, follow from that shift rather than from any defect in the drafting.
CONCLUSION
The examination of ACP, EPA, and EU trade agreements provides a historical look at the ACP and its interaction with Europe. The challenge is that these countries do not have the industrialized capacity to compete on a total mutuality of interest basis. This is the reality of the primary export of the sugar and bananas industries. Less developed countries are unable to compete with the refined products of Europe and lack adequate financial resources. Also, there is not a well-defined process of negotiation of conflict resolution. It is hoped that as these multilateral agreements expand with the less developed countries like the ACP, those negotiations are promoted based on mutuality of interests.
POTENTIAL SOLUTION *
The article’s closing observation, that no well defined process exists for resolving disputes and conducting negotiations, identifies the point at which this material becomes relevant to mediation practice, and it is worth developing.
Asymmetry of the kind described here is a familiar problem for anyone who works with parties of unequal weight, and negotiation research offers a specific diagnosis. What determines an outcome is not the size of the parties but the quality of their alternatives, and the article’s own reference to the BATNA literature points there. The Caribbean states negotiated under a deadline created by the expiry of a waiver, facing the loss of existing preferences if no agreement was concluded, while their counterpart faced no comparable consequence. Under those conditions the weaker party is not negotiating but choosing between an offer and a cliff. Anything that improves the alternative therefore improves the outcome more than any amount of skill at the table: alternative markets developed in advance, coalition with other regions facing the same negotiation, and above all the removal of artificial deadlines that press on one side only.
Capacity is the second lever, and it is the one most readily addressed. A negotiation in which one delegation is supported by hundreds of specialists and the other by a handful of officials covering several files each is unequal before anyone speaks. Independent technical assistance, funded by neither party, and joint regional negotiating machinery with permanent staff rather than seconded ministries, are the standard remedies and they work. This is also where sequencing matters: agreements negotiated faster than the weaker party can analyse them produce commitments whose implications emerge only years later, which is precisely what the implementation difficulties described here reflect.
On dispute settlement, the asymmetry the author notes has a practical consequence beyond the institutional one. Formal arbitration is available under such agreements, but using it requires legal resources that the smaller party frequently lacks, with the result that the mechanism exists and is not used. Standing consultative machinery with mediation as its first stage, low cost, non adversarial and available before a matter hardens into a legal dispute, is more useful to a small state than any tribunal. Where formal proceedings are unavoidable, a shared legal facility serving the region collectively would make the rights on paper into rights in practice.
Finally, a broader observation. Trade agreements are ordinarily treated as economic instruments and analysed by economists, but they are negotiated outcomes, and everything the mediation field knows about power imbalance, deadline pressure, information asymmetry and the durability of agreements applies to them directly. An agreement whose weaker party experiences it as imposed will be implemented reluctantly, renegotiated at the first opportunity and blamed for whatever follows. That is not an argument against liberalised trade; it is an argument for negotiating it in a way that both sides can defend at home, which is the same argument this journal makes about every other kind of settlement.
* Added by the WMO Editorial Team
REFERENCES
References
Busse Matthias and Lueje Simon. “Should the Caribbean an Economic Partnership Agreement with the EU? Challenges and Strategic Options.” Center for Economic Integration, Sejong University 22, no. 3 (September 2007): 598–618.
Gibb Richard. “Post-Lome: The European Union and the South.” Third World Quarterly 21, no. 3 (June 2000): 457–81.
Gruhn Isebill. “The Lome Convention: Inching Towards Interdependence.” University of Wisconsin Press, The Lome Convention, 30, no. 2 (Spring 1976): 241–62.
Heron Tony. “Asymmetric Bargaining and Development Trade-Offs in the CARIFORUM-European Union Economic Partnership Agreement.” Taylor & Francis Ltd 18, no. 3 (August 2011): 328–57.
Hurt Stephen R. “Cooperation and Coercion? The Cotonou Agreement between the European and the ACP States and the End of the Lome Convention.” Taylor & Francis Ltd, Third World Quarterly, 24, no. 1 (February 2003): 161–76.
