Peace versus Justice: Negotiating Forward- and Backward-Looking Outcomes 0742536289, 9780742536289

Table of contents :
Cover
Title Page
Copyright Page
Dedication Page
Table of Contents
1: Negotiating Forward- and Backward-Looking Outcomes
Part I: Historic Settlements
2: Turning Point Westphalia: Negotiation Processes Establishing a New Political and Legal Order in Europe
3: The Congress of Vienna Negotiations
Part II: Major Contemporary Settlements
4: The Austrian State Treaty: Concluding a Successful Negotiating Process
5: The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation
6: The Israeli-Palestinian Peace Process
7: Loss and Learning: From Backward-Looking to Forward-Looking Outcomes in the Egypt-Israel Rivalry
8: Memory and International Negotiation: The Franco-German Case
9: The Building of Mercosur: A Continuous Negotiation Process
Part III: Bilateral and Internal Conflict Settlements
10: Cyprus
11: Expecting Satisfaction: Negotiating a Durable Peace in South Africa
12: Forward-Looking Dispute Resolution: Ecuador, Peru, and the Border Issue
13: Negotiation Processes and Postsettlement Relationships: Comparing Nagorno-Karabakh with Mozambique
Part IV: Conclusions
14: Looking Forward and Looking Backward on Negotiation Theory
15: Lessons for Practice
References
Index
About the Authors

Citation preview

Peace versus Justice

The International Institute for Applied Systems Analysis is an interdisciplinary, nongovernmental research institution founded in 1972 by leading scientific organizations in 12 countries. Situated near Vienna, in the center of Europe, IIASA has been producing valuable scientific research on economic, technological, and environmental issues for nearly three decades. liAS A was one of the first international institutes to systematically study global issues of environment, technology, and development. IIASA's Governing Council states that the Institute's goal is: to conduct international and interdisciplinary scientific studies to provide timely and relevant information and options, addressing critical issues of global environmental, economic, and social change, for the benefit of the public, the scientific community, and national and international institutions. Research is organized around three central themes: - Energy and Technology; - Environment and Natural Resources; - Population and Society. The Institute now has National Member Organizations in the following countries:

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Peace versus Justice Negotiating Forward- and BackwardLooking Outcomes EDITED BY I. WILLIAM ZARTMAN AND VICTOR KREMENYUK

ROWMAN & LITTLEFIELD PUBLISHERS, INC. Lanham • Boulder • New York • Toronto • Oxford

ROWMAN & LITTLEFIELD PUBLISHERS, INC. Published in the United States of America by Rowman & Littlefield Publishers, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200, Lanham, Maryland 20706 www.rowmanlittlefield.com P.O. Box 317, Oxford OX2 9RU, UK Copyright © 2005 by IIASA All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. British Library Cataloguing in Publication Information Available Library of Congress Cataloging-in-Publication Data

Peace versus justice : negotiating forward- and backward-looking outcomes I [edited by] I. William Zartman and Victor Kremenyuk. p. em. Includes bibliographical references and index. ISBN 978-0-7425-3629-6 1. Diplomatic negotiations in international disputes-Case studies. 2. Conflict management-Case studies. I. Zartman, I. William. II. Kremeneiiuk, Viktor Aleksandrovich. JZ6045.P42 2005 327.1'7---dc22 2004028743 Printed in the United States of America

eTMThe paper used in this publication meets the minimum requirements of American National Standard for Information Sciences-Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

To Richard McKersie, Thomas Schelling, and Fred Ikle, who opened the study of negotiation.

Contents

1

Negotiating Forward- and Backward-Looking Outcomes I. William Zartman

PART 1: Historic Settlements 2

9

Turning Point Westphalia: Negotiation Processes Establishing a New Political and Legal Order in Europe 11

Paul W. M eerts

3

The Congress of Vienna Negotiations Christophe Dupont and Patrick Audebert-Lasrochas

PART II: Major Contemporary Settlements 4

5

6

35

73

The Austrian State Treaty: Concluding a Successful Negotiating Process Franz Cede

75

The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation James C. 0 'Brien

89

The Israeli-Palestinian Peace Process Vitaly V. Naumkin and Irina D. Zvyagelskaya

7

1

113

Loss and Learning: From Backward-Looking to ForwardLooking Outcomes in the Egypt-Israel Rivalry 141

Janice Gross Stein

vii

Contents

viii

8

9

Memory and International Negotiation: The FrancoGerman Case Valerie Rosoux

157

The Building of Mercosur: A Continuous Negotiation Process Juan Carlos M. Beltramino

177

PART III: Bilateral and Internal Conflict Settlements

199

10 Cyprus Marie-Pierre Richarte

201

11

12

13

Expecting Satisfaction: Negotiating a Durable Peace in South Africa Robert B. Lloyd

221

Forward-Looking Dispute Resolution: Ecuador, Peru, and the Border Issue Beth A. Simmons

243

Negotiation Processes and Postsettlement Relationships: Comparing Nagorno-Karabakh with Mozambique Daniel Druckman and Terrence Lyons

265

PART IV: Conclusions

287

14 Looking Forward and Looking Backward on Negotiation Theory I. William Zartman

289

15

Lessons for Practice Victor Kremenyuk

303

References

313

Index

327

About the Authors

343

Chapter 1

Negotiating Forward- and Backward-Looking Outcomes I. William Zartman

Negotiations aim to end conflict. This "end" may take many forms, from simply stopping the killing (conflict suspension), to moving conflict from its violent to its political expression (conflict management), to total settlement of the issues (conflict resolution), to building positive relations among the parties (conflict transformation). Any conflict is always embedded in deeper causes and larger issues; these also require attention lest they fester and, if not resolved, cause further outbreaks of violence. It has generally been established that negotiations to end a past conflict will have been ineffective unless they have also been able to build regimes and relationships for handling conflict in the future. Yet these two demands may not only be separate matters, they may also be contradictory. Attempts to bring current combats to an end may interfere with efforts to bring the entire conflict to an end and prevent its future reemergence. The contrast between the terms, "peace" and ''justice," where both are necessary but one is often possible only at the expense of the other, reflects this potential contradiction. This book seeks to elucidate a number of aspects of this dilemma, centered around the main questions: What are the costs and benefits of "merely" ending the fighting? How and why do negotiators provide (or not provide) for resolutions that go beyond just "stopping the shooting"? What is the proper and achievable mix between negotiation strategies that look backward to end current hostilities and those that look ahead to prevent their recurrence?

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The Janus Faces of Negotiation Violence is both an expression of conflict and a call for attention to conflict. There is more to conflict, however, than its violent expression. If the position incompatibilities that constitute the basis of conflict are not dealt with, either substantively or procedurally, the conflict will continue, carrying with it the danger of renewed violence. Substantive measures mean resolving past and present incompatibilities, whereas procedural measures are mechanisms for handling the continuing incompatibilities nonviolently. Unless the conflict is ended by force or fatigue, whereby one of the parties is eliminated or otherwise disappears, it has to be handled by negotiation. But how much of the conflict should the negotiations handle, and how many layers of the conflict should they seek to resolve (and in what order)? Negotiators and mediators may seek to end the violence either by establishing a ceasefire or, on a deeper level, by establishing mechanisms for pursuing the conflict through political rather than violent means. With the violence gone, however, a major means of drawing attention to the conflict has also been removed. But the parties can continue to pursue the conflict politically in search of an outcome based on their positions of right or they can seek a political goal that submerges the conflict. Similarly, they can try to assign responsibilities for and consequences of conduct during the past conflict or they can turn their backs on the past and try to build new relations for the future. Each of these pairs contains a choice between a "backward-looking" and a "forward-looking" strategy. It is not enough to bring current combat to an end if future incidents and underlying causes promise a return to conflict when the current phase has passed. Backward-looking outcomes that merely halt the hostilities that have preceded them are merely cease-fires if they do not deal with deeper causes that remain untended and are susceptible of producing future hostilities. To be fully effective, negotiations also need to provide forward-looking outcomes that set in place regimes to establish a new political order to handle future outbreaks of conflict. A treaty to end a war is, in effect, a preparation for another war unless it addresses the reasons for that war and unless it creates a new political order to prevent its recurrence. Negotiations to end a war may, however, produce a cease-fire and then make no further progress because they are unable to go beyond the conflicting demands that caused the war in the first place. A treaty to grant independence will simply transfer conflicts from colonizer to colonized if it does not set up a regime for domestic governance, but decolonization negotiations may never even get off the ground if the parties cannot solve disputes over status between the colonizing state and the nationalist movement. A treaty to establish a border merely sets the stage for further border problems if it does not establish a regime for handling future incidents, and the parties may never come to resolve their border dispute if each clings to the legitimacy of its claims. Other examples could be added.

Negotiating Forward- and Backward-Looking Outcomes

3

In sum, negotiations can be focused in two directions. Backward-looking negotiations are those that seek to end the previous violence, that try to resolve a confrontation of rights and status, and that seek accountability for past actions in the conflict. Forward-looking negotiations look for mechanisms to prevent future violence, seek outcomes that reach beyond the conflict to opportunities for cooperation and problem solving, and try to prevent the resurgence of the old conflict in a new, later form by resolving its underlying causes. These directions may well complement and reinforce each other. Prioritizing the establishment of peace may also provide the opening to a broader resolution of underlying problems. Measures for past accountability may clear the air for future cooperation. Formulas for handling rights and status may also provide a basis for resolving new or renewed conflicts arising in the future. In such circumstances the mutually supportive interactions of the two streams of activity are worth noting. At the very least, they follow from each other; at best, they may provide tradeoffs as the parties draw up their agreement or in other ways enter into the specific bargaining process, or as they begin to construct a peace formula. They may also be in conflict. An agreement to end costly fighting may be obtainable under the pressure of a conflict stalemate, but it may, at the same time, remove the pressure for an agreement that will resolve the basic issues of the conflict. Conversely, a future regime may be perceived as the only stable outcome to the broad conflict, but its very form and salience may prevent the parties from ending their current hostilities. The process of building a package or crafting a formula to cover the current conflict may contradict the process needed to set up a future regime. The distribution of power in the current context may dictate a different solution than is advocated by longer-term power considerations. Backwardlooking justice determinants may be quite different from forward-looking applications of justice, and future peace may be obtainable only if past accountability is overlooked. In these circumstances, too, it is important to analyze the relation between the two negotiation directions, as the success of one may well explain the failure (or the success) of the other. For the practitioner as well as the analyst, important choices are involved. It can be assumed that there is a value in providing outcomes that go beyond the immediate conflict and seek a long-term, stable, and just resolution. Whether such forward-looking outcomes come early, late, or at all, is one of the choices to be made. The absence of forward-looking resolutions at any particular time in negotiations can be explained by a deliberate decision (for reasons to be determined), by an operative contradiction between the two types of resolutions, or by weakness and inattention. Understanding which of these explanations obtains is important for the analysis of the negotiating process and also for its improvement by practitioners.

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High and Low Roads of Negotiation To some extent, the two directions in the focus of negotiation correspond to certain classic distinctions in the negotiations process (Ikle 1964; Schelling 1960; Walton and McKersie 1965; Zartman 1978; Wagner 1995; Hopmann 1996). The distinction has long been drawn between zero-sum or distributive or concession/convergence negotiations and positive-sum or integrative or formula/detail negotiations. In zero-sum negotiations the parties confront each other from conflicting positions, in which gains for one can by achieved only through losses for the other, and the parties move toward an agreement (if any) by whittling away at each other's positions, either on the same item or by trade-offs on different items, until they reach a point somewhere in between. In positive-sum negotiations the parties seek a common solution by considering the conflict itself as the problem and try to construct an outcome whereby each party gains, by first reaching an agreement on a joint appreciation of the problem or on a common sense of justice for its solution. More recently, it has been shown that process and outcome are related in each type of scenario, with position-based bargaining leading to compromise outcomes and need-based problem solving leading to integrative outcomes (Wagner 1995, 2002). There is much similarity between position-based bargaining and backwardlooking negotiations, and between need-based problem solving and forwardlooking negotiations, although the directional focus brings in new dimensions. The forward- and backward-looking categorization emphasizes the subjects of the negotiation, in contrast with the process and outcome concerned in the other types of analysis. The degree of coincidence is open to further inquiry, however, just as the degree of concordance between process and outcome long remained an open question. A further classification is also relevant. For a long time, international relations and foreign-policy approaches have been categorized as realist or idealist (although some new angles such as constructivism have appeared recently to break up this Manichaean dichotomy). Realists see relations in an anarchic world as inherently conflictual and hence defensive: parties are concerned with gains whose value is determined in relation to the position of rivals; their prime value is security. Idealists (or liberals or cooperativists) see relations in an anarchic world as a search for cooperation to overcome conflict: parties are concerned with gains that have absolute value (or value relative to their needs or to some other internal criterion); their prime value is welfare which, among other values, includes security. The correlation between realists and position-based, zero-sum bargaining and between liberals and need- or welfare-based, positive-sum problem solving is rather solid. The philosophical position of each school also lends support not only to a correspondence between backward-looking negotiations and realists, with their defense of positions and their di_sbelief in long-term cooperation, but also

Negotiating Forward- and Backward-Looking Outcomes

5

to a correspondence between forward-looking negotiations and liberals, with their emphasis on joint gains, intraparty satisfactions, and the construction of long-term cooperation. This correspondence is more difficult to test, as realists and liberals do not often wear name tags to identify themselves, and their views of negotiation may also be evidence of their ties to a particular school. A correlation can, nonetheless, be loosely evaluated. It would be both analytically interesting and practically helpful to establish the degree of correlation between the directional focus of negotiations and the process, outcomes, and attitudinal schools. Of these latter, the most interesting is process as it is the most dynamic; the others tend to be categories rather than moving parts, and process generally intervenes to determine outcomes (although the attitudinal schools, however difficult to establish, may intervene even earlier in the causal chain to determine process). The impact of directional focus-in other words, forward- or backward-looking negotiation-on process and vice versa, is an important matter to determine. Does a forward or backward focus facilitate or complicate agreement? Is it easier to travel the high or the low road?

The 1\vo-Horned Dilemma of Negotiation In the broadest terms these considerations are related to the oft-posited clash between peace and justice. At the very least, peace means an end to the fighting, a cease-fire in place, a suspension of painful hostilities that have not achieved victory (or else we would not be negotiating), and a curtain drawn on the crimes and hostilities of the past, something often obtained only by putting aside deeper and future considerations that may be too complex to handle peacefully. Some, however, maintain that this is not peace, that peace comes only with resolution of the causes for which the war was fought, a reconstruction of positive relations between former enemies, and the creation of a new order to govern postconflict relations. Justice means a fair and mutually acceptable solution, punishment for the perpetrators of conflict in the past, redress for the injustices of the past, and the establishment of equality and dignity for the future. On the individual level victims of conflict are psychologically torn between these two values. It is human nature to want to get on with one's business after a conflict and let bygones be bygones; it is also human nature to want to see the perpetrators of injustice punished. Both demands arise in the human psyche but they are hard to obtain simultaneously and they clash with the demands of immediate peace itself. Impunity may be the price exacted by villains for ending their violence, and villainy prevents reconciliation. Thus, justice may take its toll on peace efforts. It can involve a clash between accountability and impunity, between unity against an external enemy and disunity among the remaining partners, between reparations for damages and contributions for reconstruction, between reassertion of extant power relations and creation of

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I. William Zartman

a new power configuration, and many other similar contradictions. Achieving justice when peace is at stake may be a counsel of perfection, yet achieving a forwardlooking outcome may be the only assurance that a backward-looking outcome will stick. Moreover, peace may take its toll on efforts to achieve justice, at least when peace is narrowly defined. The parties may have to give up accountability in order to obtain an end to the fighting, as some of the parties may fear the consequences of postwar judgments more than those of continuing fighting. If justice means getting one's just deserts, it may be harder to negotiate an agreement on what the parties deserve than on how the fighting can be ended; thus, the former is set aside in the rush to the latter. Peace, in its narrower definition, can be roughly equated with forward-looking negotiations and justice with backward-looking negotiations. Properly conceived, there is no peace without justice, although even that statement does not close the debate because the reverse is not true. Justice is liberty, dignity, and human rights: all end values for which one fights; but if one fights, there is no peace. No doubt the circle can be squared by the element of time: peace must be reached first in a way that does not preclude justice, and then the conditions are present for achieving justice. (But then, perhaps, the pressures to achieve it are gone.) In the final analysis this subject is contained in the debate between the terminators, the managers, and the transformationists. Terminators assert that the focus of negotiations must be the immediate end of the conflict, a full cease-fire. Thereafter, some will recognize that the work is not done and that past causes and further outbreaks must be addressed as a second phase of conflict resolution. Managers feel that resolution is an impossible task and that moving the conflict from the violent to the political level, where it can be handled by institutionalized processes, is the best that can be obtained and the proper focus of negotiations. Transformationists feel that nothing is accomplished unless conflictual relations are replaced by positive relationships, and that negotiations are secondary, if not epiphenomenal, to long-term efforts to displace conflict with cooperation. Obviously (to many observers), these three positions are wrong only in their exclusivity and are necessarily complementary if the dangers of violent and escalating conflict are to be removed. The interesting problem, however, lies in the relation among the three goals in the process of negotiation, where each can impede the others' efforts to achieve both forward- and backward-looking outcomes. Our focus is the processes of international negotiations. Thus, the outcomes discussed here need to be addressed in process terms, for without process the outcomes cannot be explained and lessons for better outcomes cannot be formulated. The first set of questions concerns the existence of backward- and forward-looking outcomes (agreement to end the current conflict and agreements to forestall future conflict) and then the processes to negotiate each of them. Was the agreement to end the conflict accompanied by an agreement to establish a new regime? How can these outcomes be explained in terms of process? What was the nature of each of

Negotiating Forward- and Backward-Looking Outcomes

7

the processes to establish these agreements? The second set of questions concerns the relationship between the two processes. Did the two processes contribute to each other or impede each other? How does that relationship explain outcomes? And in conclusion: How important was the provision of future outcomes to the processes of negotiation and to the stable and lasting resolution of the conflict? And what contribution did the processes of negotiating the two outcomes contribute to the success of the outcomes?

Cases of Negotiation To answer these questions a number of very disparate cases have been assembled. Their scope is broad enough to cover many types of negotiations to end conflicts, but the numbers, although large for a collection of this type, scarcely constitute an N value big enough to be definitive; in between there are so many different types of negotiations that the twelve cases selected here can scarcely be called representative. The best they can do is help establish some preliminary results that others can test against individual instances or against another collection to increase the total N. Three types of cases are presented, chosen to cover a wide range of relevant peacemaking situations. The first concerns large systemic international settlements from the past: the treaties of Westphalia that ended the Thirty Years' War in the middle of the seventeenth century and the Congress of Vienna that ended the Napoleonic Wars at the beginning of the nineteenth century. Their inclusion brings a historic dimension to the consideration of other, contemporary cases as well as a dimension of breadth as a background to the more specific settlements that follow. The second group of cases covers major settlements of the late twentieth century, with much diversity. Instead oflarge settlements, such as the seventeenth- and nineteenth-century cases, the late twentieth century brought comprehensive agreements through their components-sort of "disaggregated peaces of Westphalia." The more general settlements of the era, such as Versailles or San Francisco, were respectively so clearly either backward- or forward-looking as to be less interesting. The actual negotiations to end the Bosnian war in the first half of the 1990s are the subject of one analysis, as are the negotiations to bring a formal end to the belligerency of Austria that lasted nearly a decade after the actual end of hostilities in World War II. The third and fourth cases cover negotiations between Israel and the Arab states, notably Egypt, to end their own thirty years' war and between Israel and the Palestinians to bring a two-state solution (not yet achieved) to an eternity of hostility. The seventh case analyzes the process of reconciliation between two of the main antagonists of World War II, France and Germany, negotiated less formally over several decades of the postwar period. The eighth case

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analyzes the negotiations to end tense relations across the Andes by the creation of a common market of the southern cone of the Americas (Mercosur). The third group contains smaller cases, either bilateral cases or "unilateral" cases concerning internal conflicts. Again, these were chosen from a large array of possibilities to draw on a diversity of situations. The failure of the multilevel conflict over Cyprus to reach a resolution is analyzed in terms of forwardand backward-looking negotiations. The degree of satisfaction registered in South Africa over its own successful settlement is also analyzed in the same terms. The long blockage and then final success of negotiations between Ecuador and Peru over their disputed border are also examined in terms of the direction of the negotiations. Finally, a comparison between negotiations to end the war between Armenia and Azerbaijan over Mountainous Karabakh and those to end the civil war in Mozambique concludes the array of cases.

Part 1: Historic Settlements

Chapter 2

Thrning Point Westphalia: Negotiation Processes Establishing a New Political and Legal Order in Europe Paul W. Meerts

The 1648 Peace of Westphalia represents one of the most outstanding examples of forward-looking outcomes in human history (Melissen and van Staden 2000, 29, 43). Moreover, the regime created at the negotiations in Miinster and Osnabriicka regime that marked the end of the respublica Christiana and the beginning of the system of sovereign, independent states (Schrijver 1998, 144)-is still alive and well today. Westphalia, by legitimizing the de facto status quo, established a new political and legal system in Europe and sowed the seeds of further changes in European societies. "The essence of the old system of governance was that all peoples were held together in a universal society by a non-exclusive form of territoriality, in which political authority was both personalized and divided within and across territorial formations and for which inclusive bases of legitimization prevailed. The sharp division between citizens and non-citizens, being an important feature in the modern state, was not there" (van Staden and Vollaard 2002, 179). There have always been attacks on the regime of formal equality among sovereign states created at Miinster and Osnabriick, and the regime will probably be further undermined in the decades to come. Nevertheless, after 350 years, the system of states as created in the mid-seventeenth century is still the most effective way of avoiding chaos and structuring the world community. This chapter will deal with how the negotiations came about; what kind of negotiation processes (forward- or backward-looking) took place; how matters of peace and justice were 11

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handled; what regimes were installed; and what their prospects might be in the twenty-first century. In the middle of the seventeenth century, wracked by wars among and within the old hegemonic powers of the Holy Roman Empire and Spain, and the ascendant states, such as Britain, France, the Netherlands, and Sweden, Europe was looking for a lasting peace agreement. The wars, a mixture of internal and external warfare disguised beneath a cloak of religious differences, were devastating. Civil wars raged, sparked by emotional religious outbursts, and these cruel conflicts were used as a pretext for external interference in the internal affairs of states. The Swedes, for example, used the threat of Catholic action against the Protestant fiefdoms in Germany as an excuse to intervene in the affairs of the Holy Roman Empire, invited in by the Protestant overlords to rescue them from Catholic oppression. Moreover, many such rulers had converted to Lutheranism, or in the Netherlands to Calvinism, to mobilize the people against their feudal masters. This resistance to emperor or king was, in fact, a reaction against the attempts of the highest rulers to modernize thetr states. The states were in reality composite territories rooted in the medieval feudal system that had withered away at the end of the fifteenth century (Groenveld 2000, 52). They could no longer deal with modern-day demands, and attempts to move in the direction of a unitary state brought about their demise. Yet, even as the people transformed into Renaissance men and women, as societies became more open, as the merchant class, step by step, marginalized the noble families, and as cities grew into preeminence, the feudal system still clung on in its increasingly outmoded and irrelevant forms. In other words the political system was now inappropriate both in terms of the underlying values and norms of society and its economic structures and processes. Confronted with this problem, the emperor of Germany and the king of Spain started to modernize their states by introducing a relatively strong bureaucracy whose success depended on greater state centralization. The attempts by these sovereigns to remove the root cause of the internal weakness of the state, namely, the extreme decentralization of their domain, provoked resistance and revolution. Thus, paradoxically, the efforts to assure an effective implementation of sovereignty led to a breakup of the old powers; this gave birth to the peace negotiations in Westphalia which, in turn, can be seen as the cradle of today's notion of sovereignty. It should be added, however, that the tendency to centralize the state was not always a rational process. In Spain it also had to do with the character of King Philip II who was not only incapable of delegating but also a master of procrastinating micromanagement and a workaholic who read all documents and signed all decrees himself with Yo, el Rey, or I, the King (Vroom 2000, 45, 49). The Peace of Westphalia had many faces. It was a necessary instrument of transition from the old era to the new. As far as peace and justice are concerned, it stood for important elements both in backward- and forward-looking negotiations. For the old powers the peace agreement acted as a safeguard against further

Turning Point Westphalia

13

decay. For the young powers it was the place to obtain justice, to assume their rightful place in the community of states. In that sense the agreement had more of a forward-looking character for the young states than for the old. De facto, Westphalia put an end to the division of the world between Spain and Portugal made in the 1495 Treaty of Tordesillas and, at the same time, legitimized Hugo Grotius's idea of a mare librum.lt had a mixture of short-term, backward-looking aspects and long-term, forward-looking aspects: it put an end to internal and external wars, and, by installing committees and guarantors to oversee peace, it created-formally at least-the equality of states and religions. Let us try to define the major concepts with which we will deal in this chapter. Though Westphalia created new regimes, it had some difficulty in doing so, as will be explained below. "Building institutions in world politics is a frustrating and difficult business. Common interests are often hard to discover and to maintain. Furthermore, collective action invites myopic behavior" (Keohane 1984, 246). Regimes, then, are "sets of implicit or explicit principles, norms, rules, and decision making procedures around which actors' expectations converge in a given area of international relations. Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice" (Krasner 1983, 2). Westphalia's forward-looking outcome is an example of a negotiated regime. "These regimes are characterized by conscious efforts to agree on their major provisions, explicit consent on the part of individual participants, and formal expression of the results" (Young 1983, 99). The Westphalia negotiations created the regime of equal sovereign states, "black boxes," as the building blocks of Europe-and, in effect, of the world-as we know it today. The principle of justice meant respect for the territorial integrity and sovereignty of each state over its own territory to the exclusion of other actors. The norm was the communis opinio regarding the way European countries should deal with each other. The rules were the agreements on the implementation of the principles and norms translated into diplomatic codes, ways of conducting war, exchanging goods, and dealing with any matter concerning interstate relationships. A decision-making procedure was established in the sense that only heads of state could decide on interstate matters through consensus. It should be noted here that, with the possible exception of the Chinese, Ottoman, Persian, and Ethiopian empires, states outside Europe were not seen as equal to those in Europe. They could, and thus should, be conquered and colonized, and the principle of equality was applicable only to Christian countries. As time went on, more states were seen to come under the equality rule which in our own century applies to all states. The principles, norms, rules, and procedures are now largely codified, but it took 350 years for them to arrive at their present level of institutionalization, and we will not see the end of them for quite a few centuries to come.

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Parties and Positions The need to start peace talks came at a time when all parties were stuck in hurting stalemates. Neither party could win a decisive victory, with the exception perhaps of the Dutch, who were easily able to strike a favorable deal with their Spanish opponents. These standoffs were particularly hurting for the civil population. Human rights were violated on the grand scale. In the Palatinate, the French engaged in slaughter so systematic that it might well qualify as the first modern-day genocide. Why, then, were the countries of western Europe so much at odds with each other? Although religious differences were seen as one of the engines of the Thirty Years' War, the Catholic French had no qualms about intervening on the side of the Protestant princes against their Catholic overlords. In that sense, rulers were often very pragmatic as far as religion was concerned. Nor did they care about the fate of those who were close to them in nationality or language terms; the Dutch had no compunction, for example, about blocking the River Scheidt and causing starvation to the Dutch-speaking Flemish population in Antwerp. Indeed, Amsterdam owed its wealth to the blockade and fall of Antwerp, which had once been the largest city in Europe and where Calvinism had a foothold long before it came to Amsterdam. In fact, Amsterdam remained Catholic and loyal to Spain for such a long time that the other Dutch cities made it the formal (but never de facto) capital of the Netherlands. To the present day, the head of state and the government reside in the city of The Hague which, in the seventeenth century, was a village and thus without city walls. Neither religion nor nationality, nor any other value-loaded reasons, were at the heart of these ongoing conflicts. They were really all about power politics, about who would have a dominant position, and what territory would be accepted as a legitimate state. At the turn of the sixteenth and seventeenth centuries, the hurting stalemates were such that prenegotiations leading up to agreements to break the deadlocks became unavoidable. The prenegotiations between Spain and the Netherlands, starting in 1621 and becoming regular in character from 1626 onward, were in themselves illustrative of the road to Westphalia. After eighty years of war, interrupted by a twelve-year truce, both parties were tired, but not everybody wanted peace. While some factions within both camps longed for peace, others saw it as most inappropriate. The principal advisor to the Spanish King Philip IV, the Count-Duke of Olivares and San Lucar, Don Gaspar de Guzman, made the mistake of renewing hostilities against the Dutch after the Twelve Years' Truce, creating more disaster for Spain. When the count-duke was finally obliged to make good this error by suing for peace, he had to grant many concessions to bring the Dutch rebels to the negotiating table. One problem that arose was the question of where to meet the Dutch rebels and how to provide passports for them. After long negotiations the Dutch accepted passports that mentioned the king of Spain as their protector rather than sovereign. This, in itself, was a major concession on the part of the

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Spaniards and indicated that the king was willing to give up sovereignty over his Dutch provinces. A long discussion followed as to whether or not the king could describe himself as a "protector in perpetuity" (Poelhekke 1948, 22). On the Dutch side, Prince Frederik Hendrik of Orange, the governor or stadholder of the United Provinces of the Netherlands, resisted the idea of a "hasty peace," as his French allies, in return for their support, had asked the Netherlands not to conclude a separate peace agreement with Spain which would weaken the French war effort. But while France needed the Dutch fleet in its war with Spain, French support for the uprising in Catalonia in 1640 had exacerbated relations with the Dutch. Prince Frederik Hendrik also needed the French, but not for his war effort. Frederik Hendrik needed the French as an ally within his own country. The Dutch fleet at that time was a mighty one that could plunder the Spanish colonies more or less at will; on the ground, however, the governor had destroyed the Spanish forces and made the northern part of the southern province of Brabant an effective land barrier. The merchants were in power in the major cities of the Netherlands and in the seven sovereign provinces, but Prince Frederik Hendrik's duty as governor was to maintain the unity of the country. He had no sovereign powers but was an appointee of the states-general, the representative body of the provinces. As he tried to become more independent from them, he was also in competition with the raadspensionaris, the prime minister of the hegemonic province of Holland. Thus, he needed the French as an ally in a struggle in his own country. As France still had to consolidate its position as a result of new territorial acquisitions made from the House of Habsburg, especially in Germany, the war was prolonged. In the Netherlands, however, most of the provinces wanted peace. Although the war was profitable for provinces (notably the province of Zeeland) that earned a living by keeping Antwerp closed or by pirating Spanish and Portuguese possessions, other provinces, especially Holland which was paying more than 50 percent of the war budget, wanted peace because the war, and the damage it was causing to merchant vessels, was too costly. The necessity of maintaining land forces was a particular thorn in the side of the merchant families, partly because of the cost, partly also because the army was the power base of the governor, and the merchants were consequently subsidizing the powerful arm of their political rival. Frederik Hendrik had inherited the army from his brother, Prince Maurits, who had modernized it to create one of the most effective forces in Europe. As the merchants were interested only in overseas trade, they even contemplated giving up the inland provinces to save money on the army, an extraordinary situation as there was no political or military need to do away with these territories. The House of Orange also resented these ideas because it had hopes of playing a role in Germany again where it had its Nassau possessions. But it could not avoid peace negotiations forever and, slowly but surely, was forced into contacts with Spain. It agreed to peace negotiations on the condition that the French would negotiate with Spain at the same time.

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The French, for their part, had overcome their internal religious feuds. By the Edict of Nantes (1598), the French Protestants (Huguenots) were given equal rights with the Catholics, restoring internal unity to France that would last over a hundred years and provide the French king, Henry IV, with a basis for a more effective foreign policy. Henry used this opportunity to intervene in Habsburg affairs in Spain (by supporting the rebels in Catalonia), in the Spanish Netherlands (modern-day Belgium), and in Germany (mainly the Rhineland and Bavaria). French offensives came to a halt in the first half of the seventeenth century with the advent of the Thirty Years' War. Notwithstanding French alliances with the Protestants in Germany, the Netherlands, and Sweden, French successes threatened to fade away as Spain and Germany proved to be tough opponents. The French needed a peace agreement to divide their opponents. They were also in danger of losing their Dutch ally as the Eighty Years' War with Spain was now drawing to a close. France had obviously not yet had its fill of warfare but needed to buy time for more expansionist wars. That is why, for France, the Peace of Westphalia was a short-lived peace. Westphalia was a forward-looking outcome in the sense that it gave birth to a new notion of sovereignty and did away with the old hierarchy of states headed by the pope and the German emperor, with its retinue of various monarchies and republics. It created self-ruling entities within Germany, thereby removing Germany as a central power from the European balance-of-power system for more than two hundred years. The French intention of expanding its territory to the River Rhine and into Italy and "Belgium" was revealed after Westphalia in a succession of negotiations on warfare and peace that lasted more than fifty years to the beginning of the eighteenth century. For negotiation now served as a tool in warfare, instead of warfare as a tool in negotiation. In terms of ending all wars between all negotiating partners, Westphalia was not very forward looking for the French/Spanish and French/German relationships but a mere breathing space in a series of struggles for hegemonic power between France, Germany, and Spain, as each party sought justice in its own quest for dominance. The Spanish urgently needed peace, as their position of hegemony was declining under internal and external pressure. Internally, they had to cope with the rebellions in Catalonia, the Netherlands, and Portugal. The northern part of the Netherlands was out of their control by the end of the sixteenth century, but the Dutch had again subdued the southern part (present-day Belgium). Calvinism had taken root. As the south was far more important than the north, Spain was ready to sacrifice the north to keep its hands on the south. That part of the kingdom, however, was under threat from both the Dutch and French; the Thirty Years' War in the Holy Roman Empire and the hegemony of the Dutch-English fleets in the North Atlantic made it extremely difficult to defend "Belgium" in an effective way. By destroying the homebound armadas, pirating coastal areas, and even taking over colonies, the Dutch and English were draining Spain of revenues from its colonies in Latin America. Indeed, a large amount of gold and silver

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needed by the Spanish to pay their mercenaries fell into Dutch and English hands. The breakaway of Portugal made things worse both in the colonies and on the Iberian peninsula itself. Meanwhile, the French interventions in Catalonia threatened the very heart of the kingdom-the union between Castille and Aragon-as well as the Spanish (formerly Aragonese) possessions in southern Italy (Naples and Sicily). For Spain, peace negotiations were not the tool for progressive warfare that they were for France but were deemed indispensable for defending the status quo. At that time Spain was ready to pay a high price for peace with both the Netherlands and France. The Spanish strategy, however, was to conclude a peace agreement with the lesser danger, the Dutch, in order to have its hands free against the greater one, the French. As mentioned, the French had little interest in a peace treaty and therefore a considerable interest in keeping the Dutch at war against Spain, and the Swedes at war against the German emperor. Both the Dutch and the Swedes were running out of steam, however, but for different reasons. The Dutch, because of the high costs of the war and the power it provided to the House of Orange, were ready to come to terms with Spain, and Spain was ready to come to terms with them. All the major concessions would come from the Spanish side, and the parties more or less had an agreement in the first weeks of the negotiations. They even signed an "eternal cease-fire" in 1646, but final agreement took a further two years because of France, and even then a Spanish-French agreement would have been rather unlikely had it not been for the considerable threat of a separate Spanish-Dutch agreement. Sweden also had its own reasons for wanting a peace accord. At the beginning of the Thirty Years' War it had been relatively successful under the leadership of King Gustavus Adolphus, but Sweden was a country of limited resources. Its few colonies did not produce the silver and gold required to pay mercenaries; it was engaged in an ongoing competitive struggle with Denmark; it also had to hold off Russia and defend its interests in the Polish kingdom. After the Union of Lublin with the Archduchy of Lithuania, Poland gained enough strength to start to become a threat to Swedish hegemony in the Baltic, especially after the defeat of the German Teutonic knights by a Polish-Lithuanian force. The greatest threat to the Swedish possessions in Finland and the Baltic states, however, was tightening its claws around Swedish Ingermannland (the present-day St. Petersburg area): the Russian bear was now waking up after throwing off the Mongol yoke. The Baltic offset Sweden's lack of major colonies and was its economic power base as well as an indispensable part of the economy of the main Swedish ally in the Baltic arena, the Republic of the Seven United Netherlands. The Dutch United Provinces and their fleets fought on Sweden's side against Denmark but when Denmark became too weak, switched sides, joined the Danes, and defeated the Swedish fleet. As the Dutch Protestant ally became less and less reliable, the other Protestant allies, the Lutheran princes in northern Germany, came under growing pressure from the ever-more-assertive armies of the German emperor and

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the German Catholic states. The fortunes of war in Germany were turning against Sweden which did not have the potential to maintain its northern dominance. If anyone needed peace negotiations, it was the Germans. Germany had been devastated by the Thirty Years' War and was a hopelessly divided country. Situated at the center of Europe, the largest and wealthiest of all European states and the successor state of the western Roman Empire, it fell into disarray because of its feudal system. The decentralized state also fell victim to the growing importance of the seven electoral states that decided who would be the Holy Roman Emperor. As the major German states were virtually independent with all the characteristics of sovereignty apart from formal acknowledgement of it by the highest authorities, the emperor sought to reestablish his power through centralization and, taking his cue from his opponents, tried to use religion as a tool. This introduced to the fight the ideological dimension of justice that seemed to be a struggle between Catholicism and Protestantism but was, in fact, a struggle purely for power. Other players in Europe took advantage of this opportunity and became involved in the civil war, thereby turning it into an international war. As long as the outside powers still had a sufficient stake in the conflict, the war would rage on, even if the German states themselves were tired of the situation. It was only when the foreign powers also became war-weary that a negotiated solution became feasible. The hurting stalemate in the fourth decade of the seventeenth century created the opportunity at Westphalia, although the French still tried to procrastinate as much as possible. It is no coincidence that many of the wars in the second half of the seventeenth century were initiated by the French, who were dissatisfied with their expansionist progress in the first half of the century.

Procedures and Processes The stage was thus set for one of the most important negotiations in the history to date of western Europe, with all players ready to come to the table, eagerly or reluctantly, as victorious powers or victims. The peace negotiations were a turning point in the struggle for power in Europe as the "upwardly mobile" states, such as France, the Netherlands, and Sweden, evened the score with the declining forces of the Holy Roman Empire of Germany, the Holy See, and Spain. Through international negotiation processes, this political change projected itself into changes in the formal relationships between the states of western Europe. The formal inequality of states was transformed into formal equality. The pyramid structure was transformed into a flat one; formal hierarchy was replaced by informal hierarchy. In a way, the state system was, at least formally, democratized. State sovereignty became a universally applicable way of creating an international order. These newly established principles of justice would pertain for the new international regime. For the moment, however, the negotiations would primarily set the stage for a new European order where politics, not prerogative or religion, would determine the way the continent was ruled.

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Adversaries negotiated backward-looking beginnings on the exchange of prisoners of war, and negotiations finally resulted in temporary truces like the Twelve Years' Truce between the Netherlands and Spain (1609-1621). During negotiations between the French and their Swedish allies in Hamburg (1641), it was decided that peace negotiations should be started with their opponents. The Danes pleaded in favor of this proposal at the German imperial court. Emperor Ferdinand III accepted the idea of peace talks, also on behalf of Spain. It was decided to invite the Netherlands as well, even though it was not directly involved in the Thirty Years' War (Dickmann 1959; Groenveld 2000). MUnster and Osnabri.ick were declared neutral. In MUnster, negotiations were carried on among the German emperor, the Catholic German states, France, and Spain, and between the Netherlands and Spain. The emperor, the Protestant states, and Sweden did their bargaining in OsnabrUck, and Denmark, Poland, the Swiss Confederation, and several Italian states sent observers. In 1645 the French succeeded in having the representatives of both the Dutch and German electoral states accepted at diplomatic level, which opened the final gate to Westphalia. In the end, more than 190 political entities-as many as the members of the United Nations today-participated in the overall process. Of these, 109 sent their own envoys while the others used the ambassadors of their allies to monitor the meetings or to put their proposals forward. The negotiations at Westphalia started in 1644, two years later than planned, and were over in 1648. It was the largest conference the world had ever seen. Only the Germans held plenary sessions: the Protestants in OsnabrUck and the Catholics in MUnster. The bulk of the negotiations were bilateral, sometimes face-to-face, normally only through documents but in the toughest cases through mediators. Bellenger ( 1987, 116) distinguishes four roles for mediators: globalistic, altruistic, promotional, and propositional. The role of the mediators in Westphalia was clearly an active one. Not merely neutral brokers, they also had to steer the process, to promote a favorable climate, and to propose helpful ways out of deadlocks. In MUnster the mediator was the Venetian envoy; in OsnabrUck, the papal ambassador or nuncio. In many cases informal mediators intervened, normally envoys of countries with an interest in a peace agreement between two other states. The Dutch, for example, often mediated between their French ally and their Spanish "enemy." They needed the French for a peace treaty with Spain, but they preferred a weak Spain as ruler in the southern Netherlands to a strong France taking over and therefore directly bordering on Dutch soil (something that would happen some twenty-five years later anyway when the ally became the enemy under Louis XIV). Although we cannot speak about a multilateral negotiation, and should therefore use a term such as parallel negotiation, the meetings did have the character of a conference and led to many informal contacts between delegations who were not involved in formal negotiations with each other. It is interesting to note that this kind of transverse negotiation or trans lateral negotiation in combination with regular longitudinal negotiation is also common practice in today's conference

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diplomacy. In fact, the greater the number of participating parties and the more complicated and numerous the issues, the more necessary translateral negotiations are, both inside and outside the conference rooms, to keep the process flowing. The process of European integration is one outstanding example of this. It is clear, however, that in a situation where multilateral negotiation is not performed and parallel bilateral negotiations among many actors abound, translateral negotiations are even more necessary to keep the fabric in place. Just as today's negotiators use the corridors extensively and the major decisions are often taken outside the conference room, "at the Congress ofRyswick (1697), the English and French negotiators very nearly accomplished the work of restoring peace to Christendom while walking up and down an alley under some apple trees" (Matveyev 2000, 13). This was an early version of the famous "walk in the woods" in 1982 by United States and Soviet arms-control negotiators. At Westphalia there was a quadruple communication problem. First, the negotiators had no conference building at their disposal and had to negotiate in their lodgings. Second, the distance back to their superiors in the capital was enormous, in terms of both time-long distances on horseback through war-ridden regionsand power, as negotiations received their instructions from the monarchs themselves. Third, questions of rank and status hampered informal negotiations and often led to miscommunication or even went as far as direct fighting. Fourth, negotiators were, on the whole, quite intransigent in their negotiation behavior. In the virtual absence of mechanisms to provide assurances and safeguards, distrust was universal. Verification took a long time and was often highly inaccurate. These obstacles, together with the absence of the multilateral mode, gave birth to a slow and non-transparent process. The consequence of this "scattered" form of negotiation, the normal pattern until the Congress of Vienna some 170 years later, was a range of treaties without much interconnection, notwithstanding the use of translateral contacts. The processes in MUnster can be regarded as "diplomatic negotiations," defined here as negotiations between official representatives of sovereign (or semisovereign) units. At the MUnster peace negotiations, the units in question were sovereign states, autonomous federal states, plus de facto independent states asking for recognition (in this case, the United Provinces of the Netherlands and the Swiss Confederation). "Rebels" were also present, but only as part of one of the recognized delegations. The Catalans and the Portuguese, for example, were part of the French delegation. As has been said, the most important actors, the German empire and its federal states, the kingdoms of France, Spain, and Sweden, the republics of the Netherlands, Switzerland, Venice (as comediator), and, last but not least, the Holy See (as comediator), were never in the same room at any time during the negotiations. As the negotiations were bilateral, taking place in turn at the residency of each of the parties directly involved, secrecy was more or less guaranteed, but so too was a power imbalance. This system of parallel meetings, customary in

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the seventeenth and eighteenth centuries, afforded the larger party superior power. Simulations of the Treaty of Ryswick ( 1697) by the Clingendael Institute in 1987 and 1997 clearly showed how weak the coalitions were (Meerts, 1997, 29). Their members were not only unable to communicate effectively, but weak transverse communication and negotiation enhanced the power of the stronger parties. While the procedures and processes of the negotiations at Westphalia favored the larger countries, the small counted themselves fortunate to be invited. Without the gigantic gathering they would have been left much more out in the cold, and this is one of the reasons in this day and age why small countries are so in favor of multilateral meetings while their bigger "brothers" often prefer the bilateral mode. Procedure- and process-wise, Westphalia can be seen as between the oldfashioned bilateral interaction and the conference diplomacy of the twenty-first century. At Westphalia, proposals could be put forward in three ways. The first was the most formal. An official letter would be sent to the mediator, which he was allowed to open and examine. He would then either forward the letter unaltered or first negotiate alterations in the text with the sender. The second method of making a proposal involved exchanging official papers of a more exploratory nature, while the third method was to make tentative, informal proposals to which the parties did not yet wish to bind themselves. Complete treaty texts were agreed by reaching a series of subagreements. In some cases these complete texts were published as proposals before the parties were allowed to give their opinion. Proposals remained provisional until an overall final agreement was reached. The main language of the negotiations at MUnster was Latin, but French and Italian were also used. The main language used at OsnabrUck, however, was German, a language in which the Swedes were also proficient. The Dutch and the Spanish negotiated mainly in their own languages. In direct contacts, negotiators of the smaller countries often agreed to use the language of the larger country, which added to the difficulties negotiators already had in terms of power difference. Negotiating in a situation where one opponent can use his mother tongue and the other cannot is obviously advantageous to the former (Marcos, Eisma, and Guimon 1977). All in all, some eight hundred meetings were held, mostly during the winter. As the generals went off to battle again in summer, the diplomatic process more or less ground to a halt during the warmer weather. How did the negotiators deal with their problems, given the prevalence of warlords, the many procedural restrictions, the nontransparency of the processes, the procrastinating tactics of the parties, their inflexible positions, and the multitude of problems at hand while a war was raging directly outside the neutral conference cities of OsnabrUck and MUnster? The paradox of the negotiations in MUnster was the undeniable backwardlooking character of the negotiation process leading to forward-looking outcomes. The delegates did what they could to defend their states' interests without taking into account the interests of the collective whole in Europe. This strategy is

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notably different from the intra-European negotiations of today which have a better balance between national and supranational interests than was the case in the seventeenth century. The delegates had a far less flexible mandate than the European Union negotiators of our own time; their personal safety was much less well guaranteed; they had to cope with unrestricted power differences; and they were hindered by strict procedures mirroring those power differences. In this situation they could do no more than negotiate an end to warfare and were denied the possibility of working on a more lasting peace by building in forward-looking elements. The backward-looking agreements, however, would have been of no value whatsoever had the status of the negotiating parties remained fixed. In other words, no backward-looking peace deal could have been concluded if the Dutch, Helvetian, and Venetian republics had not been acknowledged as genuine states, if the German empire and the Spanish kingdom had not been willing to accept France and others as equals, and if Protestantism had not been accepted as a branch of Christianity in its own right. It was only such structural changes that made situational agreements viable. As a consequence, the negotiation process had a backwardlooking character that led to a forward-looking outcome.

