Jan 13, 2011, 12:22 PM
Military intervention has taken up a new shape of negotiation in conflict situations, despite concerns over compliance with international laws which questions its legality. Negotiation is said to be cost effective and likely where there is good relations, but then unlikely to be effective where parties share different ideological viewpoints.
This makes the enforcement of negotiated agreements difficult. Indirect negotiation is also costly because it is not face to face and relies on other channels. The effectiveness of negotiation is dependent to a large extent on the political will of states, since it is interest-based.
Firstly, it is evident from the formation of the UN Charter that negotiation has, indeed, shaped the maintenance of international peace and security in dispute resolution.
This is because the ultimate goal of the United Nations, according to its Charter, is to maintain international peace and security.
Article 33 under Chapter 6 of the Charter provides that parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by the pacific settlement of disputes, one of which is negotiation.
The Permanent Court of Justice (the precursor to the International Court of Justice) stated that: “Before a dispute can be made the subject of an action at law, its subject matter should have been clearly defined by diplomatic negotiations.”
However, negotiation will not work where parties are of a different ideological viewpoint. An example is the dispute between Boko Haram and the Nigerian government marred by consistent human rights violation in northern Nigeria.
Negotiation is not recommended in such a situation because it will not only be a threat but a barrier to the maintenance of peace and security as the continuing silence of the Nigerian government questions whether the northerners deserve peace, if any?
Thus, it is clear that negotiation is possible where mutual relations between parties exist or is likely to exist, as was the case in the dispute involving Nigeria and Cameroon over the Bakassi Peninsular.
Both presidents were able to resort to negotiation known as the “Green Tree Accord” in 2006 for Nigeria troops to leave the area on or before the 14th of August 2014, and same was done based on their mutual relationship.
It is, therefore, recommended that negotiation should only be an option where parties are willing to negotiate and put their differences aside.
Negotiation is preferable because it is voluntary, efficient and builds relationships. This is also confirmed by the Manila Declaration on the Peaceful Settlement of International Disputes, which highlights flexibility and effectiveness as characteristics of direct negotiations as a means of peaceful settlement of disputes, because it is applicable in various disputes.
Despite this view point, on the other hand, negotiation is considered to be costly in indirect negotiations and time consuming.
It is, therefore, clear that negotiation is not feasible in indirect negotiation due to the costs involved for weaker nations and the shortage of enforcement. This is not realistic in all cases as a first step because it will be time consuming and, in some cases, creates a hurdle to the maintenance of peace and security.
In this regard, some treaties put states under an obligation to carry out “negotiations”, if a dispute arises in connection with the treaty concerned, and this includes the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character.
Besides, this mechanism depends largely on the objective of parties, and it is observed that parties will only think of these mechanisms where they feel assured that their interest will be met.
In recognition of the above, since negotiation is interest-based as opposed to rights-based, parties may not be of equal interest.
What is considered the interest of one of the parties may likely go against another party. The crisis involving Israel and Palestine is a case in point, where negotiation cannot work because both parties are unwilling to recognize each other’s interest.
Negotiation is stated to be a springboard for the maintenance of international peace and security by enhancing trade among states and foster friendly relations.
Additionally, this is questionable because negotiation involving the five permanent members’ states of the Security Council, in particular, is unlikely because of selfish agenda, and the political and ideological purposes for which they use the veto.
States may not be ready to give more than they receive, or they cannot let the other side feel that they have won, as one side will use every agreement to consolidate power, turn against weaker segments of the population, bring allies to continue the conflict, and through delaying tactics, among others, hold up further agreement on points crucial to the peace.
It is observed that peace can only be maintained if states are compliant with treaty provisions, and act on the path of justice. The United Nations reformation should consider the elimination of the veto. This will strongly enhance participation of all states in decision making to cultivate trust in the system.
At the international arena, negotiation process starts as the result of one state perceiving the existence of a dispute, and inviting another state to enter into negotiations for its settlement. The start of the negotiating process is conditional upon the acceptance by the other state of such an invitation.
However, a contrary view to this show that it may occur that a state invited to enter into negotiations, has valid reasons to believe that there is no dispute to negotiate and that there is, therefore, no basis for the opening of negotiation.
It may also occur that a state, while agreeing to enter into negotiations, subjects the opening of negotiations to conditions unacceptable to the first state. This is one of the reasons affecting participation in negotiation because of cross cultural and political ideologies. This generates mistrust and deadlock in making states to give in during negotiation.
Secondly, negotiation framework take the form of a bilateral or plurilateral format between duly appointed representatives, delegations, written correspondence or through international conference which provide the framework for the negotiating process, where several states are parties to a dispute. It usually takes place in the capital city of one of the parties or in each of the capitals.
However, it is submitted that this may occur only where there is a good relationship among parties, and will prove difficult as in the case of Russia and Ukraine. One of the challenges of this is that it is time consuming, and there is power imbalance between disputing parties which impacts on decision making and thus makes negotiation difficult.
