In praise of negotiation
- 23 Jul 2016
No effective form of cooperation has been devised or put in place through multilateral negotiation to end arms and drugs trafficking and prostitution. Meanwhile Islamic terrorism has found funding and dubious allies among Westerners, who have used them for their own purposes, before IS turned against the rest of the world. The European Union has not even been capable of negotiating a rational policy to tackle the refugee crisis, when in fact it is at least partially responsible for the migratory flux caused by the wars and the economic pillaging it has forced upon some countries.
“Let’s gather around a table – pleads Umberto Eco – to negotiate intelligently and find a solution that will grant respect to all”, “among my wishes for the century to come, I hope for a new ethics in negotiation”, aptly concludes the Bologna University professor, troubled by the West’s millennial ills. The European Union is showing “inconsistent intelligence, made up of a bedlam of received opinions, prejudice and political and financial double speak” (1)
The Charter of the United Nations mirrors these thoughts in both its political and legal phrasing. All the provisions under Chapter VI (Articles 33 to 38) establish that, to reach a “pacific settlement of disputes” among States, the parties should “first of all, seek a solution by negotiation” (Article 33).
The Security Council “shall, when it deems necessary, call upon the parties to settle their dispute by such means” (Article 33).
Chapter VI is the heart of the Charter, and its scope is to prevent the use of armed forces by seizing from States their traditional power to wage wars. There is no “just” or legal war unless for legitimate defence after an aggression. The United Nations alone have the power to use force, following a decision by the Security Council, if negotiations have not been possible, if they have failed, and only as a last resort.
The Security Council steps in as soon as peace is threatened by issuing recommendations, which, implicitly, consist of bringing the parties together in order to negotiate, by inviting them to “conform with provisional measures” of a peaceful nature.
“Such provisional measures shall be without prejudice to the rights of the parties,which shall arise following negotiations” (Article 40). Articles 41 and 42 of the Charter give powers to the Security Council to take various measures in the form of sanctions in order to prevent the use of armed forces.
Articles 43 and 44 establish that the Security Council and member States shall enter negotiations with the aim of concluding an agreement with measures that will avoid or put an end to conflict through the employment of armed forces.
Once more, negotiations are required to set up a Military Staff Committee (Articles 46 and 47) in order to ensure the “strategic direction” of the UN armed forces so that they are not made up of unqualified troops coming exclusively from the countries of the South that are not suited to play an intermediary role.
For negotiations to become possible, Articles 1(2) and 2(1) of the Charter establish “equal of rights of peoples” and “sovereign equality” of all its Members. These are not merely formal principles that aim to respect the dignity of the members of the United Nations, whatever their actual powers may be: these are tools that are essential to make negotiations possible and to safeguard them so that peace is maintained.
Only after negotiations and any other conceivable measure laid down in Article 33 – mediation, conciliation, arbitration, etc., – fail to bring the dispute to a solution, Chapter VII enters into force. Clearly, the Charter provides for sanctions if and only when negotiations fail.
Negotiation is also the basis for international laws. Bilateral and multilateral treaties are the fruit of negotiations among States, which are a more or less faithful expression of the collective interests of peoples (2).
In spite of the fact that States are not equally powerful, and that the content of treaties reflects this, when trying to establish a relative balance negotiation is the least unfair method in today’s world. Every State can express reservations, which protects their right to consent and the overall consensus expressed in the treaty.
The rule of law, resulting from the negotiation of a treaty, sanctions the compromise that underlies the balance of powers and sets it in law.
The outcome of negotiations may not be ideal, but is the least worst outcome in a society that is made up of States with contrasting interests and which is in no way close to a “community”.
As Professor Jean Salmon underlines, most often States do not resolve their disputes in this fashion. Negotiations allow to put them on hold, and this is a step forward in shaping international law, a slow and difficult process per se.