People and Postures It is, of course, even more problematical to analyze the behavior of the diplomatic negotiators of 350 years ago than of our own time (Kaufmann 1989, 301). Nevertheless, we can say something useful about the negotiation behavior during Westphalia, especially the MUnster dealings, as extensive and detailed accounts are available. According to Kaufmann (1996, 124), the conference diplomat had to be able to play many roles, including silent partner, lobbyist, orator, and procedural specialist. Detailed accounts by Poelhekke (1948), Dickmann (1959), and Groenveld (2000) on the negotiation process and the behavior of negotiators at Westphalia show that, in this sense, seventeenth-century diplomatic negotiators were not really different from those operating in our own time. Negotiators and their governments were inclined to ask for more than they could reasonably expect to get (Fisher 1971, 86). For several reasons, the willingness to make concessions at MUnster was, by contemporary standards, extremely small. The first reason was fundamental: the stature of the participating states. It was extremely important for each actor not to lose face, a backward-looking consideration par excellence. At this conference, where the Europe of medieval unity was to be replaced by a Europe of sovereign states, each state needed to reflect its (supposed) sovereignty to the greatest possible degree in its rights and prerogatives. Every concession made by a state was considered to be detrimental to its own position. This applied most of all to the German empire which was about to lose both its internal and its external sovereignty as well as the right, which it shared with the Holy See, to be the symbol of European unity. The Catholic

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Church was in the same position. Recognition of freedom of religion by individual states or sovereigns detracted from the notion that the Catholic Church was the sole authority in western and middle European Christianity. The same applied to the states that were trying to turn their de facto independence into de jure sovereignty, as well as to states that were already sovereign but fighting for the best position within Europe. All sovereign states were equal, but some were more equal than others. They bargained extensively over the problem of precedence and not only in a peaceable fashion; it was not unusual in those days for there to be bloody encounters between delegates' assistants. States' insecurity about their own position led to a hardening of attitudes, reinforced by differences of opinion between the mediators and differences of vision and power within various delegations. These differences were turned into issues of status and resulted in positional negotiations: before the substance of the meeting could even be discussed, the parties argued at length about the formalities that they felt not only defined their positions but also protected and defined the stature of the negotiator (read: of the negotiator's superior). Form had priority over substance and obstructed smooth progress. In fact, the formal opening of the Mi.inster talks was delayed for six months because of arguments about questions of precedence. Before new borders could be defined, the boundaries between the negotiators had to be determined. From the outset this highly inflexible structure, dictated by the subject matter of the negotiations-namely, establishing the differences between the states rather than pursuing their interdependence-resulted in extremely distributive negotiations. One party's gain was another party's loss. Maximization was paramount. If Spain wanted peace, it would have to offer more than just the recognition of the Dutch Republic. Moreover, the people of Amsterdam and Zeeland, demanding the blockade of the southern Netherlands, did not seem to care that this would be punishing former fellow compatriots who had themselves become victims of the Spanish Reconquista. If France wanted to increase its power, it had to be prepared to support the advance ofProtestantism-an anathema within its own borders-in the Netherlands and Germany. Such opportunism was not considered at all unethical. The question was how tough a stance to adopt. Those who wanted peace needed to be more willing to make concessions than those who would benefit from the continued pursuit of justice through war. Thus, it was the various interests of the factions within the participating states that contributed to determining how willing the parties were to make concessions; and war was still an alternative to an agreement. Maximizing one's power through the use of force was an acceptable, and even approved, tool of diplomacy, as evidenced by the fact that the war continued to rage during the negotiations themselves. Negotiating itself was seen as something of an admission of weakness. It could lead to situations where the stronger party forced an agreement on the weaker party, resulting in the losing party remaining resentful toward the other side and waiting for a chance to exact revenge. The

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negotiation might be a success in the sense that a treaty had been concluded, but the aim of reaching a satisfactory resolution of the conflict for both sides was still light years away. If certain goals could not be achieved by force, only two options remained: negotiation or avoidance. Negotiation was simply a way of continuing the battle using other means and resulted, sometimes literally, in bellicose behavior; there are many examples of carriage races and fights between servants, as happened between the Spanish and Portuguese delegations. It also resulted in a wait-and-see attitude because the tide on the battlefield might turn and a dominant position might help to enforce one's own demands. The use of power outside the negotiation rooms thus resulted in a certain abstinence from power inside them. The negotiators of the more powerful parties often refrained from making use of their superior position because they were afraid that any agreements they might reach would be weaker than agreements dictated by military victory. Everyone waited for the battle tides to turn, and the negotiations in MUnster can therefore be seen as encouraging the further use of force. The Treaty of MUnster may-for some countries-even be viewed as a "break" created deliberately for the purpose of achieving a better position in a renewed conflict, a forward-looking aspect of a negative character. The stronger parties could not yet overturn their weaker opponents. At issue was the "power of the weak" (Jonsson 2000, 18). As time was running out for them, however, some of the stronger parties had to buy time through a treaty. Confirmation of this may be seen in the subsequent wars the states fought to consolidate their own positions in the hierarchy of states. An effective use of superior power was seen as completely legitimate within the peace talks, as the structure of the meetings implies. As argued above, the bilateral nature of the negotiations afforded the stronger party the chance to capitalize on its superior power-at least, if developments on the various battlefields warranted this. At MUnster virtually no coalitions were formed-the strict mandates of the negotiators left no room-although multilateral conferences are usually an outstanding opportunity for coalition building. The formalities of the meetings also restricted the informal formation of alliances. Some parties did, however, attempt to win over negotiators to their side by means that would be considered unethical today. For example, bribery was rife, but it usually had little effect. Payments were considered, rather, to be a security measure: states paid their own allies large sums of money to prevent them from accepting money from the opposition. In fact, it was also common practice to accept money from the opposition. The charms of the ambassadors' wives were also deployed to soften the position of some negotiators. The Spanish ambassador's wife, for instance, had played just such a role at the Ryswick peace conference. Everyone at MUnster was constantly trying to affect the balance of power, but the net result was that the delegations suffered from a chronic lack of funds and only ended up worse off, with no real shifts in position having taken place. The real victims of this were the townspeople of MUnster, for if an ambassador absconded

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and left large debts, it was almost impossible to recover them. The MUnster conference was, in fact, little more than a means of communicating decisions made elsewhere. Progress could be made only if the time was ripe for an agreement outside the negotiation rooms. Whereas, nowadays, the goal of negotiations is to reach an agreement, the aim of the MUnster negotiations was to have a forum for sealing decisions made externally. In other words, whether any negotiations took place in the sense in which we understand the term today is seriously open to doubt. The balance of power at the negotiating table was therefore relatively irrelevant because power was not going to be used there anyway. What mattered was the balance of political and military power outside MUnster. MUnster was a conference of diplomats, not a conference of rulers or their direct political representatives. In that sense, MUnster was different in principle from the conferences at Vienna and Versailles in later centuries. There was nodirect possibility of any real compromises being agreed, and the difference in power between those mandated and those doing the mandating led to a loss of power on the part of the envoy and, consequently, to a marginalization of MUnster as a whole. This is illustrated by the problems that arose in communicating with the capitals of the negotiating states. Although in 1643 the Prince von Thurn und Taxis established a regular postal service between MUnster, Vienna, Amsterdam, Cologne, and Hamburg, messages were often intercepted by both plundering soldiers and the opposing party. Moreover, it took a very long time for an answer to be returned, which delayed the negotiating process even further. The geographical distance between the capital and the town where the negotiations were taking place entailed long traveling times, which emphasized the difference in power between the diplomats and their masters. The delegations consisted of all sorts and conditions of people, and their procedural conflicts reinforced the backward-looking position politics of the negotiations. It was beyond dispute that the leader of the delegation was formally in charge, if only because he was representing his sovereign. Delegation leaders representing kingdoms and republics were either members of the high nobility or of the patriciate, and they were sent to MUnster for many different reasons, at best because of their experience and virtue and at worst because their sovereigns wanted to get rid of them. The reason for their removal from court varied from the political, as in the case of the French, to the personal-the king of Spain, for instance, sending his ambassador because he wanted to separate him from his young wife in Madrid. The representatives of the Mediterranean countries in particular saw MUnster as a punishment on account of the cold weather, the poor facilities, and the fact that it was situated far from the centers of power and in a country that was still partly at war-and dangerous. Although the town itself was safe, because the emperor had stationed a special regiment of soldiers there, there were still gangs of soldiers roaming about the countryside. Some information is available about the behavior of the delegation leaders. Count von Trauttmansdorff, the ambassador of Emperor Ferdinand III and chief

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representative of Germany, was described as decisive yet friendly. The French ambassador, the Duke de Longueville, tried to improve the atmosphere by using his young wife's skills and charms. This put their residence at the center of diplomatic life in MUnster. Johan Oxenstierna, however, the Swedish ambassador and son of the Swedish chancellor, Axel Oxenstierna, was wavering, blunt, and, even worse, uncontrolled. As self-control was considered an indispensable quality in negotiators, the last characteristic violated seventeenth-century standards. The Swedish ambassador also offended good taste with his extreme vanity: trumpets blared when he got out of bed, when he ate his meals, and when he went to bed again. In almost all cases the "seconds in command" of the delegations were lawyers of great repute. There seems to be little doubt that these specialists had more influence than their official leaders, who were sometimes more interested in worldly pleasures than in substantive negotiations, insofar as we can speak of substantive negotiations at all. Pleasures were only sparingly available and were therefore created, at great expense, by the gentlemen themselves. Bickering between ambassadors and their seconds in command was a common occurrence, partly because the former held the latter in such contempt. In some cases, the seconds in command also had differences of opinion among themselves. For example, one of the two French seconds in command, the Count d' Avaux, was, like the ambassador, an opponent of the French policy of supporting the German Protestant princes. The other, Serven, found it less objectionable. Both men worked on the same files, a seemingly impractical arrangement unless one considers that they were, in fact, being used to check on each other. They each represented different factions of the court who continued their battle in MUnster. They reported to the capital independently and tried to blacken each other's reputation as much as possible. Within the Swedish delegation there were great frictions between Oxenstierna, who represented the interests of his father, the chancellor, and his second in command, Salvius, who promoted the interests of the queen. Adriaan Pauw, Godard van Reede, and Johan de Knuyt, the Dutch diplomats, also clashed regularly, which is not surprising when one considers that they were each promoting completely different interests (those of Holland, Utrecht, and the governor of the Republic, respectively). Delegates also tried to stir up differences of opinion in other delegations to weaken their position or to help restrain these opposing views if they were a hindrance to agreement. The tensions between the delegations were expressed in all sorts of precedence disputes sometimes settled by threats or the use of violence. Ambassadors seized every opportunity to show their precedence over others; lower-ranked diplomats did all they could to gain higher formal prestige. The electors eventually managed to have themselves considered as sovereigns for the duration of the talks, which immediately gave them a higher status. This temporary power of the electors was responsible for the inclusion in the final agreement of a number of conditions on the exercise of certain important imperial powers. Electors with an ecclesiastical status sometimes called upon this status to gain temporary precedence. The

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Church was ranked highest of all-the papal nuncio was therefore the only one allowed to sit on a dais. By wearing their vestments, some electors with the rank of bishop managed to gain a better place during solemn ceremonies. The French tried to discriminate between monarchies and republics. The latter were, of course, thought to be of a lower order, and the French were not prepared to accept equality of status until, on one occasion, the representative of the doge of Venice threatened to leave the conference permanently. Apparently, the French were not primarily interested in stimulating a fruitful negotiating atmosphere but preferred to give priority to prestige issues. For example, considering the Venetian mediator to be inferior in rank because he represented a republic and not a monarchy, they treated him with contempt by waiting for him at the foot of the stairs instead of at the door of his carriage. This ceremony was repeated at his departure. The attitude shown by the French a few years earlier during talks on the continuation of the French-Dutch alliance was even more offensive: at every available opportunity, they made it clear in their ceremonial behavior toward the Dutch that the Republic was of a lower standing than France. Indeed, irritation at this behavior contributed to the decision of the Dutch to dissolve their alliance with France. The Spanish, by contrast, were much smoother operators in this respect. At MUnster, for instance, they went to sign the treaty at the quarters of the Dutch legation-an action that typified the attitude of Spain toward the Republic, for it was very much in their interest that the Republic should withdraw from the alliance with France. The handling of questions of rank had a strong emotional effect on the players involved and a decisive impact on the willingness of negotiators to compromise. Nor, often, was the relationship with the various home authorities very good. This was a result of chronic financial worries caused by the expenditure on all the pomp and splendor the delegations needed to emphasize their superiority: expenditure that the capitals were unwilling to cover in its entirety. The need to bribe other parties was another cause of financial troubles. Money was offered even to the highest nobles, who accepted it eagerly. The republics seemed to have more scruples in this matter than the monarchies. The Dutch States-General, for example, prohibited the acceptance of gifts. This was circumvented, however, by directing the gifts to the negotiators' wives. It cannot be said, therefore, that the delegations paid no attention to cultivating the relationships with the other parties, but they did go about it in such a way, and in such an atmosphere of mutual distrust and pomposity, that any positive effect on the mutual relationships was minimal. In a situation in which the mandates were severely restricted or nonexistent, however, it is doubtful if the relationships between the diplomats were of any real significance. In some cases countries even refused to associate with each other during the conference or to use the translateral opportunities available. This is most clearly illustrated by the refusal of France and Sweden to meet at all, which was in part why the peace talks had to be located not only in MUnster but also in OsnabrUck.

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There were endless discussions, and, in that sense, the parties can certainly be said to have explored the possibilities of reaching an agreement. It is doubtful, however, whether this really led to any outcome that integrated opposing viewpoints. The position-based manner in which the parties conducted the negotiations and the limited instructions that they were given did not leave much room for genuine forward-looking exploration of new options for both peace and justice. Furthermore, negotiations on details were left to lawyers of lower rank who knew little about the overall structure of the agreement. The ambassador of the Holy Roman Empire, Count von Trauttmansdorff, considered that these underlings only confused matters, and the Venetian mediator, Alvisi Contarini, deemed them completely incompetent to carry out the sort of negotiations involved. Exploration was more a question of espionage and intrigue than of any genuine search for new and creative solutions. If, however, we consider exploration as the interaction that takes place prior to the start of negotiations proper, then there was indeed extensive exploration-or rather, the start of the negotiations proper was continually postponed. In fact, the whole process might better be described as "playing for time" than "exploratory negotiations"-playing for time that was intended to put the other party off balance and to strengthen one's own position. In general, the negotiations that took place in MUnster were indirect, whereas those that took place in OsnabrUck were direct. By the mid-seventeenth century the use of mediators had become relatively unusual, but they were still employed at MUnster. The papal nuncio, Fabio Chigi, and the Venetian, Alvisi Contarini, acted as mediators, and, as far as we know, they conducted themselves as neutral mediators, formally maintaining their distance from the negotiators. They did not dine with them, nor did they accept any gifts. Up to a point, however, each mediator clearly had his own hidden agenda as well. For the nuncio it was important that the power of the Protestant states be limited; for the Venetian the main issue was peace on the continent, as the turmoil in central Europe was not conducive to the Venetian transit trade. Furthermore, Venice was under threat from Turkey and would therefore welcome military assistance. The other countries were well aware of these hidden agendas and limited the role of the papal negotiator to mediation only between Roman Catholic countries. The involvement of the two mediators made it both easier and more difficult to explore options. On the one hand, by creating a buffer in this way, direct encounters were avoided, which meant that options could be explored without the risk of immediate confrontation. On the other hand, it hindered any direct, informal contact, ruling out from the start very much chance of flexibility in the negotiating process. Where face-to-face negotiations could be practiced, for example between the Spaniards and the Dutch, the process ran much more smoothly, but this also had to do with the greater amount of common ground between them, with the result that cause and effect were circular.

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Prophylaxis and Prospectiveness What came out of the Westphalian negotiation processes and how forward-looking were they? Although there is no overall Westphalian peace agreement but only a number of separate treaties between different parties, we can still describe the Peace of Westphalia in terms of different agreements with several common denominators that collectively changed the political theater of western Europe. The short-term common traits were backward looking-peace achieved through the ending of hostilities and the settlement of conflicts that had bedeviled the Christian European states during the first half of the seventeenth century. The mid-term commonalities were that all pacts tried to create a peaceful situation and more fruitful cooperation for the remainder of the century. The long-term effects were the establishment of new criteria of justice-a new regime, a new political order for Europe, and, as it happened, for the world as well. The states at the time saw the deteriorating political situation as a common problem needing a cooperative solution. It was not at all feasible to deal with this common issue in a multilateral setting, yet the countries envisaged the need for a gathering of all parties involved, even those, such as Denmark and Poland, that were only indirectly affected by the disastrous Thirty Years' War. At the same time they took the opportunity to settle other long-term conflicts, such as the Eighty Years' War. Translateral negotiations and coordinated mediation were effective enough to create a good deal of synergy to compensate for the lack of multilateral negotiation processes and very inflexible procedures. Most of the agreements on international political matters confirmed the status quo of 1648 in Europe and overseas. On these issues MUnster and OsnabrUck were forward looking, as the political agreements that put an end to an unstable situation laid the foundations for new regimes. They were based on a status quo that, in its turn, was based on a mutually hurting stalemate, the only alternative to which was a peace pact. The forward-looking outcomes, however, were based on backward-looking agreements, on settling issues that had already been settled in reality, and an acceptance of painful concessions that were already lost, sometimes for decades. For the countries of a century in which saving face was the most important characteristic of the ruler and his land, it was extremely difficult to accept changes that could be seen as losses. Even if one gained something else in return, losing was simply "not done." Negotiators could often only agree on maintaining the status quo; new solutions appeared to be intractable in nearly all short-term outcomes. As the restoration of a true status quo was impossible, however, new arrangements were made on national political and religious matters, and these outcomes would last for centuries. This was possible only in negotiations where the internal dimension had precedence over the external one, where, in other words, more control could be exercised and deals could go beyond status quo agreements. The Eighty Years' War was ended by an agreement in MUnster between the Netherlands and Spain, by which Spain gave up the sovereignty it had lost half

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a century before over the northern part of the Netherlands. Both kept the overseas possessions they had at the time of the agreement. The borders between "Belgium" and the Republic remained unchanged but had to be fixed in detail. This was a difficult question, as the de facto borders cut through Flanders, Brabant, and Limburg. To avoid problems, a chambre mi-partie (bilateral chamber) was established to fix the correct frontier and to decide on questions of ownership. Both parties were equally represented. This chamber is an interesting expression of the forward-looking outcome of a backward-looking, status quo-compliant process. The institution had a time limitation, but is nevertheless an interesting phenomenon, as institutionalized international cooperation, let alone interstate arbitration, was nearly nonexistent in seventeenth-century Europe. The Dutch blockade of Antwerp came to an end, but only formally. De facto it remained, with high import and export tariffs being imposed not only on Antwerp but also on the other Flemish ports to avoid indirect trade with Antwerp itselfmeasures that still fuel Flemish resentment against the Dutch today. The peace treaty, however, can be characterized as forward looking, settling issues so thoroughly that it provided for a stable peace. Indeed, Spain never really became the enemy of the Dutch again, in contrast with the French ally which became an enemy of the Dutch state for the next 150 years. It should be noted, however, that this treaty ended a war that had already ended by itself; it merely confirmed the existing peace, and this may have been the main reason for its forward-looking character. A formal reason to characterize the Spanish-Dutch pact as forward looking was the decision that all sovereignty ties not only between the Netherlands and Spain but also between the Netherlands and Germany would thenceforth be cut. It was in 1648 that the Dutch officially left the Holy Roman Empire, an empire that they had once provided with a Roman king who was never enthroned, as he was killed by the Frisians. As an interesting aside, some 200 years later, the Dutch were officially drawn into German affairs once more when the province of Limburg entered the German Union as compensation for the incorporation of western Luxembourg into Belgium. Another argument for labeling this treaty as forward looking was the establishment of the chambre mi-partie. This can be seen as the creation of a very limited new regime in the sense of an institution to guarantee peace and to help to solve as-yet-unknown differences of opinion, a truly forward-looking outcome but on a backward-looking basis. The peace agreements to end the Thirty Years' War, which carried on raging until the very last days of the negotiations, were on the whole quite forward looking in creating peace for some decades at least, although it would not be too long before France and Spain became entangled in the Twenty Years' War. Here, it was the military and political situation that primarily determined the final agreements while, in the Spanish-Dutch case, judicial reasoning played a much larger role. In the negotiations between France and Spain in MUnster, no agreement could be reached, and the war continued for another ten years (until1659). More successful,

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however, were the negotiations in Munster between France and Germany dealing with German territories west of the River Rhine that had already been in French hands for nearly a hundred years. Parts of these regions were owned by the Habsburg monarchy itself, and the Spanish resisted any concession on them. As this blocked any peace agreement, the Germans had to decide to cut the ties with their Spanish ally on this matter, just as the Dutch had to break up their alliance with France to be able to conclude an agreement with Spain. The German peace agreement with Sweden in OsnabrOck could also be attained only through German concessions both on land and money. In contrast with the French deal, however, Sweden did not obtain sovereign rights over the territories along the Baltic coast, which remained nominally within the German realm. This had the advantage of bringing the Swedes into the German League where they could now participate in the collective decision making among the German states in a legitimate way. These agreements provided some stability, although not to the extent of the Spanish-Dutch pact, and legitimized future Swedish interventions in the affairs of another "state." The agreements also led to the OsnabrOck settlement of the national political and religious differences within the Holy Roman Empire. It was not just a peace accord. It was a Christian peace, a pax Christiana. Politics and religion were intertwined; they were now two sides of the same coin that bore the name "peace." The religions were distributed over the empire on the basis of the situation in 1624, in other words, the predominant religion in each fiefdom would be determined by the religion pertaining in that Normaljahr. Catholicism, Lutheranism, and Calvinism were legitimized as official religions of the empire. A major change was the ending of the requirement that subjects automatically assumed the religion of their ruler. If the ruler changed his/her religion, the people could not be forced to convert as well. This was an extremely forward-looking outcome that can be seen as a crack in the theory of monarchical sovereignty and a step in the direction of the sovereignty of the people. It had pertained in republics such as the Netherlands and Venice, but never before in monarchies; even in the republics, however, the devolution of sovereignty was slow, residing in the hands of the richest people. Furthermore, the relationship between the emperor and the German states had been changed radically by the OsnabrOck conference, not only in its outcome but also in its process. The lords of the German states had negotiated with the sovereigns on a more or less equal basis, and it proved impossible to take back this prerogative later on. The lords already regarded themselves, and were acknowledged de facto, as sovereigns in their own domain. It should therefore be no surprise that, short of full sovereignty, the German states were given far-reaching mandates for home rule. They already had the ius territorialis and now received the ius foederis, another redefinition of justice. Germany now changed into a confederation of "almost equals," the difference being between those states that had a say in the election of the emperor and those that had not. The lords could now conclude alliances, conduct international relations, and have their own foreign policy,

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the only bar to full sovereignty being the precondition that their politics should not harm the interests of the Holy Roman Empire as a whole. From 1648 onward, the German emperor could no longer claim to be the most important and highest monarch in western Europe, the successor to the emperors of the western Roman Empire, just as the Russian czar regarded himself as the inheritor of the eastern Roman Empire. The Westphalian talks resulted in peace but disunity in Germany and, in that sense, foreshadowed the Bismarckian policy of reunification in the second half of the nineteenth century. A negative element in this development was the enormous multiplication of actors in the foreign affairs of Europe. This enhanced the risk of new frictions and new wars. Westphalia found a forward-looking solution, deputing France and Sweden as guarantors for keeping the peace in Germany. Both in the treaty between France and Germany, and in that between Germany and Sweden on 24 October 1648, these "outside" powers were given the responsibility of upholding the treaties. To make this feasible the treaties included an antiprotest clause disallowing any protest of the Holy See against the treaties, another redefinition of justice. This was forward looking indeed, as the pope did protest, refusing to accept the religious terms of all treaties, including the Spanish-Dutch treaty which was even more forward looking, as it comprised the dissolution of the papal claim of religious sovereignty over Europe. Just as the emperor lost his claim to political monopoly, so the pope lost his claim to religious monopoly. Not only were the states now equal, but so were the religions. De jure the pope nullified the treaties for reasons of saving face, status, religion, and politics. The church did, however, refrain from a de facto attempt to undo the peace agreements attained (Rietbergen 2000, 98). Although the agreements can be seen as forward looking and did end the ongoing conflicts in many areas, this did not mean that all problems were solved, for wars soon broke out as a consequence of other disputes. Nevertheless, Westphalia had become the basis of the peace treaties that followed. Until 1714 the peace treaties of Westphalia were referred to as the basis of later peace agreements, as the "mother of all treaties," for at least 70 years. In the 70 years that followed the last reference to Westphalia as the basis of a peace treaty, Westphalia was still seen as a moral guide for justice in dealing with international relations in Europe and its dependencies until the French Revolution destroyed the old order. The hierarchy of states and religions was gone forever, and the equality of sovereign states and religions lives on to this day. These are the most forward-looking outcomes of all.

Considerations and Conclusions Summa summarum the agreements to end the Eighty and Thirty Years' Wars established new regimes in Europe and its dependencies, most of them long-lived.

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Westphalia established the principle of the equality of states having full authority within, and only within, their own territory. It also created equality between religions and thus eliminated religion as the source of political power. It did away with the highest political and religious authorities, the emperor and the pope, and in that sense it put a final end to the myth of the Roman Empire still being the overall European regime, albeit in a transcendent form. With republics now accepted as equal to monarchies, the norm of a ruler being the only power within each sovereign unit was weakened, and the seed of the sovereignty of the people was planted. Indirectly, Westphalia contributed to the breakdown of absolutism and the growth of the first rudimentary roots of both democracy and nationalism. Before Westphalia, war was the rule and negotiation the exception. The conference made clear that peaceful methods of conflict resolution should be the rule for the future. It did not work that way, however, as the newly established balance of power was still highly unstable. The decline of Germany and Spain and the growth of France and Britain were still to reach their equilibrium. Seventeenth-century Westphalia was the eruption of the volcano, but there were many aftershocks to come before the Congress of Vienna in the nineteenth century. The procedures established by Westphalia were weak, especially compared with those that regulate the relations between countries today. Westphalia did, however, create the forerunners of the sophisticated mechanisms of the twentieth century. Westphalia came at a time when the social and economic situation in Europe was changing dramatically; it constructed the political regime to fit this societal evolution. The most important result, the establishment of a system of equal sovereign states as the structuring principle of our world, is still relevant, even if sovereignty has a much more limited notion today than in 1648 (Schrijver 1998, 141). The only way to put an end to the desynchronized situation of seventeenth-century Europe when armed conflict failed was through international negotiation by diplomats, in spite of the ineffectiveness of some of these processes at that time. That said, in view of the recent failures of important international diplomatic negotiations, such as those on climate change, we may have reason to review the way we negotiate today in complex settings where many countries try to find a common denominator. The proliferation of nation states, the growing necessity of having treaties ratified, the rising internal turmoil in many modern states, the increasing regulation of international issues, and the growing involvement of nonstate actors create a multilateral complexity that seems to prohibit effective international negotiation processes and decision making (Brower 2000, 77 and 78). Perhaps the Westphalia negotiation process was not so ineffective after all. That does not mean, however, that the regime it established will be as suitable a framework for cultural, social, and economic developments as it was in the mid-seventeenth century. After all, Westphalia was a typical European solution for European problems of centuries ago. The "Eurocentric" character of the Westphalian system (Harding and Lim 1999, 10) may simply not fit the globalized world of today and tomorrow.

Chapter 3

The Congress of Vienna Negotiations Christophe Dupont and Patrick Audebert-Lasrochas

Among the rather large number of international negotiations designed to put an end to an armed conflict, those that took place in Vienna from November 1814 to June 1815, in common with those in Osnabri.ick and Mi.inster 170 years earlier, are often regarded as a major event in diplomatic history. As 1814-1815 marks a turning point in the organization of Europe and thus has far-reaching significance from the short- as well as long-term viewpoint, a wide range of specialists have attempted to identify the impact of the Congress of Vienna on future international developments. Not surprisingly, their views and assessments have not always converged. The contents and analysis of this chapter are oriented toward neither political science nor historical science but rather follow a negotiation analysis approach, directed to the question: to what extent were the negotiations forward or backward looking in pursuing peace and/or justice? It has proven not only useful, but indeed necessary, to start the chapter with a narrative and context to describe the negotiations. The next part, focusing on analysis, turns to the structure and process of the Vienna congress. An assessment of the negotiations follows in terms of the questions addressed by this book, and a short conclusion sums up the most significant characteristics of the Vienna negotiations. At the end of this chapter, table A1, giving a chronology of events leading up to the Congress of Vienna, and table A2, providing a chronology of the Congress of Vienna itself, have been designed to clarify the complex development of events.

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Prologue and Context Narrative

For most historians and political analysts, the 29th Bulletin issued by Napoleon on 28 November 1812 ordering the retreat of his army after the disaster against the Russians at the Berezina River was the first in a series of events that led to the downfall of the Napoleonic empire. Emperor Napoleon I signed his (first) "unconditional abdication" some 16 months later on 6 April1814. The Treaty of Fontainebleau, detailing the fate of the emperor and the Bonaparte family and the departure of Napoleon to the "new" principality of Elba, was ratified on 11-12 April 1814. The First Peace of Paris was signed by the four "allies"-Austria, Great Britain, Prussia, and Russia-and France (then represented by the new Bourbon king, Louis XVIII, and Talleyrand). The treaty enumerated a number of provisions regarding frontier and territorial arrangements. Of key importance for this chapter, a secret article of the treaty provided that "the relations from which a system of real and permanent balance of power is to be derived shall be regulated at the congress based on principles determined by the allied powers among themselves." In fact, the first mention of a conference to finalize the treaties signed by the allies during the campaigns of 1813 and early 1814 and to design a new system for post-Napoleonic Europe can be traced back to the Langres Protocol of29 January 1814, in which it was stipulated that, "eventually a Congress ... should be held at Vienna to settle such questions as might remain for discussion once peace has been signed with France." The context of the Vienna negotiations cannot be understood without reference to the major events that occurred in the military, political, and diplomatic negotiating spheres during the extremely confusing period between the French retreat from Russia and the occupation and capitulation of Paris on 31 March 1814. So complex and fluctuating were these events that it is opportune to list them chronologically (see table Al) to bring out the clearly visible links between the three spheres. Four major developments need special mention from the perspective of negotiation analysis. First, and especially important, were the discussions at Basle in January 1814 between three sovereigns or their representatives that led to the Langres Protocol. The main protagonists were the Austrian Prince Metternich and the British Lord Castlereagh. The Russian emperor, Tsar Alexander I, did not participate in person. Castlereagh had prepared a memorandum in London in December 1813 in which he clearly indicated what would (and should) be the allies' negotiation objectives. An important point was that the two diplomats would work to induce the Russian emperor to adhere to the concept of a "grand alliance" to define a common agenda for future peace negotiations. This alliance would emphasize "the common interest," a concept implying in particular that a satisfactory solution had to be found for the extremely important and complex questions of Saxony and

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Poland, a problem that raised the issue of compensation for the powers that would be hurt by the loss of territories. When confronted with the protocol, Alexander made clear his reservations so that, by February 1814, it was not at all clear what priorities had been agreed upon among the four allied powers. To avoid disturbances at a time when the major concern was the defeat of Napoleon, the intricate questions of Poland and Saxony were therefore left hanging, as were the meaning and substance of the term, "the common interest." The second major development was the Congress of Chatillon in FebruaryMarch 1814, where the rift between the four allied powers became critical. Apart from issues of general consensus (for example, the exclusion of the issue of maritime rights as demanded by Castlereagh and the distinction between "natural" and "former" frontiers in imposing limitations on French territory), profound disagreement appeared on certain priorities, notably whether to conclude a treaty that put difficulties temporarily on one side (the position ofMetternich and Castlereagh) or to deal first with Poland and Saxony (the position of Emperor Alexander of Russia and the Pruss ian Prince Harden berg). Equally important was the impact of military ups and downs in March 1814 (first favorable to Napoleon, thereafter favorable to the allies)-an important observation in that it pointed up the correlation between external occurrences and negotiation processes. The third major development was the signature (1 March) and ratification (9 March) of the 1814 Treaty of Chaumont establishing the Quadruple Alliance between Austria, Great Britain, Prussia, and Russia. The alliance was a major effort to obtain some unity of purpose among the four allies. Signed on a simple card on a restaurant table at Chaumont, this treaty can be considered as the major stepping stone to the Congress of Vienna. Although it identified the outstanding issues and objectives for the alliance, it failed to clarify at least two basic questions with which the future congress would be confronted: Poland and Saxony. The treaty mentioned five issues: the continuation of war, the objectives of a future treaty, the financing of the war (mainly from British money), the duration of the alliance (at least "twenty years after cessation of hostilities"), and mutual assistance. The future agenda of Vienna and some future developments in and after Vienna can be seen clearly from this description. The fourth development was the First Treaty of Paris, signed by the four members of the Quadruple Alliance on 30 May 1814 after a whole month of internal negotiations dominated by a series of proposals and counterproposals. The treaty was the sanction of Napoleon's downfall and the foundation for new relations with Bourbon France. A few days after a scheme presented by the Prussian plenipotentiary Hardenberg was refused by the three other negotiators, Castlereagh advanced his own ideas at a conference to which Talleyrand was invited. The discussions concerned not only frontier rearrangements in Europe but such matters as the fate of the colonies, the war reparations question, and the restitution of works of art. (It is interesting that these questions appeared in one form or another some 130 years later at the peace negotiations after the two "world wars" of the twentieth century.)

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Finally, on 30 May, the negotiators were able to agree on the "limits" of France (frontiers as of 1 November 1792 plus a few additions) and two important secret clauses: the independence of the German states and the convening of a congress where the four allies (not France) would design a new system based on a "real and permanent balance of power." These developments are of interest for negotiation analysis because of the contextual factors that seem to be crucial in most negotiations: the slow and often confusing maturation of issues, positions, postures, and strategies of the actors; the critical impact of external events on the bargaining strength of the negotiators; the uncertainties that made it difficult, if not impossible, to anticipate fully and with sufficient assurance the risks involved; the simultaneous presence of areas of agreement and disagreement that negotiations needed to reconcile; and the differences in intentions, expectations, motives, priorities, objectives, and strategies of the protagonists. All these factors were visible in the prologue, lasting nearly a year, to the Congress of Vienna negotiations that opened formally on 1 November 1814. Context

The sociopolitical and economic conditions prevalent in Europe just before the Congress of Vienna can be expressed in a single phrase: great exhaustion. After two decades of intense warfare all over the continent there was a profound desire to attain some form of stability or, as it was put at the time, "repose." Only a few segments of society and its governing bodies did not share such feelings. In France most of Napoleon's generals and close advisers (such as Caulaincourt) wanted peace even at a high price, while the anti-Napoleon clan, in particular the royalists fighting for the restoration of the monarchy, but even opportunistic politicians, too, such as Talleyrand, hoped that the end of the war would provide badly needed stability as well as demographic and economic recovery. In other European countries, apart from the desire for some sort of revenge which was not shared by all the allies, the attitude was much the same. Yet, as future developments in the nineteenth century would soon show, combined with this longing for peace and stability there was a momentous pressure in several countries for internal unification (Germany, Italy) or independence (Greece). These feelings provide a contextual factor framing the negotiations at Vienna; several protagonists, perhaps most strikingly Metternich, feared the impact on the new system of "stable and permanent" relationships of any force or movement inspired by the ideals of "liberty" and other values advocated by either the French Revolution or "Bonapartism." The primary purpose of the Congress of Vienna was clearly to finalize the seven treaties or conventions that were signed before the war ended. As the

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congress was concluded by the Final Act on 9 June 1815, it is not necessary at this point to consider Napoleon's temporary return to power-the so-called hundred days-that finally and definitively sealed his fate in June 1815 after the Battle of Waterloo and led to the Second Peace of Paris. These treaties left unsettled some major questions (Poland, Saxony) and other more minor, yet not unimportant, issues. There was no progress at the prenegotiations in July 1814 in London; on the contrary, they probably added to the confusion and uncertainties. A major procedural point, still undecided, was whether a single instrument or a series of separate arrangements should be signed. Another question that subsequently proved to be of great consequence concerned the degree of French participation at the congress; it had been ruled that France's plenipotentiaries would not be invited to negotiations dealing with the definition of the new "system." Thus, as the Vienna congress formally opened, the number of issues for which a definite agreement had been reached fell far short of initial expectations; the Vienna agenda was simply enormous (see section entitled Analysis, below). The need to complete, consolidate, and finalize the existing treaties was therefore a major backward-looking task for the congress. A second and equally crucial point was the intention of the main powers (and most of the smaller states) to seize the opportunity of designing a new system of international relations, a task already formulated in the Treaty of Chaumont and the First Peace of Paris of 1814. To quote Harold Nicolson, "And although the great protagonists of that age (Alexander and Talleyrand, Metternich and Castlereagh) were obliged to consider the rights and interest of their own countries, yet they were fully aware that more important than any such sectional desires was a general European interest, namely an assurance of, hence an acquired sense of, security, and a passionate need for civil repose" (1946, 57). Thus, a new system had to be established to satisfy those aims and make them permanent: the concept of the "concert" was born. One of the background factors impacting the process of any negotiation is the posturing of the actors which, as well as issue-linked strategies and tactics, includes temperamental traits and negotiating styles. There were four, and subsequently five, major protagonists and their advisers in the delegations; some, if not all, of their real intentions were kept hidden-a phenomenon that is difficult to decode even today, given that it is so often analyzed on the somewhat superficial basis of their correspondence or autobiographies. This difficulty is compounded by the tendency to resort to secret clauses (of which there were many in the events leading up to the congress), by the many instances of "double play" and, most importantly, by the successive shifts in position and alliances resulting from changes in external circumstances and the circular need to adjust strategies to the reactions of the other protagonists. A description of the five protagonists and a summary of their main personality traits and styles are given in the next section.

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Analysis The Vienna Congress negotiations are examined from two complementary perspectives: first, there is an overview of the structure of the negotiations (including a brief summary of the sequence of events), then an analysis of the main factors involved in the process. Structure The Congress of Vienna opened officially on 1 November 1814 and lasted a little under eight months. The Final Act of the congress was presented in a unique plenary session and signed by the "great powers" on 9 June 1815. The congress was suspended during the "hundred days" (from 1 March to 18 June 1815), the period during which Napoleon escaped from Elba, attempted to regain his lost status and power, and fought a new campaign that ended at Waterloo on 18 June 1815 and led to the signing of the Second Peace of Paris on 20 November 1815. What happened during this time bears little resemblance to what happens at a modernday international conference. In fact, the congress was a series of negotiations of different types and at different levels: some were conducted, to use modern terminology, "at the summit," at one of two levels-the sovereign and the ministerial level; some were conducted at the plenipotentiary level, with councils being the exclusive preserve of the "great powers"; some took place, with little or no coordination, in committees in which delegates of only a small number of states were represented; and others were conducted bilaterally in parallel outside the congress. These organizational arrangements, in fact, often proved confusing. The problem of organization arose as soon as the main representatives of the four allied powers (Castlereagh, Harden berg, Metternich, and the Russian foreign minister, Count Nesselrode) held their first meetings in Vienna in late August and early September 1814, before the congress opened. Several key issues had to be settled. Which powers would be given the task of organizing and directing the congress? On what basis (i.e., authority) would they act? What to do with France? What to do with the "smaller powers"? The discussions on these matters proved not only difficult but crucial for future developments. Most important was the composition of the groups that would be entrusted with the direction of the conference and the principles of justice on which that composition would repose. Proposals and counterproposals were made: "the Four" (Austria, Great Britain, Prussia, and Russia), "the Six" (the Four plus France and Spain), until a distinction was finally made between an "inner council" of the Four that would deal with the territorial questions, a committee of the "six powers of the first order" that would deal with other arrangements, and subsequently, "the Eight" (the Six plus Portugal and Sweden) that would deal with residual matters. The exclusion of France from the inner council of the Four, although provided for in the Treaty of Chaumont, became the strategic device used by Talleyrand (in the

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oft-cited meeting of 20 September) to prevent the Quadruple Alliance from having the sole higher direction of the congress. Talleyrand presented the Four with a series of arguments that had the effect of postponing the plenary session that they had planned to convene to assert their authority over the congress. Talleyrand's main reasoning rested on the "principle of legitimacy," the Four having "no historical, legal, logical or moral justification" to exercise authority over the whole congress. His main tool was the alliance he had managed to organize with the "small powers" on the grounds that the latter would have decisions imposed on them that they had no hand in making (de Talleyrand [1891] 1996, 206). The result of this turbulent and somewhat confusing beginning to the congress was the creation of a complicated structure in which the forums where the various issues would be discussed were hierarchically determined. Higher decisions were to be discussed and negotiated by the "great powers"; more routine questions were to be dealt with in committees, of which there were ten (see table 3.1 and table 3.2). These loose and cumbersome organizations and procedures have often been criticized. Nicolson in his classic Congress of Vienna notes that the major weakness of the congress was that "the various diverting bodies acted without authority or legal justification" ( 1946, 144-45). He writes, "The Eight, as signatories to the Peace of Paris, assumed the formal direction of the Congress without authorization from any of the other Powers. The German Committee ... was illegally constituted" and "exceeded its terms of reference." Not only was the legal foundation of the congress (as an international conference as opposed to a treaty negotiation by a small number of parties) controversial but even its own "de facto distribution of functions" was not observed with any logical consistency. Thus, Nicolson concludes, "the Congress ... never had a settled or agreed plan of procedure. It functioned in spurts of improvisation interspersed with pauses during which the big Four sought to discover which of the many lines open to them was the line of least resistance." It was on this unsatisfactory situation that Talleyrand built a strategy aimed at obtaining recognition of France as a key actor of the congress, and in this he succeeded. These deficiencies and infringements were categorized by Talleyrand as being without respect for "the public law" and the "sacred principle of legitimacy." Castlereagh saw them as a lack of "methodizing." Additional points regarding the organization of the congress are also of interest. The issues of nonnegotiability on the subject of maritime rights had been evoked by Castlereagh as early as Basle and Chaumont, and others sought to delete from the agenda issues considered as not yet "mature." When such issues are not of crucial importance, such a course of action may prevent an impasse, especially in the early stages of the negotiation. If, however, they are crucial elements, as was the case with the questions of Poland and Saxony, then the uncertainty created is bound to complicate the negotiation process still further. As shown in table 3.1 and figure 3.1, issues were debated and negotiated in conflicting and sometimes mutually overriding circumstances. There is a

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Table 3.1 Distribution of Functions at the Congress of Vienna Negotiations The Higher Direction of the Congress The Four The Eight The Five (including France from 9 January 1815) reserve for themselves the central questions, e.g., Poland, Saxony

Formal direction of the Congress

The Separate Committees German Committee Slave Trade Committee Swiss Committee Committee on Tuscany Committee on Sardinia and Genoa Committee on the Duchy of Bouillon Committee on International Rivers Diplomatic Precedence Committee Statistical Committee Drafting Committee

Decide together on the creation of the various separate committees and appoint (with a few exceptions) their members. Table 3.2 Forum of Negotiations on the Main Issues Main Issues Procedures France Poland and Saxony Italy Switzerland and Germany Spain Netherlands Slave trade The Jewish question Diplomatic precedence Drafting the Final Act

Forum The Eight The Four The Four, then the Five The Eight (plus two committees) The Four, the Eight, and the German committee Mainly bilateral Mainly bilateral Committee + bilateral German committee Committee Committee

particularly striking illustration of this in the bilateral or small group encounters on the issue of Poland which was discussed in various separate meetings in October 1814, first between Castlereagh and Metternich, then between the two and Hardenberg, and finally between the three and Alexander. These separate sessions may be considered a typical device through which protagonists tend to clarify different intentions and positions, but at Vienna they were often ways of interfering with the organizational structure of the congress. The decision-making system was further complicated by the fact that the congress had two directing bodies: the council of the Four (which became the council of the Five in January 1815 with the admission of Talleyrand), which was formally in charge of the conduct of business, and the informal, yet supreme, body of allied sovereigns who met daily in the

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afternoon while the ministerial council met elsewhere in the morning. To function properly, this dual structure presupposed that the sovereigns, given their contacts with and their authority over their plenipotentiaries, would largely agree on proposals and arrangements that the former had negotiated. This did not, however, always prove to be so, especially in the case of Alexander and Nesselrode. To add to this list of difficulties, the way in which invitations were made and roles were assigned contributed to the unsatisfactory and peculiar ambiance of the conference. This situation points to the importance of a proper assessment of the legal and procedural aspects of international conferences, as well as the need for thorough preparation, two dimensions underlined by all authors dealing with such conferences (e.g., Kaufmann 1988 or Plantey 1994). Article XXXII of the Treaty of Paris was the basis on which invitations were made to "all the powers engaged on either side in the present war" to attend the congress. To quote Nicolson again, "every country, whether great or small, responded to the invitation and sent expensive delegations to Vienna." The result was the presence of more than a hundred parties that were diverse and heterogeneous in the extreme: thirtytwo members of German royalty (but not the king of Saxony), two delegations from Naples, representatives of the sultan of Turkey and of the pope, and even some private delegations. The variety, the rivalries, the misunderstandings, the formation of small clans or subcoalitions, the need to be or look busy (including being involved in the more mundane occupations) created this special congress atmosphere that has retained the attention of so many observers and authors, and still continues to inspire interest some 190 years later. A secret article of the treaty stipulated that only the four great powers of the Quadruple Alliance would deal with and decide on the questions relating to the "system of real and permanent balance of power in Europe." As this was secret and thus not communicated to the would-be participants at the conference, not even to Portugal, Spain, and Sweden, who were signatories of the peace treaty, the other parties were distressed that their presence in Vienna did not involve active participation. As only some were allowed to be members of committees, and as there was no plenary session except for the presentation of the Final Act in June 1815, they found many reasons for resentment and were thus motivated to align themselves with Talleyrand in an effort to upgrade their status (at which only Talleyrand succeeded). While the activities and influences of the minor delegations cannot be considered insignificant, it is clear from the records that the congress was actually dominated by the stature and power of a small number of personalities, namely, the major representatives of the Five: Emperor Alexander I of Russia, Lord Castlereagh of Great Britain, Prince Hardenberg of Prussia, Prince Metternich of Austria, and Talleyrand (Prince de Benevent) of France. These men were supreme (the tsar) or top-level dignitaries, holding the highest positions (foreign secretary, emperor, minister) in their country. At every moment of the negotiations they acted as key protagonists, and, although constrained (except for the emperor) by their

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hierarchical links to the sovereigns (the Prince Regent in England, King Frederick William III of Prussia, Emperor Francis I of Austria, and King Louis XVIII of France), they conferred upon themselves a rather large degree of initiative. They did, however, have to take account of public opinion at home, especially in the case of Castlereagh, and of the mood of the top army commanders. Furthermore, their actions could not be separated from the influence of their close advisors, most often members of their own delegations, including Gentz for Austria, Nesselrode or Razumovsky for Russia, and Humboldt for Prussia. More specialized experts also played an important role either in the committees or as senior consultants for the plenipotentiaries, Stein (Prussia) being perhaps the most conspicuous example. According to the Peace of Paris, the congress was to open on 1 October 1814. Because of the difficulties mentioned above, and especially because of the interventions of Talleyrand (on 30 September and 5 October), the Four and then the Eight decided on 30 October that the plenary sessions would be postponed. The official opening of the congress was now declared to be 1 November. During the first weeks of the congress-and in the absence of a precise, detailed agenda-the activities were disjointed; the higher councils continued their negotiations (already under way before Vienna) on the most intricate issues (such as Poland and Saxony, and the corresponding territorial questions); the committees were busy with their own organization, appointments, and limited agenda; numerous bilateral or small group discussions were meeting in parallel with the congress and, last but not least, the delegates occupied themselves with all sorts of entertainment and intrigues. The committees held numerous meetings and, in general, were in a position to present their conclusions and proposals by February; it remained only for Gentz, as the head of the drafting committee, to fit the separate agreements into the pattern of a Final Act, a task he successfully performed between February and June 1815. The sequence of events and successive rounds of negotiation that constitute the story of the Congress of Vienna were dominated by the crucial question of remapping the European states and territories. The map of Europe had been entirely remodeled by Napoleon through his successive military victories; at Vienna the objective was to get rid of those changes. Rather than restoring the pre-Napoleonic frontiers, however, the intention was to take a fresh view as to how new territorial arrangements could be associated with such concepts as "equilibrium" or "balance of power." This inevitably raised the question of (re)defining the status of Poland, which inevitably raised the question of Saxony and Prussia, which inevitably raised the problem of "compensations." These three dimensions were linked: redefining Poland (only partly reconstructed by Napoleon when he formed the Duchy of Warsaw) meant a loss of territory for Austria, Prussia, and Russia, which in turn set a requirement for a full or partial recomposition of Saxony, which again entailed territorial compensations, notably for Austria (its sights set

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on Italy and Illyria), and Prussia (keen to expand into Germany). These were all backward-looking implications of forward-looking solutions. At the higher level, the first few months of the congress were spent on the key question of Poland and Saxony; these were complex negotiations that evolved in several stages showing positional shifts (see figures 3.1a and 3.lb). Having solved these questions in January 1815, and following preliminary discussions and committee work, the higher levels turned their attention to the problems of Germany and Italy. A specialized committee of Austria, Bavaria, Hanover, Prussia, and Wi.irttemberg had been constituted on 14 October 1814 to deliberate on Germany, but disagreements within the committee had caused its sessions to be suspended as from the end of November. Negotiations were then held bilaterally in small groups discussing many contradictory proposals, and a new, enlarged committee was formed in April1815; it arrived at an agreement on 9 June, at the very moment of the Final Act. The negotiations on Italy were interspersed with political and even military developments involving Murat (king of Naples and brother-in-law of Napoleon), Ferdinant (king of both Sicilies), Lord William Bentinck, and Prince Eugene (viceroy of Italy). In fact, as the fate of Murat was an essential issue, the negotiations were led essentially by Metternich and included emissaries of Louis XVIII (but not Talleyrand). Similarly, negotiations over the other Italian territories were conducted in meetings that included Austria, France, and Great Britain. Negotiations on Switzerland led to an agreement on 29 March 1815. On other questions, for example the redistribution of colonies, the abolition of the slave trade, the Jewish community in Germany, the navigation of international rivers, and the problems of diplomatic precedence, there were discussions by the Four or the Eight, committee meetings, and frequent parallel diplomatic negotiations that had started before the congress and continued throughout its duration. The Congress of Vienna was not interrupted by the escape of Napoleon from Elba. Although some major protagonists left Vienna (among them Wellington, who had succeeded Castlereagh in February 1815), some issues were yet to benegotiated, an important one being whether there would be a comprehensive treaty assembling the conclusions of the committees. The conclusion was that a Final Act would be drafted and signed by seven powers at the only plenary session of the congress. (Spain, although a member of the Eight, refused to sign because of disagreement on the "rights of the Spanish Bourbons" to various Italian principalities.) The Final Act contained 121 articles. After being presented with the draft treaty the delegations were invited to sign the Final Act separately. The numerous delegations of the congress had no choice but to sign; only the Holy See and Turkey did not adhere to the Final Act. The decisions on which the Four or the Eight had agreed were embodied in the treaty, as were the arrangements worked out in the various committees. Thus, there emerged from the negotiations a new map of Europe with considerable territorial changes and the Napoleonic distribution of frontiers having been eliminated. In

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The Quadruple Alliance

Figure 3.1a Proximities or oppositions of stakes, interests, and postures of the five major protagonists at the Congress of Vienna on the question of Poland: initial preferences and positions (before the opening of the congress). Notes (A) Castlereagh's initial preference was for a truly independent and strong Poland, which implied granting her a large territory. Austria and Prussia would be "compensated" (Prussia gaining Saxony and part of the Rhineland). This was opposed by the other powers (in August 1814). This-in addition to Talleyrand's efforts to move closer to Alexander (June-July 1814)-made Castlereagh change his plans: he convinced Talleyrand to side with Great Britain and to work toward an alliance with Austria and France opposing Prussia and Russia. (This new alliance materialized only after the "crisis" of the congress following the dispute between Mettemich and Alexander in November.) (B) Mettemich's initial position was to prevent Russia from obtaining Poland. He was mainly preoccupied with Italy and Illyria. He was not opposed to Saxony being given to Prussia. He was in disagreement with the preoccupation of members of his delegation (Stadion, Schwartzenberg) with the growing influence of Prussia. He shared with Prussia "common fear of France and, still more, of French ideas" (Taylor 1948, 40). (C) Prussia's main preoccupation and priority was to obtain Saxony and (in line with the wishes of King Frederick William III of Prussia) to align Prussia with Russia on Poland. (D) Alexander's strong intention was to create an enlarged Poland under Russian influence and to grant her a liberal constitution. (E) Talleyrand's position on Poland derived essentially from his suspicion and fear about any increase in power on the part of Russia and Prussia. Considering that a large independent Poland was not realistic in the prevailing conditions, he was in favor of maintaining the status quo, which would also prevent the partition of Saxony. Events I. June-July 1814: Talleyrand approaches Alexander. 2. August 1814: Mettemich, Harden berg, and Alexander oppose the Castlereagh plan. 3. September 1814: Talleyrand tries to convince Mettemich to support Saxony.

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3 1/b

''

',

/ /

', 1/b

''

/

/ /

/

' ' / /2

>,

1/b

2

4 Agreement of 3 February 1815

Notes: attempts to convince attempts to pressure

Figure 3.1b Proximities or oppositions of stakes, interests, and postures of the five major protagonists at the Congress of Vienna on the question of Poland: position shifts at Vienna. Phase 1:

1/a Castlereagh attempts to convince Alexander to renounce the plan to recreate a large "independent" Poland. He fails (September-November 1814). lib Castlereagh then tries to put pressure on Alexander by presenting a "united front" with Harden berg and Metternich in October. 1/c Metternich sees the emperor. This leads to a breakdown of the relationship between Metternich and Alexander (31 October). 1/d Thlleyrand tries to convince Castlereagh to prevent the partition of Saxony (October). Phase 2: Hardenberg presents a proposal (27 November). Krakow and Thorn to be declared neutral; Prussia to gain the whole of Saxony. Metternich opposes this scheme. Alexander maintains plan (21 November). Phase 3: Thlleyrand presents a new scheme (19 and 26 December) against "annexation of Saxony," gets support from minor German States, persuades Castlereagh and Metternich to sign a secret treaty (3 January 1815). War is just avoided. Phase 4: Under pressure, the Five agree on a compromise arrangement on 3 February 1815.