Montoute Anita. “CARICOM’s External Engagements: Prospects and Challenges for Caribbean Regional Integration and Development.” The German Marshall Fund of the United States, May 2015. https://www-jstor-org.cob.idm.oclc.org/stable/pdf/resrep18854.
Nyomakwa-Obimpeh James. “Examining the Role of BATNA in Explaining EPA Negotiation Outcomes.” Center for Economic Integration, Sejong University 32, no. 2 (June 2017): 488–530.
Supplementary references added by the WMO Editorial Team
Economic Partnership Agreement between the CARIFORUM States and the European Community and its Member States, signed at Bridgetown, 15 October 2008.
Partnership Agreement between the members of the African, Caribbean and Pacific Group of States and the European Community (Cotonou Agreement), 23 June 2000, as revised.
Fourth ACP EEC Convention (Lomé IV), 1989, and the earlier Lomé Conventions of 1975, 1979 and 1984.
Revised Treaty of Chaguaramas Establishing the Caribbean Community including the CARICOM Single Market and Economy, 2001.
World Trade Organization, General Agreement on Tariffs and Trade, Article XXIV, and the Doha waiver for ACP preferences, 2001.
Fisher, R., Ury, W., & Patton, B. (2011). Getting to Yes: Negotiating Agreement Without Giving In (3rd edition). Penguin Books, New York (on the best alternative to a negotiated agreement).
Odell, J. S. (Ed.) (2006). Negotiating Trade: Developing Countries in the WTO and NAFTA. Cambridge University Press, Cambridge.
Zartman, I. W., & Rubin, J. Z. (Eds.) (2000). Power and Negotiation. University of Michigan Press, Ann Arbor.
International Law and Politics: The Chechen Conflict
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines the relationship between international law and international politics, using the Chechen conflict as its case. After considering the nature of international law and the tension between rules binding on states and the pursuit of national interest, the author turns to the Russian legal order, its transformation after the collapse of the Soviet Union, and the incorporation of international law through Article 15 of the 1993 Constitution. The conflict is then traced from Chechnya’s declaration of independence in 1991 and the Russian military intervention of 1994, through the framing of the resistance as terrorism, the policy of Chechenisation and the constitutional referendum of 2003. The author observes that the international response was notably muted, and concludes that the case illustrates the unresolved question of how national law can serve international law while national sovereignty is maintained. The characterisations reflect the author’s own perspective; this journal’s editorial position is neutral.
KEYWORDS *
International law, Chechnya, Russia, sovereignty, self determination, territorial integrity, human rights, European Court of Human Rights, Chechenisation, national interest, terrorism framing, comparative international law
INTRODUCTION
This paper examines international in the context of politics, as practiced in national states through international law. Countries operate in a legal system that affects their relations in international law. This is because national laws promote state interests and international law advances benefits for the benefit of the international community. In times of conflict, national interests must be considered. In this regard, the Chechen conflict is examined in its historical context.
This paper considers the Chechen conflict and the operation of international law and politics. Through international law States sign treaties and multilateral agreements, consenting to the rules which should bind them. It is about practical authority and the validity of a legal system. Concerning this, the domestic legal system can affect the perception and practice of international law. In this regard, this article will consider the analytical jurisprudence of international law and politics and how it is reflected in legal and political theories. Also, it will assess how a national legal system can impact internationally as it is observed in the Russian and Chechen conflict.
MAIN CORPUS
International Law and Politics
In seeking to address the concept of international law, it is relevant to consider what is law? The concept of law encompasses the rule of law, which signifies that States operate using the principles of fairness and justice. International law is different in many ways from domestic law in that it provides a set of rules that seek to influence state behavior. Fairness and justice are concepts often reflected through judges, lawyers, and observed in democracies in the legal system in which they operate.