A bizarre lack of clarity has become pervasive among academics, particularly in the English-speaking world, who in fact reject negotiations as a defeat for the West. They profess that since 1945 wars have been waged between democratic and non-democratic States (where “non-democratic” chimes with wrong), yet never between democratic States alone (which allegedly proves their more civilised condition). (3)
Based on this misconception, democratic States are considered historically better at “compromising” and negotiating, whereas “non-democratic” states are naturally more inclined to warfare. (4)
These “non-democratic” States, whose definition is equally inaccurate, are consequently less entitled to partake in international laws and may be subjected to “soft” or armed interference, as the “responsibility to protect” civilian populations against their own government is a quasi-legal principle, and Western States do not consider the UN authorisation as binding.
Negotiating is apparently only conceivable among Western States, namely those who have a lesser need to
strengthen their relations and seek conciliation. In reality, negotiating only serves an economic
purpose in economic transactions.
Furthermore, these self-proclaimed “democratic” States claim the right to use force against others, in the name of democracy itself, so as to turn it into a universal political system. The legal system need not be universal, yet politics and economics appear to follow different rules.
It is Western powers, i.e. the States that have less to fear for their safety and development because of their strength, who give this injurious “tone” to international relations. It is precisely because they have superior means (in terms of financial resources and weapons) compared with others, that they refuse to negotiate and end up violating decisions. The idea of compromising does not proceed from the powerful, because armed violence has, for centuries, been a source of profit for them. Kant’s argument that democracy is by nature peaceful because those who decide to wage a war are the same who pay for it, no longer holds: the powers that be often stage proxy wars, winning their “zero casualties” goal, or at least making considerably fewer victims than their enemies.
What’s more, the Powerful – just like the privileged minorities at home – categorically refuse to relinquish their control: in the course of history wealth has never been shared gladly. The preaching tone used by the US expresses first and foremost an imperialistic wish to enjoy other peoples’ resources: NATO is the armed expression of a need to pillage, even at the risk of causing several, more or less “intense” conflicts. Examples range from performing military manoeuvres and setting up camps in Poland on the border with Russia, to plunging countries such as Iraq and Libya in total chaos.
Paradoxically, Western States complain against countries who are actually in a position to resist them of refusing to negotiate and of not complying with agreements – such as the Minsk II agreement on Ukraine (5).
These “resisting” States, e.g. Russia, are guilty of “reacting” with essentially defensive measures, a
far cry from the “provocations” they are accused of using. The root of the problem is clearly that this violates the agreement concluded initially between NATO and Russia in the early 90s when a number of former Soviet Republics became independent. Back then, NATO committed not to set up camp on the Russian borders.
In Syrian issue, Russia has been accused of staunchly supporting the regime, when in fact the US and their allies, in particular Turkey, have used the so-called Islamic State to topple the Syrian government. When Russia intervened following a Syrian request, the West had to abandon their strategy. Russian military actions forced the so-called Islamic State to retreat, a result that the West had not been capable of. Connections between the IS and Turkey stalled, depriving the IS of a large part of their resources.
Russia was accused of fighting essentially against those opposed to the Syrian regime. It then offered military cooperation to the US, imposed a partial curfew and tried to appease the until-then hostile Ankara regime. (6)
There is no denying that the battery of conflicts which have been unfolding over the past decades has not led Western countries to attempt any form of negotiation.
More than 70 years of Israeli-Palestinian fights have not been met with strong actions that should have finalised negotiations between the parties and led to Palestine’s independence.
Korea has been divided for over 70 years – i.e. since WWII and after a fierce Japanese colonisation – without a hint at negotiations that should have lead to a peace treaty between the opposing countries after the 1950-53 war.
We mustn’t forget the decades of separation suffered by the Cypriots since 1967, who have been placed under NATO protection, with no interest shown toward negotiations. Unsurprisingly, the US have important military bases the North of Cyprus, which is under Turkish domain.
And neither have any negotiations been imposed to end the conflict that started in 1973 in Western Sahara without having to wait for the UN-approved referendum for self-determination.
Again, no negotiation talks are being held to resolve the Kurdish issue, while the victors of WWI had pledged to recognise the Kurdish nation in 1919, when the Ottoman empire was dismantled.
No effective form of cooperation has been devised or put in place through multilateral negotiation to end arms and drugs trafficking and prostitution. Meanwhile Islamic terrorism has found funding and dubious allies among Westerners, who have used them for their own purposes, before IS turned against the rest of the world.