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particular, a kingdom of Poland with a corresponding constitution was created; it was not a large territory, as Krakow was given the status of a free city and Austria and Prussia each obtained part of the territories they had claimed from the start: the province of Galicia for the former, Posen for the latter. The territorial composition of the Confederation of German States was another important change to the benefit of Prussia. Italy was also the subject of territorial rearrangements; the kingdom of Holland was given authority over the future Belgium; colonies were (re)distributed among some of the participants. Process Three subsections each deal with a major factor behind the process: stakes, interests, and power; the human setting; and the strategic game. As far as stakes, interests, and power are concerned, the intentions and objectives (and hence posturing and strategies) of any negotiation are related to the confrontation of the actors' stakes and the interests that lie behind them. Given the correct power balance, negotiation is the bridge that will lead from separate or even conflicting stakes and interests to convergence; at the end of the negotiations, the initial zone of nonagreement will become a zone of agreement. Applying these concepts to the Vienna negotiations makes it possible to decode the elements and forces that laid the path from the beginning of the congress to the Final Act eight months later. The major actors clearly had both common and separate stakes in the negotiations. 1 In common they had the need and desire for "repose" and a return to peace, as well as the procedural need to finalize the seven treaties that had already come into existence since the end of 1813. If one looks beyond the commonly shared need, however, two major sources of differences are revealed. The first concerns the meaning, content, and objective of the form of justice that would be the basis of future European relations. Would there be "a permanent equilibrium based on a global balance of power" (Castlereagh); a system devised to restore "order," secure dynastic legitimacy, and prevent further territorial changes (Metternich); a way to make an enlarged Prussia the leader of the German Confederation and prepare for German unification (Hardenberg); an idealistic (and subsequently a "holy") system to preserve some of the results of the eighteenthcentury Enlightenment while permitting Russia to control Poland and leave open its eastern frontier (Alexander); or the restoration of France as an equal partner in Europe and a partner in new alliances (Talleyrand)? Clearly the major actors' expectations, born of the stakes they held in the negotiations, were not unified. The path to reconciling these differences was neither linear nor simple. It is generally agreed that none of the actors' separate expectations were fully met; yet a compromise was finally reached in the form of a new system of diplomatic relations in European affairs which came to be known as the "conference system" or "the Concert of Europe" (see below).

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The second source of differences was the question of the territorial "remapping" of Europe. The stakes involved in such a redistribution were obviously very high: each protagonist embodied a desire for extension or conservation of territory for both security and dynamic reasons. An interesting feature of the Congress of Vienna is that so many territorial issues were linked one to another that it proved extremely difficult to solve a single one without assembling the whole puzzle. The stake was to conserve, gain, or restore power and security; the interest behind this was expressed in terms of concrete claims over well-defined territories or states. It is perhaps the way the Polish issue presented itself and how it was solved that shows the negotiation process at Vienna in the best light. Interests were formulated in terms of successive proposals that combined claims to acquire territories and counterclaims to prevent others from gaining control of them. See figure 3.1 a and figure 3.1b which illustrate this pattern that characterized the congress negotiations. The tables summarize, albeit too succinctly and hence imperfectly, an extremely intricate sequence of events, maneuvers, shifts and turning points, episodes of cooperation and confrontations, advances and regressions, but, in the end, the attainment of a compromise. In terms of process analysis, these developments point to several considerations. The human factor as well as the fluctuations in strategies are analyzed below. What may retain our attention at this juncture is principally the interference between such factors as subjective preferences, external circumstances, and the role of time. As was seen in figure 3.1a and figure 3.1b, the Vienna negotiations, at least those concerning Poland and Saxony but also those on a number of other issues, such as the German Confederation or Italy, started with different motivations, expectations, and intentions on the part of the major actors. A first observation would be that the actors did not share the same degree of involvement. Once their major objectives were seen to be attainable-security and exclusion of maritime rights for Castlereagh; reinsertion into the Concert of Europe and minimal concessions on frontiers for Talleyrand-the British and French representatives realized that the stakes of the negotiation were not as essential for them as for the three other partners, especially Russia and Prussia. According to Nicolson (1946), France had little to lose at the Congress of Vienna, having already abandoned her conquests under the Peace of Paris. She also had much to gain, however, namely, her position and influence as a Great Power. Regarding Castlereagh, Nicolson comments that Great Britain could be seen as occupying a neutral or even mediatory position, as it had no previous obligations in the matter and no direct interest in either Poland or Saxony. In contrast, Metternich (although seeing himself as a mediator or intermediary between Alexander and the others but above all between Alexander and Hardenberg) viewed the negotiation as a high-stakes situation. Not only was there a difference in the size of the stakes but also a problem of making them compatible. This proved very difficult, as shown by the sequence of events from October to December 1814. The crux of the problem was to lower the demands and expectations of Prussia

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and Russia; Metternich tried this by maneuvering, Castlereagh by combining persuasion and pressure, and Talleyrand by confronting the adversaries with a new coalition capable of envisaging an armed conflict. The "crisis" became a turning point in the negotiation, the result of which was the compromise arrangement of February 1815 reproduced in the Final Act. It was therefore a superposition of superordinate (common) goals, diplomatic maneuvering, and power factors that cleared the way for a compromise. Power, its sheer weight and successive shifts, was certainly closely linked to armed strength. Alexander was the most powerful actor before the Vienna congress on account of his victories in Russia, although Castlereagh after Vitoria and Waterloo, and Metternich with his large army, could subsequently challenge this leadership. Power, however, also has other components: in spite of some controversial personal traits or behaviors, Talleyrand became a prominent figure in the congress because of his negotiating skill, his lucidity and vision, his cleverness in finding and uniting allies, and his resourcefulness in making the most of social events and personal connections and relationships. This illustrates how weakness in tangible power sources, and even perceived power, can at times and under certain conditions be transformed into a more favorable negotiating posture (Zartman and Rubin 2000). Constraints were another of the elements affecting the power balance. This factor was particularly important in the case of Castlereagh, who met strong home opposition in Parliament and finally returned to London after the end of the Polish negotiations to be replaced by Wellington. The other negotiators also had their problems with their authorities at home, and Alexander both with his commanders and his people. Similarly, it was not easy for Hardenberg and Humboldt to disregard the attitudes of the younger generation and intellectuals in Prussia. Moreover, plenipotentiaries, particularly those of the Austrian and Prussian delegations, often had problems with their own teams over lack of consensus. For at least some of the plenipotentiaries, however, notably Talleyrand, the difficulties, hazards, and slowness of communications (using the unusual channel of notes carried by messengers) were welcome as they increased the distance and provided room for initiatives and autonomy. A constraint of a different sort was the dependence on money: Britain's influence on its other allies also had to do with her generous financing of war operations and the maintenance of their armies. As far as the human setting is concerned, the Congress of Vienna witnessed the dominating personalities and skills of the five plenipotentiaries who negotiated in the names of their sovereigns. Although it is recognized that, as individuals and as a select group, they exercised the most influence over the process, they operated under the control of the established powers with whom they continuously conducted discussions, exchanged notes and instructions, and prepared decisions in an interactive manner. The degree of autonomy, and therefore the room for maneuver, was different for each: Russia was a case apart because Alexander was simultaneously emperor and "his own plenipotentiary"; Talleyrand prepared

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draft instructions himself and had them approved by Louis XVIII; Castlereagh did much the same in his relationship with his prime minister, Lord Liverpool, and with the Prince Regent; but Metternich seems to have had a closer working relationship with Emperor Francis I of Austria than Hardenberg had with Frederick William of Prussia. Another type of influence was the role of the members of the delegations. The real influence exerted by Count Nesselrode, Count Razumovsky, and Baron Stackelberg (Russia), Count de Ia Besnardiere and Dahlberg (France), Gentz (Austria), Lord Cathcart and Lord Stewart (Great Britain), and Humboldt (Prussia) was often limited to specialized expertise. Some members in or outside the delegations were influential because of the ideas they supported-for instance, Steinor because of their technical efficiency-for instance, Hoffman-or because of their relentless passion for a cause-for instance, Czartoriski. Commentators have also often pointed to the influence of women, most prominent among them being Talleyrand's niece Dorothee, countess of Perigord, and Wilhelmine de Courlande, duchess of Sagan, who was the origin, although not the main cause, of the mutual distance between Alexander and Metternich. 2 Finally, among the factors influencing the negotiators was the whole impact of the ambiance that surrounded and even characterized the congress. The endless series of social events and festivities gave opportunities to the negotiators, almost as a matter of course, to follow their particular ways of discussing matters outside the formal setup of organized meetings. Issues and positions were debated, argued, and decided in bilateral, trilateral, or small group encounters here and there in Vienna between dinners and dances. It is also important to note that these negotiators not only knew each other very well but also shared the same codes of etiquette and were all prominent members of a society in which status, power, influence, and wealth were concentrated in a very small and elite minority of personalities. It would be both nonsensical and anachronistic to analyze the human setting of these negotiations without understanding the social rules, traditions, ethics, and constraints that constituted the basis not only of the personal and diplomatic relationships but also of the political references of the time. For instance, although only partly shared by Alexander, the idea that monarchy and the role of dynastic ties were almost "natural" and constituted a superior system to a republic goes a long way toward explaining so many episodes of the negotiations at Vienna. Such were the background factors in the human setting of the congress. Certain personalities and skills emerged within this complex context, however, and these personalities were extremely different. The description of their traits is the subject of many publications. The negotiators knew each other extremely well, they had common acquaintances, they shared the same social festivities, they knew exactly what role diplomacy could play in negotiations such as these. What is important is the degree of proximity that characterized their relationships. For example, Alexander's rapport-at least for a time-with Talleyrand contrasts with his tense

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relationship with Metternich. Some, such as Nesselrode and Talleyrand, were personal friends, while others, such as Metternich and Alexander, were strongly and mutually antipathetic. In fact, all had difficulty combining trust and mistrust as they all knew that disinformation, secret clauses, half-truths or half-arguments, or objections, as well as spying, were current practices, almost a rule of the game within limits; yet these people belonged to the same "order" and shared common ideals for Europe and thus, in the end, knew that they had to agree, even at the cost of weak compromises. Often they would act secretly and behind the others' backs. Talleyrand goes as far as saying that they were "frightened" of each other. These protagonists had strong personalities and great intelligence. They also shared the same tendency to be inscrutable and enigmatic. A similar analysis could apply to their political or ideological convergences; although they had different views, especially on Saxony, they came to share a similar vision about Poland and agreed on similar "principles" relating to the restoration of the monarchy in France, as well as a profound distaste for the ideas of the French Revolution. This made it easier for Austria, France, and Great Britain to constitute the secret Triple Alliance in January 1815. Metternich once described himself as "bad at skirmishes but good at campaigns." He was ingenious but deceitful, often hesitant and playing for time, attached to compromises, with a distaste for extremes; he had great talents as a diplomat although he was inclined to resort to complicated maneuvers and was often "wordy and superficial," according to Talleyrand; even though he was denied, for example, by Wellington, the stature of a statesman, his vision of a "society and nations" was insightful. He contributed much to the concept of the "Concert of Europe." Alexander was moved by strong sentiments of pride and mysticism. 3 Influenced by proponents of "liberation," he saw himself as both a "conquering soldier" and a Christian theocratic leader. As a negotiator he was not easy to deal with: moody, secretive, sometimes provocative, impertinent, or violent, often uncertain, and incalculable. He had to contend with his own emotional instability, but many commentators recognize his great gifts and his sensitivity. He was the dominating figure in Europe until his image suffered from his behavior in July 1814 in London, his quarrel with Metternich, and the instability of his relationship with Talleyrand. His scheme of the "Holy Alliance" also contributed to his loss of influence. Castlereagh was seen by his fellow negotiators as being somewhat aloof, imperturbable, enigmatic, well-mannered, and showing great tactical skills. In common with Metternich, he had a taste for moderation and, ever the perfect diplomat, he showed a great ability to adjust to changing circumstances while sticking to his guns. Although he had to face strong opposition at home, he did not hesitate to maintain a degree of autonomy. Influenced by the philosophy of Pitt, he was the negotiator who best formulated the concept of ''just equilibrium," but he is also considered as not being fully realistic. Finally, Talleyrand was a person

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who inspired both admiration and distrust. His main assets as a negotiator were his sense of vision, his ability to argue, his capacity to react with "elasticity and speed," and the care he took to arrive at a negotiation fully prepared. He was a conciliator and a realist; at the same time he believed in constant maneuvering and was considered by many as versatile (as his career showed), at different times baffling, cunning, opportunist, and cynical. He is often accused of corruptness. His main contribution to the Congress of Vienna was the strength with which he defended the twin principles of"legitimacy" and "public law." He was able to play a significant role in the negotiations, although his position was unfavorable at the start, by combining a lucid analysis of the conditions of the times, well-prepared interventions, a gift for argumentation and persuasion, as well as a capacity to adjust to circumstance, to combine firmness and flexibility, and to design appropriate strategies that, according to Nicolson (1946, 154), were based on a "sense of proportion and the sense of occasion." In several cases Talleyrand was imaginative and offered solutions to break impasses. True, he inspired mistrust in most of the protagonists, yet they considered him as a major actor of the congress, a negotiator whose skills they would recognize (although these judgments must be evaluated within the context and moral framework of the times). As far as the analysis of the Vienna congress negotiations as a strategic game is concerned, the negotiators, in order to meet their objectives, devised different strategies based on a variety of moves and instruments. These can be regrouped into four main categories: coalition, power, principle, and devices. The Quadruple Alliance was both a military and a political coalition. 4 Once victory over Napoleon was secured, it became the instrument by which the congress was to be organized and directed. The ambition of the Four was to keep its direction under their own control. Acting unilaterally as a group with a shared, identical, and immediate military need was considered a winning strategy that would make the whole of Europe adhere to its principles and decisions. 5 Yet the negotiations were dominated by the strategic game of issue-linked and opportunistic coalition making and counter-coalition making and, at the same time, the actors were constantly preoccupied with measures to avoid finding themselves in a minority. Even before the congress assembled in Vienna, the coalition had had to deal with two major challenges: internal disagreement on procedures and Talleyrand's success in opposing the coalition scheme. Talleyrand played a role in the formation of two different types of coalition that were used as a strategic device. The first was in relation to the distinction between the "great powers" and the "smaller powers" ("sous-allies'') that allowed only the former to have decision-making authority. As he was not yet admitted to the first group, Talleyrand managed to rally the members of the second group to contest the ambitions of the dominant coalition, winning him (but not them) a place among the great powers. Talleyrand used a coalition-making strategy for a second time to change the pattern of alliances. This happened in the last months of 1814 when, with the help of Castlereagh,

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he succeeded in forming a three-member coalition of Austria, France, and Great Britain against the alliance of Prussia and Russia. This counterstrategy was formalized in January 1815 in the secret Triple Alliance Treaty. Gaining or maintaining power was a constant strategy of the protagonists to ensure that their views prevailed. As mentioned above, power at Vienna was closely connected with current or potential military power. The capacity to mobilize numerous and efficient forces was used as a means of pressure and even as concrete threats (in December 1814, for instance). Other sources of power were also used strategically, a case in point being financial resources, which were a major asset for British diplomacy (as already mentioned) in the pre-Vienna Treaty of Chaumont. Another less obvious, but nevertheless effective, use of power was the capacity to take advantage of personal connections and social activities. Power was also derived from "principles" and negotiating ability. The process of negotiations at Vienna was very much influenced by the emergence of concepts and principles of justice that constrained the negotiators to finally agree on decisions that they would not have made, had they not taken these concepts and principles into account. The notion of "common interests" was often at the forefront of the discussions, but the major concepts dominating the negotiations were ')ust equilibrium" (Castlereagh), "order" (Metternich), and "legitimacy" (Talleyrand). These concepts, analyzed below, raised several controversies; they were used strategically, and their impact was crucial to the outcome of the negotiations and to future developments. Of the common integrative devices used as part of the negotiation strategies, the most frequent technique was trade-offs and compensations, sometimes hard to separate from distributive bargaining, especially where territory was concerned. The negotiators used persuasion as a means of bringing people to arrangements, but when persuasion ran up against its limits, other means such as pressures, threats, and escalation were invoked. The negotiations proceeded mostly by proposals, often designed to clarify the situation, which were considered as "flying a kite," or by making tentative efforts to test reactions, thus opening the way to counterproposals. Negotiators proved generally ready to adjust to changing situations, combining both flexibility and firmness. When this was not the case, it led to deadlock and even crisis. The "spirit of compromise" was often present, however, as a powerful adjunct to persuasion. As the substance of the negotiations involved territorial questions, distributive orientations were inevitable. Negotiators did not hesitate to redistribute territories and status as if they were pieces of a gigantic puzzle in an effort to give every party some minimal satisfaction although, in the process, they often neglected the will of the people or the lessons of history. Intrigue contributed to a distributive atmosphere. Metternich and Talleyrand worked behind the scenes, distorting information, showing a preference for secrecy over transparency. Many anecdotes relate to these stratagems that were all the more feasible because the whole atmosphere of the congress was a fertile ground in which they could flourish.

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Assessment There are many angles from which to assess negotiations such as the Congress of Vienna: inter alia, history, political science, international relations, and social psychology, not to mention literature and fiction. 6 The assessment here is derived from negotiation analysis, where the focus is on the achievements that these negotiations have made, the deficiencies, weaknesses, or controversies they have raised, and the lessons that can be learned as a result. In pursuing this analysis, the guideline is whether the Congress of Vienna negotiations were forward looking and to what extent, as well as how and to what extent some of their characteristics are still relevant to modern times. Most scholars and diplomats agree that the negotiations at Vienna and their outcome should be credited with having laid the foundations for several decades of peace in continental Europe. True, the continent witnessed several local if more limited wars-for example, in Spain and Greece-to which one could add the occasional colonial or external expeditions-for example, to Algeria and Mexico. Yet, the fact is, that for more that half a century from the Congress of Vienna to the Austro-Prussian war in the late 1860s and the Franco-German war in the early 1870s, no new major conflagration involving the powers in Europe either directly or indirectly took place? Hence, one of the more substantial aims ofthe congress (repose/peace/security) was indeed achieved, even though some questions may also be raised in this respect, as indicated in the next section. On the credit side of the congress, and much in line with the fundamental questions raised in this book, is its attempt to embody, both in the negotiations and in the Final Act, a series of principles which, while not entirely immune from second thoughts and from power or opportunistic considerations, served as guidelines or actual constraints. These principles were not really invented at Vienna, as the ideas had appeared in the literature and philosophies of the eighteenth century Enlightenment and were formulated in such concepts as "common interest," ·~ust equilibrium," "public international law," and "legitimacy." Formalized in a treaty that practically all Europe accepted, these concepts of justice can be seen as an effort to frame the relations between nations in respect of rules and practices, an effort that is certainly forward looking and that is still in search of appropriate formulas and reformulations at the present time. This credit granted to the congress also has its limits. Awareness and formulation of principles is a necessary first step, but the real issue is their relevance and the appropriateness, and principally the value, of such ideas. In discussing the matter of the "new order" in Europe formulated at Vienna, we shall again have to raise some intricate questions. The Vienna negotiations, while not really the origin of the farsighted concept of the conference system, were at least at the beginning of an awareness of it. Moreover, this system was in effective operation, as planned, for only about a decade. The idea of a conference system implied that the main powers would

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organize periodic conferences to review the implementation of the treaties, exchange views on the state of international affairs, and in that way prevent the possibility of a resurgence of armed conflict. Although this was later to become a topic of great significance and still is today, the conference system also dealt with the problem of "guarantees," on which it was unable to agree. The concept of treaty guarantees may appear natural and simple; yet there is a fair distance between the principle and its actual implementation, limits, and contents. At Vienna the issue was complicated by the attempt in the last days of the congress to enlarge the Final Act to include other dimensions; this later led to the Alliance Solidaire and the "Holy Alliance," along with the important matter of what support to give to the existing dynasties, a cause to which Alexander was much attached and that created some confusion. Hence, many questions arose that are still burning issues today. Should there be a recognized right of intervention of external actors in certain domestic situations that violate (or are seen to violate) "internationally agreed" principles or even "policies"? What kind of interventions or pressures can be envisaged? The congress did not solve these problems; nevertheless, it did not ignore them altogether, and that makes Vienna a milestone in diplomatic doctrines and practices. So complex and delicate were these problems that the conference system did not, in fact, materialize. The next meeting was held at Leibach in 1821 at a time when localized armed conflicts were in full swing in northern Italy and Greece; that meeting foreshadowed the end of the coalition structure. A final meeting was held at Verona in 1822. Closely connected with the principles and the concept of the conference system is the notion of the European concert. Views on whether this was a real achievement, simply a convenient formula without much content, or, more importantly, a factor of unequivocal progress are still of significance today (see, for instance, Pantilla 2001). Other points that need further examination include the meaning and validity of the "balance of power" and 'just equilibrium" concepts and the impact of the concert on future European developments, such as the opposition or reconciliation of "order" and "progress." What was meant by "balance of power" and "just equilibrium" is best explained by the difference of opinion between Castlereagh and Talleyrand. 8 For the former, 'just equilibrium," which should be the cornerstone of the negotiations ("the first object of attention" leaving "minor points of interest subordinate to this great end"), 9 was a broad concept defined as a balance of power ensuringthrough military strength, diplomatic influences, and economic factors-that no state could exert leadership in continental Europe and that a state could thus be prevented from launching a war against other states. It was 'just" because it was an "ideal" derived from clearly identified sources of power and so designed as to be the best way to attain stability. As, at the start of the negotiations, this balance did not exist, it followed that the negotiating process had to focus on territorial and state arrangements (notably in regard to France, Holland, Italy, Poland, Saxony, and the Rhine) that would establish countervailing powers and influences,

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thus neutralizing any possible ambitions on the part of the various states, notably France, and assuring "absolute equality of power between all the states." Talleyrand's views were different. He was convinced that a "general equilibrium" was not only unrealistic but also unnecessary. "Equilibrium consists in a relation between the power of resistance and the power of aggression. If Europe were composed of States so related to one another that the minimum of resisting power of the smallest were equal to the maximum of aggressive power of the greatest, then there will be a real equilibrium. But the situation of Europe is not, and will never be, such. The only equilibrium that the present situation admits is artificial and precarious and can last only so long as certain large States are animated by a spirit of moderation and justice which will preserve this equilibrium" (Nicolson 1946, 154-55). Thus, Talleyrand designed a strategy of negotiation that partly conflicted with that of Castlereagh: Poland should ideally be independent but as the conditions required were not present, the "most advantageous solution" was to return to the status quo after the last partition. This meant that the territorial (and political) demands of Prussia and Russia should not be accepted for reasons not only of "equilibrium" but also of "legitimacy" (in this case, regarding the king of Saxony). Thus, one of the major facts about the negotiating process at Vienna was the way this difference of opinion was circumscribed by these two extreme protagonists, leading to a solution halfway between their respective positions. Metternich gradually and finally agreed to this compromise. Once the crisis of December 1814-January 1815 was overcome, this proved acceptable also as a "forced" compromise by Prussia and Russia. 10 Order was the second preoccupation of the congress, perhaps most emphasized by Metternich and Talleyrand, and most questioned by Alexander. For Metternich the future of Europe had to be organized on the restoration and maintenance of "order." This had first and foremost a dynastic foundation (and from this perspective he was supported by Talleyrand). This dynastic preoccupation explains why the Congress of Vienna is sometimes called a "council of princes," which is tantamount to saying that the Europe of Vienna was to be a Europe of kings and emperors, including mutual dynastic arrangements (existing ties and the attempt to establish new ones) as a part of the process. Alexander had other thoughts about Europe but again he found it necessary to agree. It had been a constant preoccupation of Metternich's that the congress should encompass "the Austrian idea" based on the principles on which the Habsburg Empire rested: "tradition, dynastic rights, and international treaties," all this combining in the "rule of law." On this, there was no possible compromise. So sensitized was the congress to this dimension that it failed to understand (and to draw the implications and consequences of) the surge of nationalism that would soon characterize nineteenth-century history. The dynastic focus required "order," that is, the repudiation of ideas and movements advanced notably by the French Revolution; it also meant that many of the negotiators had clear reservations about, or were even opposed to, "liberation" or "progressive" ideas and

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movements that were already emerging in many parts of Europe. It also led to the reputation of the congress as having been "reactionary." The conflict arose from the opposition between the coalition and Alexander over the regime to be applied to Poland. The Russian emperor had in mind a "liberal and independent" Poland backed by a liberal constitution and with a "Christian" orientation; this hardly accorded with the pattern of arrangements emphasizing "restoration" and "order." Escalation during the last months of 1814 culminated in the switch in coalitions and even went as far as threatening the continuation of the congress. The difficulty of obtaining a balance between "liberation" and "order" initially created ambiguity in the outcomes and subsequently led to a gradual dissolution of the system. Restoring peace and formulating certain farsighted concepts and principles, even though neither was fully successful or immune from ambiguity, were not the only items that are generally ascribed to the credit side of the Vienna negotiations. An additional point, often recognized, is that the congress showed some moderation and leniency vis-a-vis France; in contrast, the situation was to become much worse for that country in the Second Peace of Paris in respect of territorial questions, reparations, and occupation. The congress also made a courageous and necessary effort to seize the opportunity to tackle questions that might otherwise have been ignored, such as the neutrality of Switzerland, the abolition of the slave trade, the regime of international rivers, the reform of diplomatic procedures, and the establishment of statistical data and standards. Putting these on the agenda of the various committees led to advances, gave the opportunity to engage in tradeoffs, provided a basis for punctual agreements, and prepared for future technical cooperation. Political analysts have raised the question as to whether the outcomes of the Vienna negotiations really did contribute to the stability of Europe in the longer perspective. Was the balance of power reached at Vienna-the "remapping of Europe"-an equilibrium that would prove a sure and durable safeguard for the future? Vienna produced a shift in the center of gravity of Europe that was accentuated in the last decades of the nineteenth century. Was the equilibrium between the Five or, by extension, the Eight an ideal distribution of power, or did it merely foreshadow later disturbances? The question is not theoretical: there were diverging views within delegations and in public and political opinion at home and, even today, controversies on these points continue to divide political analysts. Looking at less problematic questions and focusing more on the negotiation process, several points can be addressed that show certain limitations or deficiencies of the congress. The point has already been made that there was evidence of a lack of preparation at the congress, and that a dissymmetry was established between the great powers and the smaller powers. An additional deficiency was the lack of transparency: in Vienna the problem was not so much a lack of transparency as such (as confidential diplomatic practices often prove useful) but the abuse of secret treaties or clauses, to which should be added misrepresentation.

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Diplomatic intrigues and personal rivalries also interfered with the smooth functioning of the process. Double dealing, working behind the scenes, maneuvering to destabilize or divide, threats and counterthreats often characterized the behavior of negotiators. Territories were exchanged as mere chess pieces to be used as trade-offs ("as beasts" wrote one diplomat) without due regard for the habits and preferences of the inhabitants or for historical or socioeconomic considerations. The concept of "compensation" was indeed necessary to reach a global settlement, but the way it was applied remains problematic. A final point, on which answers are difficult to formulate, is the degree to which negotiators at Vienna had hidden objectives, ambitions, and agendas in their minds. Nicolson, who has on the whole a positive assessment of Castlereagh and Talleyrand, wonders whether in the former the expressed intention of "common interest" and justice did not hide a will to use the congress to reorganize Europe in such a way as to foster British leadership by a combination of undisputed maritime power (maritime rights were excluded from the negotiations), to create a somewhat divided neutralized continent, and, at the same time, to provide for some form of British isolationism. As far as Talleyrand was concerned, were the principles of "public law" and "legitimacy" and his skillful maneuvering during the congress mere stratagems or devices to prepare the future of a strong and ambitious power that was beginning to get back on its feet? Were Metternich's real intentions to use the congress to consolidate the currently dominant position of Austria in central Europe and gain absolute control of part of Italy and Illyria? Was Hardenberg's main, if not sole, preoccupation to lay the foundation for the domination of Prussia over Bavaria and other German kingdoms? Was Alexander's support of an independent Poland merely a device to gain control of a part of central Europe and leave the door open for development of a future policy against the Ottoman Empire? These are, in large part, speculations. Do they deserve further analysis? They are, in any case, unanswered questions and the subject of many controversies. Furthermore, how far is the distance, in any negotiation, between expressed intentions and concealed intentions? Is the stability of a solution obtained by an agreement, especially under a compromise, a function of this distance? How are future developments a mere reflection of this gap?

Conclusion From the point of view of negotiation analysis, two terms sum up the Vienna negotiations: complexity and ambiguity. The context and the issues were complex, as were the structure, process, strategies, and outcomes. To their credit, the Vienna negotiations represented a significant step forward in clarifying the existing state of affairs. To unify a confused situation, imaginative formulas embodied in principles, concepts, and precepts were found and implemented, and the congress did succeed in reestablishing, at least for a time, more stable conditions known as

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the Concert of Europe and somewhat later as the conference system. A notion of more or less equal partners-"a just equilibrium"-was devised, not in an ideal form but as a partly stable system. Complexity led also to ambiguity. The "equilibrium" achieved proved stable and, for most actors, acceptable, but was this only in the short or medium term or even a circumstantial or temporary device? "Principles" were laid down, but did they reflect real or hidden intentions? Were the formulas essentially devised to define a line of least resistance as the only way to reach a much-needed agreement? Was the Congress of Vienna a relative success only because Britain and the continent were exhausted after Napoleon? Was security obtained (and "restoration" and "order" proclaimed) at the cost of ignoring ideas with a flavor of liberalism and progress? Was the Congress of Vienna not ambiguous on the problems of colonies, minorities, and smaller states? Were some assumptions made by the various participants on the desirability of a given pattern of power in Europe either unrealistic or lacking in lucidity (Taylor 1948, 41)? Ambiguity applies also to the orientation of the congress. Was it forward or backward looking? It was indeed farsighted in many respects, especially in terms of principles and concepts, despite the recorded limitations. It was backward looking because negotiators diagnosed the future situation as a mere continuation of the past so that balance-of-power considerations, territorial rearrangements, and compensations were at the core of the process while trust building and transparency of intentions were relegated to a secondary role; moreover, at times, negotiators judged it expedient to require the observance of the official principles by others rather than by themselves. The idea of revenge and opportunism at times dominated the thinking of some actors. All in all, the Congress of Vienna was a typically mixed negotiation, both distributive (strategies of power, threats, destabilization, hard bargaining for concessions and compensation, and interpersonal disputes) and integrative (references to principles, efforts to integrate separate interests into some commonality, acceptance of moderation to solve some intricate issues, frequent recourse to persuasion, logic-based argumentation, appeal to "reasonableness" and realism, adherence to consensus, attempts at mediation, and efforts to arrive at a balanced or near-balanced agreement). Hence, the Vienna negotiations cannot be easily or exclusively placed into either the peace or justice category; indeed, placing them predominantly in either one or the other category is not really convincing. It is perhaps more balanced to characterize them as forward-looking but somewhat ambiguous negotiations that were, nonetheless, a milestone in the long and arduous road toward constructiveness in international affairs.

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Appendix: The Character and Contribution of Talleyrand Talleyrand, minister of foreign affairs of the restored Bourbon king, Louis XVIII, was the plenipotentiary for France. Many commentators, for example, Nicolson (1946) and Schumann (1964), consider that this diplomat, whatever one's opinion on other aspects of his personality and private life, showed great skill in negotiating in Vienna-meaning, in the context of the time, his mixture of distributive and cooperative styles. The judgment of Talleyrand's performance is generally founded on the fact that, given the very weak position of France at the end of the Napoleonic wars, the outcome of the congress for that country was not a diplomatic defeat. It must be noted, however, that this success should be tempered by the remark-made by one of the leading commentators on Talleyrand-that even if "Talleyrand played a role in Vienna that gave him a remarkably great stature in history his action did not result in any practical consequences for France" (LacourGayet 1928, 823). These remarks raise the question as to how much real influence Talleyrand had on the outcome of the congress; in other words, the impact of his negotiating methods, as well as his personality traits, behavior, style, and skills, on the negotiating process. A characteristic of the negotiating skill of Talleyrand was his emphasis on the importance of rigorous preparation. 11 Talleyrand's views of what constitutes good preparation are detailed in his memoirs. He insists on the necessity of the negotiator being fully aware of the context ("the circumstances") and of clearly defining the main lines along which the argumentation should be organized and defended, in this case that "France wanted only what she had, that she had frankly repudiated the heritage of conquest," that she was in favor of "moderation," and that "if she wanted to be heard in Europe it was in order to defend the rights of the others against all forms of invasion" (de Talleyrand [1891] 1996,206, and 340). The instructions that the plenipotentiary was to receive before joining the congress were prepared by Talleyrand himself, and this is considered a nice illustration of intelligent preparation for an international conference. In particular, when setting objectives, Talleyrand took account of the interests of others; having had the opportunity to become acquainted with the future protagonists, he was able to anticipate the likely zones of disagreement; finally, he prioritized objectives for the difficulties ahead in reverse order. Preparation also meant the choice of the members of the delegation and giving each an assigned (but not communicated) role, not forgetting those who he thought might play an unofficial but active function. In a complement to the preparation of the talks, Talleyrand was awarded heightened status (Prince of Benevent), a not-insignificant social advantage at that time. The activity of the diplomat followed a planned sequence: obtaining information, cultivating social contacts (Metternich, Nesselrode), and asking to be granted the position merely of "observer" at the preparatory meeting on the organization

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of the congress. This was obtained more for reasons of diplomatic civility than for anything else. Yet it proved to be a key element of strategy because Talleyrand had anticipated that the first major goal should be his presence in a committee of the coalition: it is within this structure that he showed a great ability to argue and persuade. Although he showed a gift for improvisation, his interventions were, in fact, often the result of long prior meditation in a relaxed atmosphere. As a negotiator Talleyrand was able to design strategies appropriate to the case. This was the recourse to "principles." "I shall be soft and conciliatory but positive, advancing nothing else than principles and never departing from them." These included "public law" and "legitimacy." His shrewdness was to invoke principles for others rather than for himself. He also decided to stick to his proclaimed course of conduct by refusing "deals." 12 Other facets of his style were his self-imposed rigor in drafting documents and his gift for organizing social events, which became an integral part of the congress. The Kaunitz palace, which his delegation occupied, rapidly gained a reputation as the place where it was important to be invited and to be seen. Did Talleyrand, as many others at the congress, have recourse to money to foster his policies? Although the facts are somewhat obscure, it seems proved that he was "rewarded," at least by Murat, Ferdinant IV, the king of Saxony, and the margrave of Baden (Barras 1896, 262).

Table Al Chronology of Events Leading up to the Congress of Vienna Date Year 1812

1813

Day, Month 3 December

Relevant Events Military

Political

Diplomatic

Napoleon concedes defeat after retreat from Russia and returns to Paris.

18-30 December

Convention of Tauroggen signed (without authority of Prussian king) between Russia and Prussian general, Yorck, an ally of Napoleon. Yorck declares his corps neutral, allowing Russians to defeat and pursue French.

28 February

Russia and Prussia sign the Treaty of Kalisch against France, their coalition soon joined by Britain, Austria, and Sweden. Prussia restored to 1806 borders, losing large section of Prussian Poland; gains Warsaw.

25 March

War of liberation from France, led by Frederick William III, begins in Russia.

3May

Napoleon wins the battle of Liitzen.

20May

Napoleon wins the battle of Bautzen.

1 June

Napoleon accepts Austria's "good offices" for an armistice.

4June

Armistice of PHiswitz (first until! 0 July, subsequently extended to 10 August).

24June

Treaty of Reichenbach between Austria (Mettemich) and Prussia (Alexander 1). Four demands are addressed to Napoleon. a

Table Al Chronology of Events Leading up to the Congress of Vienna (continued) Date

Year 1813

Day, Month 26June

I 0 July 21 July

Military Mettemich and Napoleon meet at Dresden. Napoleon resists Mettemich's demands. Mettemich presents four new demands; Napoleon accepts Austria's mediation; meeting at Prague on I 0 July; I 0 August as deadline for the negotiations; temporary suspension of military operations.

Relevant Events Political

I I British Victory at Vitoria (Spain).

Prague Conference (without Great Britain)

The main armies of the Allied Powersb are unified. 21-30 August

I Napoleon loses Battle of Grossbeeren, Katzbach, and Kulm. Victorious at Dresden.

16 October

I Napoleon wins the first battle of Leipzig.

18-19 October I Napoleon is defeated at the second battle of Leipzig, the "Battle of the Nations". Napoleon withdraws his armies 2 November across the Rhine.

Diplomatic

Saxony and, thereafter, Italian and German troops under Napoleon's command desert to the allies. Statesmen and diplomats gather at Frankfurt.

Table Al Chronology of Events Leading up to the Congress of Vienna (continued) Date

Relevant Events

Year

Day, Month

Military

1813

4-8 November

Mettemich announces the "Frankfurt Proposals" through French General Saint Aignan by which Napoleon would continue to rule, but within France's "natural frontiers".c

18 November

Maret (the French Foreign Minister) is instructed by Napoleon to give an ambiguous answer.

Political

Caulaincourt (adviser to Napoleon and in favor of peace) replaces Maret as French Foreign Minister a few days after Maret's message to Mettemich. 5 December 26December

Diplomatic

~

Caulaincourt accepts the Frankfurt Proposals. The Allies do not respond. Castlereagh writes "A memorandum of cabinet"d after several conferences with Austria (Count Lieven and Baron von Wessenbergh) and Prussia (Baron von Jacobi). In December there are tumultuous debates in the House of Commons. Opposition (Whig) criticism of Castlereagh.

Table Al Chronology of Events Leading up to the Congress of Vienna (continued) Year

Date Day, Month

Relevant Events

1813

28 December

Castlereagh, on his way to Basle to meet the other plenipotentiaries of the alliance, stops at The Hague to try to arrange "a dynastic link between Great Britain and Holland" (proposed marriage of hereditary prince of Holland and Princess Charlotte of Wales). The scheme later fails.

1814

19-22 January

Metternich and Castlereagh meet for bilateral negotiation at Basle. They first disagree on the military/political diagnosis. Mettemich considers that the main problem will not be France but Poland. They discuss who should succeed Napoleon (regency under Marie-Louise; Alexander's proposal to appoint Bemadotte). They reach agreement on several important questions (exclusion of maritime rights in future negotiations; Holland; the fate of Saxony and Prussia; the concept of "just equilibrium" and "balance of power"; compensations).

23 January

Mettemich and Castlereagh visit Alexander at Langres. Austria and Russia refuse to arrange a treaty and proclaim a "general alliance" without first solving the Polish question. Agreement reached on some less-important issues: "former frontiers", Holland, maritime rights, a congress to be held at Vienna, restoration of the Bourbons.

Military

5 February19March

Numerous battles in eastern and southwestern France (some favorable at first to Napoleon, then to the Allies).

1 March

Allies resume offensive.

Political

Diplomatic

Chatillon Conference opens, is suspended 10-17 February (French victories); resumes 18 February, is dissolved 19 March.

Table Al Chronology of Events Leading up to the Congress of Vienna (continued) Year

Date Day, Month

1814

9March 31 March

Relevant Events

I

Military

Allies occupy Paris.

Political

Capitulation of Paris. Talleyrand Treaty of Chaumont published. receives Nesselrode and Alexander in his own house in Paris.

l April

Thlleyrand convenes senate. Provisional government installed.

2April

Senate votes abdication of Napoleon.

4April

6 April

Diplomatic Treaty of Chaumont is signed stipulating the formation of the "Grand Alliance."

Caulaincourt and Ney go to Paris with offer of abdication of Napoleon in favor of his son (king of Rome). Thlleyrand has discussions with Alexander who demands unconditional abdication and suggests that a kingdom be given to Napoleon, finally Elba (later refuses Tuscany). Senate votes a new constitution calling Louis XVIII to the throne.

8-lOApril

Caulaincourt, Alexander, Nesselrode, and Thlleyrand negotiate issues relating to the fate of Napoleon and Marie-Louise.

ll April

Treaty of Fontainebleau: ''A Treaty between the Allied Powers and His Majesty the Emperor Napoleon" is accepted by French plenipotentiaries.

l2April

Napoleon attempts suicide (poison), recovers, ratifies the treaty.

l6April

A convention is signed, but the future Louis XVIII agrees to the future Treaty of Paris (30 May 1814).

Table Al Chronology of Events Leading up to the Congress of Vienna (continued) Year

Date Day, Month

1814

23 April

Relevant Events

I

Military

Political

Castlereagh signs not all but a few clauses of the treaty.

27 April 29 April

Diplomatic Napoleon starts travel to Elba, arriving on 4 May.

Hardenberg presents a scheme for a general settlement.

The Hardenberg scheme stipulates that Saxony and the left bank of Rhine be given to Prussia; Austria be given TYrol and some concessions in Italy; Russia would obtain most of Duchy of Warsaw, except Tamopal and Krakow (to Austria); a German federation constitution to be drafted; minor compensations given to Bavaria, Baden, and Piedmont (Alexander refuses proposal, demands Thorn [held by Prussia], first wants peace treaty with France); Metternich also objects.

9May

A conference of the four allied powers is established.

9-21 May

Negotiations continue between the allies, notably on Poland (Krakow), colonies, monetary provisions (reparations), and restitution of works of art. On 21 May no agreement is reached. The decision is taken to sign a treaty with France (without having solved the various difficulties between the allies).

30May

First Peace of Paris is signed.

Table AI Chronology of Events Leading up to the Congress of Vienna (continued) Date Year

Day, Month

1814

June-July

8 August

24August

Relevant Events Military

Political

Diplomatic

Allies agree that no military action should start before the congress convenes, especially in Poland and Saxony, Mainz, and the left bank of Rhine.

In London ("The London Interlude" [Nicolson]), an antagonism develops between Alexander and the other parties. Also alienates Talleyrand and Louis XVIII. The possibility of an alliance between Austria and France appears.

Allied sovereigns and plenipotentiaries meet in London; start negotiations on the date and agenda of the congress to be held in Vienna. The Polish question remains a key point of disagreement. Castlereagh tries to set 15 August for the opening of the congress. Alexander asks for delay and obtains l October as starting date. (Ministers would meet prior to opening. )e

Castlereagh meets Talleyrand in Paris. Warns against alliance between France and Russia; obtains Talleyrand's agreement. Castlereagh seeks without success to obtain Hardenberg's agreement on an agenda (Prussia, Poland, etc.).

a Dissolution of the Duchy of Warsaw; enlargement of Prussia; Illyrian provinces returned to Austria; reestablishment of towns of the Hanseatic league, Hamburg, and Liibeck. bAs well as the three principal allied powers, the armed coalition comprised Sweden and Mecklenburg. cFreedom of commerce and navigation would be recognized (a decision taken by the Earl of Aberdeen, leader of the British delegation, contrary to Castlereagh's instructions). The Frankfurt Proposals were rejected by Prussia, Russia, and the British plenipotentiaries. d The memorandum made explicit the purposes of the negotiations which would take place as the allied victory now seemed more probable; Frankfurt proposals nullified; achievement of "common interest"; no French establishment on the Scheidt; Holland to be given the "Belgian Netherlands"; independence of Spain and Portugal; Italian States to be restored; guarantees to implement the treaty to be considered. ern London, however, some progress was made on certain issues (Antwerp to Holland; Great Britain to obtain the Cape of Good Hope).

Table A2 The Congress of Vienna Year 1814

Date Day, Month July-September

Relevant Events

Military

Political

The question of "small powers" is raised. Proposals (Castlereagh) and counterproposals (Hardenberg and Humboldt) are discussed.

13 September! October 20 September

A compromise scheme is achieved.

30 September

Talleyrand is invited by Metternich to a "private conference" which, in fact, proves decisive for future developments.

12 October

The opening of the congress is postponed until l November. Negotiations of the congress; drafting of the Final Act starts just before Napoleon's return from Elba. Treaty is signed on 9 June 1815.

1 November 1814 to 9June 1815 1815

Diplomatic Plenipotentiaries arrive separately at Vienna (Metternich had been in Vienna since 18 July), e.g., Castlereagh on 13 September, Talleyrand, Alexander, King Frederick William III (Prussia) on 28 September. A great number of delegates from various other territories also arrive.

I March March-June

29November Second half of 1815

Napoleon escapes from Elba. Napoleon after arriving in Paris starts new campaign that finally ends at Waterloo (18 June).

Second abdication of Napoleon (21 June). Napoleon is exiled to St. Helena. Restoration of Louis XVIII as king of France. Second Treaty of Paris. The allied and various chiefs of state discuss Alexander's proposal of a "holy alliance" (not signed by Great Britain; other Powers merely "adhere," many with reservations).

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Notes 1. At Vienna there were more than the "major actors" (in this chapter, "the Five"). Covering them all in the analysis would prove extremely burdensome and complex. Furthermore, the "dominance" of the Five was such that it makes sense to restrict the analysis to them. 2. For a vivid, although in part fictional, description of the love affair between Talleyrand and his niece, Dorothee, see Waldeck (1995). This is the translation of a book first published in the United States and was awarded a French literary prize. 3. For Alexander, the legitimacy question, on which his convictions were opposed to those of Talleyrand, had a "mystical" meaning. See Arkhanguelski (2000, 250-59). 4. The Grand Alliance or Quadruple Alliance was formalized at Chaumont (1 March and 9 March 1814). The treaty detailed the objectives of the four great powers. The alliance held for twenty years after the cessation of hostilities. 5. This was clearly formulated in the Alliance Protocol of20 September 1814. 6. See Dupont (1996) and Zartman (1994) for a general analysis of the negotiations process. 7. Some political analysts put the Crimean War (1854) as the end date of this continental peace. 8. This was clearly formulated in the Alliance Protocol of20 September 1814. 9. Note from Castlereagh to Lord Liverpool, 11 November 1814. 10. Alexander's views at the start of-and during-negotiations were far away from this solution. (It was probably accepted because of the renewed danger from Napoleon in March-April 1815). 11. On several occasions Talleyrand showed his surprise at the lack of preparation of the other actors, which he calls-to borrow an expression of Castlereagh's-a lack of "methodizing." See Nicolson (1946). 12. One illustration is Alexander's proposal to give way over Saxony in return for support on Naples, to which Talleyrand replied, "You talk about a deal and I can not concur. . . . You are moved by your will and your interest, but as for me I am obliged to respect principles and principles cannot be compromised" (de Talleyrand [1891] 1996, 286).

Part II: Major Contemporary Settlements

Chapter4

The Austrian State Treaty: Concluding a Successful Negotiating Process Franz Cede

The negotiations leading to the signing of the Austrian State Treaty (the treaty) spanned the ten years following the end of World War II. The treaty closed the first postwar chapter of Austrian history, reestablishing Austria as a free and independent state and thereby ending the four-power occupation regime that had dominated Austrian politics from 1945 to 1955. The treaty formed part of a political package deal that provided for the neutral status of Austria to ensure that the country would not join either of the two Cold War military alliances (the North Atlantic Treaty Organization [NATO] or the Warsaw Pact). Although Austria was firmly rooted in the Western society of nations from a geopolitical viewpoint, its neutral status placed it outside the confrontations of the military bloc system during the Cold War period. As applied to the treaty, the concept of "forward-looking outcomes" versus "backward-looking outcomes" may be understood as covering two different issues. First, it pertains to the options that presented themselves during the negotiations, and in that sense the term "forward-looking outcome" can be viewed as the best possible result of the negotiating process under the given international and domestic circumstances. Second, it points to a different aspect of the negotiating process: not the best possible outcome under the prevailing conditions, but the character of the settlement itself. To exemplify the first meaning of the concept, it can be demonstrated that the conclusion of the treaty was made possible only when a window of opportunity opened at a specific juncture in East-West relations, thus enabling a forward-looking outcome. The second approach does not examine the treaty from the perspective of the available options but looks 75

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rather into the nature of the regulations it embodies. Which of the regulations, for instance, sets a future-oriented regime of peace and justice (forward looking) and which provisions merely settle accounts, obligations, and matters of justice deriving from the past (backward looking)? This chapter seeks to highlight both concepts. In the first part of the chapter a very brief introduction is given to the history of the Austrian State Treaty to allow a better understanding of the key issues at stake.

Historical Context On 13 March 1938 Austria was occupied by force by German troops and incorporated into the Third Reich. The anschluss, as the occupation and integration of Austria into the German Reich was called, led in fact to the disappearance of Austria as an independent and sovereign state. After World War II there was a heated debate among jurists as to whether Austria was "annexed" or "occupied" by Hitler's Germany. That issue had some relevance in the context of the reestablishment of Austrian statehood after 1945. According to the annexation doctrine, Austria had lost its political and legal existence altogether. According to the occupation theory, however, Austria did not disappear as a legal and political entity during the anschluss period, and leading politicians emphasized the continuity of Austria as a subject of international law, irrespective of its forced and illegal incorporation into Germany. In their "Declaration on Austria" of 30 October 1943, the wartime alliesthe Soviet Union, the United Kingdom, and the United States-expressed their wish to reestablish a free and independent Austria. In the declaration, made at the Moscow Conference, the allied foreign ministers described Austria as the first free country to fall victim to "Hitlerite aggression." The Moscow Declaration is rightly considered a decisive document for Austria as the three allied powers showed in it their determination to reestablish an independent Austria as one of their war objectives. A second decision of the allied foreign ministers at the Moscow Conference proved to be of equal importance for Austria's destiny after World War II. The conference established the European Advisory Commission (EAC), based in London, whose tasks included the elaboration of rules for the future allied-occupation regime in Austria and Germany. The EAC was instrumental in dividing Austria into four occupation zones with a special arrangement for the capital city of Vienna. Unlike Germany, Austria was allowed to maintain national unity by having one government in charge of the whole country. The dividing line between the Soviet zone and the Western zones occupied by France, the United Kingdom,

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and the United States was more than a mere demarcation, however. In the Western zone, Austria quickly caught up with the democratic and economic environment of those of its neighbors whereas, in the Soviet zone, similar progress was impeded by the occupation authorities. Even though there was a single government with authority over the whole country, the Western and Eastern zones in fact drifted apart. The negotiating process that finally led to the Austrian State Treaty began in 1946 when the council of foreign ministers of the four allied powers requested their special representatives to deal with a peace settlement in relation to Austria and Germany. From that starting point, it took nine years of negotiations within a very complex organizational setup involving multilateral as well as bilateral talks conducted at different political levels to arrive at the conclusion of the Austrian State Treaty in 1955. The negotiations presented all the characteristics of Cold War tensions, superpower rivalries, and geopolitical readjustments. The ups and downs of the first postwar decade of East-West relations all had their impact on the fate of the negotiations. For many years the Soviets linked any peace settlement concerning Austria to the German question, in other words, to the political and military status of Germany in the new European order following the catastrophe of World War II. The close interrelationship of the key issues of the European security system in the 1950s made the protracted negotiations on the Austrian State Treaty a most challenging undertaking. 1 It is striking that there is no trace of one of the main features of the treaty negotiation process in the legal instrument itself. The conclusion of the treaty is usually associated with the adoption by Austria of the status of permanent neutrality. It has become evident that Austria's commitment to adopting neutrality as its new international status constituted a precondition for the Soviet Union's acceptance of the terms of the treaty providing for the withdrawal of the allied occupation forces from Austria's soil (Russian troops included). Nevertheless, it was stressed that Austrian neutrality was not imposed but freely chosen, and neutrality was therefore enshrined not in the treaty but in a domestic constitutional law. Irrespective of the juridical classification of neutrality as a status freely chosen by Austria and adopted by a sovereign act of legislation, there is no denying that the successful conclusion of the treaty hinged on the question of Austria's position vis-a-vis NATO and the Warsaw Pact, the two military alliances confronting each other on the European continent. In the final negotiations between the Austrian government and the Soviet leadership, the issue of neutrality clearly played a key role in achieving a positive result. The fact that the Moscow Memorandum of 15 April 1955 contains a pledge by the Austrian delegation that Austria would commit itself to neutrality and would enact a constitutional law to that effect, demonstrates that this question formed part and parcel of the negotiating process.