The Academy of International Law at The Hague in its launching an institution saw the necessity of developing a systematic and practical approach to international law, to promote international justice.[i] This approach was appropriate because International law encompasses international landscapes, jurisdictions, customs, and culture. Its relevance is observed in the nature and scope of international law makes and its importance as a course in legal studies and as a career choice. The challenge may be that international law is often associated with politics. The practicality of this approach and its association with politics may be pragmatic. According to Zaleski, removing the non-legal structure of international law does not de-politicize international law but takes away its context.
The transition of international law into modern times has brought different specializations. The interconnections are observed by Zaleski that: The social, economic, and other branches shape a particular area of international law which fosters a relationship between different legal branches even if they differ.[ii] This relationship of diversity is observed by Roberts and Stephan et al in their article Comparative International Law: Framing The Field, who notes that, ‘the principle of international law arises from multilateral treaties or general custom and applies to all States equally.[iii]
International Law in Perspective
Although there is a relationship between law and politics, at the international level there is a challenge to determine the form of the relationship. For instance, Zaleski describes the relationship in the modern era with a distinctive form and practice, observing that ‘the international legal order shapes politics through its discourse of international autonomy…'[iv] The perspective of autonomy suggests that States have the right to self-determination in international law.
In modern international law, to achieve mutual coordination in the world, there should be codes and rules of conduct that can ‘facilitate harmonizing of States.’ That is the adherence to rules to avoid unilateral actions that undermine other States.[v] This accords with Hisashi’s view that there may be a conflict if a State in its ‘obligation goes beyond its sphere of activity or exceeds its competence as determined by international law.[vi] Roberts and Stephan further state that comparative international law may be useful in trying to determine whether national courts can provide similar or different interpretations of treaty obligations? Also, how do they have a transnational dialogue with other courts and States?”[vii] The concept of international law is multifaceted and because of variables, should be observed in any conflict.
International Law and The Chechen Conflict
The concept of international law is based on the nature and scope of the law. The theoretical underpinnings and jurisprudence reflect both naturalists’ and positivists’ views. Although the application of the law is not always reflected in international law, it is integrated with international politics and is provides a multifactorial approach. This can be observed in the Chechen conflict and the international response.
The factors considered in the Chechen conflict are The Russian government; the Chechen people; the international community; and the issues faced by the European Court of Human Rights. In respect of the Russian government, the first thing to consider is international law in the domestic affairs of Russia and its legal system.
The legal system in Russia has been described by Dahlke and Tissier as a departure from the path of legal development in Europe.[viii] There was a legal transformation in the 1990s when the Soviet Union collapsed. “The USSR’s relations with other states are based on…fulfillment in good faith of obligations arising from the generally recognized principles and rules of international law, and international treaties signed by the USSR.[ix] Dahlke and Tissier’s article provide limited scope into the jurisdiction of the domestic courts. However, in the 1993 Constitution, there was a change that made international law relevant in Russia, where article 15 (4) provides:
“That the generally recognized principles and norms of international law and international treaties of the Russian Federation should be an integral part of its legal system, and if other rules have been established by an international treaty of the Russian Federation than provided for by law, the rules of the international treaty shall apply.[x]
The 1993 Constitution is more inclusive and acknowledges international treaty agreements and Russia’s commitment to abide by the treaties. The importance of the treaty agreements in international law is affirmed in Nye’s statement that public international law consists of treaties which are agreements among States and customs, which are the generally accepted practices of the States.[xi] Russia’s theory of international law has been marked by the Marxist-Leninist ideology. In this regard, Russia is bound by a hybrid ideology brought about by the revolution of Eurasians and Bolshevism.[xii] Bolshevism is based on idealism that is not reflective of international communism. The premise is that international communism is alien to the Russian people.[xiii]
The struggle between the two forces of socialism versus capitalism has been reflected in Russia’s approach to law in general, and international law in particular, the struggle of which is seen in the Marxist ideology.[xiv] The fall of the Soviet Union also brought the fall of the Marxist-Leninist ideology. The evolution of international law was observed in the ushering in of the human rights movement in Russia. In the 1990s more officials and scholars became outspoken in Russia. This resulted in criticisms of Russia and its handling of Chechnya.