The European Union has not even been capable of negotiating a rational policy to tackle the refugee crisis, when in fact it is at least partially responsible for the migratory flux caused by the wars and the economic pillaging it has forced upon some countries.
Why are there no global or regional negotiations on nuclear disarmament, if the reason is not that the US and France believe that nuclear weapons are dissuasive, whereas they are considered provocative and threatening when produced, for instance, by North Korea?
Why isn’t there a large-scale negotiation within the IAEA for a global disarmament, while the US and their allies wish to ban the nuclear weapons of their enemies and their dissemination, while they develop their own? (7)
The lack of political negotiating intentions is due to deep inequalities between States and the exponential increase in unbalanced confrontations from which the “strongest” hope to benefit. International negotiation is not a monopoly of the State any more. Diplomacy cannot escape the pressure coming from the heftiest financial and commercial groups. One of them is Total, who are putting pressure on the French government and in return for sponsoring cultural events in other countries. (8)
The principle of the UN Charter on equal sovereignty of the States should serve as a basis for developing negotiation, conditional on imposing it as a political caveat.
The call for international “morals” and “inclusive solidarity” that rest on a shared idea of “common good” – which each State is supposed to protect – stems from unrealistic humanitarian ideas. (9)
Thinking that the parties will spontaneously wish to negotiate is a hope that is not based on century-old or on current practices. Such a thought begs the question of whether negotiations could be imposed to the powers that be, unless these powers change.
An international society subjected almost exclusively to a single power must give way to a multipolar society in which various powers balance each other out, limiting the risk of conflict as the past “peaceful coexistence” between the East and the West.
The West’ ambition to hoist itself as a super power is dangerous. The international community needs counter-powers: the countries that are already playing this role are objectively progressive and are set on bringing about peace.
Once they are well established and clearly settled, negotiations among these powers will allow humanity to progress to the full.
1. Cf. Entretiens sur la fin des temps. Fayard. 1998.
2. It must be noted that, although there are many “non-democratic” States, and those who claim to be so are only partial democracies, the State still remains the most apt tool to resist uncontrolled influences and overly technocratic international institutions.
3. See, for instance, D. Battistella. Théories des relations internationales. Presses de Sciences Po. 2003 and the many English-speaking jurists cited by the author.
4. This misconception has been gainsaid since ancient times: Athens had stronger expansionist ambitions than Sparta.
5. Western media have reacted in a telling way to these agreements: they barely covered the preparatory phase, were doubtful about their success, then once again scarcely presented their content – which included obligations for the Ukrainian government – and uttered not a word on the Ukranian violations of these obligations, while at the same time implying that Russia was solely responsible for the underlying problems.
6. Russian diplomacy can be compared with the French. The socialist Minister for Foreign Affairs opposed actions in Syria until the end of 2015. He also demanded the resignation of Bachar El Hassad as a prerequisite for any talks on Syria (See V. Jauvert. La face cachée du Quai d’Orsay. Enquête sur un ministère à la dérive. R. Laffont. 2016, p. 111).
7. The French government refuses to officially recognise the DPRK, under the pretext that Pyongyang is creating nuclear weapons (for an estimated 10 million euros), that the DPRK are armed with missiles, including – he said – sufficiently powerful to cover the South China Sea.
8. It might seem surprising to witness the looming presence of business men, who assisted Laurent Fabius in his ascent to government, such as Serge Weinberg, Chair of Sanofi; Lionel Zinsou, in charge of an investment fund with BNP Parisbas; Louis Schweitzer, former CEO with Renault and former head at Médef. It must also be noted that former diplomats have transferred their skills to the private sector and represent their companies in the countries were they were formerly posted.
9. Some eminent authors call for politicians and entrepreneurs to be made accountable, whether it’s multinational companies with a “social responsibility”, as the European Commission has called for, or States that the ILO has incessantly been reminding that “a long-lasting peace can only be based on social justice” (See M. Delmas-Marty. Résister, responsabiliser, anticiper. Comment humaniser la mondialisation. Seuil. 2013)
Source: Investig’Action, 18/07/2016