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The Key Issues at Stake Following the distinction made by Professor Stourzh ( 1998), one may discern five possible scenarios that Austria had to face in the period from 1945 to 1955 1. the continued occupation of Austria by the four powers;

2. 3. 4. 5.

the division of Austria; Austria as part of the Eastern bloc; Austria as part of the Western bloc; and Austria as a state between the two military blocs.

The Continued Occupation of Austria by the Four Powers This can be described as a dilemma rather than an objective. The allies were on record that Austria was to be reestablished as a united, independent, and free state after the war. The achievement of this goal by way of a negotiated settlement constituted the main purpose of the treaty. For Austria the worst possible solution was, of course, the prolongation sine die of the hardships of foreign military occupation and the limitations of its sovereignty over domestic and foreign affairs. The longer the already-protracted negotiations dragged on and the less reconcilable the great powers' positions, developed during the Cold War era, became, the more daunting was the dilemma of continued occupation without any prospect of a time frame for its termination. Within the Austrian political leadership there was a clear consensus across party lines that everything ought to be done to rid Austria of the limitations on its sovereignty by doing away with foreign occupation. The Soviet occupation regime in the east did not lead to a formal breakup of Austria into two states, even though the differences between the Soviet and the Western zones of Austria became all too apparent. There was, however, a real danger of Austria becoming a de facto divided country with the Western occupation zone and the Soviet zone in the east drifting apart over time. Thus, for the sake of maintaining the country's unity, conclusion of the treaty was considered by Austria's political leadership as a matter of top priority. For nearly eight years no breakthrough was achieved in the negotiations because of the lingering refusal by the Soviets to accept a separate peace settlement for Austria that was not linked to a peace arrangement concerning Germany. The continuation of the status quo thus turned into a reality which for many years looked as immutable as the formal division of Germany into two states appeared until1989.

The Division of Austria The de facto division might well have received the seal of legitimacy at a certain point in time. Obviously, such an outcome would have been in complete contradiction to the consistent policy statements of all four allies (France, Russia, the

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United Kingdom, and the United States) in favor of the reestablishment of an independent, free, and democratic Austria. During the Cold War, however, these public pronouncements did not prevent various attempts on the part of the Western and Eastern powers to weigh the advantages of incorporating the whole or parts of Austria into their own camp. In this context, the frustrated coup attempt by the Communists in 1950 was but one example that showed how easy it would be to rock the fragile balance of power. As it happened the Soviets were not alone in posing a threat to a free and undivided Austria. Had they succeeded in the eastern (Soviet-occupied) zone, the likelihood of a division of the country would have been very great. The governments of the Western powers also considered what benefits they would derive if Austria eventually became part of NATO. This question became even more acute immediately before the conclusion of the Austrian State Treaty when the Federal Republic of Germany (FRG) was fully integrated into the Western military alliance. At that point the idea of a neutral or nonaligned Austria caused considerable headaches to military planners in the West in view of Austria's geographic position between NATO members Italy and the FRG. From a purely military point of view, it would have been more than tempting for Western strategists to envisage a partition of Austria that would leave the small eastern part under Soviet influence and integrate the western "land bridge" between northern and southern Europe into NATO. That these considerations did not finally prevail is very much to the credit of the political leaders in London, Paris, and Washington, who, in the final analysis, accepted a political settlement for Austria that was in keeping with the broader political aspects of East-West relations.

Austria as Part of the Eastern Bloc As indicated above, the Soviet Union seized several opportunities to turn events in its favor so as to integrate Austria into the Communist domain, just as it had brought most of the countries of Central and Eastern Europe under its domination as "people's democracies." Soviet-style Communism, however, never became popular in postwar Austria. The first free elections after the war, held in November 1945 throughout Austria, turned out to be a fiasco for the Communist party which failed to gain significant support even in the Soviet zone where there was much pressure and elbow twisting by the occupation force to "convince" the electorate to vote for the Communist party. Further attempts by the Communists in 1950, actively supported by the Soviet occupation, to force events in their direction by calling for a general strike, failed in the face of stiff resistance from the Austrian trade union federation and the government. After the failed coup attempt the Soviet Union refrained from further efforts to turn Austria into a "people's democracy" in the manner of the East European countries. This option, therefore, was also discarded. It would have met not only with stiff Austrian resistance but also, most likely, with strong opposition from the Western allies. As they sought to "roll back" or at least to "contain"

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the Soviet influence in Central Europe, a takeover of Austria by the Communists would no doubt have triggered a very harsh reaction on the part of the United States and NATO.

Austria as Part of the Western Bloc Conversely, the idea of Austria becoming wholly part of the Western alliance system was totally unacceptable to the Soviet Union which therefore disposed of its precious Austrian pawn to avert any attempt to pull Austria into NATO. The presence of the Red Army in the eastern part of Austria surrounding the capital, Vienna, made it unrealistic even to consider such an option seriously. NATO policy planners, who included Austria in their geopolitical thinking, thus had to discard the idea of incorporating the entire Austrian territory into the Western alliance system. Given the physical presence of the Soviet occupation in the east, Austria as a whole could not become part of the Western bloc without military force being used. Even the staunchest "cold warriors" in the West never seriously considered the option of driving the Soviets out of Austria by military means. Such a course of action would have necessarily meant war, which nobody wanted. In short, the idea of integrating Austria totally into the Western bloc did not prove viable either.

Austria as a State Between the Military Blocs In view of the pros and cons of the scenarios discussed above and given the declared aim of reestablishing the whole of Austria as a free, independent, and democratic state, the concept of putting Austria outside the two antagonistic alliance systems was gradually gaining ground. Considering the position of the key partners in the negotiations, it became obvious that, at last, all sides could live with a compromise formula that would include, in essence, the following elements: • • • • •

Reestablishment of Austria's independence and full sovereignty (implying the withdrawal of all occupation forces) Prohibition of any union (anschlussverbot) between Austria and Germany Settlement of all financial questions deriving from the war Safeguards to ensure democracy and minority rights and Adoption of the international status of neutrality by Austria through an act of national legislation by the Austrian parliament

Putting aside the regulations that are to be found in similar peace treaties, the specific Austrian settlement, contained in the Austrian State Treaty and the Austrian Neutrality Act, provided for the withdrawal of foreign troops, in other words, independence and sovereignty in exchange for neutrality (with Austria becoming a state between the military blocs). The advantages of this arrangement were

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tangible for each side. Austria obtained its independence and full sovereignty. The occupation forces left. For Soviet Russia there was the benefit that Austria became neutral, which, above all, guaranteed the Soviet leadership that Austria would not join NATO. The prohibition of any anschluss was welcomed by all parties in their desire to prevent a repetition of developments that had thrown Europe into the abyss of World War II. For the Western allies and Austria, the treaty arrangement was acceptable as it reestablished Austria's independence on the basis of Westernstyle democracy. It also had a unique effect in that, for the first time since the war, Russian troops withdrew from a territory they had occupied in their advance on Central Europe. On balance, neutrality was a price well worth paying for these advantages.

Forward- and Backward-Looking Provisions of the Austrian State Treaty A review of the provisions of the treaty in terms of their substance reveals both backward- and forward-looking outcomes. On the one hand, the treaty arrangement contains regulations that are typical of any peace treaty and that settle the main issues regarding the consequences of the war and the occupation regime. On the other hand, the treaty's achievement is forward looking as it establishes the basis for Austria's political future after the war and the period of four-power occupation: Austria is reestablished as a sovereign, independent, and democratic state (Article 1). A number of key provisions of the treaty can similarly be seen as forward-looking outcomes, for example, the obligation of Austria to refrain from unification with Germany (Article 4) or the stipulations on the rights of Slovene and Croat minorities (Article 7). The bulk of the regulations of the treaty, however, concern matters pertaining to the past and, as far as this is concerned, the treaty is of a backward-looking character. In this regard, it deals with the same issues that characterize any peace treaty, such as the withdrawal of allied occupation forces (Article 20) or financial regulations settling various claims deriving from wartime situations (Part IV). In retrospect, forty-five years after the signature of the treaty in 1955, the bulk of its provisions can be classified as backward looking. When the fundamental changes in world politics occurred at the beginning of the 1990s, the question even arose as to whether the Austrian State Treaty should not be tossed on the rubbish heap of history as its substance was no longer relevant and its provisions had become completely outdated. Proposals to that effect were openly discussed in some legal and political circles. The debate was not entirely academic, for in 1990 it even led to an official statement that some provisions of the treaty were obsolete. These mainly concerned the prohibition of certain weapons, such as self-propelled or guided missiles. The four signatory powers who had been consulted in advance about this move by Austria did not object.

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The very fact that, in 1990, certain treaty provisions were officially declared obsolete shows the impact of the time factor and of fundamentally changed circumstances on the validity of major parts of the treaty. As a matter of principle, however, the view prevailed that the treaty could not be abolished completely just because some of its provisions had become irrelevant over time. From the point of view of international law the treaty thus continues to be a legal instrument binding upon Austria in relation to the other contracting states. The aforementioned backward-looking outcomes aside, a number of its future-oriented, regime-setting components justify the continued validity of the treaty.

The Breakthrough at the Negotiations It is interesting to note that in the decade-long negotiating history of the Austrian State Treaty, the main problem did not lie so much in solving the many issues involved in the agreement. It can be shown that similar peace treaties between the allies and enemy states of World War II, such as Bulgaria, Finland, Hungary, and Italy, were concluded within a relatively short time. By 1947 the postwar peace settlements with those states were already completed. Why was Austria so different? Why did it take so long to finalize the Austrian State Treaty? The answer to these questions has much to do with the dispute about the future place of Austria in the European security system. The position of the other countries mentioned was already determined shortly after the end of the war. Austria, however, was different because of its irregular status during the anschluss period when the country became a de facto part of the Third Reich. After 1945 Austria's international status under the allied four-power occupation was comparable in many respects with Germany's. Against this background the Soviets were looking for a comprehensive peace arrangement in Central Europe that would redefine the respective status of Germany and Austria-two issues that were inseparable. According to this firm Soviet position, the treaty could not be settled unless the final status of Germany (or the two Germanys) had been determined. The treaty was thus held to ransom by the German question. During the Stalinist period the negotiations with Austria dragged on endlessly without any positive outlook precisely because of the linkage made by the Soviets between the conclusion of the treaty and the German question. A proposal to make Austria a nonaligned or neutral country was already floated before the death of Stalin in 1953. The time was not yet ripe, however, for such a formula. The goal of concluding the treaty could not be reached as long as Soviet Russia systematically blocked any progress in the negotiations using the argument that a treaty settlement with Austria was contingent on a satisfactory agreement regarding Germany. This linkage constituted the main stumbling block on the road to the successful conclusion of the treaty. As long as the Soviet position did not change, all attempts to bring the negotiations to a conclusion proved fruitless. By tying an

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Austrian peace settlement to Germany, the Soviet Union in fact halted the negotiating process. A decisive change in the Soviet position occurred only after the death of Stalin in 1953. Renouncing the call for a Communist world revolution, the new Soviet leadership under Secretary-General Krushchev proclaimed "peaceful coexistence" as the new foreign-policy doctrine. As one of the immediate consequences of the thawing East-West relations following the Cold War period, a more flexible Soviet attitude toward the Austrian question could be observed. The lessconfrontational behavior of the Soviet Union in the international arena did not, however, automatically alter the long-held Soviet position that no solution of the treaty problem could be envisaged without a prior settlement of the German question. In spite of the improved international climate, a peace settlement for Austria, as viewed from Moscow, therefore continued to be an appendix of the German issue. Thus, the change of leadership from Stalin to Krushchev did not bring about a more forthcoming Soviet attitude toward the conclusion of the treaty. The situation changed only in 1954 when an event of the utmost importance for European security policy took place in Paris, namely the defeat of the scheme for a European Defence Union by a vote of the French Parliament. The failure to establish a genuine European security system that would have included the Federal Republic of Germany led to a complete reorientation of the European defense policy toward NATO, opening the way for admission of the FRG. This development immediately motivated the Soviet Union to reassess its strategy concerning Austria and to abandon the linkage between the treaty and the fate of Germany. The Soviet Union suddenly realized that it could no longer prevent the integration of the FRG into the United States-dominated defense system. Soviet frustration with the integration of the FRG into NATO quickly gave way to the realization that the main reason for tying the Austrian peace arrangement to the "German question" had disappeared. In view of the fact that it could not achieve the objective of keeping the FRG out of NATO, the Soviet Union saw no more benefit in blocking the Austrian State Treaty. The Soviets then showed their readiness to conclude the treaty rapidly on condition that Austria would be kept out of the Western alliance system. As a vehicle to attaining that goal, the formula of neutrality, a status well proven under international law in the case of Switzerland, seemed to provide the best possible safeguards. Thus, in early 1955, the time was ripe to finalize the treaty put on hold by the Soviets for so many years.

The Mechanisms for Handling the Recurrence of Potential Conflicts In assessing the different types of forward-looking outcomes in negotiation processes it is necessary to bear in mind the close relationship between the conclusion of the Austrian State Treaty and the adoption of neutrality by Austria. As the key

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issue determining the conclusion of the treaty-the future international status of Austria-was not even mentioned in this document, no mechanism exists within the framework of the treaty itself to handle any potential differences of views concerning neutrality. Therefore, the treaty clauses providing for a mechanism to settle any potential conflicts concerning the interpretation or implementation of the rights and obligations deriving from the treaty (Articles 34 and 35) cannot be invoked in relation to Austria's neutrality. In fact, no international mechanism at all exists to ensure Austria's perpetual commitment to neutrality. In retrospect, this state of affairs may seem somewhat odd as the Soviet Union made Austria's neutrality the centerpiece of the entire peace arrangement. The provision concerning the peaceful settlement of disputes covers all matters falling within the purview of the treaty. In the case of a difference of views, it provides for the convening of a conference of the ambassadors of the four allied powers in Austria. If one were to conjecture what conflict might trigger the convening of a conference of the representatives of the four signatory powers, a few instances naturally come to mind. If, for instance, Austria by her acts had breached some politically sensitive provisions of the treaty (for example, anschlussverbot and military provisioning), the instrument of the allied ambassadorial conference could have come into play. As it is, the treaty contains a rather strong mechanism to handle a potential recurrence of the conflict it sought to regulate. The heavy stick of this instrument has never been used. The question may also be asked today as to whether a four-power authority of the wartime allies to oversee Austria's good behavior in relation to the Austrian State Treaty still exists. After the ending of the four-power authority over Germany as a result of the agreements reached in the context of German reunification, it seems somewhat bizarre to continue treating Austria in terms of a political constellation that no longer exists. It may therefore be said that the mechanism established in the treaty to ensure that Austria would abide by its treaty obligations has become anachronistic. Half a century after the conclusion of the treaty, it appears that the procedures provided for handling a potential recurrence of the conflict are no longer adequate. However, in the context of the political circumstances prevailing during the negotiations, in other words, within the parameters of the international political environment of the 1950s, the mechanism established to forestall and remedy serious breaches of the treaty commitments by Austria appeared to be a forward-looking procedure.

Summary In analyzing the process of negotiations leading to the conclusion of the Austrian State Treaty, a close interrelationship between forward- and backward-looking outcomes can be observed. In 1955 the result of the negotiations turned out to be a very comprehensive settlement containing a complex mix of regulations covering a broad range of substantive issues and providing for a settlement-of-disputes

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clause. As far as substance is concerned, the major part of the treaty provisions have had their day. In other words, the bulk of the treaty's articles can be characterized as backward looking in the sense of closing issues pertaining to the past (e.g., financial regulations deriving from the war). Only a minor part of the treaty provisions can be regarded as fixing a status or setting up a regime. Together with the adoption of neutrality, the conclusion of the treaty constituted a cornerstone of the postwar political order in Central Europe. In terms of process, the negotiations witnessed several stages. At a certain point a less-comprehensive, less-ambitious treaty was aimed for so that a quick solution could be reached. For instance, a short-cut version of a treaty was proposed by the Western powers in 1952, but categorically rejected by the Soviets. The short treaty as envisaged by France, the United Kingdom, and the United States boiled down in essence to a few key articles, the most important of which concerned the reestablishment of Austria as a free and independent state, the anschlussverbot, Austria's borders, and the withdrawal of the allied armed forces. No mechanism was foreseen in this Western draft to settle the potential recurrence of disputes. Furthermore, the short draft did not give any hint as to what might be the future international status of Austria. As shown above, discussions about the future status of Austria in terms of its relationship with the two military alliances were crucial in bringing about or impeding progress concerning the conclusion of the treaty. These negotiations hinged on the maintenance or the lifting of the Soviet linkage of the Austrian State Treaty to the German question. If one considers the international status Austria was to adopt upon the conclusion of the treaty as the crucial forward-looking element in the process, it becomes obvious that the interplay between the two negotiating tracks was decisive, one leading to the Austrian State Treaty proper and the second considering Austria's international status (the question of neutrality). A survey of the decade-long negotiations reveals that the contours of the entire settlement (Austrian State Treaty plus neutrality) shaped up only in early 1955. The neutral option for Austria quickly became the key to the conclusion of the treaty. The formula "Austrian State Treaty plus neutrality" thus became the successful package deal that provided a stable solution to the major issues related to Austria's transition from an occupied to a fully free and sovereign country after 1955. In retrospect, it seems astonishing that the interrelationship of the two closely linked negotiations concerning both the Austrian State Treaty and neutrality is often blurred or even swept under the carpet. One of the reasons given for ignoring the crucial importance of the negotiations on the future status of Austria (forward-looking outcome) has to do with the doctrine that Austria freely chose neutrality on her own. As neutrality was enshrined not in the Austrian State Treaty but only in a constitutional law, a generation of lawyers has made a point of distinguishing between the treaty-the result of an international negotiating process-and neutrality, which was looked upon as a matter that had nothing to do with the treaty. Such a view, of course, is blind to the realities of the world of the negotiations as they were conducted.

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With the benefit of hindsight, almost fifty years after the conclusion of the treaty, the case of Austria is still a fascinating story. It provides evidence of how a country is able to consolidate its negotiating position over time. In 1945 Austria, like Germany, lay in ruins, its destiny fully in the hands of the four victorious allied powers. In spite of the burdens and hardships of the occupation regime, Austria improved its domestic situation in an impressive manner, presenting an astounding economic recovery and political stability. Moreover, the broad national consensus concerning the primary goal of becoming a free and Western-type country proved to be unshakable. The firm determination of the government and people of Austria to reach this goal served as a precondition for a credible and convincing stand on the part of the Austrian negotiators. These home-grown factors do not belittle in any way the decisive international elements. Without a fundamental change in Soviet foreign policy after the death of Stalin in 1953, Austria would simply not have had the slightest chance of recovering its full freedom in 1955. A combination of external and internal factors plus the professional fashion in which the negotiations were conducted by all sides led to 1955 rightly being labeled as Austria's annus mirabilis. As in any successful negotiation, the human factor often came into play as a catalyst. Over a decade the key actors were able to create an atmosphere of mutual trust and a personal chemistry that worked well and thus certainly contributed considerably to achieving progress. On the other hand, the human touch in these negotiations should not be overemphasized. Unless the interests of the contracting states were met, even personal friendships among the political leaders could do little to bring about progress. The key to success at the very end of the negotiations was the political concept of neutrality which was at last accepted by all partners as the new international status of a free and independent Austria. As a compromise solution the neutral status of Austria presents the lowest common denominator covering the concerns of all the contracting states. The fact that forty-five years after the conclusion of the treaty, the very concept of Austrian neutrality is called into question, especially as the political environment that determined its creation no longer exists, does not reduce in any way its historic achievements. The contracting parties of the Austrian State Treaty were able to establish a viable status for Austria in a very difficult and tense international climate. For nearly half a century that status served Austria very well. This should not be forgotten at a time when the leitmotiv of neutrality is fading out, giving way to new concepts such as full integration of Austria into the European Union and its concomitant incorporation into a European security and defense structure. The spiritual fathers of the Austrian State Treaty could not have even dreamed of this future change of paradigm. With regard to the aspects of the negotiating process leading to the treaty, the main features can be summarized as follows:

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1. Of the many complex questions to be solved in the context of the conclusion of the Austrian State Treaty, the international status of Austria in the bipolar world of postwar Europe turned out to be the key issue. Inappropriate answers to this question (backward-looking outcomes) proved to be a division of the country or its incorporation into one or the other antagonistic military alliance systems. The magic formula of neutrality turned out to be the key to solving the issue of the future status of Austria (forward-looking outcome). 2. In the chronology of the negotiations, nine years (1945-1954) were spent fruitlessly on trying to resolve the problem of the future international status of Austria because of the linkage by the Soviets, described above, of the Austrian and the German questions. Only after the Soviets had lifted this linkage following the FRG's entry into NATO, did the final negotiations succeed. The linkage was gone, and neutrality appeared acceptable to all negotiating parties. 3. As to the different types of forward-looking outcomes, the treaty presents a classic case of many types of this. It contains a number of provisions that are, in substance, backward looking as they simply settle the accounts of the past (financial regulations, etc.). In addition, some of its important regimesetting provisions (e.g., anschlussverbot and minority rights) can definitely be described as forward-looking outcomes as they are future oriented. The dispute-settlement mechanism established could be invoked in case of serious breaches of the treaty obligations, but this has not been used once in more than forty-five years of the treaty's application, and it appears doubtful if this mechanism is still appropriate today under fundamentally changed international circumstances. The mechanism's main flaw lies in its lack of capacity to be activated in relation to the international status of Austria, which was a precondition for the conclusion of the treaty. To that extent the mechanism established does not provide a suitable instrument for handling the potential recurrence of a conflict concerning Austria's status of neutrality. 4. During the negotiations the various parties had a clear concept of what the basic contents of the treaty should be. Attempts to arrive at an earlier conclusion on the basis of a short draft were made by the Western powers but foiled by the Soviets. The final settlement, as concluded, turned out to be very comprehensive and detailed. Together with the arrangements on Austrian neutrality, the treaty can be seen as a rather complex piece of international negotiations, the elements of which were both forward and backward looking.

Notes 1. For anyone interested in the Austrian State Treaty, there is no better way to approach the subject than through the many publications of the eminent Austrian historian, Professor Gerald Stourzh. His latest (1998) book on the treaty offers the most comprehensive and

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up-to-date treatise on the subject. The very title of this book, Urn Einheit und Freiheit (On Unity and Freedom), provides the key to what the treaty is all about, i.e., it preserved the unity of Austria and ensured its freedom and independence by putting an end to the occupation regime.

Chapter 5

The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation

James C. 0 'Brien

International mediators look for the moment when peace is possible, when parties to a conflict will agree to a settlement that can survive second thoughts, charges of weakness, and gamesmanship. For the parties, at the moment of decision, their own concessions dominate the horizon, and the uncomfortable prospect of explaining compromises to disappointed constituencies makes "yes" possibly the hardest word they ever will say. In this environment agreement may seem impossible even as it is imminent, and mediators must keep a sense of possibility that will seem blindly overconfident until they help find agreement in a moment that will be human, painful, contingent, and fleeting. Fundamentals-battlefield impasses, the strength of international opinion, fatigue-matter greatly, but no account of negotiations can be complete unless mention is made of the people who have to say "yes" or "no" and of the mediators who decide what questions will be asked, when, and under what circumstances. Their skill, and the pressures under which they operate, heavily influence both whether peace will be achieved and the nature of the settlement that emerges. Bosnia's conflict is a case in point. The international community tiptoed into Bosnia's horrific war twice-in its approach to peace negotiations from 1991 to 1995 and then in the way it implemented Bosnia's peace agreement, negotiated at Dayton. 1 The first mistake cost thousands of lives. The second cost Bosnia's citizens years on their road toward Europe. This essay focuses on the ways in which negotiators shaped the successful talks at Dayton, in contrast to the infertile conditions that helped doom the work of earlier negotiators. Of special importance, I argue, was the Dayton negotiators' 89

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insistence on justice-that individuals indicted for wartime atrocities would play no role in negotiating or implementing the peace agreement. This novel, normative approach to negotiations kept key spoilers from the negotiating table and prepared talks for the endgame. The endgame at Dayton was very different from the negotiations that had preceded it. International mediators created an asymmetrical, almost stylized, closing scenario. The Yugoslav delegation, led by the then Serbian president Slobodan Milosevic, was put in the position of offering concessions that exceeded the delegation's apparent bottom line. The Yugoslavs had to sustain this offer in the face of uncertainty on the part ofBosniac officials. In this way, by the time of Dayton's endgame, only one part-Bosniac assent-was still moving, and the mass of international and internal persuasion could be focused on it. Negotiating and closing are not always the same things, and any story of conflict resolution should look for the difference. This closing strategy at Dayton ran the risk that, while attention went to securing the wavering, tentative agreement of the Bosniacs, the Yugoslav offer would snap like a tree branch that has been stretched too far in a strong wind. Mediators kept the pieces in place, but it was a very close-run thing contingent upon the Yugoslavs knowing that they could afford to wait for the Bosniacs' "yes." The price of Slobodan Milosevic's "yes" proved to be high, however. It kept in place leaders with interests antithetical to a lasting settlement or to Bosnia's interest in joining contemporary Europe. The Dayton Agreement (the Agreement) let Bosnia's wartime leaders translate their military power into political authority, giving them control of the country's government and resources, leaving the country far from its place in a broader European neighborhood, and in essence freezing rather than resolving the conflict. The Dayton Agreement included forward-looking machinery for addressing this problem. At the insistence of the parties (especially the Bosniacs), the Agreement included many provisions that promoted individual rights, the protection of threatened groups, and an opening of the society to democracy consistent with modern European norms. These provisions held the promise of unsettling the wartime elites that held sway in Bosnia. Unfortunately, the international community at Dayton did not show that it had learned the lesson of closing. Far from the focused, simplified closing strategy at Dayton, the machinery for implementing the agreement fully lacked political support and was cumbersome, with multiple centers of power. The use of this machinery has too often been far from the simplified, focused use of power seen in the final days at Dayton in 1995. Eventually, in a halting fashion, the international community and Bosnians insistent on democracy began to use the Agreement's own appeals to individual and human rights as levers to confront those who benefited both from their country's war and from its peace. Once again the insistence on justice, in different contexts,

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was a key lever in promoting a result that bore the promise of resolving Bosnia's conflict. Bosnia's story is not done. Dayton's European requirements only began to bite several years after Dayton and may still fail. Ultimately, Bosnians will decide. From 1991 to 1995 the local parties in the former Yugoslavia played the international peace process skillfully, and Bosnia's wartime leaders preserved their primacy by manipulating the Dayton Agreement. The nationalists continued a campaign of obstruction for years after Dayton. But Bosnia's nationalists were showing signs of wear by 2000 after a concentrated international campaign helped create conditions that Bosnia's nonnationalist politicians used to form Bosnia's first truly postwar government. The generation of international leaders who learned how to implement Dayton left the scene at this point, and nationalists have resurged. It remains to be seen whether the new generation of international figures and nonnationalist Bosnians can retake the political battlefield and give Bosnia a chance to join a democratic European neighborhood at last. This essay is written from the perspective of a policymaker. I participated in the Dayton negotiations as well as in most major negotiations concerning the Balkans from 1994 to January 2001. I have seen success (as in the 1994 Federation negotiations and at Dayton) and failure (at Rambouillet in 1999). As shorthand, I borrow from the negotiation literature the notion of "settlement" to describe a forward-looking agreement that persuades combatants to participate in a shared political framework for the foreseeable future. A "cease-fire" is a backward-looking agreement that aims primarily to end armed conflict without bringing combatants into a shared political framework.

Getting to Dayton By 1995 the pattern of international negotiations in Bosnia was well known. 2 Slovenia's brief war of independence in June 1991 ended too quickly and successfully for much international involvement to have taken place. Hard street-to-street fighting, atrocities, and the ethnic partition of territory along the frontlines defined the conflict. The brutal war between Croatia and Yugoslavia, however, set the pattern. The fighting in Bosnia began in the spring of 1992. Over the course of the conflict three separate fighting forces emerged: the Bosnian Serbs, the Muslim-led Bosniacs, and the Bosnian Croats. The Serbs and Croats were supported, politically and materially, by Belgrade and Zagreb, respectively. The Bosniacs, outgunned and without a powerful friend nearby, suffered grievously. The war wrecked Bosnia. Approximately 200,000 civilians died, in addition to tens of thousands of soldiers. More than half the country's people were forced to move from their prewar homes, many as part of deliberate policy. Over a quarter of the population fled the country. Hard partitions were drawn between Serb-dominated Bosnia, Croat-controlled Herzegovina, and the Bosnian Republic, which controlled only a landlocked rump of the state and a few isolated enclaves

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that were surrounded by hostile or untrustworthy forces. Starting late in 1992 soldiers of the United Nations (UN) Protection Force (UNPROFOR) bravely tried to protect the most vulnerable people and to facilitate deliveries of humanitarian assistance. Undermanned, burdened by more and more assignments from the UN Security Council, encumbered by requirements for neutrality in the face of evil, and without support on the ground by the United States (U.S.), UNPROFOR could never have stopped Bosnia's spiral. That it saved lives at all is testimony to the courage and resourcefulness of the people who served in it, many of whom also lost their lives. Throughout this period international negotiations continued. In various permutations European and United Nations envoys sought a solution that roughly reflected parties' gains in the war, with variations in how large and contiguous the ethnically pure areas would be. This may have stemmed from a sense of realism (a belief that partition would make a settlement durable) as well as from a sense of resignation (that the international community was unwilling to challenge facts on the ground). These negotiations had, objectively, very little chance of success, regardless of who mediated discussions among the parties. The parties were not ready to commit to peace. The Serbs, who had won the most territory from 1991 to 1992, were solidifying their control of territory with a secondary wave of ethnic cleansing, and they engaged in political jockeying as Milosevic consolidated power in Belgrade, even as the Bosnian Serbs pursued their own political agenda. The Croats and the Bosniacs, who had lost territory, prepared for the next round of fighting where they felt that better-trained and equipped militaries could make up ground lost in the war's earlier days. But the early negotiations went forward in an atmosphere of unreality. The parties knew that they would not succeed and would not let them succeed. The negotiations became platforms for public-relations gestures by the parties and sops to the conscience of the international community. The talks allowed political leaders to posture while preparing to fight further, and impartial international peacekeepers let the sides finish in peace the ethnic cleansing they had not completed in battle. It is remarkable that the early negotiations accomplished as much as they did. International mediators devoted considerable effort-with some success-to improving the humanitarian situation in Bosnia. And early-settlement proposals included many elements of a call for justice. They required that people be able to return to their prewar homes or receive compensation. They established commitments to the highest standards of human rights, in place perhaps of any intention to provide even basic rights. And they sought democratic government, tempered by assurances of special roles for ethnic groups in decision making. The prospects for talks began to change only with several steps by new mediators, mostly American. These steps shaped the newly fluid situation on the ground and led to the Dayton Agreement.

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One Voice In May 1994 the international powers announced that the so-called Contact Group of France, Germany, Russia, the United Kingdom, and the United States (joined later by Italy and representatives of the European Council and the European Commission) would coordinate diplomatic initiatives in the Balkans. This reduced outsiders' temptation to cut side deals with the parties, thus restricting the warring parties' abilities to rely on special pleading with a particular outside power. This Contact Group was in stark contrast to the Hobbesian world that preceded it. Until May 1994 the peace envoys had been distinguished individuals representing the European Union (EU) and the United Nations in a structure that undercut them. It was extremely difficult for those bodies to provide coherent instruction and impossible for them to back their instructions with sufficient leverage to deliver a peace. Members of those bodies carried on diplomacy parallel to the official talks, letting the parties know how far they could press disagreements and often encouraging obstreperous behavior. For a time it seemed that every multilateral institution and interested country had to present its own approach or mission and have its own envoy to go with it. This was a time of envoy envy-everyone must have one, and the parties could pick and choose. Britain, France, Germany, and Russia were seen by the parties themselves-although perhaps unfairly so-as picking favorites among the warring parties; a general "Europhoria" encouraged the United States to remain out of early talks; the first Bush administration initially wrote itself out of negotiations, then sought a late entry during a faltering presidential campaign, a fact that left it with less and less influence. In 1993 the Clinton administration, riven by disagreements among Democrats newly returning to the executive branch, brought little clarity. In such an environment, there was almost no common ground that international mediators might have seized. It is unsurprising that the mediators, bruised by the failure of their political leaders, have expressed themselves with a bitterness that is predictable and awful. 3 Early in 1994 the Clinton administration became more active, with Charles Redman, its special envoy, conducting talks that ended large-scale fighting between Croats and Bosniacs (a success discussed in more detail below). Soon afterwards, however, the United States drew back because it was unwilling to commit itself to the risks and resources needed to end the fighting. This left European and UN envoys to work with all parties, while the United States began to build on the possibility of a peace among regional hegemons, with special focus on the Croatian president, Franjo Tudjman, and the Serbian president, Slobodan Milosevic, in Belgrade. This mirrored what had happened before: rather than positioning themselves against other parties, the parties could position themselves against the various envoys. The Bosnian Serbs entertained high-level attention as well as the belief that no peace would be made except on their terms. Among other parties, Milosevic

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in particular haggled at length, squeezing more extravagant promises of sanctions relief from one mediator while using talks with another negotiator to whittle down the demands to be made on him. 4 Sadly, the sum of what he got from this came nowhere near the cost to him, his country, and others of missing the opportunity to make peace when the chance first came. But he could not resist playing the game. The summer of 1995 changed the situation. The war in Bosnia had become both horrific and fluid. Three and a half years of desultory peace talks had crumbled into wreckage, leaving UN and EU envoys with limited convening and suasory power. The myth of Serb military invincibility shook on the day in May 1995 when Croatian special forces took back parts of western Slavonia and collapsed on the August morning that the same troops seized the Krajina. A much-improved Bosnian military launched its own offensive, and territory began to change hands quickly and without a clear result in sight. International peacekeeping missions had, with great courage, shown that they could help meet humanitarian needs but could not keep the peace. And under UN trade sanctions, the regional economy had been reduced to whatever smugglers were able to carry. The fundamentals in Bosnia were not so much impasse as collapse of all the structures that might have shaped a mutual stalemate. In July 1995 Bosnian Serb forces captured the Bosniac-held enclave of Srebrenica and murdered approximately 7,000 Muslim men. International anger and shame was intense. The North Atlantic Treaty Organization (NATO) threatened airstrikes throughout Bosnia, and the UN withdrew its veto over the use of air power. Britain and France began to deploy a NATO-commanded ground force around Sarajevo. As the prospect of action by NATO became more real, American prominence on the diplomatic front grew. By August it became clear to all concerned that the invigorated U.S. diplomatic team led by Richard Holbrooke would be the one to make a deal. Moreover, what Milosevic wanted most-sanctions relief-could be granted only by the UN Security Council, where the United States would play a critical role, not by a negotiator representing the Secretary-General. European and UN mediators continued their work, but no longer could the parties play off mediators against one another. The new U.S. role was critical. The members of the Contact Group could not have agreed on a coherent mandate for negotiators. They continued to hold the diverse views that had bedeviled previous international mediators. In neither Bosnia nor later Kosovo did the Contact Group serve as a vehicle for developing new initiatives and bypassing old disagreements. This informal multilateral forum could not make policy, and efforts to use it that way spoke to the lack of ideas or will on the part of the participants. The Contact Group was, however, still extremely valuable. It kept disagreements among the outside powers in house, reducing the ability of the parties to manipulate those disagreements. It ratified proposals coming from negotiators in the field, giving them leverage that would have been lacking to negotiators having

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to overcome a discordant international community. At the same time and more importantly, the Contact Group ensured that the United States would remain actively involved. In short, the Contact Group kept the parties out and the United States in. By the early fall of 1995, then, the international community had a unified voice, and it spoke with an American accent.

From Top to Bottom The Contact Group sought agreement among the international community first, then the agreement of the parties. This contrasted with the choice made by earlier negotiators. Lacking any hope of an international position that would stay unified under the glare of publicity and the stress of special pleading, the international negotiators structured their talks to have agreement emerge from the warring parties themselves. This approach had offered negotiators influence on humanitarian issues and may therefore have saved lives. It also offered hope that the parties might agree to a settlement that could, in turn, be presented to the international community as an arrangement that it must accept; no state could be expected to insist on provisions more far-reaching than the parties themselves. But this bottom-up approach had little chance of working. The warring parties knew that they had veto power over agreements. They used the uncertainty of the outside powers to increase their own room for maneuver. The result was tragic but predictable. Whenever the parties suggested that they might cede to a point, their respective associates in the international community refused the agreement.

Too Many Voices-and the Role of Justice Throughout the first years of negotiations there were simply too many partiesCroatians, Bosnian Croats, Yugoslavs (led by the president of Serbia, Slobodan Milosevic), Bosnian Serbs, and Bosniacs (themselves a collection of different ethnicities and interest groups). Occasionally, Croatian Serbs would play an autonomous role, and sometimes further divisions within the parties would complicate matters even more (executive/legislative splits or subethnic divisions as between Bosnian Croats from the Posavina and Herzegovina). Any grouping with colorable authority claimed an autonomous voice and a veto. The talks were a boardinghouse supper table, not a negotiating venue. All these groups had a role in the conflict, thus could be expected to demand a seat at the table; each wanted the international stature that flowed from participating in a negotiation. In this environment, the international diplomats charged with conducting negotiations had a nearly impossible assignment. Few international officials seemed interested in reducing participation. Under these conditions, no party felt itself accountable for failure. Maximum demands were insisted upon, and the acceptance or rejection of any particular proposal turned more on expectations of what other parties would do than on

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any real sense that anyone would be held to account. Cynical backward-looking manipulation of the process predominated. At one turn, Bosnia's governmental negotiators nodded "yes" to a proposal on the express ground that they knew the Serbs would reject it. At another, a far-reaching, last-ditch peace proposal was rejected by Bosnia's Serbs even though they were assured by their protectors in Belgrade that they would never have to comply with it. 5 On still another occasion, the Bosnian Serbs conditioned their acceptance on conditions that reduced "yes" to "no." As talks continued, the war worsened and a settlement became harder to negotiate. By late 1993 fighting between Croats and Bosniacs in central and western Bosnia rivaled in bitterness the awful ethnic cleansing by Serbs. The international community found its efforts diffused rather than focused, and the Croats of Zagreb and Mostar joined Serbs as candidates for opprobrium. It was becoming more difficult to find elements of a settlement that would promote justice when the dominant players-who would certainly demand benefits at the negotiating table-were daily establishing the injustice of their methods and thus pushing negotiations into a backward-looking mode. Here the negotiators might have tried some prudent pruning so that they could concentrate pressure and persuasion on the decision makers who could deliver an agreement. By late in 1993, if not before, it was evident that there were three centers of power among the warring parties-in Zagreb for all the Croat groups, in Belgrade for all the Serbs, and in Sarajevo among the Bosniacs. As a simple matter of power politics, then, talks could be reduced to a few parties, who would receive benefits only by bringing their followers into line. The idea had some early roots. Soon after the Yugoslav wars broke out there had been arguments for an international approach to prosecuting those responsible for atrocities. These calls were ignored initially but by late in 1992 were gaining some currency. The UN Security Council had called for reporting on criminal acts and had established its own investigative commission modeled on the postWorld War II commission that helped prepare the Nuremberg trials. Some of the most obstructionist political figures had been implicated in charges of atrocities. By December 1992 there was acceptance, at least in the United States, that some parties in talks had participated in atrocities and therefore might be unacceptable partners in negotiation. Such an approach might have excluded them from talks or at least created leverage that negotiators might have used to reduce the influence of these figures or their incentive to obstruct peace. There was no apparent effort to integrate this into peace talks, however. An American Role

Once the United States took a more active role in the diplomacy, one of its major objectives-largely unacknowledged even by some participants-was to reduce the number of voices at the table. The first step was the conclusion of an

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arrangement between Bosnia's Croats and the Bosniacs, with full support from Croatia. This Washington Agreement, the first forward-looking element in an agreement, established a new constitution for non-Serb parts of Bosnia, which were named the Federation of Bosnia and Herzegovina. 6 The agreement comprised three sets of material: the constitution itself, along with ancillary agreements governing relations with Croatia; a set of principles agreed in the opening days of negotiations; and a signing statement by the leaders of the parties. As is often the case, the Washington Agreement's most important aspect was the least noticed publicly at the time. In the signing statement, the leaders of the parties agreed to function as a single delegation at all peace negotiations. This simple proposition, backed by Franjo Tudjman, then president of Croatia, accomplished what months of negotiations had not yet done-reduced the number of people demanding seats at the table; rather than three contentious voices, only one position would be adopted. The conduct of the Federation talks foreshadowed the process of Dayton. The parties were brought to a single site (first Washington, then the U.S. embassy at Vienna). Negotiations were conducted by international mediators on the basis of a text approved in broad terms by the Contact Group. The two sides rarely if ever met face-to-face. The Croat delegation was directly controlled by a single decision maker, in this case the president of Croatia, Franjo Tudjman. Tudjman accepted this role for reasons that foreshadow the strategy for closing the Dayton negotiations. First, he sought to avoid immediate economic and political sanctions, which the United States and international community were then contemplating. Second, he foresaw a military solution to Serb occupation of Croatian territory. His military buildup, tested already in a small offensive inside Croatia, would put him in a position to regain much of the Croatian territory occupied by Serbs. The primary obstacle was the presence of UN forces and the prospect of additional international criticism if he acted. He needed international goodwill (and perhaps the removal of UN troops, a step he attempted in early 1995). Finally, a political settlement would leave open the option of obtaining Tudjman's goals in Bosnia politically rather than militarily. Croatian negotiators and the Bosnian Croats worked from a negotiating strategy that is best explained as aimed at increasing the control of Croat nationalists over areas of Bosnia with the likely goal of removing those areas from Bosnia. In negotiations, Croatian negotiators tested all political arrangements to see that Tudjman's affiliated party would retain control over resources and any Croat representatives in government. They insisted on radical decentralization of power, so that Croat-only districts would be self-governing and self-financing; special relations between Bosnian Croats and Croatia; and an absolute veto for Bosnia's Croats on any legislation contemplated by the Federation. (Only some sleight of hand by the international mediators saved the Federation executive from the same blocking mechanism.)

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The Federation: Some Justice The Federation Agreement contains some provisions that reflect an interest in pursuing forward-looking justice. It was an early effort to put an American stamp on the negotiations, however, and the effort was halting and incomplete. For example, the Federation Agreement includes extensive human-rights provisions along with mechanisms for monitoring and enforcing human rights drawn from the arrangements negotiated in earlier talks. In what became a routine occurrence, the parties were anxious to accept any and all human-rights requirements. The international lawyers responsible for producing the Agreement literally had difficulty writing human-rights provisions quickly enough for the parties to accept them. The Agreement also provided that individuals could return to their prewar homes, a core Bosniac objective. 7 At the same time, the Federation Agreement is largely silent on the backwardlooking justice element of war crimes. It contains only a single reference barring individuals under suspicion of war crimes from public office. This provision protects neither individuals' due process rights (suspected by whom? on what evidence? in what proceedings?) nor the interest of the War Crimes Tribunal (the Tribunal) in securing compliance with its orders. This might have been an opportunity to invigorate international attention to the Tribunal, but the international mediators did not seize it. At the time, the Tribunal was only ten months old and was not fully functional. It lacked a prosecutor, had a staff of one in the prosecutor's office, and the judges had held but a single session before returning to their home countries. Moreover, the participants in the Federation were coming together in a military alliance, with the intention of fighting more effectively against their shared Serb enemy. This limited backward-looking appeals to justice. After the conclusion of the Federation Agreement, there still were too many voices. In particular, the Serbs still had two distinct voices in negotiations, one from Belgrade and one from the Bosnian Serb capital of Pale. In June 1994 the Contact Group presented a plan and ultimatum to the Bosnian parties. In a move fueled by pure ego, Bosnian Serb leader, Radovan Karadzic, rejected a peace plan even though it was also unacceptable to the Bosniacs. This violated a cardinal practice of the parties. Perhaps driven by a desire to position himself against rivals for Serb leadership, he accepted the blame for the failure of the 1994 Contact Group peace initiative, isolated himself from his backers in Belgrade, and made the Bosnian Serbs responsible for the continuation of sanctions against Yugoslavia. In August 1994 Milosevic announced a break with the Bosnian Serbs and an economic embargo against them. The United States intensified discussions with Milosevic. This opened the possibility of a simplified negotiation among Tudjman, Milosevic, and Alija Izetbegovic, president of the Bosnian Republic, based in Sarajevo. This formulation might have worked because each had interests sufficiently diverse to be able to make compromises. Even anticipated military

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victories might have been foresworn with territorial compromises then in reach. In fact, this was what happened at Dayton. By late summer 1994, then, the template for successful talks had been tested (isolation, proximity talks directed by the Contact Group under U.S. auspices). The right players had been identified, and the numbers were manageable. It took until the summer of 1995 for the international community to push for agreement. Leverage: Money, Guns, and Indictments By early summer 1994 there were signs that Slobodan Milosevic, having consolidated his power in Belgrade, might want peace in Bosnia. Trade sanctions had disrupted the Serbian economy and, in a more far-reaching consequence, distorted it so that smugglers and criminals were now the largest elements in the economy. Nevertheless, European and special envoys such as former U.S. president Jimmy Carter, with Washington's acquiescence, still engaged the Bosnian Serbs directly late into 1995. Money The possibilities for agreement increased during the summer of 1995. The Serbian economy was near to collapse. Trade sanctions imposed by the UN Security Council cut off Serbia's traditional partners. Yugoslavia's inability toreceive financing and advice from the International Monetary Fund and World Bank made it almost impossible for it to begin the transition from socialism and postsocialist cronyism. Milosevic sought the most sanctions relief he could get for the least action on his part, as soon as possible. Sanctions were a point of major contention within the international community. An EU plan, developed by early August 1995, offered early and substantial relief. A rival U.S. plan, developed in Washington but not formally presented, backloaded sanctions relief and made it available only when Milosevic completed a number of actions that would have been difficult for him to take. After several months of haggling over hypothetical stages of sanctions relief, Milosevic proposed that sanctions be lifted, or at least suspended, if he showed up to proximity peace talks at Dayton. This prompted a deep disagreement among international mediators. Ultimately, the United States won Contact Group agreement that UN trade sanctions on Yugoslavia would be suspended only when Milosevic agreed to a sustainable peace deal. Sanctions would be lifted permanently only when prescribed tasksmostly having to do with military aspects of a peace agreement-were completed. Guns In the summer of 1995 the military situation in Bosnia unlocked. In late July Croatia opened its second offensive against Serb-held Croatian territory. Bosniac forces also mounted an offensive. Within weeks Croatian and Bosniac military forces overran Serb forces in Bosnia. The Federation found its territory expanded by half in a few weeks, bringing it beyond the 51 percent of territory that international peace plans demanded. As that happened, international representatives called for the end of the offensive. The Croatians and Bosniacs agreed,

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and the final battle-lines became the ground truth when the Dayton conference opened later that fall. The decision to stop the offensive was the most controversial of the period leading to Dayton. It is worth emphasizing because it goes to the heart of the issues that negotiators faced. Some believe that the Serbs would have lost and should have been defeated decisively. Holbrooke and others have explained a rationale for stopping the offensive: it was faltering, the Croatians and Bosniacs were starting to fight one another, and a successful offensive might produce several hundred thousand Serb refugees, destabilizing the region and risking Yugoslav military intervention. An underlying problem for negotiators was that a continued offensive would increase the leverage of Croatian leaders, whose military was doing most of the fighting, at the expense of Bosniac leaders, whose army was lightly regarded. Indeed, as the offensive continued, Croatian forces increasingly turned toward lands President Tudjman thought to be traditionally Croatian and away from the immediate military objectives most important to the Bosnians. 8 For the American negotiators, the decision to end offensives was important for another reason: their own credibility. In a whirlwind of travel in September 1995, different members of the American negotiating team met with Croats, Bosniacs, and Serbs in order to win agreement to end the fighting. The negotiators coordinated with the UN and with NATO. After years of chasing events, international mediators were backed by effective military force, and they were intent on showing the parties that they would bring it to bear to change the parties' own plans for using force. Once the parties knew that the mediators could deliver this kind of result, the stage was set to deliver on other issues. 9 Indictments In July 1995 key leaders of the Bosnian Serbs, including Radovan Karadzic and General Ratko Mladic, were indicted by the International Tribunal for the Former Yugoslavia. In August 1995 Ambassador Holbrooke announced that he would not negotiate with the two fugitives. This was a pivotal moment. For several years the argument had been advanced that the backward-lookingjustice of the Tribunal would impede negotiations. Others argued that the pursuit of justice could enhance peace negotiations. A common denominator had been arrived at, in fact, around the proposition that it made sense to develop the Tribunal as a mechanism. For some, the principle of justice warranted building the Tribunal. For others, it was thought that the Tribunal might do some good, particularly as the international community did little else. And for still others, if justice were going to be traded away in a peace agreement, negotiators would get more if the Tribunal had established itself as a real institution. In the aftermath of Srebrenica it had become clear that the Bosnian Serbs would obstruct any durable peace deal and equally clear that no international power could or should rely upon their good faith to negotiate and implement an arrangement. Before the indictment, negotiators debated the merits of engaging them. After the indictment-and with Milosevic waiting in the wings to assume

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full responsibility-it had become possible to sideline the two obstructionists. Within days of Holbrooke's announcement, Milosevic announced that he would negotiate on behalf of the Bosnian Serbs; and Milosevic needed an agreement to remove trade sanctions. In sum, the parties and international mediators came together at Dayton for a range of traditional reasons rooted in power politics-dramatic shifts in military success; the punishing impact of trade sanctions; the collapse of the UN mission in Bosnia; and struggles for political primacy within NATO, between Croatia and Yugoslavia, and between the Serbs of Bosnia and Yugoslavia. 10 But also important were decisions by the mediators to manipulate those factors in order to determine which parties would participate; what issues would be on the agenda; and how much prestige the international mediators themselves would have in the talks.

Dayton The Yugoslav delegation arrived at Dayton with a pressing need for relief because their economy was struggling. They had the most to offer the Bosniacs because they controlled key territory, and they had a streamlined decision-making process, with Milosevic in control of the delegation. When Milosevic decided on a position, it remained, even when the other sides did not leap to agree. The Bosniacs were internally divided and much less able to sustain concessions. What the Bosniacs most needed was in the hands of Serbs, meaning that the Croats could not be the foundation of a deal. So the strategy for closing would depend on extracting concessions from the Yugoslavs first. The talks at Dayton were designed to bring the Yugoslav delegation to offer something just sweet enough that the other two warring parties would say "yes." This strategy was not expressed, and the mediators may have improvised it. But it explains the choices made in organizing the talks, as the mediators made choices with little time, too little sleep, and incomplete information. Ultimately, Dayton became a study in creating simplicity.