It is recommended that in such situations, a city, or a series of cities, outside the respective territories of the parties may provide the forum for negotiations. This is applicable where there is no diplomatic relations between the parties or if, as a result of the dispute, there is a state of tension between them as was the case in the dispute involving Southern Sudan and Sudan.
Furthermore, collective negotiations within an international organization takes place at the seat of the organization, or a specific organ having competence in the area of peaceful settlement of disputes may choose to meet at a venue away from the seat of the organization, as set out in Article 28, paragraph 3, of the Charter of the United Nations.
Besides, a challenge to this is the lack of leverage at the disposal of a third party. Also, the international community has turned away from negotiation to the new world order of military warfare.
An example is dispute involving the Islamic State of Iran and Iraq, where the best option would not be negotiation rather military intervention in accordance with international law. Added to this, military intervention should be pursued in the interest of the international community.
There is a difficulty to ascertain whether states embark on military intervention to protect their own interest or that of the international community. An example is the proposed military intervention by America over the Boko Haram crises in Nigeria, as this raises doubts whether America seeks to protect the world interest or its interest in Africa?
Proponents of negotiation fail to reflect that negotiation is not realistic in rigid environments, thus the best way to deal with such situations is through military intervention.
This was the case in Libya and Iraq where pacific settlement of disputes was considered by the international community as a waste of time. It is recommended that the military should only be used where the situation warrants it and complies with the law.
In addition, to reach a successful negotiated agreement, some treaties put states under an explicit obligation to take a positive attitude in conducting consultations aimed at settling disputes arising from the interpretation or application of the treaty.
Thus article XXII of the 1947 General Agreement on Tariffs and Trade recommends states to show positive attitude towards reaching a negotiated agreement.
However, negotiation lacks the sufficient power and machinery to enforce agreements and relies on moral persuasion. In 1994, Ukraine voluntarily gave up its strategic nuclear weapons arsenal (the third largest in the world) in order to access the Non-Proliferation Treaty on Nuclear Weapons.
Russia, the United States and United Kingdom, and to a lesser extent France and China, in return provided Ukraine security guarantees under the Budapest Memorandum on Security Assurances in the form of independence, inviolability of state borders and freedom of expression.
Russia’s actions have now questioned the broader role and value of security guarantees in maintaining international peace and security. As the United Nations Secretary-General, Ban Ki-moon, warned:
‘The credibility of the assurances given to Ukraine has been seriously undermined by recent events. The implications are profound, both for regional security and the integrity of the nuclear non-proliferation regime’.
The United Nation’s Secretary General, with due respect, failed to reflect that negotiation will only work in that situation if the most of the basic reasons which are a causative factor for the instability are addressed.
In the end, the duration of negotiation process varies as it may be done within few days or it may take several days in some cases. Under certain treaties, a time-limit is set for the completion of the negotiation process, beyond which other means of peaceful settlement may be taken.
Nonetheless, lack of political will is responsible for failure of negotiation and not time limits. If conflicts have gone unresolved, it is not because techniques for peaceful settlement were unknown or inadequate, but unwillingness to negotiate.
It is observed that the indifference of the international community to a problem, or the marginalization of it, can also frustrate the possibilities of solution. Peace must pay dividends!
In conclusion, negotiation is generally appropriate in the maintenance of international peace and security. Effective negotiation within the family of nations means the application of principles spelt out within the United Nations Charter and international instruments.
This requires the fullest consultation, participation and engagement of all states, large and small, in the attainment of this objective of maintaining peace.
The principles of the Charter must be applied consistently, not selectively, for if the perception should be of the latter, trust will fade and with it the moral authority which is the greatest and most unique quality of that instrument.
Democracy and willingness at all levels is essential to attain peace for a new era of prosperity and justice.
If the world wants to assure lasting peace and hope for a better world for future generations, then military intervention should only be used as a last resort.
Trust also requires a sense of confidence that the world organization will react swiftly, surely and impartially and that it will not be hindered by political opportunism or political positions in times of disputes.
Just as it is vital that each of the organs of the United Nations employ its capabilities in the balanced and harmonious fashion envisioned in the Charter, peace in the largest sense cannot be accomplished by the United Nations system or by governments alone.
To better strengthen the world organization’s ability to reflect the concerns and interests of its widest constituency, non-governmental organizations, academic institutions, parliamentarians, businesses and professional communities and the media must all be involved.
Additionally, military intervention should not be used maliciously to the detriment of non-allies or weaker nations based on political differences. It should only be used as last resort when negotiation fails.States should also join each other to ensure that there are proper enforcement mechanisms in place to successfully enforce negotiated agreements. This will help boost the morale of states to participate in negotiation. The success of negotiation depends largely on the political will of states.