In 1991 Chechnya declared unilateral independence from Russia, which was a breach of the Soviet Constitution.[xv] This resulted in Russia’s military intervention in 1994. It justified Russia to protect its territorial integrity.[xvi] It was the beginning of the decades-long conflict. Russia’s 1993 Constitution provided a list of human rights and freedoms, nevertheless, the Chechnya war in 1994 brought unprecedented brutality. It is reported that in 1995 Sergei Grigoryants, the Chair of the Glasnost Foundation stated that: ‘Russia is again ready to teach the lesson to the rest of the world that authoritarian regime can be more bloody than the totalitarian one.'[xvii]
In 2001 Vladimir Putin, Russia’s president, appointed a Special Representative for the President of the Russian Federation for Human Rights in Chechnya, responding to criticisms of Russia’s handling of Chechnya.[xviii] The impact of the crisis in Chechnya was made by John Russell in his article Obstacles to Peace in Chechnya. In the article, it was noted that, however much the United Nations, the OSCE, PACE, and the European Court of Human Rights call for the international norm to stop the violence unless real sanctions are threatened, they are likely to be ignored.[xix]
Putin had linked the actions of the Chechens to terrorism and stated that Russia was forced into action against the terrorists, comparing them to Al Qaeda.[xx] The first Russian Chechen war, 1994-1996, brought with it a defacto government in 1996-1999. The realization that elements of the Chechen resistance (from Akhmad to Asian Maskhadov), considered that it was best to cooperate with the Russians to save the Chechen people from suffering and possibly annihilation.[xxi] The second conflict noted by Szablewska was characterized by distinct groups of rebels which made negotiations difficult.[xxii]
It was in June 2000 that a policy of Chechenization to deal with the conflict in Chechnya began with the appointment of Putin’s representative to break the impasse with the Kremlin and their Chechen allies.[xxiii] In March 2003, there was a new Chechen Constitution, making Chechen a Republic with some autonomy but subject to Russia’s rule. It prohibited separatism with strong federal control. Some international observers thought that the referendum before the Constitution was deeply flawed.[xxiv] The nature of the Russian-Chechen conflict was because of Russia’s occupation of Chechnya, and the highly unlikely ability of the Chechens to outbattle the Russians.
SUMMARY
The response by the international community was not a unified approach, with the West silent and cautious.[xxv] Russia as a world leader was no doubt influential in the silence from the West. This was stated by Malcolm Rifkin, British Defense Secretary, with these words: “Russia remains a nuclear power, it is very important for us that Russia should remain a stable country with internal peace.”[xxvi]
CONCLUSION
The examination of international law and international politics presents a relevant method of using international law as the basis for reviewing the conflict in Chechen. International politics in the context of domestic States will usually base their international agreements on the domestic culture. The Chechen people wanted independence, but Russia did not consider that it was in their national interest and there was the conflict. Russia’s national culture was their reference point on its sovereignty and the thing that Russia used to justify military intervention. Russia acknowledged that the integrity of its national sovereignty had to be protected from ‘terrorists’ who wanted to take over Chechnya. The bloody war between Russia and the Chechen separatists was noticeably silent by the international community. Russia is a superpower and the international community was hesitant to interfere.
The important thing is how can national law facilitate international law, while at the same time maintain national sovereignty? The Russia-Chechen conflict emphasizes the need for international law and politics to cohabitate to promote human rights, peace, and justice. As of the date of this publication, tensions remain between Russia and the Chechen.