The Role of the Leaders The international mediators called upon Tudjman, Izetbegovic, and Milosevic to deliver a deal. The mediators dealt only with those leaders or individuals authorized by them. Bosnian Croats played little role in negotiations, and Bosnian Serbs were ignored. The first ten days or more at Dayton (of twenty-one in total) were taken up with issues of great individual interest to the respective leaders. Tudjman wanted an agreement for the return of Eastern Slavonia from Serb control; Izetbegovic wanted a more effective Federation, including agreement by Tudjman to eliminate Croat-controlled parallel institutions; and Milosevic wanted a clear understanding of how quickly economic sanctions would be lifted. 11 By reaching

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agreements on each of these matters, the mediators removed issues that might have complicated negotiations. More to the point, they reinforced the leaders' control of their delegations by making clear that they could get what they needed in negotiations. This created some sense among the leaders that they must in turn deliver in order to lock in their gains. It also enhanced the overall procedural validity of the leader-centered approach the mediators were taking. This had an unfortunate implication in the years immediately following Dayton. Throughout 1996, in particular, the international community looked to Milosevic and Tudjman to facilitate implementation. This reduced implementation to what those two leaders would tolerate and made them guarantors of what would happen. Each used his international prominence to shore up his domestic position against growing democratic movements. It was not until the spring of 1997 that the United States made it clear that both Tudjman and Milosevic would be judged primarily by their domestic records; the United States began a concerted effort to implement the Dayton Agreement in order to avoid a vacuum as representatives of the two leaders were pushed to the margins. Bosnia and the Region The focus on the leaders created another asymmetry. Tudjman and Milosevic were not much interested in the governing arrangements of Bosnia beyond some restrictions on the central government. To them, these issues could be settled in many ways once they were confident that they could deliver their proxies to the table. For Tudjman, it was vital to retain Croat control of lands he regarded as Croat; Croat negotiators accordingly watched the territorial allocations between Serb and Federation lands and insisted on local control of areas with Croat majorities. As long as Milosevic could assure Bosnian Serbs that they would control what remained of their territory (especially the valuable resources within it), other issues could not stop him from concluding an agreement. As a result, he made some of the most far-reaching concessions of the talks, especially on territorial issues. This had a series of implications. Bosnian Croats and Bosnian Serbs resisted Dayton from the start because they felt it included concessions on their vital interests. The leader of the Bosnian Croat delegation resigned and refused to initial the documents; Bosnian Serb leaders became drunk or conveniently ill and did not initial at Dayton. Second, the agreement placed the Bosniac delegation in opposition to the international mediators. The Bosniacs were after all negotiating their own constitutional arrangements. The power of localities was a particular sticking point because Bosniacs believed correctly that Croat and Serb separatists would use local jurisdiction not simply as a shield against Bosnian governments but as a sword to divide the country. Other issues, such as the respective authority of the prime minister versus a collective presidency, were of great importance to how the country would actually work. But Milosevic and Tudjman had little patience for these issues, and with two of the three leaders largely satisfied, Bosniacs were

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put in the position of resisting international urgings to conclude negotiations. Entering the last few days of Dayton, then, a pattern had emerged-Tudjman and Milosevic were pressing for a deal, while uncertainty among the Bosniacs made them the focus of international pressure. Settlement The parties had agreed to a temporary cease-fire before Dayton, and purely military arrangements could have preserved that cease-fire for a longer term. The most difficult issues, especially for Bosniac negotiators, were the creation of a shared political framework in which the parties would create a joint future within a single state. In broad terms, this effort was not controversial. The Dayton Agreement provided for a new, democratic government throughout Bosnia; established a number of mechanisms for implementing human rights; and created an intrusive, powerful international presence able to adjust implementation to changing circumstances. Particular provisions, however, touched on the heart of the tensions underlying the conflict. The Agreement confirmed that Bosnia was a single state and did not provide for secession: this rebutted Serb and Croat separatist claims. It obliged all parties to allow persons to return to and vote at their prewar residences, a direct refutation of ethnic cleansing, in principle if not in fact. And it required full cooperation with the International Tribunal, an acknowledgement that justice for individuals would be part of a peace for the society as a whole. These provisions and others were included for several reasons. The forwardlooking goal, rarely stated at the time, of Western involvement in the Balkans was to extend the broad European neighborhood to these states which, for hundreds of years, had been divided from the European mainstream by empire and socialism. This could be possible only if the result of the mediators' work was a framework for a society that followed European and international norms on democracy, economics, and human rights. There were, as well, more human motivations. After the brutality of Bosnia's war, international mediators themselves believed that a peace without settlement was unworthy. The extensive involvement of the international community, and its willingness to commit considerable resources to implementation, brought the credibility of Western societies into play; they could not commit themselves to a mere cease-fire with no prospect of Bosnia becoming self-sustaining. Most importantly, the Bosniac delegation headed by President Izetbegovic made it clear that there could be no agreement without the inclusion of those issues. This illustrates a basic point. Although this chapter focuses on what international mediators can do, it is the parties who fight and live with the peace made by the mediators; they bear the risks and create the opportunities that mediators can use. Unfortunately, the Bosniacs' insistence on settlement provisions again put them in the position of being last to the finish line and thereby bringing international attention to bear on them.

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Justice

Milosevic balked at some references to the Tribunal, and the discussions illustrate the different ways in which realism and justice play off one another. The initial drafts of the Agreement, prepared by the Contact Group, required cooperation with the Tribunal and forbade indicted persons from holding public office in Bosnia. (This latter prohibition was softened to apply only to indicted persons who fled arrest.) Late in the negotiations, it was left to a Contact Group lawyer to explain the Tribunal provisions to Milosevic. The Tribunal provisions excluded fugitives like Karadzic from political life, it was explained, and so accomplished several goals shared by all delegations, including Milosevic's own. His response showed that he understood the realistic use of the Tribunal. This was the problem, he explained. "Karadzic is my enemy number one," he said. "If I have to rely on this court to defeat him, I will look weak. It is much better for him to be defeated in elections." 12 Ultimately, Secretary of State Warren Christopher, personally negotiated the article that appears (with very minor changes) in the framework to the Dayton Agreement. It does not mention the Tribunal by name but requires cooperation with bodies "pursuant to the parties' obligations to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law." This provision, coupled with a ban on fugitives from the Tribunal remaining in public life, became a key means for undermining nationalists among Bosnia's Croats and Serbs. Dayton's Endgame

The days that became Dayton's finale are full of failed efforts to bring agreement, with Croats then Bosniacs refusing to make and hold to concessions. In retrospect, however, the strategy for closing the negotiation held-get one side to concede, then bring the other side to say "yes." Milosevic made a final concession and held it through wracking days of failure, even walking alone in full view of all delegations to the American building after the last moment. This choreography was a clever and deliberately melodramatic gesture by Milosevic, who at all other times used the phone or a messenger to contact Americans. Yet this bit of theater reflects the basic structure of Dayton's endgame. The Yugoslav delegation's concessions, combined with Croat satisfaction over the few issues of concern to the head of their delegation, brought international attention on to the Bosniacs. The point was to have as few parts moving as possible so that maximum persuasive power could be brought to bear on the sticking points. The approach very nearly failed. On the final day all attention focused on a single issue-the status of a small strip of territory along Bosnia's border with Croatia. It had been seized with great brutality by Serbs in the early days of the war, and both Croats and Bosniacs had been displaced violently from it. The

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corridor was, however, the lifeline between eastern and western segments of the Serb territory. This strip of land brought together Serb and Croat concerns over territory and Bosniac (along with Croat) arguments for justice. Ultimately, the only answer acceptable at the end was to defer the question of the strip's status to a later decision, to be reached by arbitration. Much of Dayton was to prove just as open-ended.

After Dayton In a significant respect Dayton failed to achieve a settlement. Three essentially nationalist parties were the only Bosnians represented in the talks. Tudjman and Milosevic were uninterested in provisions that would challenge their proxies' control of resources. In the months after Dayton, Bosnia's nationalist parties seized control of its government, resources, and media. The Dayton Agreement included forward-looking provisions for democracy and individual rights. The machinery of government, however, made it hard to root out nationalists. As in the case of the Federation negotiations, the three nationalist party representatives scrutinized political arrangements very carefully to protect themselves. For example, until late in the negotiations, the Dayton Agreement provided for a simple, unicameral legislature with some ethnic voting provisions. Croat and Serb negotiators finally balked, insisting on a second house (the "House of Peoples"), which would embody Bosnia's division among three groups and, more practically, would be selected by a means susceptible to control by the nationalist parties. It was in fact the House of the HDZ (Croat), SDS (Serb), and SDA (Bosniac) Parties. Fueled by this success, Croat representatives argued in the closing days of the talks that ethnic caucuses controlled by the nationalist parties should select members of the presidency. The international mediators-backed by some in the Bosniac delegation-refused and insisted on direct election, admittedly among candidates identified by ethnicity. The result of all this jockeying was a governing arrangement with ethnic allocations of seats, ethnic vetoes on most decisions, and ethnic caucuses with special roles in the selection of officials. More damaging, the parties did not include in the negotiations issues that could have threatened their control of their respective areas of influence. Thus, Dayton is nearly silent on questions of control of government employment, the establishment of a private sector, and control of independent media, even though these issues were central to Bosnia's emergence from its socialist past. They would define the nature of Bosnia's settlement, even after Dayton created a durable cease-fire. In addition, international mediators did not agree on how hard to press the parties. There was very little time available, and effort properly focused both on such backward-looking issues as how to stop the fighting and on forward-looking

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provisions as putting in place governmental structures that might grow to address the other remaining issues. Some international mediators did not want to use international pressure to address these issues. In the final analysis, the international community was willing to risk lives to end fighting but not to install durable political regimes. With democratic structures blocked, the full implementation of the Dayton Agreement turned on two other devices: the international implementation mechanism and the judiciary. Unfortunately, there was no agreement at Dayton on how these provisions should be used. What resulted was an ill-defined, hot-and-cold negotiation over the next several years on whether and how the promise of the Agreement's political provisions could be achieved. The international structure was complicated. A multinational Peace Implementation Council composed of interested states and donors was established to provide general political guidance to a High Representative, who was given ultimate authority over the civilian aspects of implementation. The commander of the international military force had ultimate authority over the military aspects of implementation. The authority of each was deliberately set up as a mirror. Identical authority, however, is not identical power. The military commander had in place more than thirty thousand troops with logistical ability to reach throughout the country. Under guidance from commanders in Italy and political leaders in Brussels, the military commander had a clear line of authority over all armed international personnel in the country. From the start, the international community did not agree on how strong the civilian implementation structure should be. The lead civilian official headed an ad hoc body with no formal attachment to a preexisting institution. This was in part a political judgment because it was feared that institutions such as the United Nations or the Organization for Security and Cooperation in Europe had been discredited in the eyes of Bosnians. It was also necessary because those organizations were tired of Bosnia and not interested in leading the civilian structure. The choice of an ad hoc structure left the High Representative, as the lead civilian official was called, without an existing structure. Months went by before a structure was in place, and even then it was largely limited to Sarajevo and a few field offices, with limited ability to reach into nationalist strongholds around Bosnia. The United Nations and World Bank played little role in the Dayton negotiations, and specialized agencies such as the UN High Commission for Refugees never agreed to subject themselves to the High Representative's authority. They were required only to attend meetings he called. The High Representative had no one with guns under his control. Even unarmed police monitors responsible for reforming Bosnia's own police reported to the head of the UN mission. For the High Representative to affect events on the ground in Bosnia he would have to negotiate with the nationalists in power or with the head of the NATO mission, and the commitment of the latter even to attend meetings with the High Representative was disputed.

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Whatever power the civilian structure had, the political will to do much against nationalists was highly limited. The civilian implementation structure reported to the Peace Implementation Council, which worked primarily through a steering board of major donors. Any political instruction had to be heavily negotiated before it was given, then negotiated again with the international organizations who would be responsible for helping implement it. The simplicity of the endgame at Dayton was replaced by a complex arena of multiple players. 13 This made it extraordinarily difficult to confront the nationalists remaining in power in Bosnia. The negotiation to repair the High Representative's office was lengthy and still contested. In 1997 Secretary of State Madeleine Albright made clear that the High Representative should be empowered fully. This was confirmed in December 1997 by the Peace Implementation Council in a decision that interpreted his Dayton authority as including wide-ranging powers, including those to impose and strike down laws and to remove officials obstructing the Dayton Agreement. 14 The political context was also simplified. An assertive American approach to implementation, interrupted by the Kosovo conflict, gave the High Representative political cover to move assertively. The decision not to pursue implementation with reference to Tudjman and Milosevic focused international attention on Bosnian actors. What followed was a slow campaign against nationalists. The first step was to direct attention to the obstructionists and to deploy all the tools available against them. In the summer of 1997 NATO forces for this first time arrested fugitives from the international tribunal. Some of those targeted for arrest led political obstruction of Dayton. In the fall of 1997 the High Representative used his authority to request that NATO seize control of Serb television which was fomenting violence. The Office of the High Representative then occupied the field of broadcast regulation; and it is seeking to provide high-quality, nondiscriminatory television. This simplification brought the lessons of Dayton's endgame into implementation-a streamlined international structure, clear political oversight, and international officials focusing on Bosnia's homegrown nationalists. Over the next years international officials used the shifting regional context to narrow their focus. Western diplomacy toward the Balkans came to be driven by a desire to see the region commit to integrating into Europe. Dayton was a hesitant first step in that direction, but the authoritarian regimes in Croatia and Yugoslavia made it unlikely that the region as a whole would turn toward Europe immediately. A democratic transition in Croatia in early 2000 removed a key prop for Bosnia's Croats, and the growing weakness and disarray of the Milosevic regime in Belgrade reduced its ability to interfere in Bosnia. These changes allowed international officials to focus on Bosnian nationalists. The most coordinated and meaningful campaign began in the late spring of 2000. American policy toward Bosnia, reinvigorated in the waning months of the Clinton administration, turned international attention to the structural factors underlying the nationalists' control. In particular, the international community began to follow the money. Without it, or control of the industries creating it, the

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nationalists found their power shrinking. In the fall of 2000, elections produced a nonnationalist government. Returns by Bosnians to their prewar homes reached record numbers, and other aspects of the Dayton settlement showed signs of taking place. 15 As the High Representative position was gaining authority, Bosnia's courts also began to take action. The Bosnian constitution, Annex 4 to the Agreement, created a powerful constitutional court with a mandate to ensure that actions by governmental officials, and the constitution itself, comported with international human-rights standards. The constitutional court includes international members but is not subject to political guidance through the international mechanisms. As such, it is an institution within Bosnian governance, funded under the Bosnian constitution. Moreover, it is leading a remarkable revolution in governance. In a series of cases brought by individuals or by political parties, the court is considering the ethnic provisions of the Dayton constitutions and the underlying constitutions of the Federation and Republika Srpska, Bosnia's two Entities. The court has begun to consider and strike down ethnically based provisions of the two Entity constitutions. It is now considering whether provisions of the central constitution are consistent with international human-rights standards. These decisions have the capacity to rewrite the cease-fire deal that emerged from Dayton and strike directly at the power of the nationalist parties. A question will be whether the parties will comply with the decisions. If they acquiesce, Bosnians will be better able to decide their future for themselves, without being dominated by those who purport to speak for each group. This "revolution by lawyer" is a limited process. The court is moving cautiously. Its opinions tend to undermine nationalist doctrines by extending them to absurd extremes (for example, by deciding that group preferences must be extended to all groups, making decision making even more awkward). A more direct route would be to declare these provisions inconsistent with European norms and strike them down. Until the political will to make these sweeping changes to Dayton exists, however, it may be prudent for the court to take a slow approach.

Conclusion The Dayton Agreement was intended to be a comprehensive, forward-looking settlement of the Bosnian war. It provided for a new, democratic system of government in Bosnia, proclaimed a set of victims' rights that addressed the injustices of the war (including the right to return and/or vote at prewar residences), and established an intrusive international presence able to adjust the Agreement's implementation to changing circumstances. At the same time the Dayton Agreement was, in effect, a backward-looking cease-fire among the three leading nationalist factions. The leaders of those groups accepted a peace only when they knew

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that they had translated their armed power into political authority and had become comfortable that they could preserve their control of Bosnia's power structures. The strategy for closure used at Dayton was responsible for both a successful cease-fire and a difficult implementation. The Dayton negotiators were able to end Bosnia's war by simplifying the endgame: reducing the negotiators to a few leaders, then trimming the process still further to whether the Bosniacs could accept Yugoslav offers. The conflict continued, however, because this narrowly focused endgame strategy deferred many questions essential to a settlement. This makes the Dayton Agreement, in the terms of conflict resolution literature, both a forward-looking effort to resolve the war's underlying tensions and a backwardlooking arrangement that retained and empowered persons who depended on exploiting those tensions. The international mediators may have made the only decision possible. "Yes" is a hard, almost impossible, word to get, and international mediators may notalways have the luxury of pushing for more than is possible. In this instance the Dayton Agreement made armed conflict unlikely and created the possibility that new domestic political forces might emerge. But the Dayton mediators did not negotiate a way to make that possibility real. The negotiators intentionally left ways for the Agreement to evolve, with a hand tipping the scales toward a settlement. Each step in this process was slow and uncertain, resting ultimately on strong political leadership from the international community and, more often, from Bosnians intent on rescuing their own country from the nationalists who brought it to destruction. The process lost opportunities but also protected the peace process from trying to do too much, too soon. Today the question is whether it can do enough. International attention has shifted from the Balkans, and nationalism has rebounded. Elections in 2002 gave nationalists an upper hand. Hard-line parties are claiming a new legitimacy and reaching out to the international community. A question now is whether the international community, particularly the new U.S. administration, will focus on the way that these nationalists block both a settlement of Bosnia's conflicts and the aspirations of Bosnia's people to join Europe. The nationalists have no option but to keep going.

Notes 1. The Dayton Agreement is The General Framework Agreement for Peace in Bosnia and Herzegovina, available at www.ohr.int, the Web site of the lead civilian official responsible for the Dayton Agreement. 2. The story of Yugoslavia's breakup has been documented extensively. Here, I will discuss only those aspects of the conflict that affected choices by international officials responsible for negotiating a peace agreement. Silber and Little (1996) remains the best overall account. Glenny ( 1996 and 1999) has particularly good insight into the preparations of the Serbs and Croats for conflict in what became the Bosnian war. 3. Page after page in the memoirs of Lord Owen (1995) reflect the depth of anger.

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4. Carl Bildt, Lord Owens's successor as European mediator, discusses his version of the negotiations through Dayton (Bildt 1998). Richard Holbrooke, the fourth active U.S. mediator and the person who led the negotiations at Dayton, has published his own account (Holbrooke 1997). 5. This moment, in the spring of 1993, was pivotal. To Lord Owen, the U.S. Government's refusal to back the Vance-Owen plan showed the then-new Clinton administration's shallow moralism. A deeper problem with the proposed agreement was the Serbs had no intention of complying with it, as Silber and Little record. After Vance-Owen, the EU-UN mediators developed several additional comprehensive agreements, but it was clear that the United States would have to be more active in order for an agreement to be durable. 6. The Washington Agreement, along with other documents from the Bosnian peace process, are available at the Web site of the international official created in the Dayton Agreement, the Office of the High Representative, http://www.ohr.int. 7. The provisions in the Washington Agreement drew heavily on the drafts produced by the EU-UN mediators. This reflected an interest in using what the parties had accepted, in part, in order to focus attention on subjects still under dispute. It also grew from the continued involvement in the talks of Paul Szasz, the recently retired deputy general counsel to the United Nations. An experienced diplomat, veteran of the EU-UN process, and great lawyer, Paul Szasz is an unsung hero of efforts to use justice in resolving conflicts. 8. The mediators feared that if the offensive continued, Croatian troops might occupy the northern parts of Bosnia that Tudjman had sought when he and Milosevic discussed a territorial division of the country in 1991. International mediators spent much effort getting Croatian authorities to tum over captured territory to Bosnian control, leading many mediators to suspect that Tudjman saw this offensive as his effort to create a "Greater Croatia." 9. Several months after the Dayton conference the negotiators were discussing what they had done. Reviewing the travel schedule for that month, they noticed that they had returned to the parties' capitals after the cease-fire had been agreed. "Why did we do that?" they asked. Finally, the answer came, "To get credit." 10. Holbrooke emphasizes the decisions of mediators in the field, where he led the American effort. Daalder, who worked on the staff of the National Security Council at the time, stresses the role of the National Security Adviser (see Daalder 2000). 11. UN trade sanctions on Yugoslavia were suspended soon after Dayton was signed, then lifted when key provisions were implemented. This was less than Milosevic might have gotten months earlier had he been more forthcoming. Even after Dayton he failed to win U.S. agreement that Yugoslavia could receive assistance from international financial institutions, such as the International Monetary Fund and World Bank, and take up membership in the United Nations. The United States held back its approval of these steps because Milosevic refused to cooperate fully with the war crimes tribunal and make progress toward human rights in Kosovo. These sanctions were lifted in October 2000, after Milosevic's regime was replaced by a democratically elected government. This last part of sanctions, called the "outer wall" to distinguish it from the "inner wall" of UN sanctions, is a case study in poor negotiating. It confused even international negotiators at the time. Milosevic made little or no acknowledgement that it even existed. At a lengthy dinner with American negotiators at the officers' club of Wright-Patterson Air Force Base one night, Milosevic was told about the outer wall and that it would remain in place even after UN trade sanctions were lifted. He paused for a moment, then returned

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immediately to his reminiscences of life in New York City. He could have pressed for its removal and might have won at least some concessions. Instead, he ignored it and resorted later to accusing American negotiators of bad faith. This colored his approach to diplomacy over Kosovo, when American negotiators (including some of the same diplomats) used the same approach as at Dayton, of finding Yugoslav concessions to lure a divided opposing party to agreement. 12. I was the lawyer. Milosevic also showed a realistic appreciation of elections. He concluded his arguments, several times, with the sentence, "I guarantee that he will lose." 13. Subsequent peace agreements have learned from Bosnia's example. Where there is a lead civilian authority, it has wide-ranging authority over international civilian agencies (as in Kosovo) and even military operations (as in East Timor). 14. The consolidation of power in the High Representative has gained steam. The High Representative now represents the EU, which has taken over functions of the now-ended UN mission in Bosnia. Reorganization in the High Representative's office has simplified his influence over other international agencies. 15. These are described by High Representative Wolfgang Petrisch, who served ably from 1999 until 2002. Letter from Wolfgang Petrisch, 24 May 2002 (copy on file with author).

Chapter 6

The Israeli-Palestinian Peace Process Vitaly V. Naumkin and Irina D. Zvyagelskaya

The Israeli-Palestinian negotiations, the agreements reached, and the specific aspects of their implementation, provide examples of successful decisions as well as failures responsible for seriously impeding the peace process. Such outcomes constrain the parties to build mutual trust and to develop a fresh strategy to settle the conflict. In this chapter we shall try to analyze the specificity of Israeli-Palestinian antagonisms, the factors that have contributed to the particular complexity of the negotiations, and the transformation of the conflict. We shall also try to look at why negotiations whose objective was to create a new arrangement to prevent the conflict from erupting again (that is, formal, forward-looking measures) have proved unable to curb subsequent outbreaks of violence. Our analysis does not go beyond the limits of the Oslo process. The appearance of the "road map" and attempts in 2003 to resume peace negotiations between the Palestinians and the Israelis have marked a new stage in the Middle East settlement negotiations, and may become the subject of specialized research.

The Specificity of the Palestinian Problem The Palestinian problem occupies a special place in the context of the Arab-Israeli conflict. In fact, the Israeli-Palestinian conflict, which has underlain Arab-Israeli antagonisms and remains an element of them, differs both systemically and structurally from the relations between Israel and the Arab states. It is not an interstate conflict. In addition to the generally accepted causes of the Arab-Israeli confrontation, it is characterized by a strongly expressed ethnoterritorial and ethnopolitical component. 113

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Works by many experts, such as Horowitz (1985), Gurr (1993), and the authors of a collective monograph edited by Naumkin (1994), to name but a few, are dedicated to investigating the specificity of interethnic conflicts. Their main conclusions can be reduced to the following point, namely, that ethnic conflict is often seen as intractable and enduring, one of the most difficult forms of conflict to manage and to resolve (Smith 1998). Although the Israeli-Palestinian conflict goes beyond the framework of interethnic differences, the complexity involved in trying to settle it is certainly determined by the involvement of ethnicity. The presence of an ethnic dimension results in the conflict being perceived by the parties as a conflict of both interests and values. The American expert in this field, John Burton, describes the importance of the concept of values as follows: "Values are those ideas, habits, customs, and beliefs that are characteristic of particular social communities. They are linguistic, religious, class, ethnic, or other features that lead to separate cultures and identity groups. Preservation of values is a reason for defensive and aggressive behaviors" (1990b, 37). While interests can be bargained over, values are extremely hard to reconcile. In the Israeli-Palestinian conflict, this means that the conflicting parties are not inclined to compromise on questions that, in their opinion, involve the problem of the survival and preservation of their peoples and their unique culture. The search for mutually acceptable compromises has been complicated by the fact that the form in which the national rights of the Palestinian people were elaborated had a certain set quality about it and, as the conflict evolved, came to exercise an ever-more rigid influence over the possible outcome of any settlement. The Palestinian people had never enjoyed their own statehood, yet they were legally and historically entitled to it by the decision of the General Assembly of the United Nations (UN) dated 29 November 1947 on the partition of Palestine. As the peace talks started between Israel and the Palestinians, that General Assembly decision could have become the guiding principle of the Palestinians, even though the final goals of the settlement had not been precisely formulated. The main objective of the Palestinian community was the satisfaction of the national rights of the Palestinian people through the acquisition of their own statehood; any other solution, such as autonomy, was only ever going to be an intermediate step toward that goal. Thus, the bargaining carried on by both sides over issues of borders and control over certain territory became an issue of paramount importance, for it concerned the problem of the viability of the new state (for the Palestinians) and the possibility of ensuring security under new geopolitical conditions (for Israel). These are the two defining elements of a forward-looking outcome in this case. Structurally, the Israeli-Palestinian conflict is asymmetrical. Participating in it are parties that cannot be compared in terms of power, influence, or mobilization capacities. On one side is the state of Israel which has been involved in the conflict since 1948. On the other side are the Palestinian people who have been

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represented by the Arab states and then by the legal Palestinian representatives: the Palestine Liberation Organization (PLO) and the leadership of the Palestinian National Authority (PNA). The asymmetrical nature of the conflict also manifests itself in the fact that both the regular army and irregular armed groups representing military wings of particular national movements and parties have been drawn into it. As a rule, irregular armed groups and units are much more irresponsible than their regular counterparts. Almost by definition, their means of influencing the situation militarily is more limited. Being deprived, for example, of military hardware and powerful weapons, they use terrorist methods as part of their arsenal. Palestinian organizations have notably resorted to such pressure. Moreover, the ultra-right-wing, armed Israeli settlers have frequently played a provocative role in the IsraeliPalestinian conflict. At the same time, the involvement of Israel's modern regular army, which even now is stationed in the Palestinian territories, results in overreaction, excessive deterrence measures, and unjustified loss of life. An important aspect of Israeli-Palestinian relations has been the transformation of the conflict itself. For negotiation in a modern format to become possible, the relations between Israel and the Palestinians had to reach an impasse in which continued occupation meant intolerable costs for Israel. Also required was the entry into the political arena of forces that would not only represent the Palestinians but also be able to guarantee that an agreement would ultimately be reached. There had to be changes also in the perceptions of direct actors as to how settlement of the conflict might be achieved, as well as changes in the regional and international context of the conflict.

The Transformation of the Conflict The transformation of the Israeli-Palestinian conflict, which evolved over many years, made it possible to start negotiations between the parties and to come to agreements based on forward-looking approaches. In the opinion of conflict researcher, Elise Boulding (1989, ix), "There are no unresolvable conflicts, only conflicts in which the parties stubbornly resist solutions .... Yet intractability itself is not intrinsic to a conflict situation. Conflicts can be seen as moving over time along a tractability continuum, evolving toward more or less tractability.... Social contexts change over time, and the nature of conflicts change as the contexts change." In the Israeli-Palestinian conflict the transformation has been proceeding in several directions that, taken together, have conditioned the format of the negotiations, their agenda, and the productivity of the decisions reached.

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The Transformation of the PLO's Approaches

The gradual emergence of the Palestinian liberation movement as an independent political force in the Middle East has been a major factor in the new power balance in the Israeli-Palestinian conflict. Although the PLO did not take part in the 1973 war, it gained a stronger position after the hostilities, inducing the Palestinian leadership to soften its maximalist stance. A new formula was proposed by the Palestine National Council (PNC) in June 1974 that provided for the establishment of the Palestinian National Authority "on every part of the Palestinian land that is liberated" (Gresh 1988; Bickerton and Klausner 1998). Even though the PNC maintained its emphasis on the necessity of armed struggle against Israel, the new formula was still an important step forward, given the history of nonrecognition by the PLO of Israel's right to exist. In fall 1974 the PLO received an official mandate as the "sole legal representative of the Palestinian people" at the summit in Rabat. Following this, the Palestinian issue came up for discussion by the UN for the first time since the adoption of the UN resolution on the partition of Palestine in 1947, not simply as a humanitarian refugee problem but as a political problem regarding national self-determination for the Palestinian people. On hearing the statement of Yasser Arafat, president of the PLO Executive Committee, the UN General Assembly adopted a resolution confirming the inalienable rights of the Palestinian people to self-determination, national independence, and sovereignty. Later, the PLO was granted observer status at the UN General Assembly, along with the right to participate in all discussions of the Middle East situation held under UN auspices (Reich 1999, 480). At the same time, the Israeli leaders continued to regard the PLO as a terrorist organization and therefore impossible to negotiate with. They believed that the political "progress" made in the PLO platform was aimed exclusively at influencing international public opinion, that the PLO had not changed its nature, and that its goal was still the destruction of Israel. During their talks with Egypt on the disengagement of troops in the Sinai Peninsula (1974-1975), the Israeli leaders, fearing that international pressure over the Palestinian question would intensify, managed to secure from Washington a commitment not to recognize the PLO and not to enter into negotiations with it as long as the PLO refused to declare, officially and unambiguously, that it recognized both the right of Israel to exist and UN Security Council Resolutions 242 and 338. That commitment by Washington was formalized in a special accompanying memorandum to the Second Sinai Agreement signed on 4 September 1975 (Quandt 1993). A further evolution in the political approach of the PLO became possible when it changed tactics and transferred the center of gravity of its activity to the West Bank and Gaza to demonstrate that there could be no solution to the Palestinian problem without PLO participation. December 1987 witnessed the start of the intifada in the occupied territories. This produced constant pressure on Israel, and

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the Israeli army was unable to cope with it. It was the intifada that laid to rest the "Jordanian option" for solving the problem-an option that the United States still tried to carry on into the mid-1990s-whereby representatives of the Palestinian population not associated with the PLO might be included in the Jordanian delegation. The growth of PLO influence over the Palestinian territories led King Hussein at the end of July 1988 to officially sever most Jordanian administrative and legal ties to the West Bank and to declare that "Jordan is not Palestine" (Reich 1999, 62). In those circumstances the PLO felt its hand strengthened, which paved the way for it to make political compromises that, earlier, would have appeared to be unacceptable unilateral concessions. In November 1988 the nineteenth session of the Palestine National Council in Algeria passed two texts that opened up new prospects of Palestinian participation in the settlement process: the Political Communique and the Declaration of Independence. These contained an official recognition of UN General Assembly Resolution No 181111 of 1947 on the creation of the Arab and the Jewish states in Palestine (i.e., the legitimacy of the creation of Israel) and of UN Security Council Resolutions 242 and 338 as an internationallegal basis for the settlement. (Palestinian-Israeli Peace Agreement: A Documentary Record 1994). The declaration of a new political initiative by the Palestinian leadership took place only two weeks after the Israeli elections, during which the manifestos of a number of leftist parties for the first time contained provisions on the recognition of the Palestinian right to self-determination and the necessity of negotiations with the PLO. The election, however, was won by a narrow margin by the rightwing Likud bloc, and although another government of national unity was formed, Likud this time played a leading role in it. Accordingly, the PLO initiatives were rejected, first by the Israeli prime minister, Yitzhak Shamir, and then by the Israeli cabinet, which condemned them as a propaganda device aimed at the disorientation of the international community and restated its view of the PLO as a terrorist organization (Shlaim 2000, 466). The United States, taking cognizance of the negative position of the Israeli leaders, found the formulation of the texts adopted by the nineteenth session of the PNC insufficiently precise and inconsistent, even though Arafat on 7 December 1988 had personally signed the declaration, having been handed the texts by Washington. In the declaration Arafat confirmed the obligations of the PLO executive committee as the provisional government of the state of Palestine to start negotiations with Israel within the framework of an international conference on the basis of UN Security Council Resolutions 242 and 338 and to live in peace with it; he also recognized Israel's right to a peaceful existence within secure and internationally recognized borders and condemned all forms of terrorism. Not only did the United States now refrain from entering into dialogue with the PLO, it also denied Arafat an entry visa, thereby disrupting his address to the UN General Assembly session in New York. In response, however, the UN member states by a majority vote adopted a decision to transfer the session to Geneva where

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on 13-14 December 1988 Arafat's address and press conference did take place. Here, he once again confirmed the Palestinian position of resolute renunciation of all forms of terrorism, recognition of Resolutions 242 and 338 as a basis for the negotiating process, and recognition of the right of all states party to the Middle East conflict, including both the state of Palestine and the state of Israel, to a peaceful and secure existence in accordance with UN resolutions (Shlaim 2000, 466). A few hours later the United States officially announced the start of dialogue with the PLO (Reich 1999, 622). For the PLO, the launching of dialogue with the United States meant a change in its status and the recognition of its legitimacy as the representative of the Palestinian people. Although it took more years of transformation of the conflict for the negotiations between Israel and the PLO to become a reality, the format of forward-looking negotiations had nevertheless begun to take shape by the end of the 1980s.

The Transformation of the Israeli Approaches Though the very essence of a Middle East settlement lay in the attainment of Palestinian national rights, it is common knowledge that, for a long time, the Israeli leaders did not believe that the central issue of a settlement was conflict with the Palestinian people. Until 1967 their approach boiled down to the problem of Palestinian refugees whose return to Israeli territory they strongly opposed; after 1967 their approach was dictated primarily by territorial concerns. Immediately after the Six-Day War no member of the Israeli establishment could answer the question as to what should be done with the conquests in the West Bank. The military tasks had been fulfilled, even overfulfilled, while the political problems had become more complicated. Gradually, territorial principles began to dominate Israeli political strategy. As Levi Eshkol put it, "The dowry pleases you but the bride does not" (cited in Shlaim 2000, 255). "The dowry" (i.e., the West Bank) did not cause any negative emotions. The displeasing "bride" took the form of the 1.2 million Arabs who were of no use to the Israeli leaders. David Ben-Gurion was well aware of the impossibility of combining the security problem (as understood by the Israeli leaders) with the demographic problem. In his own time, he rejected the proposal made by chief of staff, General Chaim Laskov, for a preemptive seizure of part of the West Bank when King Hussein's regime began to totter in 1958. On 14 July 1958 he wrote in his diary, "This time the Arabs will not run away" (cited in Shlaim 2000, 200). On this occasion demographic issues were not the sole restraining factor for Ben-Gurion. He understood perfectly well how the Western powers would react to the capture of Jordanian territory; he also believed that the preservation of the Hashemite monarchy in Amman suited the interests of Israeli security. It is significant, however, that he wrote something different in his diary, namely that any solution leading to the Palestinians remaining

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under Israeli control would upset the ethnic homogeneity of the Jewish state and call into question the Zionist ideal of the creation of Israel itself. Immediately after the Six-Day War of 1973 the Israeli government was still examining options whereby it could, after having retained a part of the West Bank, get rid of its Palestinian population. The first option, on which no action was taken, was the Palestinian proposal that the Palestinian Arabs should be given a special status. Eshkol proposed to the political committee of the Israeli Labor Party the creation of "only a semi-autonomous region, since security and the lands are in the hands of Israel. I won't mind if in the end they want representation in the United Nations. I began with an autonomous region, but if it transpires that this is impossible, they will get independence" (cited in Shlaim 2000, 255). Eshkol's proposal was evidence of confusion in Israeli ruling circles rather than an attempt to work out a strategy with respect to the Palestinians. The status the Palestinians were being offered did not even accord with commonly held ideas on autonomy. It was especially unclear how the West Bank could ever be transformed into a Palestinian state. Even more hazy were the ideas about which people Israel would be negotiating with in the West Bank. The traditional Palestinian leaders had neither the authority nor the responsibility for taking decisions of that kind. Moreover, the PLO, although the younger generation looked toward it with hope, had not yet become the voice of Palestinian interests. The Palestinians, whose fate was still being decided by the Arab states, had no other representatives at hand. The second option, which was adopted by the Israeli Labor Party and shaped its approach to the Palestinian problem for years to come, was the "Jordanian" one. Despite having been elaborated to a significantly greater extent in the Allon Plan, this option was problematic in terms of implementation right from the beginning. King Hussein could not agree to take the Palestinians under his wing again if the Israeli government were unwilling to return East Jerusalem to him and remained intent on retaining a significant part of the West Bank. King Hussein expressed interest in negotiating with Israel until the Israelis showed him a map of the partition of the West Bank, as outlined in the Allon Plan. The Israeli proposals were so humiliating that the king actually refused to discuss them. Nor did his own proposals find resonance among the Israeli leadership. Though the contacts between the two sides continued, they did not produce positive results. The Camp David Accords in 1978 brought a new element into the eventual resolution of the Palestinian problem. The Israeli-Egyptian peace negotiations ended in the signing of a "framework" agreement on ways toward a comprehensive peace settlement in the region which, in particular, provided for the granting of self-rule to the Palestinian territories occupied by Israel and further definition of their final status by negotiation with representatives of the Palestinian population (Bickerton and Klausner 1998, 207-9). Significantly, it was Menachem Begin, for whom "Judea and Samaria" were an integral part oflsrael, who put his signature to that agreement. For him, autonomy was not so much a question of relinquishing the occupied Palestinian territories as

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an attempt to keep them forever under Israeli control. In effect, autonomy as an interim step might have brought talks with the Palestinians to a new political level, creating preconditions for the development of forward-looking outcomes, but this did not happen. Israel was not interested in such talks and used the autonomy formula as a cover for actively settling the occupied Palestinian territories. Meanwhile, the representatives of the Palestinian population had no decision-making powers, and the generally negative attitudes in the Arab world to the Camp David process eliminated any possibility of political contacts. In the final analysis this was all to the advantage of the Begin government which strove to "digest" the occupied Palestinian lands. The vigorous construction of settlements was prompted not by economic or security factors but mainly by the ideological approaches of the heirs to the Revisionist Party and their expressly declared aspiration to create a "Greater Israel." By the end of 1987 the Israeli authorities had confiscated more than 55 percent of the territory of the West Bank and 30 percent of the Gaza Strip-this, despite the population of these territories remaining more than 90 percent Arab. By the middle of the 1990s, the West Bank, Gaza Strip, and East Jerusalem were home to about 250 Jewish settlements with a population of around 245,000, more than half of which, 130,000, lived in the districts around East Jerusalem. The Arab population of the occupied territories numbered about 2.5 million (Bickerton and Klausner 1998, 236; Muslih 1994, 73-74). In 1984 Likud suffered an election defeat, and the period up to 1992 saw the rule of a broad-based coalition of "national unity" in Israel, which included both the Social-Zionist bloc and the rightist Likud bloc. That period witnessed the crystallization of two approaches in Israeli ruling circles to the solution of the Palestinian problem, both of which involved the participation of Jordan in one way or another. From the standpoint of Likud, which was pursuing the policy of annexation of the West Bank and Gaza, Jordan was already a Palestinian state, while the West Bank must remain under Israeli control; the Labor Party still declared a principle of territorial compromise with Jordan based on a transfer to Jordan of the most densely Arab-populated areas of the West Bank and Gaza Strip under Israeli jurisdiction. Although both blocs were engaged in the construction of Israeli settlements on the West Bank, nevertheless Likud carried this out with greater sweep and in areas with the greatest Arab population, thereby strongly projecting the Israeli presence. Subsequently, when Labor Party leaders began to pursue dialogue with the PLO, it was against an extremely adverse backdrop in terms of the situation on the ground. The Israeli policy of fait accompli restricted the room for maneuver of the Israelis themselves during the peace process. Resentment toward the PLO played a similar role. In fall 1985 the Israeli Knesset passed a law prescribing a three-year prison sentence for citizens oflsrael found making contact with "subversive organizations." In practice, this referred primarily to the PLO. The Israeli leaders, irrespective of party affiliation, condemned the U.S. entry into dialogue with the PLO. The general dynamics of the situation, however, later

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forced Shimon Peres and Yitzhak Rabin to reconsider their views. The Jordanian option (even in its softer Labor Party interpretation) became deadlocked. The transformation of the approach of the Labor representatives toward the PLO and the principles of the solution of the Palestinian problem did not, however, bring about a consensus on this question either in Israeli ruling circles or in Israeli society. The rightist camp of the establishment was still determined that Israel should retain probably the greater part, if not all, of the Palestinian territories. This ideological split ran much deeper than the one that existed in the Palestinian community. There, despite challenges from leftist and Islamist groupings, Arafat still remained a charismatic leader, a factor that allowed him to use his authority to push ahead with decisions that were none too popular. In Israel after Ben-Gurion (who had, incidentally, fallen victim to his own authoritarianism), there was no such leader, nor could there be. In the final analysis any prime minister whose policy was more or less in harmony with public sentiment depended on too many internal political factors and on whatever situation was prevalent in the West Bank and Gaza.

The Transformation of the Regional Context The situating of the Palestinian problem within the general context of the ArabIsraeli conflict enables us to remark that by negotiating forward-looking outcomes, the Arab states and Israel created a new context for the Palestinian problem. These outcomes were peripheral to the Palestinian problem; nonetheless, their conclusion created a more stable regional climate that helped eliminate one aspect of the conflict after the other. Simultaneously coming to the fore, however, were also the hardest and most difficult issues to solve: issues that called for a strategy to create incentives for both sides. The conclusion of the peace treaty with Egypt in 1979 ensured for the first time the establishment of official relations between Israel and a leading Arab country. At the same time, relations with Egypt remained a "cold peace." Israel's hopes that it would be able to fully enjoy the fruits of Camp David proved illusory. Other unsettled aspects of the Middle East conflict, primarily the Palestinian problem, remained an obstacle to all-round cooperation. Israel had traditionally enjoyed good relations with Jordan and constant contacts were maintained, but King Hussein's refusal to represent the Palestinian Arabs, together with the opening of dialogue between the United States and the PLO, sharply narrowed Israel's room formaneuver on the Palestinian question. As the next attempt to conclude the agreement with Syria (the early 1990s) ended in failure while Jordan was waiting for progress on the Palestinian issue, the Jordanian channel became crucial for a breakthrough in the Middle East settlement. The 1990 Iraqi aggression against Kuwait resulted in important changes in the regional context. On the one hand, the support of PLO leaders for Saddam Hussein contributed to the isolation of the PLO in the Arab world. The political weakening

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of the PLO seemed to offer a reason to marginalize it in the negotiating process. Although the PLO was not represented at the Madrid Conference, the activity of the Jordanian-Palestinian delegation was regulated by an agreement signed on the eve of the conference between the Jordanian government and the PLO leadership. Moreover, the delegation was accompanied by a group of advisers who were official emissaries of the PLO leadership and Arafat himself (PalestinianIsraeli Peace Agreement: A Documentary Record 1994; 'Abd Al-Shafi 1991, 23; Abbas 1996, 120-22). On the other hand, Israel felt vulnerable after the Iraqi missile strikes. In these circumstances, it was especially important for Israel to invite a more positive Arab attitude, but this, naturally, ran counter to the unresolved Palestinian problem and the absence of progress on a settlement.

The Transformation of the International Context Changes in bilateral Israeli-Palestinian relations depended on fundamental change in the international climate. With U.S.-Soviet competition in the Middle East subordinated to the rules of the "zero-sum game," neither party, encouraged by their global patrons, had any incentive for rapprochement. As William Zartman has remarked, "Probably the strongest interests associated with regional conflicts concern relations with the parties. Outside states have ideological, strategic, or friendship ties with individual regional states, besides their interests in maintaining a stable distribution of power within the region. Although conflict itself may disturb both these interests, conflict may also be necessary to preserve a stable distribution of power and may also force the outside state to reassess its friendships and to act accordingly" (Zartman 1995b, 13). Indeed, both great powers possessed real interests in this region and quite often used the conflict to preserve those interests. A settlement may have seemed a desirable alternative to the leadership of both states, but only on certain terms. Military and political stability in itself was not the main objective. In the eyes of the United States and the USSR, stability was valuable only as a means of reinforcing their own clients and their own presence. Practically any U.S. initiative was rejected by the USSR. Nor did the United States support any Soviet plan for settling the conflict. Only the end of the Cold War enabled the two sides to abandon the vicious circle of mutual claims and jealousy and to convoke the conference in Madrid in 1991. The disintegration of the USSR, and Russia's objective inability to fulfill the functions of a full cosponsor of the peace process, had ambivalent consequences. On the one hand, Russia did not object to American mediation and actual domination in the Israeli-Palestinian negotiations which proceeded as per the Washington format. On the other hand, Russia's exclusion from these negotiations narrowed the room for maneuver of the principal mediator as well as its capacity to influence the parties involved.

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The Palestinian-Israeli Negotiations: Lessons to be Learned The Palestinian-Israeli peace process has turned out to be both complicated and contradictory. Every attempt to stabilize the situation and put an end to the new intifada has come to nothing. The increased violence in Israeli-Palestinian relations came at a time when the parties began to discuss the parameters of the final agreement. The failure of attempts to conclude the treaty forces us once again to address the lessons of the Israeli-Palestinian negotiations. Formally, the peace process was based on approaches that aimed at creating a new situation. Each agreement concluded seemed to lead consecutively to the creation and strengthening of the Palestinian Authority in Gaza and the West Bank-to new Palestinian institutions and to a regime that would not allow the conflict to develop to the crisis stage. Such approaches may be formally classed as forward looking. But were they, in fact, forward looking? Where and when did the failure take place? What prevented a settlement being achieved or, at least, what failed to reduce the conflict to the level of a political contest? How far did the newly created Palestinian institutions and the new level of mutual relations between the Palestinians and Israel meet the task of resolving the conflict? To try to answer these questions, we must turn our attention to the format of negotiations, the agenda, the dynamics, and the agreements reached. Parties to Negotiations

Official contacts between Israel and the PLO, aimed at working out political agreements, began quite late, in 1993. Having said that, informal meetings, contacts, and negotiations at the level of nongovernmental organizations had been taking place for many years. It was public dialogue that promoted a change of climate in relations between the parties and their mutual "de-demonization." In the opinion of Harold Saunders, who participated personally in the preparation of the Camp David agreements and is an expert in the field of conflict settlement, "In 1993, Israelis and Palestinians formalized an official peace process when Israeli Prime Minister Yitzhak Rabin and Palestine Liberation Organization (PLO) Chairman Yasser Arafat shook hands on the White House lawn in Washington, D.C. It was my view that Israelis and Palestinians could not have taken this step had not countless Israelis and Palestinians met over the preceding 20 years. Some of these meetings were a continuation of the third-party-sponsored workshops begun in the 1970s, but many more were the interactions between Israelis and Palestinians rubbing shoulders in daily life" (Saunders 1999, xxi). The Madrid Conference started negotiations between Israel and the JordanianPalestinian delegation. The five rounds of talks in Washington that took place in the period between the end of the conference and the Israeli election of 1992 failed to bring any substantive results. The reasons lay in the format of the negotiations: representatives of the conflicting parties involved in them were unable

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to take compromise decisions. In power in Israel at the time was the cabinet of Yitzhak Shamir, one of the adherents of the idea of Greater Israel. Accordingly, the Israeli side was not interested in territorial concessions and used the negotiation to buy time. When already in retirement after the election, Shamir admitted that his greatest regret was having been unable, in the subsequent four years, to expand the network of Jewish settlements in Judea and Samaria, as in his opinion the number of Jewish settlers in these territories had to be raised to half a million in order to complete the "demographic revolution" that Israel needed (Bickerton and Klausner 1998, 260-61). On the Jordanian-Palestinian side, representatives were dependent on the PLO and unable to decide anything without prior consultation with it. According to Uri Savir, the former general director of the Israeli foreign ministry and one of the main participants in the preparation of the Palestinian-Israeli agreements in Oslo, "The problem in Washington was that Faisal Huseini, the West Bank leader, lacked a mandate to negotiate. Every point we raised with them had to be referred back to the PLO leadership. Though we would never admit it openly, we were engaged in a charade. In Washington, we were actually negotiating with Yasser Arafat by fax." According to Shimon Peres, "It's clear who's running the Palestinian show there. I've told Rabin that I'm prepared to go to Oslo, meet secretly with their envoys, and test the PLO's true intentions. We are committed to moving this forward, and it's pointless to waste time in Washington by pretending that the PLO isn't there" (Savir 1998, 5). A confidential Israeli-Palestinian channel had been gradually opened up over many years through the efforts of Norwegian diplomats trading actively on the favorable position of Norway which had friendly relations with both Israel and the Palestinians and was thus not bound by obligations to either party. During the night of 31 December 1981 the then deputy foreign minister of Norway, Torva1d Stoltenberg, discussed with Arafat in Tunis the problem of establishing direct contact between the PLO and the Israeli Labor Party. The Israeli side would not agree to it and, eventually, Stoltenberg tried to organize a meeting between the two sides during a socialist congress in the Portuguese city of Albufeira in Apri11983. This attempt ended in tragedy, with the Palestinian representative, Dr. lssam Sartawi, being killed by a terrorist from the Abu Nidal grouping almost before Stoltenberg's very eyes (Corbin 1994, 18-19). Nevertheless, a group of Palestinian public figures did meet later with the prime minister of Norway, and also with the Israeli representatives. 1 In 1989 Terje Larsen, a Norwegian social scientist heading the Fafo Institute for Applied Social Science in Oslo, one of the most authoritative European centers specializing in peace research, and his wife, Mona Juul, an employee of the Norwegian embassy in Cairo, made their first trip to Israel and the occupied territories to hold talks with Palestinian leaders and members of the Israeli government (Corbin 1994, 10-13).

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In February 1992 Larsen met with Ahmed Qurei (Abu Ala), a member ofthe leadership of the PLO, its main financier, and director of the Palestinian Samed bank, who was visiting Oslo. During the encounter, an almost total meeting of minds took place regarding the necessity of establishing and developing contacts between Israel and the PLO. In May 1992 on the eve of the election in Israel which resulted in a Labor Party victory, Larsen had a meeting in Tel Aviv with a young Labor Party deputy to the Knesset, Yossi Beilin, who subsequently became Israel's deputy foreign minister, also reaching agreement with him on the question of establishing ties with the PLO. It was Beilin and Abu Ala who subsequently figured among the chief "architects of Oslo." According to the British journalist, Jane Corbin, it was then that the inefficiencies of the "Madrid" negotiating system came to light and the idea of supplementing it with a second, secret channel was born (Corbin 1994, 20-21, 27-28). Also prompting the Israeli leaders to open the new secret channel were internal policy considerations. In 1992 the Rabin government came under increasing pressure from the forces of the right; a breakthrough in the settlement was vital to score a serious foreign-policy success. The government, with only sixty-two seats in the Knesset, could count on the support of five additional Arab and Communist votes in the event it pursued a more moderate political course. Moreover, the situation in the occupied territories was becoming progressively worse. As the Israeli-Palestinian settlement stagnated, the position of Hamas in the occupied territories intensified, with the ensuing hardening of Palestinian public opinion. Israeli reprisals against Hamas activists forced even Fatah (Arafat's organization) to express support for its political opponents. In March 1993 terrorist acts by the extremists resumed. In response, Rabin closed the border along the "Green Line" (the pre-1967 cease-fire line) and imposed a ban on the entrance of Palestinian workers to Israel (Shlaim 2000, 509-10). Although this measure was carried out for tactical reasons, it signaled a new strategic vision of the situation by the Rabin government, the underlying principle of which was not an attempt to absorb Palestinian lands for the sake of creating Greater Israel but to partition Palestine. The main breakthrough toward the settlement of the Palestinian problem was the definition of the format of the negotiations to enable them to be conducted by representatives capable of ensuring that decisions taken were put into effect. For the first time negotiations were pursued not with Palestinian figures who suited Israel (leaders from the occupied territories, Jordanian representatives) but with those who had effectively developed and carried out the strategy of the Palestinian struggle against Israel.

The Mediators The secret talks between Israel and the PLO were organized and facilitated by new mediators: not the U.S. and Russian representatives (the cosponsors of the Madrid

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Conference) but Norwegian experts and diplomats whom both the Israelis and the Palestinians probably regarded as more impartial and, at the same time, more interested in a positive result. The Egyptians, whom Arafat regularly consulted, also played an important role in ensuring the success of the talks. The American administration knew about the Oslo talks but did not expect this channel to produce a breakthrough. The Norwegian hosts of the meetings introduced a new element into them. While supporting the parties and helping to resolve crises as they arose, as mediators they declined to be present in the room where the negotiations were being conducted. "This rule, established in Oslo in the spring of 1993, held through the signing of the Interim Agreement in September 1995. It was a natural corollary of the belief that those who are fated to live together should decide how to do it themselves and take responsibility for their choices" (Savir 1998, 41).

The Agenda The Israeli-Palestinian negotiation proceeded in various secluded residences in Norway from January to August 1993. There were twelve rounds of talks. The fifth round of negotiations concluded with the drawing up of a draft version of a document dealing with the principles of future relations between the parties. Naturally, the agenda concerned the basic principles of coexistence between Israel and the Palestinians. For the discussions to go ahead, however, the participants had to agree that negotiation was the overarching principle of the talks. In protracted conflicts, questions regarding long-standing claims by the parties on each other, to say nothing of the enumeration of mutual grievances and injustices, can prove especially problematical. In the case of the Palestinian-Israeli conflict with its ethnoterritorial dimension, references to past history had threatened to bury every attempt to search for compromise. The first and most important mutual understanding reached by both parties was their consent not to wage disputes over the past. "This was an important step, for it moved us beyond an endless wrangle over right and wrong. Discussing the future would mean reconciling two rights, not readdressing ancient wrongs" (Savir 1998, 15). It was a ringing endorsement of the forward-looking contract as opposed to the backward-looking contract. The final rounds of negotiations proceeded amid a serious crisis in relations between the parties caused by a multitude of disagreements on individual issues and on details of the final document. The crisis was exacerbated by the strong time pressures. Moreover, given the unrelenting attention of the journalists to the Palestinian-Israeli contacts, both parties had to keep negotiations secret until complete agreement was reached on the text of the final document (Abbas 1996,21625). On 13 September 1993 a Declaration of Principles was signed in Washington that provided for a process of peace with justice: elections in the West Bank and Gaza Strip; withdrawal of Israeli troops from part of the occupied territories, with

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priority being given to the Gaza Strip and the area around Jericho; and negotiations on the permanent status of the West Bank and Gaza Strip within two years of the signing of the Oslo Agreement with a view to a final status and agreement by the end of a five-year transition period. The permanent status negotiations were to cover remaining issues, including Jerusalem, refugees, settlements, security, and other issues (Palestinian-Israeli Peace Agreement: a Documentary Record 1994). The official signing of the agreement was preceded by an exchange of letters between Arafat and Rabin designed, above all, to ensure support for the agreement by the Israeli electorate which still regarded the PLO in an extremely negative light. In a letter dated 9 September 1993 Arafat declared that the Palestine Liberation Organization recognized Israel's right to exist, accepted UN Security Council Resolutions 242 and 338, adhered to peaceful methods of resolving the conflict, and renounced terrorism and violence; the letter also included a commitment to prevent and punish any manifestations of terrorism and violence on the part of any of its members. It also officially undertook to formalize, by decision of the Palestine National Council, a revision of the articles of the Palestinian National Charter containing nonrecognition of the legality of existence of the state of Israel. In his answering letter Rabin declared that, taking into account the commitments made by the PLO leadership, the Israeli government recognized the PLO as the representative of the Palestinian people and agreed to conduct negotiations with it in the framework of the Middle East peace process (Bickerton and Klausner 1998, 273-74). The decision to hand over Gaza and Jericho to Palestinian control meant the emergence of the official Palestinian Authority with defined powers over the territories. The presence of such an authority, even with its very limited room for maneuver, ensured the conclusion of further agreements and the expansion of the zone of Palestinian autonomy. At the same time, the idea of the postponed status of the settlement that had played such an ambiguous role in the negotiations became a particular feature of the Israeli-Palestinian dialogue. On the one hand, the setting of a five-year deadline for the final solution of the problem opened up a vista for negotiations. On the other hand, all the main contradictions between the parties centered on that final status; the absence of any preliminary arrangements as to what the final status would be only served to deepen the mistrust between the parties and their dissatisfaction with the results that were achieved. In the process, Israeli governments, despite the agreements made, continued to expand the network of settlements, and the Palestinian territory of the West Bank melted away. Thus, while at the first stage the negotiations ended in forward-looking outcomes, they contained, from the very beginning, an inbuilt contradiction regarding the final status of the territories. Moreover, the transition period did not promote mutual trust building but led instead to the dilution of the positive potential generated in 1993.

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The Agreements and Their Implementation: From Forward-Looking Outcomes to Stagnation Further development of the Palestinian-Israeli peace process proceeded in two main directions: 1. The conclusion and implementation of an interim agreement on the formation of Palestinian national self-government, in other words, the transfer of powers in the occupied territories from the Israeli authorities to the Palestinian administration and the formation and functioning of the Palestinian national governing bodies for a five-year transition period, which, in accordance with the Declaration of Principles, would end in May 1999; and 2. Negotiations on the final status of the Palestinian territories aimed at the resolution of such key questions of Israeli-Palestinian and Israeli-Arab relations as the status of Jerusalem, the refugee problem, the fate of the Jewish settlements in the Palestinian territories, security measures, delimitation of borders, and relations and cooperation with other states of the region. The guidelines mapped out by the politicians regarding the conclusion and realization of the agreements were, however, continually jeopardized. The promise by the parties to the treaty not to discuss the past was undoubtedly a breakthrough in the negotiations and a basis for the achievement of forward-looking outcomes. In reality, however, the past frequently reared its head. The creation of a new regime capable of handling future conflict proceeded extremely slowly. With the dynamics of negotiation increasingly slowing down, those forces that were not ready to accept a new reality in Israeli-Palestinian relations were strengthened. The preparation of the Interim Agreement proceeded in three stages. The first stage was the signing in Cairo on 4 May 1994 of the agreement on Gaza and Jericho. This determined the procedure for withdrawal of Israeli troops from the Gaza Strip and the city of Jericho along with the sixty-five-squarekilometer area adjoining it, the transfer of powers to the Palestinian administration and the settlement of questions involving the maintenance of, for example, security, civil and legal matters, and the issue of economic relations. The agreement laid down the terms for extending Palestinian self-government to other areas of the West Bank, a process that was to be carried out in three stages: transfer to the jurisdiction of the Palestinian administration of questions of tourism, education, culture, public health services, social security, and taxation; redeployment of Israeli troops involving, first and foremost, their withdrawal from the Palestinianoccupied localities and densely populated areas; and election of a new administration in the West Bank and Gaza Strip (Reich 1999, 93). Shortly before the election the situation was complicated by an outbreak of violence in the occupied territories. On 25 February 1994 Baruch Goldstein, an Israeli settler from Hebron who had emigrated to Israel from the United States and

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was a member of the extremist, racist party, Kahane Hai, opened fire on worshippers in a mosque near the Patriarchs' Tomb in Hebron, killing about thirty people. He himself was then killed by a furious crowd. In response the PLO suspended its participation in the talks, demanding that the most militant settlers should be expelled from Hebron and the rest disarmed and that units of the Palestinian police, as well as international forces, should be garrisoned in the city (Reich 1999, 625). Extremist attacks in Israel and the Palestinian territories accompanied Arafat's state arrival in Gaza on 1 July 1994. About 100,000 people took to the streets to welcome him. At the same time, in Israel, particularly in Jerusalem, far-right demonstrations were held in protest at the return of the Palestinian leader, and these were accompanied by assaults upon Arabs, by pogroms, and by acts of vandalism. These excesses were condemned by the majority of Israeli citizens. For their own part, Hamas and the Islamic Jihad stepped up their terrorist activity in efforts to disrupt the peace process (Shlaim 2000, 527; Savir 1998, 140). The second stage was marked by the signing of an agreement, on the basis of which the following domains were gradually handed over to the jurisdiction of the Palestinian administration: education and culture (29 August 1994); social security and tourism (13-14 November 1994); public health services and taxation (1 December 1994). Also signed was the "A Protocol" which provided for subsequent transfer of such spheres of public life as labor relations, trade and industry, supply of fuel, insurance, mail, statistics, agriculture, and local government to the jurisdiction of the Palestinian authorities. For the participants in the Middle East peace process, 1994 ended with the awarding of the Nobel Peace Prize to Rabin, Peres, and Arafat. Simultaneously, Hamas and the Islamic Jihad stepped up their terrorist activity, which prompted some Israeli leaders to think that it might be expedient to suspend the negotiating process, while Rabin himself even started to give serious consideration to the possibility of completely isolating the Israelis and the Palestinians from each other and erecting a "security fence" between the Israeli and Palestinian territories. Tension in Israeli-Palestinian relations abated only after Arafat arrested several activists of the Islamic Jihad in February 1995. Meanwhile some Hamas leaders, realizing that the escalation of violence could undermine the prospects for Palestinian national independence, decided to suspend acts of terror. Fierce resistance to the peace process was also offered by those Israeli settlers belonging to ultra-religious and far-right groupings. Their resistance took the form not just of noisy demonstrations and rallies but also, for example, of a demand by a group of rabbis that Israeli soldiers should refuse to carry out their commanders' orders to dismantle Israeli military installations on the West Bank. As a result of subversive actions by extremists from both sides, the schedule of implementation of the Declaration of Principles was disrupted; the Interim Agreement was not signed, as stipulated by the Declaration of Principles, in July 1994; and, accordingly, the elections in the Palestinian Authority scheduled for summer 1994 were not held on time (Bickerton and Klausner 1998, 288-89).

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The third stage was the drawing up and signing of the Interim Agreement in Washington on 28 September 1995 by Yitzhak Rabin and Yasser Arafat in the presence of U.S. president Bill Clinton, Egyptian president Hosni Mubarak, and King Hussein of Jordan. This agreement was given the name "Oslo II." It provided for elections and a legislative body in the Palestinian territories, as well as for troop withdrawal from a number of localities. The territory of the West Bank was divided into three zones: the cities and urban agglomerations in Zone A were to be transferred to the full jurisdiction of the Palestinian authorities; the civil administration in Zone B, including Palestinian villages and sparsely populated areas, were to be transferred to the Palestinian authorities, with security functions remaining in the hands of Israel; Zone C, comprising Israeli settlements and roads, was to remain under exclusive Israeli control. Zone A amounted to 4 percent of the territory of the West Bank and Zone B to 25 percent. In the Gaza Strip, 35 percent of the territory (the Jewish settlements and the roads leading to them) was kept under Israeli control, with the rest to be transferred to the Palestinian Authority. Unofficial "understandings" for a permanent settlement were reached between Yossi Beilin and Abu Mazen in Stockholm on 31 October. The basic plan was to set up a demilitarized Palestinian state on virtually the entire territory of the West Bank, while the 6 percent of the West Bank territory on which about 75 percent Jewish settlers were concentrated would go to Israel. The remaining Jewish settlers could choose between resettlement with compensation and residing in the Palestinian state. The parties differed on the issue of Jerusalem, but even here there was room for compromise, with Israel maintaining its claim to sovereignty over all of Jerusalem and the Palestinians recognizing only West Jerusalem as Israel's capital. Accordingly, the capital of the Palestinian state would be just outside the Israeli municipal boundary of the city (Shlaim 2000, 555), while the Muslim holy places in East Jerusalem would be given an extraterritorial status. The Oslo II agreement was approved by the Knesset with the narrowest of margins: 61 votes "in favor" to 59 "against." To calm Israeli public opinion, Rabin was compelled to explain that Israel would, in fact, retain 73 percent of the territory, 80 percent of water, and 97 percent of security guarantees. Quite naturally, these statistics produced a depressing effect on the Palestinian audience also listening to Rabin. For example, in Gaza, where around 5,000 Jewish settlers and almost one million Palestinians lived, Israel would retain control of more than one-third of the land and the majority of the local drinking-water reserves. Moreover, the constant blockades of the Palestinian territories that deprived their population of the possibility of earning a living in Israel had resulted in an appreciable decrease in the Palestinian standard of living, while the "security measures;• actively carried out by both the Israeli and the Palestinian authorities, had resulted in a growing number of human rights violations, of which the Palestinians were practically the sole victims (Bickerton and Klausner 1998, 283, 287-88). The murder ofYitzhak Rabin on 4 November 1995, the most serious challenge to the peace process, showed primarily that some in Israeli society had been caught

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off guard. Yigal Amir, the law student from Bar Ilan University, who committed the crime, declared that he was executing justice-carrying out the will of Godwhich could not allow the handover of the land of Israel to the Palestinians. The murder of Rabin by the Israeli student was a genuine shock for Israel. Israeli society, which had always demonstrated cohesion and the highest potential for mobilization in time of crisis, turned out to have been split by the search for peace and political compromise with the Palestinians. Shimon Peres was approved almost unanimously by the Knesset as head of cabinet until the next election in 1996. The new prime minister undertook to make every effort to continue the peace process. His preferred priority, however, was the achievement of an understanding with Syria at the expense of the Palestinian dimension. Under Peres, the Israeli-Palestinian channel was gradually relegated to the background with negative consequences. The dynamics of the talks with the Palestinians were not given the necessary impulse, and the Beilin-Abu Mazen plan was not implemented by the Israeli government. The Beilin-Abu Mazen plan may be regarded as an attempt to continue the thrust toward the achievement of forward-looking outcomes at the IsraeliPalestinian negotiations. It contained the main elements of settlement combining justice to make peace: recognition by Israel of the Palestinian state (instead of an abstract final status) and an attempt to find a formula for the partition of Jerusalem. In 1995 such a plan might have stood a chance of success, and, if realized, could have prevented new victims and outbreaks of violence on a large scale, as would occur in 2000. Once Peres took over from his deceased predecessor, however, he began to display hesitations about the plan, with which Beilin acquainted him one week after Rabin's murder. Peres's hesitations clearly showed that even within a single team (Rabin-Peres) and one political party, there was no uniform idea on the future of the Palestinian territories. There was still no precise strategy, in fact, two years after the signing of the Declaration of Principles. Unlike Rabin, Peres was not ready to admit that the creation of a Palestinian state was inevitable, and preferred a solution that admitted various possible scenarios. In his position, he probably took into account, to a greater degree than Rabin had, the factor of Israeli public opinion and the reaction of the political factions and Knesset deputies. There was every indication that the reaction to such an agreement would have been negative. In the event, the opportunity to make progress in defining the final status of the Palestinian territories was irrevocably missed, which gave extra impetus to those right-wing forces in Israel whose reaction Peres feared. Simultaneously, his unwillingness to countenance a radical decision also had a negative effect on the position of Arafat who, already elected president of the Palestinian Authority, 2 appeared to have nothing to offer to his voters. Starting from the end of 1995 there began a stagnation of the Israeli-Palestinian peace process, with a reversion to backward-looking notions of justice and a fading of forward-looking plans for peace.

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Relations between Israel and the Palestinians were aggravated by operations undertaken by the Israeli special services in October 1995 and in January 1996 to eliminate the most dangerous leaders of the Palestinian Islamic fundamentalists. These operations provoked a new wave of terrorist acts and a growth of tensions. The situation also worsened in Lebanon where Syria began to make more active use of Lebanese extremists from the Hizbollah grouping against Israel. In reply, Israel in April 1996 began the "Grapes of Wrath" operation against Syrian troops and Hizbollah, using aircraft and artillery. The Israeli operation did not cause the paramilitaries serious harm but resulted in a large number of victims among the population, especially when Israeli shells hit a UN-supervised refugee camp by mistake (Bickerton and Klausner 1998,292-93, 296-98; Shlaim 2000, 560). The failure of the Lebanese operation, the impasse in the settlement process, and the growth of terrorism all predetermined the defeat of Shimon Peres. At the 1996 election, held for the first time with separate, general, direct voting for a prime minister, the Likud bloc leader, Binyamin Netanyahu, won by a narrow majority with 50.4 percent of the vote as opposed to 49.6 percent for Peres. In the Knesset elections, although the Labor Party had gained thirty-four seats to Likud's thirty-two, the right to form a cabinet fell to Netanyahu under the new law. The policy of the new cabinet in relation to Israeli-Palestinian dialogue was determined by the reaction of Netanyahu himself toward the agreements already reached. He regarded them as a capitulation by Israel (Shlaim 2000, 562-63, 56769). Understanding that outright denunciation of the Israeli-Palestinian agreements would inevitably entail the gravest political consequences, Netanyahu was compelled to reconcile himself to reality, but, in practice, he went out of his way to freeze the peace process, for several months deliberately resisting a meeting with Arafat. Soon after he was elected, Netanyahu took steps to directly exacerbate relations with the Palestinians by deciding to open an ancient tunnel under the Old City of Jerusalem. This was seen by the Muslims as an encroachment on a holy Islamic site, the foundations of which were in the immediate proximity of the tunnel, as well as a breach of the status quo and a step toward the Judaization of Jerusalem (Bickerton and Klausner 1998, 302-3). Perhaps the only achievement in the Israeli-Palestinian settlement process during Netanyahu's term of office was the agreement on the redeployment of troops in the Hebron area. The very question of troop redeployment (but not withdrawal) seemed to him to be conceding a principle, but he was compelled to sign within the framework of continuity retained in Israeli policy. The talks on this question began under the mediation of U.S. special representative Dennis Ross on 6 October 1996, only to be interrupted three weeks later because it was impossible to reach a compromise. They were resumed on 21 December after the U.S. election, and an agreement was reached only on 15 January 1997, after the personal intervention of Jordan's King Hussein, acting as an intermediary. Under the agreement, Hebron was divided into zones H-1 under Palestinian control and H-2 under

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Israeli control (the area with the greatest density of Israeli settlers) (Bickerton and Klausner 1998, 302-3). Until the conclusion of the agreement, Hebron had been an arena for constant skirmishes and clashes. After the conclusion of the agreement on Hebron, Netanyahu decided to "balance" his forced compliance by proclaiming a "new fight for Jerusalem." The first step in this direction was a plan for intensive housing construction in the East Jerusalem quarter of Har Homa (in Arabic, Jebel Abu Guneym) which caused indignation on the part of the Palestinian public and condemnation by many Western countries. Finally, Netanyahu put forward a plan that was completely unacceptable to the Palestinian side for a final solution of the territorial question whereby Palestinians would be made a final offer of no more than 40 percent of the West Bank territory. The plan was given the name of the "Allon Plus" plan, as it was built on the same principle as the Allon Plan of 1976, but, contrary to the latter, it proposed a territorial partition not of 30:70 percent in favor of the Palestinians but of 60:40 percent in favor of Israel (Shlaim 2000, 581-83). In October 1998, after the Israeli-Palestinian-American summit at the Wye River Residence (in Maryland, United States), pressure was brought by the United States on the Netanyahu government to sign a memorandum on further redeployment in the West Bank to provide for the transfer of new tracts of land into Palestinian control and to work with all parties to intensify efforts to achieve agreement on the final status by May 1999. All in all, Israeli troops were expected to withdraw in three stages from 13 percent of West Bank territory, bringing the area of the Palestinian autonomous unit to 40 percent of that territory (Moucharafieh 1999, 142). In fulfillment of one of the items of the Wye River Memorandum, the PLO for a second time submitted for discussion by the Palestine National Council the question of the introduction of amendments to the Palestinian National Charter and the exclusion from it of articles incompatible with the obligations assumed by the Palestinian side within the framework of the process of peaceful settlement with Israel. On 14 December 1998 a session of the PNC convened in Gaza in the presence of President Clinton, who addressed the audience; the PNC voted to cancel Articles 8 to 10 (on the liberation of Palestine by means of armed struggle); Article 15 (on the liquidation of the Zionist presence in Palestine); and Articles 19 to 23 (on the nonrecognition of the UN General Assembly Resolution 181 on the partition of Palestine into two states; the nonrecognition of historical and religious links of the Jews to Palestine; the rejection of any variants of the solution of the Palestinian problem besides "complete liberation of Palestine"; and Zionism as an instrument of imperialism and an outlawed "illegal movement") (Hanieh 2001). By December the Netanyahu government had suspended the fulfillment of its commitments, putting forward a new list of demands to the PLO in breach of the principle of faithful observance of international agreements. The Netanyahu rule ended when the Knesset voted to dissolve itself and hold an early election in May 1999 which was won by Labor Party leader, Ehud Barak.

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The Breakdown

After the change of cabinet in Israel, the negotiating process picked up speed again. On 4 September 1999 a new Israeli-Palestinian memorandum was signed in Sharm El-Sheikh (Egypt) at a meeting attended by the U.S. Secretary of State Madeleine Albright, the Egyptian president, Mubarak, and King Abdallah II of Jordan. The memorandum provided for the resumption of the process of implementation of the understandings reached earlier, primarily the Wye River Memorandum, the creation of joint commissions to settle issues related to the Palestinian inmates in Israeli prisons, the further redeployment of troops, the problem of refugees, and other issues. The memorandum also stipulated, inter alia, steps for the settlement of the problem of freedom of movement in Hebron, security, and construction of a port in Gaza (Sharm El-Sheikh Memorandum 1999). By the beginning of 2000 far from all the fixed deadlines had been met. The Israeli leadership concentrated on talks with Syria, believing that the conclusion of a peace treaty with that Arab country would make it easier for Israel to negotiate with the Palestinian Authority. Furthermore, in May 2000 Barak approved a unilateral troop withdrawal from south Lebanon to the internationally recognized border in keeping with UN Security Council Resolution 425. 3 This step was meant to put an end to losses among the troops caused by Hizbollah, to create a more favorable environment for political contacts with the Syrian and Lebanese leadership, and also to ensure the legitimacy of reprisal actions should the militants continue to fire at Israel's northern areas. Just like Peres in 1995, however, Barak found himself in a political trap. Having emphasized the settlement of Syrianlsraeli relations ahead of the Palestinian problem, he not only failed to achieve any results but simultaneously caused strong resentment on the Palestinian side. Yasser Arafat, anxious about the growing number of Israeli settlements and the absence of real progress on Palestinian terrain, again started to threaten the unilateral declaration of the Palestinian state. Though the talks and contacts proceeded with mediation by the United States, they only served to foster the growth of disappointment on both sides, and the timetable set by the September 1999 memorandum looked less and less realistic. Simultaneously, Barak and Arafat were becoming increasingly hostage to sentiments in their own societies. Barak found himself the leader of so shaky a coalition that he was in danger of losing support in the Knesset at any moment. The only way out of this situation, the Israeli premier believed, was an agreement on the final status of the Palestinian territories, which he would then bring to a national referendum. The termination of the conflict would guarantee mass support in Israel for him and, in such a situation, an unfavorable alignment of forces in the Knesset would no longer be of such crucial importance. Not only internal but also external factors compelled Barak to make haste. He pinned his hopes on assistance by President Clinton, whose mediation had time limitations imposed by the U.S. presidential election campaign in fall 2000.

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At the same time Palestinian discontent with Arafat's policy was mounting in the West Bank and Gaza. The per capita income had decreased by 20 percent compared with 1993 (before the conclusion of the Oslo Agreements), a significant growth in unemployment had been observed, freedom of movement was limited, the construction of Israeli settlements was proceeding, and the number of Israeli settlers had doubled (Lalor 2001, 164-65). According to Columbia University professor Edward Said, "In the West Bank, Jerusalem, and Gaza, the situation is deeply unstable and exploitative. Protected by the army, Israeli settlers (almost three hundred fifty thousand of them) can and are able to live as extraterritorial, privileged people with rights denied to resident Palestinians (e.g., West Bankers cannot go to Jerusalem, and in 70 percent of the territory are still subject to Israeli military law, with their land available for confiscation). Israel controls Palestinian water resources and security, as well as exits and entrances. Even the new Gaza airport is under Israeli security control. One doesn't need to be an expert to see that this is a prescription for extending, not limiting, conflict. Here the truth must be faced, not avoided or denied" (2000, 317-18). The Israeli government was even giving assistance in loans and additional subsidies to those who wished to resettle to the territories. The crisis of expectations associated with the peace process increasingly radicalized the Palestinian community, which became less ready to accept a compromise variant of settlement with Israel. Even representatives of Fatah declared that the peace process was a conspiracy against the national aspirations of the Palestinian people (Lalor 2001, 165). Negotiations at Camp David were seen as an attempt to finally bring peace with justice to the Palestinian problem and, on 11 July 2000, Barak and Arafat set off for the Israeli-Palestinian summit under the patronage of President Clinton. 4 Initially it was planned to conclude the summit and sign an agreement on the final status by 19 July 2000, the date of President Clinton 'sdeparture for the G7 summit in Okinawa. No agreement was reached by that date, however. At Camp David the Israeli premier offered a plan whereby Israel would retain only 9.5 percent of the West Bank. Three large enclaves of Israeli settlements would remain in exchange for land from Israel near Gaza, a corridor ensuring that they were connected to Israel. From all appearances, the question of Jerusalem had become the main stumbling block at that stage. Barak, for the first time, broke the main taboo of Israeli politics and suggested a partition of the city that, after the Six-Day War of 1967, had been proclaimed "the eternal and indivisible capital" of Israel. Arafat insisted on complete sovereignty over the Old City except for the Jewish quarter and the Western Wall. The Israelis could not agree and offered more refined versions of sovereignty. A real dialogue at Camp David never began, despite President Clinton's belated attempts to bring the parties' positions closer together. The summit resulted in a joint statement that emphasized both parties' adherence to UN resolutions and their intention to avoid unilateral actions that would prejudge the outcome of talks (the latter being meant to induce Israel to

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slow the rate of settlement construction and the Palestinians not to proclaim a Palestinian state) (Lalor 2001, 167). The main differences between the parties were maintained on three items: 1. Refugees: the Palestinian side insisted that the emergence of the problem was Israel's responsibility and that Israel should recognize the right of all refugees to return. Israel, for its part, flatly rejected any responsibility for the refugees but agreed to let a few thousand people return to its territory in the course often years so that families could be reunited. It also undertook to organize the payment of compensation from international funds both to Palestinian refugees and to Jews who had left Arab countries for Israel. 2. Land, borders, and security: the Palestinian side refused to accept the Israeli proposals providing for confiscation of between 10 percent and 13.5 percent of the West Bank territory to accommodate three compact blocks of Jewish settlements. 3. Jerusalem, the most intractable of all problems: the Palestinian side insisted on the accommodation of the capital of its state in East Jerusalem, including the Old City and the Arab areas adjoining to it; the Israeli side proposed variants such as a "Palestinian trusteeship with Israeli control over the sacred places of Islam on the Temple Mount," and accommodation of the Palestinian capital in the suburb of Jerusalem, all of which were rejected outright by the Palestinian side. The summit lasted until24 July with secretary of state, Madeleine Albright, taking Clinton's place at the talks. This extension, however, brought nothing new (Hanieh 2001). Barak had landed himself in a trying situation. A negative reaction on the part of the right was predictable and was not long in coming; simultaneously, however, there was a growing disappointment among Barak's supporters who believed that Arafat's refusal to accept a plan that was indeed fundamentally different from what preceding Israeli leaders had offered signaled the Palestinians' unwillingness to settle the conflict. On 23 August, Barak barely managed to survive a vote of no confidence in the government by the Knesset (Lalor 2001, 168). At the same time, Arafat's position at Camp David received complete support among the Palestinians and in the Arab world. There was a dramatic quality to the situation because while Barak and Arafat both did everything in their power to make progress on the settlement, they were not free agents, and each had expected the other to do more. Moreover, Barak's "final settlement" caused disappointment among the Palestinians who had hoped to achieve their national aspirations through a political solution. What the Israelis perceived as fundamental concessions, for the Palestinians represented the prospect of making further concessions on their territory without gaining full

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control over East Jerusalem and without an opportunity to ensure the return of the Palestinian refugees (Malley and Agha 2002). It was never possible during the negotiations to find the key to the real disagreements between the conflicting parties. In addition, there was a set of subjective factors that cast an extremely negative influence over the situation, among them the pressure exerted on the Palestinian leadership by a number of Arab countries to reject any concessions on refugees and East Jerusalem and the activity of the Palestinian radical factions which increased sharply after the unilateral withdrawal of Israeli troops from Lebanon. An idea was becoming entrenched among the Palestinians that Israel only understood the language of force. In their opinion, only military force had compelled the Israelis to withdraw from Lebanon, and greater concessions could be wrung from Tel Aviv if greater pressure were exerted. U.S. attempts to revive the negotiating process proceeded. After rounds of intense American diplomatic activity, meetings between Clinton, Barak, and Arafat were organized in New York in early September 2000. On 26 September a meeting between Arafat and Barak was held, but hopes that negotiations would resume after it were dashed by a cycle of violence (Malley and Agha 2002). It was Ariel Sharon's visit to Temple Mount on 28 September 2000 that sparked off the beginning of the second intifada. Barak himself had authorized Sharon's "peace march," expecting that it would shore up Sharon's positions in the right-wing Likud bloc and undermine the influence of his opponent, Netanyahu. At the forthcoming elections Barak preferred to have Sharon as a contender, believing that it would be easier to defeat him than the younger and more dynamic Netanyahu. For the Palestinians, Sharon's visit was seen as the last straw and as a call to resistance. The official parties remained in contact with each other but against the background of growing armed confrontation. In October 2000 a summit meeting was held in Sharm el-Sheikh, in which Egypt, the European Union (EU), Israel, Jordan, the Palestinian Authority, the UN, and the U.S. took part. 5 The understandings reached on the ending of clashes were never translated into reality, and on 9 December 2000 Barak announced his resignation. Unable to control his government and losing voter support, he hoped that such a dramatic gesture would impel his voters to close ranks and support the Avoda party at the early election planned for the beginning of 2001. In such conditions, a breakthrough on the Palestinian issue might have ensured his political future. The talks were held at the U.S. Bolling Air Force Base from 19 to 24 December. President Clinton unveiled his settlement plan according to which 95 percent of West Bank territory and all of Gaza was to be handed over to the Palestinians. In the process Israel exchanged 3 percent of its territory for 5 percent of West Bank territory where three main blocs of Israeli settlements had been founded. The plan provided for the partition of Jerusalem: the Arab quarters of East Jerusalem would go to the Palestinians and eleven settlements built after 1967 to Israel, Arab holy shrines in the Old City would be transferred to a limited Palestinian sovereignty, while the

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Western Wall, the Jewish quarter, and part of the Armenian quarter would come under Israeli sovereignty. The right of the Palestinian refugees to return was admitted, but only to the territory of the Palestinian state. Those who could not or did not want to avail themselves of this right would receive compensation and an opportunity to settle in their present countries or in third countries that consented to accept them. Israel, too, was to accept refugees, but only in the numbers "consistent with its sovereign decision." In return the Palestinians had to recognize Israel in its new borders and end the Israeli-Palestinian conflict. The Israeli occupation forces would be withdrawn and replaced by an international presence. The army would remain in the Jordan Valley for a period of three years or less, depending on the situation in the region. Israel would keep three early warning stations in the West Bank, whose status would be reviewed every ten years (Lalor 2001, 172). Not everything in these proposals suited both parties. Nevertheless Barak reportedly announced on 25 December 2000, that he was ready to accept American proposals without changes as long as the Palestinians also did so (Lalor 2001, 172). Arafat and his supporters, however, rejected the Clinton plan. They might have expected that the continuing intifada would force Israel to go beyond the proposals made by Clinton. According to Evgeni Primakov, who analyzed the reasons behind Arafat's rejection of the plan, the tough stance of the Arab states might also have been a stumbling block (2002, 68). Arafat was possibly afraid to go against the extremists, including those from Fatah, whose influence had grown. The Palestinian administration's refusal to accept the American plan meant continued bloodshed, buried the possibility of resumption of the political process, and ensured that Sharon came to power in Israel. Although contacts between the Palestinians and the Israelis continued, they could no longer yield any practical advantage. From 21 to 27 January 2001 a meeting between the Israelis and the Palestinians was held in Taba. This time, the delegations were headed by individuals who had repeatedly demonstrated that compromise could be achieved: Yossi Beilin and Abu Mazen. They had without doubt managed to bring the parties' positions fundamentally closer together and had actually eliminated disagreements. The territorial questions were settled, and a compromise formula for the resolution of the refugee problem was found, but the parties were not authorized to sign any binding documents. They agreed only to consider the records of the EU representative at the talks, and transform them into an informal EU document (Primakov 2002, 68). The outcome of the talks in Taba no longer influenced the situation either in Israel or in the Palestinian territories. The Israeli-Palestinian negotiations within the Oslo format were over.

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Conclusions The negotiations between Israel and the PLO, and the first agreements that were concluded, were aimed at achieving forward-looking outcomes. Indeed, they were supposed to lead to a radical change in the situation, to the creation of new institutions, and the gradual transfer of control from the Israeli authorities to the leadership of the Palestinian Authority. There was a combination of proposals aimed at producing peace by meeting both sides' demands for justice. At the same time, the stage-by-stage realization of the agreements and the idea of postponed status assumed that during the emergence of new relations between Israel and the Palestinians, and as these new relations became institutionalized, mutual trust would have been built up between the parties that would facilitate the achievement of final agreements. In fact, that did not happen. On the contrary, the peace process quickly lost the dynamics necessary to sustain and ensure the implementation of forward-looking approaches. It neither prevented the construction of settlements and further acquisition of the Palestinian lands by Israel, nor did it eliminate terrorist actions. Certain costs are always inevitable in a peace process, especially where a protracted conflict is concerned. The problems with the Israeli-Palestinian peace process, however, were not the costs but the absence of strategy that might reduce those costs to the minimum; a strategy, moreover, that would have ensured the development of such a process as negotiations progressed. Forward-looking outcomes are not a fixed value that is permanently present at all stages of the peace process. They can open the way toward further positive change in the situation and toward the strengthening of a regime that prevents a resumption of conflict; this, however, is possible only when the parties adhere to a strategy for strengthening that regime as the negotiations continue. In a stage-by-stage settlement, forwardlooking outcomes may result from only one of the stages in the negotiations. They raise the plank of eventual compromise to a high level and subsequently require a dynamic that is constantly supported by the parties involved in the negotiations.

Notes 1. As quoted in Al-Hayat newspaper, 6 September 1993. 2. The election was held in January 1996. The 88 seats in the Legislative Assembly were contested by 727 candidates nominated individually. However, 166 of them were official candidates from sixteen parties and associations. Moreover, there is data that most candidates nominated as independents were members or supporters of Fatah. The turnout was 76 percent of the registered voters: 73.5 percent in the West Bank and about 87 percent in the Gaza Strip. Arafat, gaining more than 87 percent of the votes, was elected president. Among the newly elected deputies to the legislative assembly, 57 percent consisted of Fatah members, 40 percent of independents, and 3 percent of opposition parties. Extremist and leftist organizations and groupings: Popular Front for the Liberation of Palestine (PFLP),

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and Democratic Front for the Liberation of Palestine (DFLP, Hamas, and others) officially boycotted the election, but some of their members stood as independent candidates and made it to the assembly. 3. Articles on the Israeli withdrawal from South Lebanon can be found at http://www.mfa.gov.il. 4. Information on the Palestinian-Israeli peace process can be found at http://www.state.gov. 5. As reported in the Financial Times, 18 October 2000.

Chapter 7

Loss and Learning: From Backward-Looking to Forward-Looking Outcomes in the Egypt-Israel Rivalry Janice Gross Stein

Introduction A broad overview of the Arab-Israeli conflict in the last fifty years suggests that it can be divided roughly into two periods. The first, from 1948 to 1973, was dominated by an attempt to manage the conflict and, at the end of each round of war, negotiators concentrated largely on backward-looking outcomes. In the second, from 1974 to 2000, negotiators attempted to resolve the conflict and focused on interconnected backward- and forward-looking outcomes. Although the dominant strategies of conflict management in each phase were different-largely war and deterrence during the first phase and negotiation during the second-I argue that they were both driven by the same underlying dynamic: dissatisfaction with a status quo that was increasingly unstable and shared learning about the costs of the use of force from prior rounds. The transition between the two phases occurred when, in addition to their dissatisfaction with an unstable status quo and their shared learning about the costs of the use of force, the parties began to learn, after the war in 1973, from failed and successful experiments in negotiating arrangements to stabilize the conflict-past negotiation of backward-looking outcomes-and drew on these lessons to negotiate forward-looking outcomes. The first phase, from 1948 to 1973, was dominated by large-scale, interstate war. During this period, the goal was conflict management, and the strategies were deterrence and war. Negotiation was largely restricted to clarifying the terms on 141

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which wars were ended and to establishing some explicit or tacit rules to prevent the outbreak of another round. The parties struggled to manage the conflict and had either no expectation that the conflict could be ended or no interest in ending the protracted conflict. Military goals became progressively more limited as leaders learned about the costs of the use of force, but the goal of negotiation did not expand beyond maintaining a stable, managed environment. In the second period from 1974 to 2000, first Egypt and then others expanded the goal to conflict resolution; in this period, negotiation became the principal instrument of conflict resolution. The goals, the issues, and the parties involved in negotiation with Israel slowly expanded, and as negotiation became more prominent and more expansive, violence became ancillary to the process of negotiation. At times its principal purpose was to force the pace of negotiation. The difference between the two periods is striking. In the first period, negotiation took place in the shadow of war and concentrated exclusively on putting in place mechanisms to prevent another round. In the second phase, violence rather than large-scale warfare took place in the shadow of negotiations, increasingly to influence the structure of negotiations and their outcomes. In this chapter I focus on the relationship between Egypt and Israel to ask two broad questions: • •

What factors, on and off the table, explain the inversion of the relationship between violence and negotiation over the two phases? What explains the expansion of the negotiation agenda from backward- to forward-looking outcomes?

Structural Explanation of Negotiated Outcomes A strong strand of the scholarly literature suggests that structural factors best explain both the declining importance of force over time in the management of the Egypt-Israel conflict and the expanding agenda of negotiation from the 1949 armistice agreements to the resolution of the conflict at Camp David in 1979 and the final peace treaty that followed. Structure generally refers to contextual variables outside the negotiation process. Analysts argue that structural factors shaped both the inclination to use force and the negotiation process. I privilege the realist emphasis on the balance of power among the parties as the most important structural explanation of outcomes because these explanations are so preeminent in the literature. Realists generally expect that asymmetries of power will be reflected in the willingness to use force and in the willingness of the parties to negotiate resolution of a conflict. Other things being equal, the less powerful the party, the less willing it should be to use force and the more willing it should be to negotiate backward-looking outcomes to prevent another round of violence. The more powerful party should be interested largely in forwardlooking outcomes that end the conflict on favorable terms. Asymmetries of power

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should be reflected in the terms of conflict resolution; the stronger party, other things being equal, should do commensurately "better" at the table. Structural arguments give no weight to the process of negotiation but reason directly from the underlying balance of military power to the kinds and terms of negotiated outcomes. The evidence provides very limited support for the balance of military power as an explanation of the kinds and terms of negotiated outcomes. After 1967, Egypt and Syria, considerably weaker in military power relative to Israel, nevertheless displayed a willingness to use force in 1969 and again in 1973. Similarly the weaker parties in the relationship were historically more reluctant to come to the table. The only exception to this pattern is the Palestine Liberation Organization that, as the only nonstate party to the conflict, sought entry into a process of negotiation, initially as a way of securing legitimacy and recognition. Even in the last decade, Syria, unquestionably inferior to Israel in the military balance, has remained reluctant to reach agreement on terms to resolve the conflict. The evidence suggests a far more complex and textured relationship between structural factors and negotiated outcomes. The balance of military power was important, but in far more complex ways than some realist arguments suggest. More sophisticated realist arguments suggest that leaders learn the lessons of war accurately even though they often cannot read the balance of power accurately before they choose to use force. In the protracted Egyptian-Israeli rivalry, so the argument goes, Egypt's leaders learned from defeat and reluctantly moderated their military and political objectives (Lieberman 1995). This moderation created a willingness by Egypt's leaders to begin a process of negotiation that focused on forward-looking outcomes and ultimately produced political accommodation. In this argument the balance of power was refracted on the battlefield, which in turn shaped leaders' willingness to negotiate and reach agreement. It is in the context of repeated defeat, so the argument continues, that the defeated weaker party unwillingly comes to the table and ultimately makes the concessions required for political accommodation. I argue that structural balances are mediated by what leaders "learn" over time, the reasons they give for failure, not only on the battlefield but also at the negotiating table, and the lessons that they draw from success or failure. I dispute the proposition that learning about the balance of capabilities from repeated defeats over time by the so-called defeated party is a sufficient condition of political accommodation through negotiation in an enduring rivalry. Rather, I put forward two distinct propositions that locate the driver in the lessons leaders learn. I argue that •

•

learning by both "winner" and "loser" about the costs and consequences of war is a necessary but insufficient condition of a willingness to negotiate forwardlooking outcomes; learning over time about the costs of failed structures and strategies of

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Before I quickly review the evidence, two comments are in order. First, any learning model assumes that the parties have the opportunity to experiment in repeated trials. The Arab-Israeli conflict, treated as a single interconnected conflict over time, unfortunately provided all the parties with the opportunity to learn about the costs and consequences of the threat or use of force as the principal instrument of conflict management. It also provided all the parties, even those who stayed out of the negotiation process, with the opportunity to learn about failed structures and strategies. Second, in explaining the movement over time to a process of negotiation and to a series of negotiated political agreements, I do not, unlike most negotiation analysts, give explicit theoretical weight to the creation of trust between the parties (Kuglanski 1998; Larson 1998). I do not do this because if the creation of trust among the parties to an enduring rivalry were the precondition to the onset of negotiations, very few would enter into negotiation. Rather, it may be that the process of negotiation itself creates trust among formerly distrustful parties. It is also possible that trust is created not by the process but through learning, and leaders put in place functional equivalents to trust.

From 1949 to 1973: Negotiating Backward-Looking Outcomes Examination of the pattern of learning over the first period in the Egyptian-Israeli rivalry does not support the proposition that learning from defeat about the balance of capabilities is direct and that it is sufficient to the negotiation of forwardlooking outcomes. At the beginning of the rivalry, Egyptian learning from defeat was very limited; only partial lessons were drawn as successive defeats were explained away. By January 1949, Israel's forces had penetrated into the Sinai Peninsula and were restrained from continuing their advance only by forceful pressure from the British. If military defeat is the critical corrective to flawed estimates of the balance of capabilities, then some revision should have taken place in Cairo. The evidence that is available suggests that the defeat did have a significant impact on elements of the Egyptian officer corps, but that impact had little to do with a reanalysis of the balance of capabilities. Colonel Nasser and his colleagues among the Free Officers held King Farouk and his corrupt regime responsible for the military defeat. Indeed, the defeat was a powerful impetus to the coup against the monarchy that took place in 1952. The corruption of the regime and the poorly paid and trained army were identified as the major reasons for the humiliating defeat. There was, however, very little serious analysis either of the fighting or of the relative balance of capabilities. The

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expectation was that, under the leadership of the new regime, Egyptian military assets would be determining. There was little direct learning from defeat. The negotiations that followed the war in 1948 to 1949 focused on creating temporary armistice arrangements, as Arab states were unwilling to consider a resolution of the conflict. Mediated by third parties, the negotiations were indirect, bilateral, segmented, restricted in focus, and involved very limited contact between the parties to the conflict. The most important stabilizing element was the tripartite agreement among the major powers, negotiated outside of and separate from the armistice agreements, that limited the flow of arms to the region. No party to the conflict expected that these agreements would prevent further rounds of war. Much the same pattern prevailed in the aftermath of the war between Egypt and Israel in 1956. In the aftermath of the Suez crisis in 1956, Egypt and Israel negotiated, through third parties, a series of backward-looking outcomes to prevent another outbreak of war. These arrangements were very limited in scope, tacit rather than explicit, and informal rather than institutionalized. The two adversaries participated in no direct process of negotiation, but critical expectations about management of security in the Sinai Peninsula did converge. Some of the principles of these arrangements were explicitly formalized in the immediate aftermath of the fighting. First, Israel insisted publicly, and Egypt acquiesced tacitly, that there was to be no blockade of the Straits of Tiran at the southeastern tip of the peninsula. This principle was reinforced by the guarantee to Britain, France, and the United States of their right of free passage through the straits for ships of their own registry and by their recognition of Israel's right to self-defense to assure innocent passage for its ships. Second, peacekeeping forces were deployed just inside the eastern border of the peninsula on Egyptian territory with Egyptian acquiescence. The administration of the forces was delegated to the Secretary General of the United Nations, who was assisted by an advisory committee created by the General Assembly. Procedures for the withdrawal of the United Nations Emergency Force (UNEF) were somewhat less explicit. Secretary General Dag Hammarskjold made clear his understanding of the appropriate procedure on 26 February 1957: "An indicated procedure would be for the Secretary General to inform the Advisory Committee on the United Nations Emergency Force [of the request by the host government for its withdrawal] which would determine whether the matter should be brought to the attention of the Assembly" (cited in Thant 1967, paragraph 37). At a minimum, withdrawal of the force could not be unilateral but would require multilateral consent by the host government, the Secretary General, and the members of the supervisory committee, if not the General Assembly as a whole. The UN force was formally charged with patrolling-manning sensitive border positions and preventing infiltration across the border. Its most important function, however, was not explicit but tacit: it was not so much a fire brigade as a fire alarm. UNEF could not prevent an attack, but it could provide valuable warning time

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of impending military action. It did so in at least two ways. First, as Egypt and Israel expected that the withdrawal of the force would require time-consuming multilateral procedures, the regime provided valuable time to meet defection even as it improved the accuracy of detection. Second, as demand for its withdrawal would signal a clear change in intention, motives became far less opaque and far easier to read. The third component was tacit agreement on the scope of the deployment of Egyptian forces in the Sinai. Throughout this period Egypt deployed only two divisions in the Sinai Peninsula, reinforced by no more than 250 tanks. These forces were not deployed forward in the peninsula, but well back in the western half of the desert. Only two squadrons of fighters or fighter-bombers were kept permanently in the Sinai, and neither of these had the then-advanced MIG21. This configuration of offensive force did not represent an immediate threat to Israel's security. Despite the existence of an extensive infrastructure in the peninsula, Egypt would have to send additional forces across the Suez Canal if it were preparing to attack. The scope of the demilitarization of the Sinai was indeed very restricted. There was no formal recognition by either side of the tacit limits and, consequently, no system of inspection or accompanying international guarantees. Moreover, the extensive infrastructure in place in the peninsula permitted fairly rapid conversion to an offensive deployment in the forward areas. The set of backward-looking arrangements did, nevertheless, function both as a hedge against miscalculated accident and again as a smoke detector. By limiting contact between the crack units of the Israeli and Egyptian armed forces, the likelihood of a miscalculated war diminished; in this sense, the arrangements worked effectively to avoid an outcome that neither side wanted. Moreover, in signaling a change in Egyptian intentions through a change in the deployment of the Egyptian army, should it prepare to attack on the ground, they also warned of defection and increased Israel's confidence in its capacity to detect. Their value was thereby greatly enhanced, and expectations were permitted to stabilize and converge. In other words, the management of conflict became easier as the actions of both parties became more predictable. It is worth noting that these arrangements were put in place between parties to an acute conflict who were deeply suspicious of each other's motives without a formal process of negotiation. Moreover, each suspected the other of the intention to expand. Nor was the technological environment especially conducive to improvement in the procedures to manage the conflict. Offensive and defensive force structures were difficult to distinguish, and Israel's force posture was difficult to interpret. Indeed, because of its shallow space, it eschewed a strategy of defense as impractical. Precisely because of these dynamics of the "security dilemma," however, both sides were responsive to the putative benefits of stabilizing arrangements whose principal function was the prevention of unwanted war: Israel was now a status quo power and Egypt was unprepared militarily and economically for

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another round. Politically, however, Cairo would have been unable and unwilling to consider any forward-looking outcome. Despite their narrow focus and limited institutionalization, these tacitly agreed-upon arrangements persisted for eleven years through important changes in the distribution of power. For eleven years, from 1956 until 1967, there was no war between Israel and Egypt. During this period, Egypt received massive amounts of military equipment from the Soviet Union and became the preeminent military power in the Arab Middle East, far more so than in 1957. Its status as leader of the Arab world waxed and waned, peaking in 1958 with the formation of the United Arab Republic with Syria and declining precipitously with the dissolution of that union and its unsatisfactory military involvement in the Yemen. Given these shifts in political and military power, it is not easy to explain the consistency of Egyptian strategy toward Israel solely in terms of the calculation of its shortterm interest. It appears rather that these backward-looking outcomes, limited as they were, acted autonomously to enhance the management of conflict because they provided valuable resources to both of its principal members. Learning from the military defeat in 1956 was tactical but limited. President Nasser explained the military defeat largely as a consequence of the collusion of imperialist powers. It was neither superior Israeli military capability nor performance that provided the decisive margin but British and French participation in the attack against Egypt. Egypt had faced the combined forces of Britain and France, as well as Israel alone, without Arab military assistance. The logical implication was that if Israel could be isolated from its international supporters and subjected to a multifront Arab attack, it could be defeated. An attack required a changed constellation of regional and international vectors, and President Nasser was prepared to wait for that appropriate constellation of forces. Throughout much of this period, moreover, Nasser was preoccupied with economic restructuring at home and the assertion of his leadership in the Arab world. Resolution of the conflict with Israel was antithetical to his regional ambitions. As pressure from allies built over time, the lessons that were learned on the battlefield in the first twenty years of the rivalry were overwhelmed by intense political pressure on President Nasser from the Arab region. Updated estimates of the balance of capabilities did not drive policy; rather, in the spring of 1967 policy drove estimates of the balance of power. Security arrangements were blown apart, not through a premeditated repudiation but as a result of a massive miscalculation on the part of Nasser. In the spring of 1967 he threw caution to the winds as pressures from Arab leaders cumulated. His initial miscalculation was compounded by an even greater error on the part of the Secretary General of the United Nations, who, in May 1967, agreed to precipitous and total withdrawal of the United Nations force-an outcome not intended by the president of Egypt. In so doing, he removed the smoke detector from an overheated environment. The relationship between Egypt and Israel became most dangerous and unstable after Egypt experienced its worst defeat. After the overwhelming disaster

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in 1967, Egyptian leaders were less willing to enter into negotiations of any kind and contrary to realist expectations were unwilling to negotiate even backwardlooking stabilizing arrangements. Rather, they were strongly motivated to learn how they could design around their adversary's strengths and impose heavy costs on a militarily superior adversary.