POTENTIAL SOLUTION *
The article poses a question that international law has never satisfactorily answered, and stating the difficulty precisely is more useful than pretending it has been resolved. Two principles of the United Nations Charter collide in cases of this kind: the territorial integrity of states, and the self determination of peoples. International practice resolves the collision almost always in favour of the first. Self determination is understood to entitle a people to participation, cultural rights and autonomy within an existing state, and only in narrow and contested circumstances to secession. This is why the international response the article describes as silence was, in legal terms, largely a recognition that the matter fell within a member state’s domestic jurisdiction.
Recognising this changes what a mediator can usefully pursue. Secession was never a realistic outcome, and a process organised around it would have failed regardless of the mediator’s skill. What was negotiable, and what remains negotiable in comparable conflicts, is the content of autonomy: the division of competences between centre and region, control over policing and appointments, language and education, the management of local resources and revenue, and the constitutional entrenchment that prevents the arrangement being withdrawn once attention moves elsewhere. Federal solutions of this kind have ended comparable conflicts elsewhere, and they work when the guarantees are real and fail when they are formal.
The terrorism framing the article records deserves particular attention, because it functions as a barrier to any process. Once a conflict is characterised as counterterrorism, negotiation becomes politically impossible for the government and the applicable legal framework shifts. Two things nonetheless remain available and are worth separating from the political question. Armed groups are diverse, and distinguishing those pursuing political aims from those pursuing others opens channels that a single label closes. And whatever the characterisation of the parties, the conduct of hostilities remains governed by humanitarian law, which binds all sides and is not suspended by the name given to the conflict.
Two further observations follow from the article’s own material. Where a state has accepted the jurisdiction of a regional human rights court, that court becomes the one forum in which individuals can obtain findings against their own government, and the Chechen cases produced a substantial body of such findings. Their limitation was compliance rather than jurisdiction: judgments were largely met with compensation while the investigations they required did not follow. That gap between ruling and implementation is where the practical work of international law actually lies, and it is a more productive focus than the question of whether the law applies at all.
Finally, the article’s diagnosis of great power silence is accurate and its lesson is uncomfortable. Where a party to a conflict holds a Security Council veto and substantial strategic weight, external leverage approaches zero, and mediation in the classical sense is unavailable. What remains is not nothing: documentation that preserves the record, humanitarian access negotiated quietly, contact maintained with civil society on both sides, and the patient preparation of frameworks for a political moment that may arrive decades later. It is modest work, and in conflicts of this kind it is usually the only work available.
* Added by the WMO Editorial Team
REFERENCES
[i] “The Academy of International Law at the Hague Established in Co-Operation with the Carnegie Endowment for International Peace,” Cambridge University Press, The American Journal Of International Law, 8, no. 2 (April 1914): 11.
[ii] Ibid.
[iii] Roberts, Anthea, Paul Stephan, Pierre Virdier, Mila Versteeg and Others, “Comparative International Law: Framing The Field.” 1.
[iv]
[v] Szablewska Natalia, “The Politics of International Law: Implications for The Chechen Crisis,” (2010).
[vi] Hisashi Owada, “Problems of Interaction Between the International and Domestic Legal Orders,” Asian Journal of Asian Law 5, no. 2 (2015): 30, 5.
[vii] Szablewska, 158.
[vii] Roberts, Stephan and Others, 4.
[viii] Sandra Dahlke and Michel Tissier, “The Practice of Law and Justice in Russia: (Eighteenth-Twentieth Centuries),” EHESS, Cahiers du Monde russee, 53, no. 1 (March 2012), 1
[ix] Szablewska, 223. Art. 29. 1977.
[x] Szablewska, 224.
[xi] Nye, Joseph S., Understanding International Conflicts, An Introduction to Theory and History, Sixth Edition, Longman Classics in Political Science (Pearson Longman, New York, San Francisco Boston, 2007).
[xii] Struve Peter, “Russia,” The Modern Humanities Research Association and University College London, School of Slavonic and East European Studies 1, no. 1 (June 1992): 17. Eurasian is a distinct culture of Russia.
[xiii] Ibid, 7.
[xiv] Szablewska Natalia, “The Politics of International Law.”