Learning and Experimentation: 1970-1975 After their overwhelming military victory, Israel's leaders, with few exceptions, confidently expected Arab leaders to come to the negotiating table to negotiate favorable terms to resolve the conflict. They were surprised by the Egyptians' refusal to begin negotiations, but even more surprised by the war of attrition that President Nasser began, despite the unfavorable military balance. After a lengthy and mutually hurting war of attrition, a new president in Egypt made a first, tentative offer of a forward-looking outcome. President Anwar elSadat proposed a peace treaty, but without normalization of relations, as a vehicle to recover the Sinai, short of the use of force. Confident in the adequacy of superior military power as a deterrent to the use of force, Israel's leaders dismissed the signal as noise. Israel's leaders were generally confident-badly overconfidentof the capacity of a favorable military balance to deter a use of force. Then the Israeli minister of defense, Moshe Dayan, proposed a partial retreat from the Suez Canal and the reopening of the canal to commercial traffic. He could not persuade Prime Minister Meir, however, to make any political concessions when Israel had "won" the war. Insulated by victory, Israel's leaders again renewed their confidence in the military balance and saw no reason to make political concessions to relieve the intense frustration of Egyptian leaders. Only after yet another round of war in 1973 that imposed serious costs on the winner as well as the loser did the parties begin to negotiate indirectly a more elaborate set of backward-looking arrangements that incorporated rudimentary elements offorward-lookingoutcomes. Israel, Egypt, and Syria, with the help of the United States as a directly involved third party, drawing on their earlier experience in bilateral sequences of negotiation, agreed upon a more elaborate set of arrangements to prevent a further outbreak of war. In three successive rounds between Israel and Egypt, working through the United States, the seeds of forward-looking arrangements were sown. In the wake of the war in 1973 the United States and the Soviet Union convened a multilateral conference in Geneva. Even before the conference met, it was clear that Egypt and Israel both wanted a bilateral track, mediated by the United States. Egypt and Israel signed two disengagement agreements with the assistance of the United States, while Syria and Israel, in a single round, agreed to a far more limited disengagement on the Golan. These agreements could be considered part of the first phase of conflict management, if they are understood simply as an

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attempt to regulate the postwar environment and prevent further unwanted violence. At the same time the second disengagement agreement with Egypt required Israel to withdraw from part of the Sinai in exchange for security guarantees, and committed the parties to continuing their process of negotiation. The beginning of the shift in trajectory was apparent. Egypt and Israel accepted as a general principle the nonuse of force to resolve their ongoing conflict. Both committed themselves to this principle for a transitional period of at least three years and made this commitment known to the United States. From this overarching principle flowed a series of functional proposals, proposals that provided substantial benefits to the two adversaries by reducing the peril of defection and improving the prospects of accurate detection. With respect to detection, the regime made elaborate provision for monitoring and surveillance in the Sinai Peninsula. Egypt and Israel each operated electronic early-warning stations in the strategically critical area of the desert passes, while the United States, in addition to manning an additional tactical early-warning station in the buffer zone established between the two, circulated this information to the others and also verified that Egyptian and Israeli technicians performed only those operations authorized by all three. The United States also engaged in aerial surveillance of the force-limitation zones that were established and shared this information with both Egypt and Israel. The security environment, in consequence, was enriched with information that derived not only from the general commitments made by each of the members-although this information was considerable-but also from the specific functional arrangements put in place to increase the circulation of reliable information. Willingness to participate in these arrangements, as well as the quality of the evidence that was provided, made the task of detection far easier. Moreover, because detection was easier, defection became less likely. The force-limitation zones established on either side of the buffer zone also made detection easier and defection less likely. Insofar as the numbers and types of offensive equipment that could be deployed in these zones were limited, real warning time increased, if only marginally, for both Egypt and Israel. More to the point was the importance of force limitations as indices of the intentions of both parties not to resort to force during the life of the regime. As the United States was one of the "detectives" that monitored the observance of these force limitations, defection became even less probable. Third, Egypt and Israel also agreed to the continuing presence of a United Nations peacekeeping force (the Second United Nations Emergency Force [UNEF II]) in the buffer zone. The force served much the same purpose as in the earlier regime: the fire alarm was back in place, its signals easily read by both sides, and its capacity to warn highly valued. Here again, agreement as to its deployment was treated as an important indicator in and of itself of the intentions of both parties to refrain from resorting to force.

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The functional proposals agreed to by the United States, Egypt, and Israel were consistent with the larger principle of the nonuse of force. They were important, however, not only for the information they provided and not only because they diminished the risks of defection but also because they were read as indicators of benign intentions within the context of a newly constituted regime. Finally, the special role of the United States in promoting forward-looking outcomes in these negotiations is worth noting. Washington had a major interest in the stabilization of the conflict between Egypt and Israel, particularly in the prevention of another war with its attendant disruptions to the international economy. It intervened in several critically important ways to improve detection to reduce the risk and the cost of defection and finally to compensate the parties for the risks they were running in creating the regime. We have already looked at the role of the United States in monitoring and surveillance, its willingness to play "super detective." It also worked directly to reduce the probability and the cost of defection by promising both Egypt and Israel that it would consult with one in the event that the other violated the agreement. Washington further assured Israel, which was the more anxious about defection, that, in its view, the regime would remain in place even if UN forces were withdrawn before the agreement had been superseded by a more comprehensive set of arrangements. In addition, the United States pledged to veto any Security Council resolution that, in its view, adversely affected the functional proposals in place. The United States also compensated the parties for the risks each was running. It assured Israel that it would be fully responsive to its military, economic, and energy needs and, even more directly, that it would prepare contingency plans for a military resupply in an emergency. Washington promised Egypt technical assistance in the construction of its early-warning station in the Sinai Peninsula, offered substantial economic assistance, and pledged itself to continue actively to pursue further agreements. The role of the United States was crucial in reducing the costs should defection occur: through its strategy of reward, it worked to shift the preference structures of the other two members to less risky backward-looking outcomes and to forward-looking outcomes. This set of backward-looking outcomes with the early elements of a forwardlooking component-agreement on the nonuse of force for a three-year periodwas put in place in the aftermath of a bitter war that Egypt lost tactically and Israel lost strategically. Both sides consequently viewed war as an unattractive option and shared a "common aversion" to its renewal. Only after the war in 1973, when Egypt fought a war for limited purposes and simultaneously imposed heavy casualties on Israel's forces, did Israel's leaders finally learn about the costs of repeated victories. They began to moderate their confidence in the relative balance of capabilities as a sufficient deterrent to war and experimented with political concessions even in the wake of "victory." Complex learning by the victor, along with the same kind of learning by Sadat before he attacked in 1973, created the

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necessary conditions for the first trial-and-error experimentation with a process of accommodation that ultimately ended Egypt-Israel rivalry a decade later. An examination of what the militarily inferior party learns from repeated defeats is an important part, but only a part, of the analysis of an enduring rivalry that moves from force to negotiation, from conflict management to resolution. For negotiationofforward-lookingoutcomes to be plausible, learning by Egypt's leaders was not sufficient; Israel's leaders also had to learn the costs and consequences of military victory and the frailty of a favorable military balance as insurance against the use of force. This they learned only after their costly military victory against Egypt in 1973. Learning from victory was a critical element in shifting the trajectory of the rivalry from conflict management to conflict resolution.

From Conflict Management to Conflict Resolution Before the agreement between Egypt and Israel lapsed in 1978, the same three participants, despite some important changes in the balance of power in the Fertile Crescent, were able to come to a major agreement that extended these backwardlooking arrangements to forward-looking outcomes. Very much the same dynamics were at work in this second round of negotiations: within the framework of agreed-upon principles, the United States was again critical in insuring against the risks of defection and in compensating both Egypt and Israel for the risks they ran (Stein 1985). The evidence we have suggests that Egypt and Israel were able to extend and expand their regime partly because both were in the domain of loss-they were both averse to a renewal of war and were cognizant of the "sunk costs" of dismantling the agreement on principles and procedures already in place-and partly because they had learned from past successes and failures in negotiation. With the powerful presence of the United States as a third party, the backward-looking arrangements put in place in 1975 acted autonomously to facilitate a mutually beneficial agreement between Egypt and Israel, an agreement that they themselves might have been unable to reach. A new president in Egypt, freed of the commitments of his predecessor by the political victory won in 1973, and motivated not only to regain the Sinai but also by a different set of political and economic objectives, learned that agreement on a legitimate status quo was essential to resolve the conflict and allow Egypt to achieve other important objectives. Sadat was almost alone among his colleagues in learning this lesson; other members of his cabinet and most of his principal advisers opposed any accommodation with Israel. Indeed, his foreign minister resigned in protest when President Sadat announced his intention to visit Jerusalem (Stein 1993, 86). Clarification of the relative balance of capabilities through defeat was at best an inconsistent and indifferent teacher. The scope of learning necessary to shift to conflict resolution was far broader.

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The bargaining process that led to a comprehensive settlement between Egypt and Israel at Camp David stretched over a period of twenty months and can be divided into two analytically distinct phases. A multilateral process began soon after President Carter took office in January 1977 and included Egypt, Israel, Jordan, the Palestine Liberation Organization (PLO), Saudi Arabia, the Soviet Union, Syria, and the United States. When the parties got to the table at Camp David, only Egypt, Israel, and the United States remained. Indeed, one of the principal functions of the process over time was to eliminate those parties who threatened to obstruct a negotiated agreement. There were two critical points in this process: the first, when President Sadat lost confidence in the multilateral search for a comprehensive settlement of the Arab-Israel conflict and traveled to Jerusalem in November 1977; and the second, the agreement at Camp David in September 1978 when Egypt and Israel agreed to a bilateral settlement and a framework for peace in the Middle East. Sadat chose to disrupt the multilateral process because he was increasingly pessimistic that an agreement satisfactory to all members of the Arab coalition could be reached, and he was unwilling to give his Arab allies a veto over the return of the Sinai. His visit to Jerusalem began the process of creating separate but comprehensive bilateral settlements. He fractionated the negotiation and began a bargaining process that allowed Israel and Egypt, with the assistance of the United States, to move to a bilateral resolution of one part of the Arab-Israeli conflict. Structural realist explanations of the agreement reached at Camp David are unable to solve two major puzzles. From the analysis of the relative decline of Soviet and Egyptian capabilities in the region, realists infer a shift in the pattern of Egyptian alignment away from the Soviet Union to the United States. Similarly, they deduce a pattern of greater dependence by Israel on the United States, given the relative decline in Israel's economic and military capabilities after the October War in 1973. Together, realists argue, these two changes converged to create the structural preconditions for agreement between Egypt and Israel mediated by the United States (Telhami 1990). This argument of shifting capabilities cannot explain why no agreement was reached in November 1977 when President Sadat aborted the process of a multilateral settlement, but why agreement was reached in September 1978. The relative changes in capabilities identified by realist arguments were in place when the parties began to explore the possibility of agreement in January 1977 but failed to agree that fall. Objective measures of relative capabilities, however, may not tap changes in leaders' estimates of their positional strength. If President Sadat, who at Camp David made most of the concessions necessary to achieve agreement, had become increasingly pessimistic about Egypt's capacity to manage its security crisis, then the agreement requires little explanation. Realist arguments would provide a parsimonious explanation, and the puzzle would virtually disappear. There is no evidence, however, that Egyptian subjective estimates of their relative capabilities varied. During this period President Sadat did not display increasing

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pessimism about Egypt's military option; on the contrary, during the process of negotiation he threatened to revert to belligerency. I argue first that Egyptian learning from past successes in negotiation was critical to President Sadat's decision to change from a multilateral to a bilateral process of negotiation. The negotiations to disengage forces after the war in 1973, and the framework agreement on security arrangements in the Sinai in 1975, succeeded only when bilateral processes replaced multilateral negotiations. Learning was not sufficient, however, to produce agreement. Domestic economic and political variables were an essential component of leaders' calculations, and they changed far more rapidly than the balance of power which changed little, if at all, during this period. The evidence challenges the proposition that agreement can be explained largely by the international distribution of capabilities. Finally, I dispute the realist emphasis on relative gains and examine the impact of leaders' calculations of absolute loss on their willingness to make the concessions that were necessary to reach agreement. The first critical step in the process was Sadat's decision to go to Jerusalem. It is best explained as the product of learning from past successes. The president was pessimistic about the capacity of a multilateral process to achieve a comprehensive settlement. After nine months of deadlock Sadat was persuaded that a return to a bilateral process was a fundamental prerequisite of progress. Sadat narrowed the number of participants and reduced the tracks of the negotiating process. It is important to note that Sadat's initiative, as effective as it was in challenging the most important set of beliefs about Arab goals among Israel's leadership and public, was itself not sufficient to produce a negotiated accommodation between Egypt and Israel. Sadat expected that, after his visit, the process would move quickly and smoothly through to a comprehensive settlement. Israel's leaders saw the visit as the opening move in a "normalized" bargaining process. After months of fruitless negotiations, Sadat was bitterly disappointed and frustrated. Indeed, immediately prior to his departure from Cairo to Camp David, Sadat anticipated failure. The president was pessimistic about Israel's willingness to make concessions on the Palestinian issue and, consequently, prepared Egyptian officials for a massive information campaign that would hold Israel responsible for the failure to reach an agreement (Telhami 1990). What was necessary, beyond Sadat's unilateral initiative, to move the parties to agreement at Camp David? First, both parties, but particularly Egypt, were experiencing the growing political and economic costs of stalemate (Altman 1979, 99; Burrell and Kelidar 1977, 17-18; Stein and Pauly 1992). A growing crisis in the Egyptian economy, apparent by the spring of 1978, dramatically increased the economic and political costs of failure. Insofar as President Sadat had considered an agreement on the Sinai and a resolution of Egypt's security crisis to be desirable at the outset of negotiations in January 1977, by the summer of 1978 agreement was imperative. Failure to reach an agreement would not only shift Egyptian strategy away from a negotiated agreement but would defeat economic strategy at home.

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Sadat warned President Carter that if no progress were made by the anniversary of the Sinai agreement in September 1978, he would consider resigning or perhaps reverting to belligerency (Carter 1982, 315-16). At Camp David, Sadat focused overwhelmingly on the absolute and linked costs of failure. Although the deterioration of Israel's political economy was far less intense, it too was considerable (Crittenden 1979). Second, the singular importance of the United States to both Egypt and Israel helped push both sides to make the final concessions that were necessary to a negotiated agreement. American diplomatic, military, and economic support was essential to Israel because of its international isolation and its dependence on American aid. After the October War in 1973, American aid to Israel jumped from $500 million annually to more than $2.5 billion. Under the Sinai II agreement negotiated in 1975, the United States committed itself to continuing aid of about $2 billion annually. Egypt's future relationship with the United States was even more central to Sadat's calculations. The support of the United States was essential for Egypt to achieve its domestic and security objectives: the strategy of economic liberalization depended critically on American aid, investment, and technology transfer, while resolution of the crisis with Israel depended on the active participation and commitment of the United States. On the eleventh day at Camp David, for example, when the Egyptian president threatened to end the negotiations, Carter warned Sadat that if he left, "it will mean an end first of all to the relationship between the United States and Egypt" (Brzezinski 1982, 272). The triadic structure of the bargaining process, where Egypt and Israel each bargained with the United States rather than directly with each other, reflected the importance of the United States to each and maximized American leverage. This was so, in large part, because of the special role of the United States as monitor, guarantor, insurer, and financier of any agreement that would emerge from Camp David. It was American economic aid, investment, and technology that were critical to the reshaping of the Egyptian economy and the stabilization of the Israeli economy. In this context, Israel and Egypt, again bargaining through the United States at Camp David, were able to reach an agreement exchanging full normalization of relations for the complete return of the Sinai to Egyptian sovereignty. Their peace treaty mixed ongoing backward-looking outcomes with forward-looking agreements that together resolved their conflict.

Conclusion I have argued that, in an enduring rivalry, to reach a critical turning point from conflict management to conflict resolution requires that

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the parties be in the domain of loss: they see an unstable and deteriorating stalemate and/or they face economic or political pressures, which may be linked to the security issues; they have learned about the costs of the use of force and are skeptical of the long-term benefits that a use of force could provide; the parties have learned from past successes and failures in negotiation; the parties can segment and sequence the process of negotiations into multiple rounds, where easier issues are tackled first, and build confidence for the more demanding negotiation of forward-looking outcomes; often, though not necessarily, a powerful third-party facilitator, guarantor, insurer, and monitor should be available to steer the negotiating process.

These dynamics provide the most convincing explanation of the shift from conflict management to conflict resolution between Egypt and Israel. Critics can justifiably point to weaknesses in this argument. It is difficult if not impossible to specify a priori thresholds along some of these dimensions. How deeply, for example, do the parties have to be in the domain of loss? How skeptical do they have to be of the long-term benefits of a use of force? Although no precise thresholds can be established, the analysis does suggest that if the parties are moving in these directions over time, the rivalry may well be shifting direction to permit consideration of forward-looking outcomes. It should be clear, moreover, that explanations that rely on relative military balances do not also specify ex ante thresholds. The critical test of this explanation of loss and learning is the Israel-Syria rivalry. At no time during four years of bilateral negotiation from 1992 to 1996 were the two states on the verge of making the transition from conflict management to conflict resolution (Rabinovich 1998, 235). Nor did Israel and Syria succeed in negotiating forward-looking outcomes in the latest round from 1999 to 2000. How useful are the five elements in the dynamic that I identified in explaining why the shift has not yet occurred? It is clear from the analysis that the relative balance of power cannot explain the shift in trajectory in one of the rivalries and the failure to shift in the other. The relative balance has changed little since the early years of the conflict. It seems as well that Israel's and Syria's leaders have learned about the long-term costs of the use of force and are skeptical about the benefits it could bring. Nor can the process of negotiation itself account for the difference in outcome as a triadic bargaining structure shaped both processes. The United States has also been present and active in this relationship as it was in the relationship between Egypt and Israel and indeed in the relationship between Israel and the Palestine Authority. These dimensions cannot, therefore, be part of any explanation of the differences in the trajectories of the rivalries. What distinguishes the Israel-Syria rivalry from its two counterparts is the stability of the stalemate and the negative domestic consequences for both of an agreement. The deadlock between the two is relatively

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stable, and neither anticipates that it is likely to deteriorate. Violence is restricted to Israel's border with Lebanon, and, except for intermittent periods when violence is deliberately escalated by one or the other, it is generally contained. It is difficult to argue that, in this relationship, either leader has recently been heavily in the domain of loss. The argument I have put forward suggests, paradoxically, that the gap will be bridged only if the stalemate becomes less stable and more threatening and if the negative domestic consequences of an accommodation for current leaders in Syria and Israel are reduced.

Chapter 8

Memory and International Negotiation: The Franco-German Case Valerie Rosoux

"Trust and mistrust are feelings, subjective representations determined in part by the past as it occurred in fact but even more so by the representations we construct of that past. In short, they are determined by memory."-Fran~ois Mitterrand 1

To be thinking about forward-looking outcomes implies that one is considering the transformation of relations between former opponents within a long-term perspective (Curle 1990; Vayrynen 1991; Miall, Ramsbotham, and Woodhouse 1994; Rupesinghe 1995). Numerous authors have examined how relations broken by conflict might be reconstructed on a firm basis and have envisaged a series of political, economic, or cultural tools likely to produce such an outcome. The path I intend to follow is rather different. This chapter will not attempt to evaluate efforts to develop future cooperation among former adversaries but rather examine how belligerents look at common events that they have endured on opposing sides. Attention will be focused on the evolution that may or should possibly occur in the representations that the opponents develop of those events. Indeed, a real process of reconciliation cannot fully succeed unless the representations of the past are coped with. The question that will undoubtedly be raised at the end of a confrontation is not only, What happened? but also, and above all, What shall we do with the past? To address these questions, the chapter is divided into three parts. 157

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The first part will analyze the attitudes that may be adopted by adversaries vis-a-vis their conftictual past. Among them, only one appears likely to bring opponents closer in a durable manner. In this chapter it will be called the "work of memory," after a concept proposed by the French philosopher, Paul Ricoeur (1985, 411). The second part will analyze the work of memory in the light of various theories developed in connection with negotiation. It will then be submitted that the work of memory can be considered as a form of negotiation. Where former adversaries adopt that attitude, they are invited to negotiate about the representations they have developed vis-a-vis past events. The third part will try to ascertain if the steps that generally characterize negotiations can be found within the work of memory. It will then attempt to analyze the connections to be found between that attitude and important negotiation concepts, such as backward-looking outcomes and forward-looking outcomes.

Memory and Conflict Resolution Main Concepts It may seem easy to guess the risks that underlie the problematic of memory. The notion is, however, far from being as unequivocal as it looks at first glance. It thus appears appropriate to start our discussion with a conceptual clarification.

Nature of memory Systems of memory, be they natural or artificial, generally consist of three steps: 1. Encoding information, in order to introduce it into the system 2. Storing information, so as to retain it and prevent it being wiped out 3. Retrieving information, when necessary, to initiate an action or a thinking process These steps may be found in human memory. The latter, however, should not be confused with any other system, for it implies, unlike the others, an attitude that is not neutral or objective. Events are not encoded per se; only their representation is encoded by the person concerned. As a result, memory may not be considered as an exact and truthful remembrance of the past. It consists rather of a representation of events that occurred in the past. Therefore, it may probably be defined, in the words of Saint Augustine ( 1964), as " the present of the past." This peculiar nature of human memory has consequences. Events are never conserved in a literal sense. No single human memory is able to retain every event that ever occurred. A selection process inevitably takes place. Events are constantly being reshaped and reconstructed. In the course of that process, nations and individuals select, within their memory, the elements that should be given more importance in view of the circumstances and objectives being pursued.

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Human memory thus presents a selective and fluctuating character, but this should not be considered as a negative attribute. On the contrary, it is inherent in any situation where a person uses memory, and results from the fact that memory may not be limited to a mere repetition or conservation of past events. It is always in the process of rearranging or reorganizing perceptions that actors have of the past. Official memory What we generally call memory, in the context of human behavior, refers to the remembrance of lived or transmitted experiences, to individual representations of the past. It also refers to the way in which any given society manages its past through official discussions, commemorations, or monuments. This chapter will not address individual memory but focus rather on official memory, as expressed by representatives of parties in conflict. Official memory rests entirely on the mechanism whereby the past is adjusted to the situation in which the subject currently lives. Events described in official speeches or texts often took place in the remote past. The interest of such representations, however, rarely lies in the information they provide on such events but rather in the interesting clues they contain as to the attitude of the author at the time he/she expresses his/her representations in the present. In the context of official memory, historical elements are selected on the basis of current political objectives. In that regard, it should be emphasized that the past is often considered as a useful tool rather than an immutable narrative. This process may be illustrated by the interpretation by French leaders of past Franco-German conflicts. The interpretation may not be considered as a constant one for it varies somewhat from one period to another. In fact, the interpretation appears to be determined by context. Foreign-policy actors, for example, appear to change their perception of the past according to the national and international circumstances in which they make their intervention. Thus, before World War II Charles de Gaulle often described the relationship between France and Germany as marked by natural hostility, ontological incompatibility, and quasi-visceral mistrust. A few years later de Gaulle underlined the complementary relationship between the two nations and the deep affinity that had always attracted them to each other. A change had obviously occurred during the period between the two instances when these perceptions were expressed. How may that change be explained? The only possibility is to consider that there was some modification in the background against which these declarations took place, as well as in the objectives being pursued by the author. The first declaration came in the 1930s at a time when de Gaulle was seeing neighboring Germany building up forces for a possible conflict. By contrast, the second took place after World War II when de Gaulle wanted to create a strong rapprochement between France and Germany, without which, peaceful coexistence in Europe did not seem possible. Events and meaning Modifying the representation of prst events in such a way may be understood only by resolutely abandoning a preconceived idea that we

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generally share in our society. Most of us, indeed, have the feeling that the future is open and not yet determined and that the past is immutable. In actual fact, one can probably regard the past as never altogether closed. Admittedly, events may not be erased: one cannot undo what has been done or make what has happened never happen. The meaning that can be attributed to these events, however, is not fixed once and for all (Ricoeur 2000). In that context it is true that "one never knows what yesterday will consist of" (Brossat 1991). These reflections underline the ambivalent and teleological character of memory. References to the past are rarely made to the latter per se but are rather inspired by a current interest on the part of the persons involved in remembering. They depend on the purpose being pursued at the time they are made. As a result it is important, if not essential, to investigate the various uses made of memory in international relations.

Uses of Memory How to cope with the past? That question is systematically raised at the end of international or inter-community conflicts. It is impossible to forget the suffering that has been inflicted. Most of the time three attitudes are adopted vis-a-vis past events, briefly presented here. I will analyze each of them in more depth regarding their connection with negotiation. 1. In the first attitude, the conflict may be accentuated to an extent that goes

beyond the weight that can reasonably be attributed to the events that have occurred ("overaccentuation"). 2. In the second attitude, belligerents may take the opposite stance and attempt to bury any remembrance they may have of injuries suffered and inflicted ("obliteration"). 3. Between these two attitudes, adversaries may attempt to initiate a process where events will potentially be recognized in their complexity beyond overaccentuation or oblivion ("work of memory"). Among these attitudes, only the third appears to provide a form of negotiation. Overaccentuation takes place in a milieu where conflicts are encouraged or, if not, at least validated. Obliteration, on the other hand, aims at avoiding any debate or question vis-a-vis the past. In the other parts of the chapter, I will further analyze the relationship that appears to exist between the negotiation process and the work of memory. Beforehand, however, it seems appropriate to better define the three attitudes mentioned above. Each definition will be illustrated by examples.

Overaccentuation of the past The process of overaccentuation may be illustrated by the conflicts that have consumed the Balkans since the collapse of the

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Communist system. Some Serb leaders have justified their confrontation with other peoples of former Yugoslavia with historical arguments. According to them the wounds inflicted today should be considered simply as revenge for the suffering of the past. In that example, memory is used as a tool in a political process that can summarized as follows: injuries suffered by our ancestors cannot be forgotten; 2 they should be repaired; the best way to attain this objective is to inflict similar injuries on the people who caused them; it is only in this way that the memory of our ancestors will be honored. How may that situation be assessed? As long as there was strong leadership in Yugoslavia, mutual hostility was contained. Wounds suffered, for example in World War II, were somehow hidden. Similarly, membership of different ethnic groups or communities was not frowned upon. There was even the emergence of ethnically mixed families together with the seeds of a common social life. The promise of a joint future dissolved, however, with the disappearance of the unifying power. Past sufferings and persecutions then came back to light. Street names, national hymns, and flags were changed accordingly. Similar modifications took place in school textbooks as well as historical narratives. The past thus underwent a process of total reconstruction. This process occurred on the basis of one underlying question: Why should we be administered by them? In that framework, we and they were defined in a Manichaean manner, and the reciprocal hate, which ex post facto appeared to be eternal, was reactivated. 3 Such a use of the past cannot really be modified in a negotiation. A case in point is the Dayton Agreement which maintains a united Bosnian state. Three "Entities" have, however, been allowed to coexist: a Serbian, a Croatian, and a Muslim Entity, each harboring a community that lives completely separated from the others yet which, together, are supposed to form a common state. At school, children still learn, in each of these communities, that the aggression was perpetrated by the other, who remains the enemy. Thus, the author of a manual in Bosnia-Herzegovina confirms that "the genocide of Bosnians by Chetniks during the Second World War is granted substantial treatment in the new texts" (Uzelac 1997, 23-29 and 32). A symmetrical scenario takes place in schools of Sarajevo: young Serbs learn that the "first Yugoslavia" (1918) created the framework whereby Croats and Slovenes could establish their domination over Serbs (Igric 1995, 31). As for the Croatian pupils, they are being taught that Yugoslavia was a centralized state "which was derived from Serb domination" (Igric 1995, 31). In those establishments, education confirms the verdict provided by battles. Official memory is by no means used to promote peace and stability but is turned into propaganda for conflict. Serbs attempt to forget the events that are recollected by Croats and Muslims of Bosnia-and vice versa. When the same event is remembered by the various parties, what appears to be a crime for some is interpreted as a glorious act by the others. Beyond these divergences one goal only is apparently shared by the parties: to erase any remembrance that might encourage

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reconciliation and to set aside any aspect that might be used as a catalyst for a common life. As is obvious from these examples overaccentuation of past conflicts often leads to an escalation of violence. Its effects may be said to be " belligenous." In that regard overaccentuation may not be associated with any form of negotiation. The representations that one party makes of past events are not taken in consideration by the other. There is, among the parties, a sort of division that seems to be reinforced rather than attenuated. The goal pursued by the overaccentuating party is to impose a single interpretation of the past: its own. Concealment of the past The proponents of official memory may attempt to hide certain aspects of the past rather than emphasize them, or at least to pass over them in silence. A good illustration may be found in the attitude adopted by the French authorities vis-a-vis the so-called Algerian war. For France this conflict represents an unbearable mirror of its past failures and errant ways. It was only after seven years of confrontation that the negotiations held by the French and Algerian delegations led to a final treaty that was signed in Evian. While this negotiation undoubtedly appeared to be beneficial, it apparently did not provide a firm basis for a real rapprochement, one reason probably being past events: both countries were apparently "blocked" by the "weight of the past." For decades French authorities resorted to various tools in order to parenthesize all traces of the conflict, even though numerous texts and images were available to commemorate this period of French history. The Algerian war was, however, confined to the register of private memory, the official level being dominated by a silent vacuum. The real meaning of this "oblivion," however, was betrayed in several ways, among them, the unease with which the Algerian drama was referred to; the censoring of accounts of the repression and torture that had taken place during it; the battle to determine which side would be allowed to retain the archives related to the colonial period; the absence of commemorations intended to pay tribute to Algerian war veterans, and, above all, the juridical mechanisms-for example, amnesty and presidential pardon-that were used to avoid any reactivation of memory. Yet, secrecy often leaves many problems unresolved. It does not really act as a barrier against the grim reminders of the past. In most cases it only postpones the moment when these facts will have to be considered. Secrecy also does not appear to have a positive impact on the relationship with the other party, for it implies that the violence previously committed against that party has gone unrecognized. As a result, misunderstandings are not solved, and all the elements that can hinder rapprochement remain. Thus, obliteration may not be considered as a form of negotiation either, and must be treated in the same way as overaccentuation. In this case the objective is not, as it was in the latter, to impose a single interpretation of the past but to avoid

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any interpretation at all. As a result, the representation of the other party is, again, not taken into account. Work of memory The work of memory has a very different objective from the examples just examined. Those who use it take into account the conflict that is likely to exist among the interpretations given by different parties to a common event: in our context, a war. The mechanism thus implies a form of recognition of the plurality of the interpretations that may be given to the past. Parties do not attempt to put forward representations that are toned down or, by contrast, exaggerated with regard to the events that actually took place. Instead, they try to accept the past as a whole-along with the complexity and the contradictions that often characterize it. The work of memory does not really concern the events that occurred (they cannot be denied by anyone) but rather the meaning that is attached to them. While studying this meaning, the protagonists attempt to establish a narrative that may favor a rapprochement among the parties. The aim, in that process, is not to discover "the truth" but to examine the past in the light of the cooperation that is being sought. 4 The memory which is involved in this framework takes the form of a compromise among several representations. That several points of view are taken into consideration does not imply that all perceptions are considered comparable. A sort of plurality appears to be inherent in the representations parties have of the past. Recognizing this plurality does not imply that one questions the existence of a reality beyond the representations. The idea of a shared memory is not based on a theory where everything is presented as relative to a particular perspective (relativism) but entails the hope that a common history is possible. Such a perspective can be illustrated by the process that has taken place between France and Germany since the end of World War II. From the outset this case must be distinguished from the Yugoslav and the Algerian scenarios. In these, hostilities were brought to an end by negotiation. In contrast, World War II terminated in a military victory. One may not conclude from that peculiarity that the Franco-German case does not offer interesting materials for a study based on negotiation. It indeed proves fascinating in that it provides an opportunity to see how former belligerents have progressively developed a new interpretation of their past with the explicit aim of avoiding further hostility. Such mechanisms can be integrated into the negotiation process. 5 For more than a century and a half the incessant reminder of past confrontations created vivid representations on each side of the Rhine. These perceptions gave rise to blazing discourses calling for revenge and the crushing of the ancestral enemy. The perceptions were based on the same events but were, in fact, totally different, if not contradictory. The discourses were thus based on representations that most of the time were mutually incompatible, one necessarily excluding the other, as both could not be correct at one and the same time.

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As of 1958 Charles de Gaulle and Konrad Adenauer decided to put an end to these calls for mutual destruction. Admittedly, their dialogues were not always exempt from ambiguity and disagreement. They were, however, considered by French and German representatives as the basis on which a common past could be constructed: a past that "fills the spirit with pride and at the same time painful regrets" (Notes et etudes 1962, 5-6). Since then, the authorities of the two states have systematically underlined the common memory that they wish to build on this ambivalent past. In doing so, their objective is to avoid being locked into memories that would be strictly national. They wish to recognize that national perceptions overlap and should be considered mutually dependent. The purpose is then to develop a "common language" able to designate the past that they have lived in common. At the very least it is intended to establish a minimum basis for a common interpretation that they could apply to future events, with the ultimate goal being to increase the opportunities for rapprochement rather than encourage a sense of further estrangement. This process is summarized well by the French prime minister, Lionel Jospin. For him, memory should not be considered as "a way to awaken ancient sufferings" but as "a tool allowing peace to be made with the past, without forgetting previous wounds" (Jospin and Schroder 1999). One may thus observe that official representatives do not only evoke past events: they use them to pursue present or future goals. In this context the past appears to form a "usable" tool. 6 Should it not be considered ipso facto as an object of negotiation?

Memory and Negotiation Differences

As already mentioned, the work of memory achieved by French and German representatives does not have its roots in a negotiation process but in the victory of one party. A priori, the differences that exist between these two concepts (work of memory and negotiation in the strict sense of the word) makes it possible to distinguish clearly between them: 1. Unlike most negotiations that are carried out to end a current conflict, the work of memory can be undertaken only when the conflict is over. 2. Whereas some negotiations are concerned with technical points and rational stakes, the work of memory concerns representations only with strong emotional connotations.lt tends to dampen and neutralize memories stamped with suffering and mourning. Therefore the positions expressed cannot be separated from the sorrows of each group.

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3. Whereas some negotiations can lead to precise and limited agreements, the work of memory can exclusively be conceived within a long-term perspective. In the Franco-German case, this process began more than forty years ago. 4. The work of memory outcome is not as tangible and clear as a cease-fire or a peace agreement. In negotiation, the outcome is dictated by considerations of power and justice operating between the parties. In the work of memory, the outcome is based rather on considerations of recognition that exist among them. 7

Definitions In spite of these differences the work of memory can be analyzed as a particular form of negotiation. Let us first take a look at the classical definitions of negotiation. The work of memory can be defined as "a process of combining conflicting positions into a common position, under a decisive rule of unanimity.''8 It appears also as "a process by which two or several parties interact in order to reach an acceptable position in regard to their divergences." 9 Moreover, the work of memory presents four components of a negotiation (Dupont 1994): 1. It implies an interaction between protagonists. The Franco-German example shows that the relational aspect turned out to be fundamental to the success of the work of memory. 2. It takes root in the divergences about perception and representation of the past. For the German chancellor, Gerhard Schroder, the work of memory remains necessary because of the resistance of "memory misunderstandings" and the existence of different approaches toward history (Jospin and SchrOder 1999). 3. It is undertaken only if the parties share common interests. In the FrancoGerman case each of the representatives insisted on the interdependence between the two states. In September 1962 the West German chancellor, Konrad Adenauer, asserted that, "thanks to God, the interest of France coincides with the interest of Germany" (Notes et etudes 1962, 9). Charles de Gaulle asserted later that, "it is clear that our interests meet and will meet more and more. Germany needs us as much as we need it" (Peyrefitte 1994, 154). Indeed, after World War II the construction of Europe worked in both French and German interests. 4. The work of memory's objective is also a mutually acceptable solution.lt aims to give an account of the past that seems fair and acceptable to all the parties.

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"Pure Problem Resolution"? One could consider the work of memory as very close to the notion of "pure problem resolution" (Dupont 1994, 9-10). The whole process is based on trust: protagonists act cooperatively and not competitively; they look for a "positive-sum solution" in a problem-solving orientation and not in a contending orientation. Nevertheless, the work of memory is not similar to a "pure problem resolution." Whereas the parties share a number of common interests, they have different and often contradictory representations of the past. The existence of a conflict of interpretations between former opponents thus prevents a mere identification between the work of memory and "pure problem resolution." Conditions Just as in a negotiation process, the work of memory tends to make a "reconfiguration" of reality (Dupont 1994, 12).1t aims at a mutually acceptable reappropriation of the past. To achieve this the three conditions that are required for a negotiation turn out to be essential (Dupont 1994, 24-25): 1. The first condition is concerned with the ripe moment (Zartman 2000). The parties must be ready for action. That implies that they perceive themselves to be in a mutually hurting stalemate and that they envisage the possibility of a way out. The Franco-German case is revealing in this regard. Losses and devastation caused by World War II made the French and German states conscious of the intolerable cost and senselessness of their struggles. Moreover, they perceived the construction of Europe as a means of extricating themselves from the antagonisms. 2. The second condition is the intention and the will of all protagonists. Indeed, the only reason they can undertake a work of memory is because the process is perceived as useful and profitable by each of them. Former belligerents will try to commit themselves to such a move only if it serves their national interests, and this was the Franco-German case after the war. Representatives of both states were apparently convinced that their difficult relationship could be resolved only by a rapprochement based on a work of memory. 10 This work allowed France to gain the support of Germany to remain influential. It further gave Germany an opportunity to gain the support of France to have its limited-sovereignty status set aside. 3. The third condition implies the existence of a relatively balanced distribution of power between the parties. Such a balance is required to allow a real rapprochement through the work of memory. A radical asymmetry would prevent the creation of sufficient common interests. In the Franco-German case the economic and financial power of Germany is complementary to the diplomatic and nuclear power of France.

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"Zone of Possible Agreement" Another element deserves mention. In common with the negotiation process, the work of memory presents a "zone of possible agreement" between different "resistance points." These points are, above all, dictated by the weight of memories. The space that each protagonist has for interpreting the past is systematically limited by a factual residue. Indeed, no party's representation can deny events that have been lived through or caused by another party. If one of the interpretations of the past distorts the facts too much, this will not contribute to rapprochement on the part of former opponents. Instead of appeasing the emotions brought on by the recollections, it will reinforce the misunderstandings of the past.

The Negotiation Processes Backward- and Forward-Looking Outcomes The third part will analyze the place that the work of memory may occupy in the processes of international negotiations. To that effect one has to go back to the distinction between "backward-looking negotiations" and "forward-looking negotiations." As is known, the former aims to end a current conflict whereas the latter is directed toward handling foreseeable problems that may appear in the future. The work of memory mostly takes place in cases where the types of negotiation just mentioned do not coincide. As an illustration of that noncoincidence, let us remember the case where one agreement may be obtainable under the pressure of the conflict stalemate, but its forward-looking complement may be the continuing source of disagreement among the parties. It is submitted that the work of memory may be used as a tool to favor the transition from one level of negotiation to the other. To use a geographical metaphor, one can say that the work of memory can be located downstream from backward-looking negotiations (1) and upstream from forward-looking negotiations (2). Backward-looking negotiations ~ Work of memory ~

Forward-looking negotiations

(1) Let us first envisage a situation where the parties are not engaged in a backward-looking process. In that situation the absence of such a negotiation shows that the belligerents lack the will or the motivation to engage in a real work

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of memory. The recognition of the other's representations, as well as the possibility of examining one's own representations in a critical fashion, are accessible only to parties that are fundamentally convinced of the necessity of rapprochement. Thus, the work of memory becomes a real option only when parties have come to a minimum agreement capable of bringing an end to hostilities; and that can occur only when the conflict belongs to the past. (2) The work of memory is used to pave the way for a transition from a joint but competitive search for an outcome to a joint and cooperative search for an outcome. The purpose is to appease past memories in order to create an environment where rational discussions can emerge without a flow of emotions being instigated. It appears difficult to envisage the creation of a new political order between former belligerents without taking into account the conflict of interpretations that is likely to emerge from any period of confrontation.

Steps Inherent in the Work of Memory After determining the place to be granted to the work of memory, it appears essential to analyze the different steps inherent in that process. Any negotiation normally consists of five steps: the preliminary phase, the information phase, the argumentation phase, the adjustment phase, and the formation of an agreement (Dupont 1994). In the same way the work of memory also implies several steps, but it is difficult to apply to it a scheme designed for negotiation. The first phase is probably identical in both instances: in the work of memory, parties come into contact with each other as they do in negotiation. A difference may, however, be found in the intermediary phases. The information and argumentation phases, in particular, do not always explicitly appear in the work of memory. The final step also seems to differ as the outcome produced by the work of memory may not be evaluated as would an agreement finalizing a negotiation. Preliminary contacts The initial phase often takes the form of informal and/or official encounters among representatives of the parties. At this stage, mistrust and hostility characterize the relations between the populations concerned. As a result the leaders try to develop a certain degree of confidence on each side. Classically, they argue that a rapprochement might lead to an improvement in the circumstances of the population. This first step, for instance, was taken by Charles de Gaulle and Konrad Adenauer in the course of various tours undertaken on both sides of the Rhine between 1958 and 1962. Both leaders were convinced that popular support would be necessary to attain a real and durable reconciliation. As a result they behaved in a manner that aimed to help the population overcome preconceived ideas and fears brought about by past events. The purpose of this first step was to witness to the "immense transformation" that had changed the two countries: whereas yesterday

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they had been "hereditary enemies," today they had become "determined friends" (de Gaulle 1970, 428-29). Information and argumentation The information and argumentation phases constitute the background work to be performed on memory. As mentioned earlier they do not always appear explicitly in the relations among the parties. Two situations may be envisaged in that regard:

1. First, the work of memory may occur in the framework of negotiations undertaken at the very end of the conflict, and the relevant phases may generally be found in that context. Each party is called to describe the interpretations it retains of the past (information). That description is normally backed by arguments that aim to justify the behavior of one party and dispute that of the other (argumentation). An example of that mechanism may be found in the works performed by the Truth and Reconciliation Commission in South Africa. Beyond its often-criticized imperfections, the commission had the merit of opening the floor to victims of both sides and giving them a chance to "tell their story." The hope was that the process of talking would somehow alleviate the suffering endured for so long in silence. 2. The work of memory is not undertaken in all cases as soon as hostilities cease. In the Franco-German case, for instance, the official first move took place more than ten years after the end of the war. A second hypothesis must thus be envisaged, namely, that the data that could serve as a basis for the information and argumentation phases are already well known by the parties and that, in both countries, official memories are filled with the expression and the justification not only of divergent but also of contradictory interpretations. Such interpretations, however, are rarely expressed explicitly. Most of the time the official documents and speeches addressed to the other party appear to be silent on them, the reason being that the interpretations entertained by each side regarding past events are perceived as possible threats. They might endanger the process that is taking place. Opening a space for the expression of these perceptions could, it is feared, reactivate the emotions attached to past combats and wounds. Such an outcome would contradict the objective pursued, namely, to appease the hate and the sufferings that might still be perceived in the relationship. Reconstruction In the adjustment or reconstruction phase, the parties attempt to go beyond the conflict they perceive between the interpretations given to the same event. They are no longer engaged in activities that may be considered descriptions, justifications, and dispute. They recognize the plurality at the heart of the representations given to the past. They therefore have to accept that they must

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listen to the experience undergone by the other party. They also have to examine in a critical way the representation they give to what they themselves have gone through. Such an approach requires a certain capacity of empathy, which is made possible through active listening and self-expression (Lempereur 1998, 58-59). The understanding and the official recognition of the sufferings that have been endured by the other turn out to be a decisive step within the work of memory. Moreover, they appear to be necessary conditions for tempering, or alleviating, the pain associated with the remembrance of difficult past events. The distance that is acquired through the formulation of the emotion, as well as the feeling that such emotion is recognized, form a backdrop against which the parties can now consider their conflict as belonging to the past, without experiencing it as belonging once more to the present. Thus, it comes as no surprise that all leaders of the Federal Republic of Germany successively called on their people not to forget the past but rather to face it: all underlined the necessity, for the younger generation, to take on board the most difficult episodes of the national history (Kohl1990, 108-10). In France, Charles de Gaulle clearly showed on several occasions that he refused any interpretation based on a Manichaean representation of the past: he described Germany as a "great nation," recollected that the French people had also caused injuries to the German population "in certain circumstances" (Notes et etudes 1962, 7), and in a speech at the Feldherrnhalle in Munich (Germany), paid tribute to the victims of the 1870 and 1914-1918 wars. In 1984 Fran9ois Mitterrand had a similar attitude vis-a-vis "the German soldiers" who died as a result of their combat involvement (Mitterrand 1986, 173), as did Jean-Pierre Masseret, then a secretary of state for war veterans, who honored "German soldiers, our enemies of then." 11 The Franco-German case is not the only illustration concerning the reconstruction phase. Another example may be found in the relationship between Germany and the former Czechoslovakia. Richard von Weizsiicker, the then president of the Federal Republic of Germany, and Vaclav Havel, president of what was then Czechoslovakia, also carried out a critical examination of their own national histories which they made public on the fifty-first anniversary of the invasion of Czechoslovakia by Germany (15 March 1990). The West German president emphasized the "six years of occupation and oppression" that were imposed by his country, the "painful scars," and the "deep feeling of mistrust" that still existed today as a result of what had happened. Vaclav Havel, for his part, examined "the faults and sins committed by our fathers," alluding to the expulsion and the suffering inflicted by Czechs and Slovaks on three million Sudeten Germans in 1945-1946 (von Weizsiicker and Havel 1990). It is important, however, to underline that there are limits to this sort of exercise. A reconstruction may be envisaged in the case of a classic war scenario, for example, in conflicts between opposing combatants, but it appears more difficult to imagine in atypical conflicts, such as those where the roles are clearly and unequivocally defined between a victim and a torturer. It would be difficult, for

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example, to envisage a victim taking into account the torturer's point of view as the burden of responsibility appears to rest on one party alone. Shared memory The last phase in a work of memory does not take the form of an agreement or a declaration that might be considered as bringing an end to the opposition among the interpretations. In that respect, the work of memory must be clearly distinguished from a classical negotiation. In some cases, however, the reconstruction may lead to the elaboration of an interpretation that is common to the parties and has an appeasing effect on both of them. What needs to be done to achieve this? On the one hand, the representatives of each party must recognize the interpretation given by the former adversary to the events that have occurred or, at least, attempt to do so. On the other hand, both must develop jointly a common language that will pave the way for an integration of both interpretations into a common story. 12 The objective is to avoid any national memory being locked into a distinct space, something which would sow the seeds of a new, exclusive, and thus aggressive remembrance. At that stage, the work of memory transcends the opposition that is often established between memory and oblivion. In fact, a form of oblivion is required if the process is to succeed. Oblivion must, however, be carefully defined. Oblivion is not a form of obliteration. The work of memory does not attempt to obliterate the past, thus oblivion should not be defined as the manifestation of a failure to cope with past events or even as an escape from those events. In terms of the work of memory, oblivion should be described rather as the outcome of an "active" and "curative" strategy (Nietzsche 1988, 77-78). It does not affect the events as such but the remembrance we still have of them, the "impression" left by the time passing. The emotional charge that is inevitably attached to difficult events is thus progressively alleviated. The path is then open for a new construct of the events. In that perspective the work of memory in fine allows former belligerents to remember the past while forgetting the initial meaning of the events (hostilities among enemies) and developing a new one (brotherly disputes, for instance). Cruel battles may thus be reinterpreted as "wars of fratricide," giving them a character that somehow reassures the parties, as it does not come as any real surprise that brothers sometimes resort to violence to solve their difficulties. The new interpretation does, however, lead to a conclusion, namely, that it is time to bring an end to "ancient family quarrels" (Anderson 1996, 189-206). Such an evolution is illustrated in the Franco-German case. French presidents resort, in particular, to meaningful expressions in order to describe past conflicts. For instance, Valery Giscard d'Estaing depicts World War II as a "European fratricide." The two world conflicts are described by Fran~ois Mitterrand as "civil wars in Europe." Jacques Chirac recalls the "long war of fratricide" that began in 1914 in Europe. 13 The images of the battle of Verdun in the official representation are also characteristic of that kind of transformation. The number of victims, a quarter of a

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million young soldiers, as well as the ruthless nature of the combat, created terrifying memories in the consciousness on both sides. As early as 1916 a patriotic representation of the battle was being separately elaborated in France and in Germany. On the French side, Verdun was witness to the glory, the heroism, and the victorious spirit of the French combatants. On the other side of the Rhine, the German defeat quickly became part of national-socialist ideology. In 1984 the Franco-German rapprochement paved the way for a new interpretation to be given to this event, and Verdun became a symbol with similar meaning for all combatants, French and German. The memories were no longer presented as national and separate but were unified as a result of the reconciliation that occurred, with the soldiers who fought in opposing camps gathering in a common tribute. This reinterpretation was given symbolic expression when Fran~ois Mitterrand and Helmut Kohl stood, hand in hand, in front of the ossuary of Douaumont (France). The wars waged in the past were then presented as a common past of collective suffering. In the official memory the groups ceased to be presented as being on different sides of a conflict; they somehow lost their heterogeneous character as groups living separately from each other and became considered as brothers who had suffered reciprocally as a result of a tragedy that they had all had to endure. The effort taken to integrate national memories does not imply that events in the future will be given a uniform representation on both sides. Integration does not set aside plurality but supposes that disagreement may be accepted to a certain extent. One may speak, in that regard, of a "reasonable disagreement," which appears to be admitted by the parties. In that sense the work of memory remains a process concerning memories-that concept being then used in a plural form. Thus, the shared memory elaborated between France and Germany has not completely erased the differences that still exist in the representations one can find in both countries. As recently indicated by Gerard SchrOder and Lionel Jospin, gaps and misunderstandings will continue to exist in connection with memory "as long as we remain French and German and as long as our identities are still different" (Jospin and Schroder 1999). As a result, a memory shared by several states or communities may not be considered linear or smooth. To use a visual metaphor it may be presented as a "mosaic." The official memory may by no means be considered as the expression of a unique and final truth but rather appears as the result of a dynamic tension between differing and/or conflicting representations in perpetual evolution. The steps inherent in the work of memory are summarized in table 8.1.