[xv] Matejova Miriam, “Russian ‘Chechenization’ and The Prospects for A Lasting Peace in Chechnya,” Paragon House30, no. 1 (June 2013): 17.
[xvi] Ibid
[xvii] Szablewska, 246.
[xviii] Ibid, 247.
[xix] Russel John, “Obstacles to Peace in Chechnya: What Scope for International Involvement?” Taylor & Francis Ltd, Europe Asia Studies, 58, no. 6 (September 2006): 5, 22.
[xx] Szablewska Natalia, “The Politics of International Law.”
[xxi] Russel John, “Obstacles to Peace in Chechnya: What Scope for International Involvement?”
[xxii] Szablewska, 252.
[xxiii] Russel, 6.
[xxiv] Szablewska Natalia, “The Politics of International Law.”
[xxv] Szablewswka, 257.
[xxvi] Szablewska, 265. Stat at an interview with Berliner Zeitung by German Foreign Minister Klaus Kinkel.
Supplementary references added by the WMO Editorial Team
Charter of the United Nations, 1945, Articles 1(2) and 2(4) and (7).
Constitution of the Russian Federation, 1993, Article 15(4).
Khasavyurt Accord, 31 August 1996, and the Treaty on Peace and the Principles of Interrelations between the Russian Federation and the Chechen Republic of Ichkeria, 12 May 1997.
European Court of Human Rights, judgments in Khashiyev and Akayeva v. Russia (2005), Isayeva v. Russia (2005) and subsequent Chechen cases; and Committee of Ministers reports on their execution.
International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 22 July 2010.
Gilligan, E. (2010). Terror in Chechnya: Russia and the Tragedy of Civilians in War. Princeton University Press, Princeton.
Hughes, J. (2007). Chechnya: From Nationalism to Jihad. University of Pennsylvania Press, Philadelphia.
Understanding Israel’s Mediation in Conflict
How to cite this journal: Author, Date of the post, WMO Conflict Insight, Title of the post, ISSN: 2628 6998, https://worldmediation.org/journal/
ABSTRACT *
This article examines the development of mediation in Israel and argues that it can only be understood through the country’s culture, religion and legal traditions. After situating mediation within Alternative Dispute Resolution generally, the author describes the strong orientation toward the courts, the role of religious tribunals applying Jewish religious law, and the predominance of mediation in family matters. The article traces the short history of the field from the early 1970s and the influence of American practice, the amendment of the Courts Law in 1992 and the reforms associated with Supreme Court President Aharon Barak, and notes cultural elements of practice such as the ritual of preparing and drinking coffee in the mediation room. The author concludes that mediation in Israel remains closely tied to the judiciary and that integrating culture and national ownership would support more independent institutions.
KEYWORDS *
Israel, mediation, legal culture, religious tribunals, family mediation, Alternative Dispute Resolution, court annexed mediation, Aharon Barak, national ownership, ethnography of mediation
INTRODUCTION
In order to understand Israel’s conflict in mediation processes, one must consider Israel’s culture, norms, and values. This article is a comprehensive examination and insight into the history, life, culture, religion, and practices of the people of Israel and outlines the mediation strategies used. Mediation encapsulates the resolution, agreement, and facilitation, of bringing a dispute to a conciliatory outcome. Mediation facilitates disputing parties to come to an agreement by a third party neutral. Jan Ki-moon states that: “The premise of mediation is that in the right environment, conflict parties can improve their relationships and move towards cooperation.”
Mediation is a part of the Alternative Dispute Resolution (ADR) process and is an alternative to resolving disputes in court. In the article Ethics in Alternative Resolutions: New Issues, No Answers from ‘The Adversary Conception of Lawyers’ Responsibilities,’ Carrie Menkel-Meadow, states that the early proponents of ADR reiterated that the courts were not meeting the needs and underlying interests of the parties. In his article, Don Peters states that “participation by parties with authorities to settle is usually critical to a successful mediation.” Smith and Smock, describes mediation as “an art form, incorporating, intuition, subtlety, and vision.”
MAIN CORPUS
Israel’s Culture
It is said that the most noted forum to deal with conflicts in Israel is through the courts. Although there is no data to ascertain the number of mediation that takes place in Israel, it appears that mediation is usually used in family disputes, and handled in family courts. Cultural aspects appear to play a significant role in family mediations in Israel. The role of culture in family mediation has also been seen in other societies, such as Australia and New Zealand, where mediation has been integrated into the divorce process.
In Israel’s culture, there are religious tribunals that do not have official status but act as special courts in the community, and the disputants agree beforehand to their adjudication. It should be observed that the word adjudication is used because the tribunal uses Jewish religious law or the law of ‘Torah.’ The relevance is that adjudication is usually used in the context of the legal system and not mediation. The significance of religion in mediation is noted by Kamila KLINGOROVA and Tomas HAVLICEK: It is noted that every religion promotes somewhat different norms, creates different institutions, and builds on different cultural and historical foundations.
In Israel’s culture, mediation is historically relatively short, dating back to 1972, when a lady by the name of Sylvia Maundelbaum at 92 years old and originally from the US, assisted her daughter in her divorce, after her migration to Israel. According to Ronnen mediation in Israel was a new way of dealing with conflict and emerged mainly from the expertise of the US, where the mediators used rules to create new methodologies into the local system. The growth of mediation in Israel was seen in 1990 when an open organized mediation course was given by Shamir in 1998 and Dotan the head of one of the first mediation centers took a course in the US.
Before 1992 parties in dispute had to rely on the law of torts, contracts, and advocates. During the period of 1992, there was an amendment to the Courts Law, and ADR legislation was enacted, enabling the court to rule by compromise with regulations following in 1993. Even after legislation, the judges did not refer parties to mediation. The Bar Association felt that lawyers by virtue of their training did not need additional training to mediate. This is contrary to the ethical responsibility of mediators, which is pronounced under the rules on Dispute Resolution of The Supreme Judicial Court of Massachusettes which illustrates the basic approach of neutrals: “The neutral shall make every reasonable effort to ensure that each party to the dispute resolution process…amongst other things understands the nature and character of the process…”
The Court System
The court system in Israel was reviewed and major changes occurred between 1995 and 2000 with Aharon Barak, the President of the Supreme Court of Israel. President Barak understood a very important aspect of mediation which is consent, along with the compliance of the community. In this approach, the results were positive and successful, allowing communities to solve their own problems.
The right technique is an important part of the mediation process but in Israel, there is another aspect. It is the consumption of coffee that is said to be part of the culture of Israel. It is interesting to note that drinking coffee has been added to the mediation process, with a specific style of drinking inculcated into the mediation room. The ritual of the coffee preparation and drinking helps not only the mediator in relaxing the environment but assists the parties in conflict to be more amenable to the discussions. Coffee drinking is said to bring a connection between personal and public dynamics, which creates empowerment.
SUMMARY
Israel is rooted in its culture, religion, and legalism. The ethnographic dimensions of Israel’s culture and norms are seen in the history of mediation. The history of mediation in Israel began in an ad hoc manner and was conjoined with court proceedings. This lent itself to numerous challenges especially when mediators had to rely on the judiciary for clients. A positive aspect was that the President of The Supreme Court, President Barak was instrumental in causing an amendment to facilitate mediation.
CONCLUSION
The examination reveals that living in a conflict society does not impede Israel in its hope of conflict resolution. Although, there is still much more to be done in having a more independent process, which is free from judicial influence. It reveals that Israel has a very strong and religious culture that does not diminish the actualization of conflict resolution. Understanding the culture helps to understand the mediation process and conflict resolution. The understanding of Israel’s culture can assist substantively in mediation success. If culture and national ownership are integrated into the mediation process, it is anticipated that this will cause the society to promote more independent institutions which can facilitate mediation resolutions, nationally and internationally.
POTENTIAL SOLUTION *
The most interesting observation in this article is also the one most easily dismissed. The coffee ritual is not a charming local detail; it is a working method. Preparing and sharing a drink before business begins establishes hospitality, equalises the parties for a few minutes, gives everyone something to do with their hands while tension settles, and marks the transition from confrontation to conversation. Comparable practices exist wherever mediation has grown from local roots rather than been imported, and they are the element most reliably lost when a process is professionalised. A mediation field that documented such practices deliberately, asking what each one accomplishes rather than treating it as folklore, would develop a repertoire that no imported curriculum supplies.
That points to the article’s underlying tension. Mediation in Israel, on this account, arrived from American practice and was then attached to the courts, which is a common trajectory and produces a common difficulty: a method shaped by one legal culture operating within another, and practitioners dependent on judges for referrals. Dependence of that kind shapes practice quietly. Mediators who rely on court referrals have an interest in producing the outcomes referring judges expect, which is settlement, and settlement pressure is precisely what mediation is supposed to avoid. Building demand outside the courts, through community centres, workplace and commercial schemes and public education, is what allows the profession to set its own standards rather than adopt the court’s.
The relationship with religious tribunals deserves more attention than it usually receives, and it is a question familiar from many legal systems. Communities that resolve disputes through their own religious institutions are exercising a genuine preference, and those forums carry authority that state institutions cannot replicate. The difficulty is that adjudication under religious law, entered into by prior agreement, is not mediation and does not offer what mediation offers: the parties author the outcome themselves. A workable arrangement recognises both, by making facilitative mediation available alongside religious adjudication rather than instead of it, so that parties know they have a choice, and by ensuring that anyone who consents to a religious forum does so informed of the alternative and of their rights under state law. In family matters this safeguard matters most, since it is there that the weaker party is least likely to know what other options exist.
Finally, the article’s closing point about national ownership applies more widely than to Israel. Mediation practice travels well in its principles and badly in its detail. What transfers is the underlying commitment to party self determination; what does not transfer is the manner in which respect is shown, disagreement expressed, or agreement sealed. Every mediation culture that has taken root has adapted the second while keeping the first, and the article’s example of the coffee is a small demonstration of exactly that.
* Added by the WMO Editorial Team
REFERENCES
References
Edite Ronnen, 1. “Mediation in a Conflict Society, An Ethnographic View on Mediation Processes in Israel” (The London School of Economics and Political Science, 2011).
Kamila Klingorova; Tomas HAVLICEK, 1. Religion and Gender Inequality: The Status of Women in the Societies of World Religions,” Moravian Geographical Reports 23 (February 2015): 10.
Lela P. Love and John W. Cooley, 3. “The Intersection of Evaluation by Mediators and Informed Consent: Warning The Unwary,” Ohio State Journal on Dispute Resolution 21 (January 20, 2005): 19.
Madelene de Jong, 3. “Divorce Mediation in Australia – Valuable Lessons for Family Law Reform
Smith and Smock, 7 “Peacemaker’s Toolkit, Managing a Mediation Process.”
Supplementary references added by the WMO Editorial Team
Menkel Meadow, C. (1997). Ethics in Alternative Dispute Resolution: New Issues, No Answers from the Adversary Conception of Lawyers’ Responsibilities. South Texas Law Review, 38, 407.
Uniform Rules on Dispute Resolution, Supreme Judicial Court of Massachusetts, Rule 9.
The Courts Law (Consolidated Version), 5744 1984, Israel, section 79C on mediation, and the Courts Regulations (Mediation), 5753 1993.
Israeli Ministry of Justice, National Center for Mediation and Conflict Resolution, programme documentation, Jerusalem.
Alberstein, M. (2007). The Jurisprudence of Mediation: Between Formalism, Feminism and Identity Conversations. Cardozo Journal of Conflict Resolution, 11, 1.