Variables Let us finally emphasize that the outcome of the work of memory depends above all on popular support. 14 For even if this work seems necessary to the

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Table 8.1 Steps Inherent in the Work of Memory 1. Preliminary contacts 2. Information

Calls for confidence Description of the interpretations given by each party to past events

3. Argumentation

Justification of interpretations given by each party

4. Reconstruction

Recognition of the plural character of interpretation

5. Shared memory

Common reinterpretation of the past

representatives of all parties, it cannot be imposed by decree. Its impact on the population can be expressed according to three main variables. The first variable concerns individual experience. The interpretation of the past produced by spokespersons cannot normally contradict the lived or transmitted experience of individuals. Individuals must be able to recognize themselves in the official narration concerning the past. The story of a fraternal conflict, for instance, sometimes offends those who have suffered or have lost a relative. One can thus affirm that the further the interpretation stemming from the work of memory is from the individual representations, the weaker its impact is. Time is the second variable affecting the work of memory as far as the population is concerned. Time is needed to progressively transform the relationship between former opponents. Some particularly traumatizing events cannot be spoken about or listened to for a period of time known as the "latent period." No rule appears to exist about the length of this. It would be quite reasonable for the elaboration of a really shared memory to last several generations. That kind of memory would probably never be imposed on a population that is still deeply wounded by the events of the past. One can thus affirm that the shorter the delay between the conflict and the work of memory, the sharper the resistance within the population. Finally, the third variable, the personal variable, turns out to be fundamental. The representatives of each party must, of course, show the attributes of successful negotiators (flexibility, interpersonal sensitivity, inventiveness, patience, or even tenacity) (Rubin 1991, 19; Dupont 1994, 220-25). In addition to those qualities, however, they must be able to gain popular support. In this respect the personal past of the leader is a very important factor for credibility. Things will go more smoothly where the rapprochement is advocated by a person who has accomplished heroic actions against the enemy with whom the reconciliation is being sought. That person then asks the population to undergo a transformation that he/she has himself/herself gone through, in other words, to overcome the resentment toward the former enemy. For instance, the historical legitimacy of Charles de Gaulle probably helped the French people to change the representation they had about the wars against Germany. A similar comment can be made concerning Nelson Mandela in South Africa. One can thus affirm that the more legitimate

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the representatives of each party, the greater the effect produced by the work of memory on the remembrances shared by individuals. At the end of this chapter, two points must be highlighted. The first is that the work of memory can be considered as a particular form of negotiation. The second is that this work may in itself constitute a step in the negotiation process toward forward-looking outcomes. The work of memory actually offers a path to overcoming the contradiction between peace and justice. On the one hand, it eliminates the motif of revenge. The focus is not placed on past injustices in an attempt to "repair" them by calling for revenge. Instead, the work of memory implies that the other's point of view should also be taken into account to overcome the legacy of the past. Instead of justifying recurring fights, it sets the basis for a lasting rapprochement between former opponents. Moreover, the work of memory eliminates the motif of oblivion. Opening the floor to victims of each side heals feelings of injustice. The work of memory implies the establishment of facts and responsibilities. It is possible to address emotions and grant meaning to past events only when victims are clearly identified and fully recognized. In all cases one must consider the context of the parties. For instance, the constraints are not the same if a conflict ends with a military victory or if it ends through negotiation. In the latter case parties may impose an amnesty. Amnesty often appears to be the price that must be paid for the cooperation of all parties. The balance of power between the former and the new leaders then determines the way forward. History is rewritten by officials. Even then the recognition by officials of the atrocities that have been endured by victims constitutes a form of reparation which, though admittedly symbolical, is nevertheless essential to the victims. Uncertainties remain substantial. For that reason it is difficult to come to any definitive conclusions. On the basis of the analysis that has been carried out, one can, however, state that the work of memory does not constitute a normative model or a magical solution that is applicable to any international conflict. The attitude adopted by political leaders does not appear to be dictated by a mere desire to dispense justice. It probably does depend on the context and objectives pursued by the parties. It would thus be futile to express general considerations about the use that is sometimes made of the past without taking into account the concrete circumstances in which events happen. Thus, the work of memory has fundamentally a pragmatic character that does not make it less important or less interesting. It is undeniable that reconstruction must involve an attitude other than obliteration, a form of amnesia, or overaccentuation, a formula that can easily lead to revenge.

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Notes 1. Quoted in Lavabre (2000) in a paper submitted at the international conference, Memory and History: Remembering, Forgetting and Forgiving in the Life of the Nation and the Community, held at the University of Cape Town, 9-11 August 2000. The full text of the paper is to be found at www.fl.ulaval.ca/celat/histoire.memoire/histoire/cape tnavabre.htm. 2. This is a reference to the victims of World War II and of the Kosovo battle in 1389. Let us take two examples. In 1991 a young theologian from Belgrade reminded us that "the current war is imposed on us by the greatest criminals ever, the Oustachis, the same who slaughtered us from 1941 to 1945." In 1982 some representatives of the Orthodox Church were already asserting that "the Serb people have been carrying out a conflict in Kosovo since 1389. Kosovo is our memory, our home, our internal flame." See Rosoux (1998, 5-17). 3. On national stereotypes see JOnsson (1991, 233-4). 4. In this regard, memory and history are fundamentally different. The distinction between these notions has three bases: (1) Memory is an actual experience in perpetual evolution; history is an abstract reconstruction that tends to last. (2) Memory is plural, peculiar to each group; history is in principle universal. (3) The object of memory is not the reality of the past event (as is the case for history) but the construction and the reinforcement of an identity. See Nora (1984, xix). 5. The South African case shows, for instance, that the procedures used to cope with the past can be established in the framework of a negotiation in the strict sense of the word. 6. The notion of "usable past" was introduced by Finley (1981, 234). 7. On the question of power, see Zartman (1991). On the idea of justice, see Zartman and Berman (1982, 102-9). On the concept of recognition, see Ferry (1996, 60-61 ). 8. Kissinger, cited in Dupont (1994, 11). See also Kissinger (1969). 9. Kissinger, cited in Dupont (1994, 19). 10. On that subject, Charles de Gaulle asserted, "Alone, we do not have the means to lead Europe. You neither. But together, we can do it" (de Gaulle 1987, 268). 11. Le Monde, 11 November 1998. 12. In The Practical Negotiator, William Zartman and Maureen Berman consider that a "shared perception" of the conflict is a component of the formula phase. See Zartman and Berman (1982, 95-98). 13. See speech of Jacques Chirac in Vienna, Austria, on 11 February 1998. Full text is available at www.doc.diplomatie.gouv.fr/BASIS/epic/www/doc/DDW?M=1&K= 961953797&W=AUTEUR+PH+IS+%27chirac%27+AND+TEXTE+PH+IS+%27guerre+ fratricide%27+0RDER+BY+DATEIDESCEND#BWHR 1. 14. On the population's support, see Zartman and Berman (1982, 215-9).

Chapter 9

The Building of Mercosur: A Continuous Negotiation Process Juan Carlos M. Beltramino

The settlement of conflicts and the expected benefits of cooperation among participating countries are at the heart of moves to establish politico-economic regimes such as Mercosur (the Mercado Comun del Sur or the Common Market of the South), which currently comprises Argentina, Brazil, Paraguay, and Uruguay, with Bolivia and Chile associated to it by special agreements. International negotiation, in which conflict and cooperation coexist, is the universally recognized means of achieving such aims. The elaboration of a basic institutional and normative framework is not the culmination of all efforts, however, but merely a necessary key step, for the building of such a regime is an almost continuous negotiating process, involving choices, progress, setbacks, and periodic crisis. Mercosur is at an intermediate stage between the looser associations of states, such as the Asia-Pacific Cooperation Forum or the South Asian Association for Regional Cooperation (SAARC), and the highly institutionalized and normatized European Union. It is, in fact, an unfinished or imperfect customs union (one of the two state associations foreseen in Article XXIV of the General Agreement on Tariffs and Trade [GATT] included in the 1994 Marrakesh Agreement); it has several collective bodies but no permanently functioning institutions except for a small secretariat with headquarters in Montevideo. Mercosur is a special regime in several respects: the way it was born, the way it evolved, the centrality of its political aim, the way power is distributed among its member states, its intergovernmental system of negotiations, and the way it adopts decisions in critical situations. During the last decade a great wealth and variety of Mercosur activities have been recorded, and a vast bibliography, including very important books and 177

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articles, mainly in Spanish and Portuguese, has been published on many aspects of the subject. In this chapter our study will focus on Mercosur's negotiation processes, a matter that has received comparatively less attention.

Preexisting Political Conflicts The states of South America became independent during the nineteenth century, but many borders remained in dispute, and efforts to settle these differences, through negotiation, mediation, and arbitration, continued, in some cases up to the end of the following century. 1 The complete elimination of such disputes was considered a big leap forward in the history of relations between Latin American countries. In spite of the disputes, each government had regularly undertaken to develop good neighborly relations and cooperation, both through agreements and unilaterally, in order to face and settle conflicts that derived from different interests or perceptions concerning, inter alia, policies, unilateral decisions, cooperation in public works, and migration. The common origins of South American countries and the advantages of peaceful coexistence eventually helped to reduce tensions and achieve settlements. Perhaps one of the most important cases of conflict over a prolonged period of time was between Argentina and Brazil, the continent's richest countries and also among its largest. For decades the relationship between these two neighbors was characterized by rivalry, distrust, and suspicion. Different reasons may be given for this state of affairs, but perhaps the main one was the assumption by those in the military and academic worlds who were interested in geopolitical affairs that there would eventually be armed conflict between the two countries. In both countries the consequence of this idea was the buildup over a number of years of armaments and military facilities. That approach came to a definite halt as a result of efforts by both countries to work out a common policy of cooperation on peaceful nuclear activities, a joint statement on the matter being signed in 1980. It was followed by five similar instruments between 1985 and 1988. The nuclear agreement helped create a favorable political environment for the Argentine-Brazilian relationship, changing the countries "from rivals to partners" (Carasales 1997, 59-88).

First Steps Toward Integration In the middle of the 1980s particular external factors concerning the national interests of Argentina and Brazil contributed to their decision to develop closer economic ties. One of these was the external debt crisis of 1982 that seriously affected the developing countries and the other was the GATT Uruguay Round that began in Punta del Este, Uruguay, in 1986. Trade among Latin American countries in the mid-twentieth century following World War II was much less significant than at the end of the century; trade

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policies were highly protectionist, with numerous tariff barriers and other obstacles to imports. Bilateral treaties on trade and payment were the usual instruments underlying commercial exchanges. The long persistence of such conditions created conflicts of economic interest among countries, at the same time hindering their development. Each country concentrated on maintaining and increasing its own national production and on reducing its imports, and was unable to tackle conflicts efficiently and promote exchanges. The first concerted efforts by Latin American countries to enter into a regime of free trade among themselves was the creation in 1960 of the Latin American Free Trade Association (ALALC), that aimed to reach this goal within twelve years. Its most important, and perhaps only real, accomplishment was to multilateralize bilateral treaties on trade and payment (Baldinelli 1997, 152-57). Unfortunately, protectionist policies were maintained among member states, along with an unwillingness to include many products, including manufactured goods, in the liberalization process; moreover, commitments to hold to target dates were not respected. After its first successful year, ALALC went into a long decline and its poor results led to the establishment two decades later of the Latin American Integration Association (ALADI) by the 1980 Treaty of Montevideo (Baldinelli, personal communication to the author, 2000). Unlike ALALC, ALADI was not tied by "rigid schedules for the formation of a free-trade area either by a treaty signed in Montevideo or automatic instruments to eliminate trade barriers among its member countries. The object was simply to allow preferential agreements among member countries that wanted to celebrate them. The ideal of a free-trade area was kept, but it would be reached at the same time as countries enlarged their preferential agreements" (Valls Pereira 1999, 23). Instead of deepening integration by multilateral agreement, member countries signed a number of bilateral treaties. Complex and protracted negotiations were held over the years by representatives not only of government but also of the private sector. The particular nature of the issues under discussion frequently led to the grouping of representatives by sector and to negotiations on tariffs one by one, through hard bargaining. The approach was backward looking, attempting to dismantle barriers bilaterally without envisioning a new structure. Difficulties in making progress in reaching the goals of the two associations and the frequent lack of implementation of their agreed rules resulted in declining interest on the part of participating governments, and both entities languished. "The idea of economic integration reached a point of crisis in the region as a consequence of poor results obtained with such experiments" (Pefia 1998, 19). At present ALADI has a number of issues pending solution and claims by affected states due to nonimplementation of rules, while the secretariat continues to collect and publish statistics. In spite of all this, and with the 1980 Montevideo Treaty still in force in ten South American countries plus Mexico, Mercosur was born within the framework of this treaty.

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Following the joint statement on nuclear relations and along with the development of subsequent instruments on the subject, the first step that led to Mercosur was made by presidents Raul Alfonsin of Argentina, who took the initiative, and Jose Sarney of Brazil, with the signature of the Statement of Iguazu on 30 November 1985, in which the two countries decided to speed up a process of bilateral economic integration (Lavagna, personal communication to the author, 2000). After this first demarche, both sides negotiated an acta (protocol) for Argentine-Brazilian integration, which was signed in July 1986, and a program of economic integration and cooperation (PICE). The program contained several principles adopted later with the formal establishment of Mercosur, inter alia, gradualism, flexibility in the adjustment of means and goals, intrasectoral integration, preferential treatment with respect to third states, and progressive harmonization of national legislation. On the eve of the signature, Brazil was allotted the task of informing Paraguay, and Argentina of contacting Uruguay (Lavagna, personal communication to the author, 2000). Subsequent negotiations with Paraguay and Uruguay produced the Treaty of Asuncion, signed on 26 March 1991, that created the Southern Common Market. The birth of Mercosur, responding to the needs and aspirations of its partners, took place at a time when other economic associations of states were being established. Although the general conditions for this event were appropriate, long-range vision and determination were also required to materialize the instrument.

Partners' Interests National interests, based on countries' general needs and aspirations, are undoubtedly the main driving force and raison d'etre of governments' policies and activities. As Frankel (1970, 43) remarks, "in foreign policy, it is impossible to deny altogether the existence of a national interest, however vague and nebulous it may appear to be, at least as an important datum." The national interest, however, is not easy to determine: "national interest is not a single or simple thing; and often various national interests are implicated, and policy-makers must attempt to balance, compromise, or choose among them" (Henkin 1979, 36). Furthermore, national interests change over time, and issues are reframed and redefined in accordance with these changes, as a number of authors point out (Spector, Sjostedt, and Zartman 1994, 16). It is better in this case to speak of particular national interests or aims, to distinguish them from the general national interests that should be considered fairly permanent in terms of time. In this context a change of policy or attitude on the part of negotiators in respect of some issue or group of issues in Mercosur at a particular period of time does not mean that their own basic general interests have changed. It can be rightly assumed that negotiations among the four partners have been facilitated by a common Latin culture, values, and languages, but this fact should

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not be overemphasized. The general national interests of the four partners lead them to see Mercosur as a means (A) to develop links and to avoid conflicts between the parties; {B) to promote and increase commercial exchanges as well as economic and other bilateral and multilateral relations; and (C) to strengthen political and economic positions in relation to third states and associations of states. Priorities are not the same for the partners. While the order of priorities for Argentina, Paraguay, and Uruguay might be BAC, the ranking for Brazil could well be CAB. "Brazil's paramount commercial interest lies in the maintenance of an open, multilateral world trading system"; 2 Brazil, moreover, "wants a wider [rather] than a deeper Mercosur. With regional integration, we're going to be able to take part more actively in world trade and world decision making in the next century;• says President Fernando Henrique Cardoso of Brazil.3 Argentina, on the other hand, has firmly embraced the cause of establishing Mercosur and consistently promoted its fundamental instruments. A number o{years of increased bilateral trade with Brazil, even with superavits, encouraged many Argentinians to support Mercosur in spite of the serious difficulties the country was encountering in the implementation of its rules. Interest in Mercosur as a whole, however, changed during the first decade of its life, as its dynamics and effectiveness came into question. In the first part of the decade, during the creation of the basic instruments and immediately afterwards, there was an almost enthusiastic approach to Mercosur, and expectations were high because of the relatively rapid speed with which the basic instruments were adopted. During those years intraregional exchanges developed well, without major obstacles. The increasing difficulties faced by the negotiators of the parties through the existing bodies of Mercosur, however, led to a reduction in positive outcomes. The devaluation of Brazil's national currency at the beginning of 1999 seriously affected the exports of the three other partners and contributed to a noticeable loss of interest in the usefulness of Mercosur; moreover, a number of voices began proposing that the organization should be reviewed and its structure and dynamics changed.

Characteristics of Mercosur Negotiations Bearing in mind the creation of new rules and the implementation of existing rules, Mercosur has its own negotiation system that offers the following features: The first feature is the intergovernmental nature of the negotiations, with the parties being represented by government officials at different levels. The Treaty of Asuncion provides for: (a) a Common Market Council consisting of the ministers of foreign affairs and economy of each member state and, at least once per year, of state presidents (Article 11); and (b) a subordinate Common Market Group of the same ministers or their equivalents in other areas such as foreign trade, industry, economic coordination, and central bank (Article 14). Under the

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settlement-of-disputes process of the Mercosur system, established by the Brasilia Protocol of 1991, claims by corporations and individuals must be presented to the national section of the Common Market Group and, if they are finally accepted, the Common Market Group will act on their behalf (Chapter V). The second feature is that "all the decisions adopted by Mercosur organs should be adopted by consensus and with the presence of all Party States" (Ouro Preto Protocol, Article 37). This procedure was followed from the very beginning by the partners in decisions by the Common Market Council, resolutions by the Common Market Group, and directives (orders) and proposals by the Commission on Trade (Protocol, Sections I to III). The unanimity required for any decision places state sovereignty above Mercosur actions. There is no delegation of powers to the respective organs, as is the case with many multilateral organizations and conferences. The will of every one of the four members must be satisfied when the time comes to reach a conclusion. This potential veto gives each partner strong negotiating power but, at the same time, makes the negotiating process slow and tedious. While it would appear that unanimity provides some kind of guarantee that the decisions will be implemented, experience shows that this is not always so. The third feature, also concerning sovereignty, is the great degree of autonomy enjoyed by the parties and their negotiators, largely because of the lack of permanent institutions and control bodies in Mercosur. This, as can be easily understood, has positive as well as risky implications for the development of Mercosur. Like unanimity, autonomy places more freedom and responsibility in the hands of negotiators and, at the same time, demands greater efforts to maintain coordination and continuity in negotiation than is the case with strong institutionalized systems such as those of the European Union. Institutions may also bring some rigidity and the risks of bureaucratic support staff pursuing their own particular interests, and, for the time being, the activities of Mercosur are not under such pressure. Fourth, the institutional multipurpose of Mercosur, as established in the Asunci6n Treaty and the Ouro Preto Protocol, and, above all, the diversity of the four partners' national economic interests, the basic asymmetries between them, as well as the multiplicity of issues that have to be addressed and settled all explain the multitiered and complex nature of negotiations both inside the regime and with third parties (Zartman 1991, 302-14). Negotiations between the four countries' presidents, and particularly between the Argentine and Brazilian presidents when blockage over difficult questions arises at the lower level of decision, represent the top tier. Summit negotiations to settle conflict when interests collide can, in fact, be termed "crisis negotiations." Negotiations among the ministers of justice, education, and environment, as well as among officials of the respective ministries, chambers of commerce and industry, orders and collegia of lawyers, and universities, have developed remarkable and successful activities in terms of exchange of information, consultations, and negotiations with a view to harmonizing the four partners' domestic

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legislation. During the 1990s the number of annual intra-Mercosur negotiating domains was estimated at more than 260 (Sabra 1999, 127). Frequently, business or inter-corporation negotiations are held between companies and between sectoral chambers of the respective countries to accommodate their interests and to settle emerging conflicts. There are also negotiations with other states or associations of states, such as the European Union, the Free Trade Area of the Americas, the Andean Community, Bolivia, and Chile. The future incorporation of Bolivia and Chile, as well as other South American countries, into Mercosur has been, and continues to be, in the minds ofMercosur's founders. A fifth feature is the flexible and pragmatic approach to negotiations when attempts are made to overcome potential technical difficulties and save time that would otherwise be spent in a rigid interpretation or implementation of existing rules. Confidence that agreements will be achieved more easily through simplified dealings, and the desire for quick positive results, both explain this way of proceeding. The celebration of so many formal and informal negotiations has led some specialists to point to the coexistence of a "formal" and an "informal" Mercosur.

Main Negotiation Processes As in other international economic regimes, the central purpose of Mercosur negotiation processes is twofold and forward looking: to produce and promote multilateral cooperation and to settle the disputes that may arise among the partners. It is understood that the processes must play a positive and constructive role in the management of cooperation and conflict, that the partners will seek to satisfy their own objectives, and, at the same time, that they will seek to ensure that the regime performs well. Mercosur's negotiation processes vary according to the nature of the issues, the level on which they are discussed, and the expected outcomes. The great diversity of almost continuous negotiations since the inception of Mercosur at the intergovernmental and corporate level make it necessary to base this analysis on the one hand on negotiation periods and on the other hand on specific issues that are more representative of conflict and cooperation between the parties. Founding Period

During Mercosur's first years of existence, negotiation processes were aimed at the adoption of the basic constitutive and organizational instruments, from the Treaty of Asuncion in 1991 to the summit meeting in Las Leftas, Mendoza, Argentina, in 1994. With integration as the common goal and with the determination to attain this in the shortest possible time, the four governments and their negotiators were very active in the elaboration of the institutional agreements. Negotiation

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processes were very cooperative and ran comparatively smoothly, mainly because of the nature of the rules to be elaborated and approved and the common will of the parties to overcome past trade conflicts, rivalries, and suspicions. To some extent the processes were similar to those utilized by multilateral conferences devoted to the codification of international law, in which general rules, not referring to particular states, are negotiated. The need to reach a consensus explains why a strong institutional structure was not adopted, but rather the "flexible and pragmatic approach" envisaged by the heads of state of Argentina and Brazil when they made the first steps toward Mercosur. The guiding philosophy was to ensure a rapid launch and, afterwards, to see how the regime worked. Several factors facilitated the successful development and outcome of these negotiating processes. They coincided with the decision of the Brazilian president to liberalize the Brazilian economy, the will of the Argentine president to contribute to the rapid creation of an important political body, the democratization of Paraguay, and a speech by American president George Bush on free trade in the Americas. The governments desired a new and more articulated integration structure to overcome decades of unsuccessful efforts to solve the backward-looking trade conflicts and differences among Latin American countries. The Argentine and Brazilian presidents strongly supported the Asuncion negotiations conducted under the leadership of their ministries of foreign affairs. Once a basic agreement was reached the governments of Paraguay and Uruguay were invited to join the process. The Asuncion treaty essentially established the free circulation of goods and services, the elimination of tariffs and other restrictions inside the area, as well as the adoption of an external common tariff and the constitution of two bodies to administer the agreement. The process consisted of three parallel negotiations, one between Argentina and Brazil on economic complementarity; a second between both of them and Paraguay and Uruguay; and a third between the four partners and the United States on an agreement creating a common trade and investment council, known as the four plus one agreement (Pefia, personal communication to the author, 2000). Almost immediately after the signature of the Treaty of Asuncion, the Argentine government made a further bid to promote the regime, proposing another forward-looking mechanism, a special instrument for the settlement of disputes. The negotiating process was placed mainly in the hands of the legal officials of the four partners' ministries of foreign affairs and was completed in the same year as the Brasilia Protocol. The protocol provides the use of negotiations between the member states as a first step toward the settlement of disputes, the intervention of the Common Market Group as a conciliation body, and an arbitration procedure. Perhaps the most important negotiation meeting of the Common Market Council, with the participation of the four partners' presidents and the presidents of Bolivia and Chile as invited participants, was that of Las Lefias in June 1994.

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Many significant decisions were adopted on commercial and customs issues, as well as on environment, the Paraguay-Parana river navigation, and representative democracy. In the same year, negotiations among the four countries produced the Ouro Preto Protocol, signed on 17 December, enlarging the provisions of the Treaty of Asuncion and completing the regime's structure, as well as providing for the deepening of integration and adopting an external tariff. It put the regime on a more solid organizational footing and also added new bodies: the Joint Parliamentarian Commission, the Economic and Social Consultative Forum, and the Administrative Secretariat. This was a period of clear common will among the four partner governments with respect to the overall integration policy and the establishment and functioning of the Mercosur system in the shortest time possible. This positive approach prompted and facilitated the respective negotiating processes and the negotiators' activities. Unfortunately, the failure to establish an appropriate procedure for control of the implementation ofMercosur rules had a negative impact on the regime's operations in the period that followed (Pei'ia, personal communication to the author, 2000). Operating Period

As Pei'ia (1998) rightly pointed out, in some ways Mercosur's easiest stage was during the founding years. The period beginning 1995 was the most complex and required governments' efforts to maintain the initial momentum and develop rules of the game that ensured effectiveness in the free access to the respective markets, as well as the elimination of many artificial asymmetries that were still in force, based on governmental protectionist policies. In broad terms, and contrary to practices in the founding period, processes inside the regime have had a mixed cooperative/competitive character, being predominantly cooperative in the adoption of different kinds of rules, and highly competitive in crucial issues when strong economic interests were at stake (automobiles, sugar, rice, pork products, textiles, and shoes), the main protagonists being the production and trade sectors of the major Mercosur partners. In fact, in 1995 Mercosur entered a sort of plateau, where negotiation processes turned to technical and administrative issues, without any strong moves on common policies or on action to foster and consolidate the regime. During the negotiation processes much more time has been devoted to dealing with obstacles to trade rather than to other problems inside the regime. In the technical field four of the ten subgroups of the Common Market Group dealing respectively with communications, technical rules and procedure, agriculture, and health have been the most active. As a collateral activity inside the regime, the ministries of justice, education, and internal affairs of the four partners have made important progress with a view to harmonizing domestic legislation.

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"Presidential Diplomacy"

The Mercosur Common Market Council, which has the main responsibilities for monitoring the Asuncion treaty system and promoting policies for the formation of the common market, met eighteen times at the presidential level between 1991 and 2000. On each occasion the presidents delivered a joint communique as a result of their formal negotiations. The four, and above all the presidents of Argentina and Brazil, also met informally a number of times at critical short notice when sectoral conflicts came to a head. Their encounters and the political understanding adopted with a view to overcoming those conflicts, through restricted bargaining or simply postponement of final decisions, has been qualified as "presidential diplomacy," a voluntaristic, practical way of proceeding that perhaps would disappear or be reduced to a minimum if the regime were to be consolidated and institutionalized in the future. External Negotiation Processes

Mercosur has evolving relations with Bolivia and Chile for the purpose of enlarging the common market and ongoing negotiations with state associations, such as the European Union and the Free Trade Area of the Americas. Negotiations with Bolivia and Chile led to the conclusion of free-trade agreements in 1996. Both these instruments include several schedules for tariff reductions and their elimination over a ten-year period. Chile trades heavily with Mercosur members, particularly with Argentina and Brazil, and has an external tariff that is lower than that of the regime, making for negotiations that are complex and could last for years. Mercosur also signed a protocol on physical integration for developing transport and communications with Bolivia and Chile, but the final incorporation of both countries into the regime will require more time, preparation, and negotiation. There have been different periods of negotiations between Mercosur and the European Union. In May 1992 an agreement was signed on technical assistance and institutional support to Mercosur by the European Commission and the Mercosur Common Market Group. A more ambitious agreement was signed in Madrid in December 1995 by the presidents of the four Mercosur countries and their counterparts in the European Union with the aim of facilitating economic and commercial negotiations between the two regimes and providing a basis for a bilateral political dialogue. The main conflictual issue between the parties is the European agricultural subsidies. Subsidies and tariffs are even more difficult problems to work on. An important aspect is the different nature and rhythm of the internal and external negotiations of each regime and the unavoidable differences in the priorities assigned to bilateral negotiations. Broadly speaking, for Mercosur these negotiations are priority six, while for the European Union they are merely priority fifteen (Pose, personal communication to the author, 2000).

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The point of departure for negotiations between Mercosur and the Free Trade Area of the Americas was the declaration adopted in Miami in 1994 by the heads of state of thirty-four countries of the Americas of their intention to enter into negotiations with a view to forming a hemispheric free-trade agreement by 2005. The procedure adopted of a "single undertaking," in other words, that nothing will be agreed until everything is agreed, and the considerable problems and proposals interconnected in producing such a package explain why the nature of the negotiation processes resembles that utilized in other multilateral conferences (Zartman 1991, 302-14). Representatives of the countries involved meet periodically in a number of committees and working groups to progress the respective issues and groups of issues, under the rule of consensus.

A Multiplicity of Issues The following issues are examples of the way in which sectoral conflicts have evolved through negotiation processes producing both forward- and backwardlooking outcomes: The auto industry issue is unique and paradigmatic in Mercosur, not only because of its leading position in intraregional trade but also because of its place on the regime's agenda and the negotiating processes related to it. As a result of the competing economic forces and the important role it plays in the ensemble of integration structure and dynamics, this sector is the subject of bilateral agreements between the main producers, Argentina, Brazil, and Uruguay, and is excluded from the regular Mercosur regime. There has been understandable concern among Mercosur governments in dealings with their counterparts regarding the evolution and fate of the auto industry, especially where those governments wish both to create a common sectoral policy and to satisfy the needs of their own automobile production plants by granting promotional benefits through a regulatory system (Taccone and Garay 1999, 3-234). Negotiation processes regarding this sector, conducted in a special committee of the Mercosur Commission on Trade, had to follow the changing conditions of auto production and market access, face trade barriers and competition inside the regime, and, in a broader geographic space, enlighten member states about the sector's problems in the other Mercosur countries while at the same time eliminating trade obstacles through discussions, bargaining, and the harmonization of rules. Subsidies granted by Argentina and Brazil to the industry, a 35 percent common external tariff agreed by those two countries but contested by Uruguay, and the degree of "national content" of car parts in trade constitute the main conflict areas (Bouzas 1998, 13). The economic and social importance of the auto industry and the nature of the problems to be addressed there very often bring the negotiations to the highest levels of the ministries of foreign affairs and economy and occasionally to meetings between the presidents of the major partners. It has not been a question

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of technical harmonization, as in the trade of other products, but rather of facing large economic interests involved in the auto industry, with clear political implications. This also explains the delays and successive postponements of required solutions. Yet, while that process evolved in such a difficult and complex way, at the same time trade in autos and auto parts showed a remarkable and encouraging increase. Between 1991 and 1996 Mercosur auto exports increased at the rate of 11.2 percent, when the total export growth in the subregion was 9.2 percent; moreover, during the same period, auto exports reached 22 percent, against total imports of 14.3 percent (Taccone and Garay 1999, 82). The Mercosur foodstuffs domain covers several dozen different kinds of products, each with its own international trade modalities and problems but with common technical requirements, such as identity, quality, packing modes, and the sanitary and conservation regulations to be observed. With the exception of sugar, which is under a special regime discussed below, foodstuffs follow Mercosur rules plus sector business practices in their respective negotiation processes. In spite of these variations it is possible to give a broad outline of their processes. At the intergovernmental level formal negotiations are held in committees of the Commission on Trade and in the subgroup on technical regulations of the Common Market Group. Negotiations in the private sector often take place among major corporations and between major corporations and chambers of commerce of the member countries and since 1995 in the Mercosur foodstuffs industries coordinator (CIPAM). The processes become more difficult, for complex reasons, when the problems of market access are being dealt with, such as subsidies fixed by national and state governments, asymmetries in production costs, unregulated frontier and customs procedures, and noncompliance with existing Mercosur rules. As well as obstacles of an administrative character, economic problems of sectors and individual corporations are often linked to economic and social problems that have an impact on the domestic policies of the countries concerned (Gargiulo and Caiielas, personal communication to the author, 2000). When conditions are acute and of major consequence for the particular foodstuffs sector, and even transcend it, they have a clear influence on the strategies followed by the parties. The chicken trade between Argentina and Brazil in recent years is another example of sectoral conflict originating in the difference in foodstuffs prices in each country. There is an important asymmetry favoring Brazil as regards production volume, with lower Brazilian prices being considered as dumping not only by the Argentine chicken industry but also by the Argentine government which has fixed a ceiling price for imports that is opposed by the Brazilian side. Again in relation to this product, there have been parallel negotiations among corporations and among government officials and a settlement between corporations of both countries was deemed desirable (Gargiulo, personal communication to the author, 2000). Another interesting case is that of the milk-products sector. In relation to international trade it is an open market where deregulation and the elimination of

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subsidies is clearly far more advanced than in the European Union or United States. Intrazone trade in these products enjoys a zero tariff and is generally not obstructed by technical rules (Nofal and Wilkinson 1999,251 and 252-55). More than a dozen technical resolutions adopted by the Common Market Group and internalized in the domestic legislation of the four Mercosur partners has not produced major problems. Trade in all these products is generally fluid and has increased greatly over the years. The negotiation processes of the regulations in this subgroup of the Common Market Group did not present great difficulties, but the failure to implement Decision CMC 10/94 limiting fiscal, financial, and customs incentives to intrazone exports motivated a number of intergovernmental as well as private-sector negotiations (Nofal and Wilkinson 1999, 253). Even so, milk products of national and multinational corporations of Argentina, Brazil, and Uruguay were more quickly positioned for integration into the areas of production and trade and are in an advanced stage of subregionalization (Nofal and Wilkinson 1999, 305-6). Cane sugar, in common with the auto industry, is a sector governed by privileged and special treatment. Decision CMC 19/94 authorized the modification of the Treaty of Asunci6n on free trade to adapt it over time to the customs union regime and to neutralize potential distortions originating in the asymmetries of national policies. In subsequent years cane sugar has been the subject of negotiations by an ad hoc group of the Common Market Group. Neither these governmental negotiations nor those engaged from time to time in the private sector have succeeded. The conflict has persisted for years and offers no sign of settlement in the short term. In the long term, costly sugar production has enjoyed protection from successive Argentine governments while in Brazil "proalcool" legislation subsidizes production, targeting consumption by the large internal market and also the utilization of alcohol as a component of car fuel. The lower price of Brazilian sugar is considered by Argentine producers to be a threat to its sugar-cane culture and industry, which explains the hard and uncompromising position of the parties in the process. Petrochemical issues are an example of positive and encouraging results from negotiations between corporations both of Argentina and Brazil. In 1993 the petrochemical sectors of both countries started discussions on a joint proposal regarding the common external tariff and, after complex negotiations to bring conciliation to production and trade structures, drafted a document that resulted in terms similar to those finally adopted officially. Paraguay and Uruguay which are, above all, petrochemicals importers have frequently used the exemption provided in the Treaty of Asunci6n. Even though the parties consider there to be no problems in intra-Mercosur trade, some discrepancies still exist regarding certificates of origin, harmonization of fiscal regulations, defense of consumption rules, and facilitation of customs procedures (Hasenclever, L6pez, and Olivera 1999, 415-18).

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General Patterns of Processes: Structures and Dynamics Mercosur negotiation processes share the main characteristics of international negotiations in that they go through the phases of diagnosis, formula, and details that respond to a psychological and procedural need for interaction between the parties. Consultations and exchanges of views, putting forward information and proposals, as well as drafting formulas of eventual agreements and understandings, then adjusting the formulas, are always in some way or another present both in government and business negotiations. Negotiators have in mind the regime's internal functional provisions as a referential framework and enjoy almost complete autonomy to act and decide in the absence of strong institutions that would effectively intervene as an integrative force. In very important issues and critical situations, technical negotiations can be overridden by partner countries' presidents in the form of high-level political decisions, but, in fact, this is not a sound and proper procedure for the regime. Such institutional insufficiencies have their impact on the normal running and purpose of the regime. The unanimous consensus required for the adoption of all decisions of Mercosur may have a positive or negative impact on the integration of the regime. On the one hand, the search for consensus pushes the parties to make efforts to reach it, and once the decision is approved all parties are bound to implement it which, in practice, they do not always do. On the other hand, strong opposition to a constructive formula to settle a particular conflict and prevent its adoption can have a very negative effect on the proper functioning of the regime. The approaches and strategies that parties utilize in the negotiation processes are directly related to the interests and goals at stake and the conflictual or cooperative nature of the issues. The influence of each of the four member states' domestic political and economic policies on the negotiators' positions and behaviors on the negotiating processes and on the evolution of the regime itself often explains the attitudes and performances of decision makers and negotiators. It is understandable that negotiations on milk products are predominantly cooperative and mainly aimed at removing obstacles, such as temporary admission of products and drawbacks in intrazone sales. On the other hand, as long as sugar is a protected industry in Argentina, cane sugar faces a very low subsidized price in Brazil, and the stance of the parties is severe, uncompromising, and without any perspective of a solution in the near future. The structural economic power of the four parties and its asymmetries is another particular feature of Mercosur, balanced in principle by the potentially equal veto power enjoyed by each party in the search for consensus. Mercosur has two major economic partners, Argentina and Brazil, the latter even bigger than the former, and two minor partners, Paraguay and Uruguay. As a consequence, there is a clear pattern for negotiations: a number of negotiations between Argentina and Brazil are needed to reconcile their interests and settle their conflicts, while

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Paraguay and Uruguay, on their side, negotiate to reach common positions before facing their bigger neighbors.

The Arbitral Settlement of Disputes The occurrence of conflicts between parties is something that is inherent to the nature of trade affairs and transactions. The experience of economic integration regimes shows that the number of conflicts actually increases as integration develops. Negotiation, a regular daily activity of the partners, lies at the heart of the Mercosur regime and is the first resort for dealing with disputes that reach the point of a blocking conflict. The Olivos Protocol for the solution of disputes in Mercosur, signed by the presidents and foreign ministers of the four member countries on 18 February 2002, in Article 4, provides that "States that are parties to a dispute will try to solve it first of all through direct negotiations." If an agreement is not reached the parties may have recourse to the Common Market Group, present their positions, and the group should make recommendations to the parties (Articles 6 to 8). Thus, the Common Market Group acts, in fact, as a conciliation commission. Subsequently, if the dispute is not settled at this level the parties may use the arbitral procedure provided for in the protocol (Article 9). A permanent appellate court of five members (arbitros) to judge on "questions of law relating to the dispute and law interpretations developed in the award" is the last step for settlement (Articles 17 to 23). Until the Olivos Protocol the parties follow the Brasilia Protocol of 1991 for disputes solution. Under this instrument nine arbitral awards have been made since 1993 by ad hoc tribunals composed of three members, of whom two are nationals of the respective states in conflict and the third a national of another state. Of the nine awards, five were on conflicts between the major partners, Argentina and Brazil, and four between Uruguay on one side with Argentina (on two occasions), Brazil, and Paraguay respectively on the other side. The first award was on "restrictive measures on the reciprocal trade," and the rest dealt with conflicts over particular products such as pork, textiles, chickens, bicycles, recapped tires, and cigarettes. How can it be explained that only nine bilateral conflicts were submitted to arbitral solution in more than a decade, when it is easy to imagine, and Mercosur's life shows, that a greater number of conflicts have arisen, some of which are still pending? We share the view of Lipovetzky (2001, 163-72) that, "the scanty use of the regime demonstrates the scanty will of the governments to resolve conflicts through the system for settlement of disputes, and the priority they give to negotiation over the access to a jurisdictional instance." On the other hand, it underscores the difficult procedural requirements established for access by the private sector to the arbitral system. Lipovetzky lists among the shortcomings of the system the slowness of the procedures, the contradictory interpretations regarding the awards

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on similar issues, and the impossibility of private persons or corporations questioning the arbitral award; he concludes by stating that there is a need, shared by a number of government members and specialists, for the establishment of a permanent court for Mercosur. Such a body would go beyond the Olivos Protocol and would be a "permanent jurisdictional organ" constituting a firm institutional pillar of the regime and a guarantee of juridical order and the rule of law (Rey Caro 2000, 65). "The Olivos Protocol is considered not only as a very important institutional step forward but also a fundamental instrument for strengthening the integration process." (Amorim 2002, 7). It represents "a compromise solution between the option to establish one permanent tribunal for Mercosur or keeping a less structured scheme with greater flexibility" (Boldorini 2002, 144).

Going to the Heart of Conflicts in Mercosur A trade association of states such as Mercosur is based above all on common political and strategic goals in the economic field, in particular with regard to international trade among member states and with third states. The economy has its own laws and dynamics in relation to production and trade of products, competition, access to markets, tariffs, barriers to trade, and so forth. Arrangements made by the partners on trade promotion and conflict management are based on the international negotiation processes that follow their own rules and practices and are reflected in international negotiation theory. The interaction between the economy and the negotiation is clear in the negotiation processes, but it is also evident that both the economy and the negotiation follow their own principles and rules (Kremenyuk and Sjostedt 2000). These ideas, which should be taken into account when examining conflicts in Mercosur, may be divided into conflicts of the past and conflicts of the future produced during the operation of the regime. Among the conflicts of the past, the particular production and trade conditions enjoyed for so many years by specific goods such as sugar cane, petrochemicals, and automobiles, differ in the member countries in such a way as to affect bilateral trade, showing serious subjacent conflicts that have persisted over the years. These conditions existed in the past in ALADI and Mercosur operations, but it was the intensification of intrazone trade that brought the issues into the open and even intensified the conflicts (Caiielas, personal communication to the author, 2000). Another persistent cause of conflict in Mercosur is the decisive influence of the internal policies of the four partners regarding specific sectors of their economies, often connected with internal social problems. The auto industry conflict between Argentina and Brazil has found only partial settlement, and a final comprehensive solution is not yet in sight. Among new conflicts are those derived in part from the application of subsidies, different administrative restrictions, uncoordinated border customs procedures, compensation, and other measures unilaterally adopted by the parties.

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Noncompliance with a high number of Mercosur's adopted rules and different interpretations of those rules by the parties are also serious causes of conflicts that negotiators try to resolve. Conflicts of the past and new conflicts coexist while intrazone trade continues to evolve in less contentious areas. The critical condition reached by Mercosur has led governmental and academic circles to envisage a kind of "new start" or "relaunching of Mercosur." Are the four partners firmly and consistently committed to acting in conformity with the provisions ofMercosur's founding instruments to attain that goal in the near future? The heavy weight that domestic policies place on the four partners of Mercosur, in particular the economic and social conditions requiring in-depth and continuous attention, indicate that negotiations on institutional reforms and greater regime effectiveness will not occupy a priority place on their agenda for the time being.

Current Prospects of Mercosur There is a consensual view in the governmental, corporate, and academic circles of the four partners that Mercosur has been in a profound crisis for half a decade. Some may simplistically attribute it to the "adverse macroeconomic conditions of the two main partners" at the turn of the millennium, but "the problems of Mercosur," as Bouzas rightly says, "are longer and deeper than the crises of its members" (Bouzas 2002, 2). In particular, with respect to the vitality ofMercosur, Peiia has argued that it "has been affected by an accumulation of factors and not by some of them." He mentions the behavior of the regional economy, the relative inability of the regime to produce systemic answers to trade problems generated in the disparity of exchanges between the main economies of the region, and the regime's weakness in harmonizing the national interests at stake (2002, 202-6). Two major problems that the four partners have not been able to resolve represent a huge challenge for the regime and a serious hindrance to its structural and behavioral strength. They are the persistence of the already-mentioned sectoral commercial conflicts and the poor implementation of Mercosur's rules by the partners. In a seminar held at the administrative secretariat of Mercosur in Montevideo at the end of September 2002, it was mentioned that only 30 percent of the decisions adopted by the Mercosur Council of Ministers, 37 percent of the resolutions by the Common Market Group, and 50 percent of orders by the Commission on Foreign Trade had been incorporated into the domestic legislation of the four partners (CARl 2002). An important number of Mercosur experts agree on the need to review the regime's current performance and often propose approaches, ideas, and measures to solve the crisis and to guide regime activities in the future; some are of a more general character, others differ in their degree of elaboration and meticulousness. In some respects their standpoints reflect the opinion of their own countries in

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relation to Mercosur's structure and particularly to its dynamics. 4 "Many problems have an effect on Mercosur's political and institutional dimensions. Examples of these problems are those related to the decisional system, the system for solution of controversies, and the internalization of rules [in the domestic legislation of the four countries], that represent, at present, challenges to be confronted" concludes Costa Vaz (2002, 279). At the end of June 2000 under the heading of "The Relaunching of Mercosur," the Council of the Common Market adopted several decisions, even fixing deadlines for the presentation of reports, on measures to eliminate restrictive measures and other obstacles to market access, incorporation of Mercosur rules into domestic legislation, improving the 1991 Brasilia Protocol for disputes settlement, and macroeconomic coordination through harmonization of fiscal statistics, debt, and price targets. It was an ambitious expression of goals and a reference to major contentious problems. The need for an effective and far-reaching "relaunching" was evident, and the type of measures envisaged to produce such an essential effect appeared at first sight as a first step toward the expected macroeconomic coordination between the four partners. Time demonstrated again, however, that among the high-ranking decision makers of the four partner governments, the will to move ahead and to compromise on the central problems of Mercosur was lacking. Bouzas (2002, 45) considers as indispensable the implementation of the external common tariff, effective coordination for external negotiations, and appropriate action on sectors affected by existing economic conditions. The four governments, however, are far too preoccupied by their domestic political, economic, and social problems, which explains why Mercosur is habitually stuck in a low gear. In spite of all these conditions and circumstances, could a strong and efficient Mercosur be envisaged in the near future? History has demonstrated on many occasions that the firm and persistent will of country leaders to accomplish a common political objective that is ambitious and has far-reaching consequences has really worked. The remarkably successful cooperation between Argentina and Brazil for more than twenty years on the peaceful uses of atomic energy, with the participation of the International Atomic Energy Agency, is an example of what can be achieved. Of course, it could be said that cooperation in this field is comparatively easier than in trade and economics with all its long-lasting conflicts and complexities; but nothing is impossible if that will exists.

Conclusions A confluence of causes, both long-standing and immediate, led to Mercosur's creation in 1991; some were of a reactive or backward-looking character, and others were directly related to the forward-looking construction of a new future-oriented cooperative entity. Among the former must be included the unsatisfactory and

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even frustrating performance of the two previous efforts to establish a LatinAmerican common market since 1960 (ALALC) and 1980 (ALADI). Reactive causes have often been the general trend in establishing economic associations of states in other regions of the world and in GATI's Uruguay Round of negotiations that began in the mid-1980s. On the other hand, the governments of the two major partners, Brazil and Argentina, in order to promote and consolidate democracy and with the expectation of political and economic benefits from closer cooperation, were led first to bilateral agreements and thereafter to expand cooperation with the accession of Paraguay and Uruguay. The shared common origins and cultural values of Mercosur partners, as well as the flexible dialogue among heads of state, ministers, and officials of the four countries, have clearly facilitated the exchange of information, opinions, and proposals. This positive aspect, as well as the personal commitment of the four presidents to sustaining Mercosur, has helped produce understanding and appease tensions in critical conditions of conflict. Personal participation has been even more indispensable in an entity such as Mercosur that lacks strong common institutions. In fact, the maxim "flexibility and pragmatism," decided at the beginning of Mercosur's existence to maintain the necessary freedom of action in the adoption and implementation of the regime's rules, has been the guiding modality for negotiations among the partners. The existence, performance, and future of the Mercosur regime depend inescapably on the firm will and decision of the four governments to ensure and promote integration, even in spite of some inevitable concessions in the field of sovereignty. Its life until now demonstrates that negotiations to accommodate interests and settle conflicts, even at the highest level of government, are not enough. These need to be backed and sustained by clear and accepted forward-looking goals and by the parties' determination to attain these goals as a common project. The contribution of negotiations has proved to be substantial, effective, and decisive in many technical fields covered by the regime; but, it must be emphasized, they are not a substitute for the political will and power of governments to look ahead. Conceived to liberalize external trade and to further economic development, Mercosur has brought about an extraordinary increase in commercial exchanges as well as other links among its four partners; at the same time, however, the intensification of economic interaction has led to a number of different degrees of bilateral conflict. The crucial point is how to effectively administer and solve them, and Mercosur is still far from reaching an ideal stage. Quite the opposite, in fact, a proper-that is to say, efficient, pragmatic, and rather speedy-procedure of conflict settlement, when negotiations fail, is a major problem requiring solution in Mercosur. Another no less important question to be agreed upon is the fulfillment of the obligations derived from the regime's basic instruments and decisions adopted by its main bodies and their national internalization. It is essential for the proper

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running of the regime to have full clarity on the rules implemented by the parties and those effectively incorporated into their domestic laws, which is not the case for most of them thus far. The control or supervision of the fulfillment of obligations by the partners implies the acceptance of an institutional accountability that must be established within Mercosur on a permanent basis. Are all the partners prepared to take this courageous step for the sake of integration? A positive answer to this question would mean a high and long-standing vision of the future by the partners. Mercosur has had an undeniably important influence on the remarkable increase in intraregional trade, the promotion of foreign investments, and the development of political, cultural, juridical, and educational cooperation among its partners, mainly in the first half of its existence. For years, trade between the partners evolved with greater or lesser difficulties, depending on products and obstacles, and more recently has slowed its pace. The negotiation processes have focused on the accommodation of interests and, particularly, on the settlement of conflicts, trying to overcome the numerous obstacles that hindered and complicated bilateral trade, some having repercussions on the internal politics and public opinion of the respective countries. It is therefore understandable that those processes were more centered on removing past obstacles than on looking for coordination to reinforce and promote the integration of the regime. Less difficult were the negotiation processes on collateral matters, such as justice, education, and internal affairs, devoted to the harmonization of domestic laws and the adoption of practical measures, but their fate is linked to the negotiations on trade and customs issues that are at the origin of Mercosur. Today Mercosur is in a critical and crucial phase of its existence. A close analysis of the regime's negotiations show that they are heavily affected by two main factors: the insufficiency of the regime's internal functional provisions (lack of effective system of monitoring regulatory compliance) and on arbitral settlement of disputes. In the face of these challenges (now highly improved by the Olivos Protocol of 2002), renewed and increased efforts by the four partners are required to produce a real and effective step forward by Mercosur. Recipes and recommendations for this grand enterprise vary, giving the impression that political will has yet to be concretized in practical far-reaching and long-standing measures, conditioned as it is by political, economic, and financial problems. It seems unlikely that the partners are yet committed to adopting structural changes and large-scale modifications of existing provisions in the near future. It is evident that they must not restrict themselves only to trying to settle major conflicts, as in the auto, sugar, textiles and other industries, subsidies and frontier regulations, and exemption from custom tariffs. Of course, these are very important issues, but unless forward-looking measures are addressed and adopted, the regime will lose its vision and stagnate in backward-looking concerns, just as its predecessors did.

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Acknowledgments

The author wishes to express his appreciation and gratitude for the very valuable information and comments received from the following persons: Heber Arbuet Vignali, Professor of Public International Law, Faculty of Law, University of the Republic, Montevideo; Elvio Baldinelli, Former Secretary of External Trade, Buenos Aires; Maria Cristina Boldorini, Minister, Director of Mercosur, UnderSecretariat of Mercosur and American Integration, Ministry of External Relations, Buenos Aires; Marcelo Cafielas, Secretary of Trade, Buenos Aires; Alcidez Costa Vaz, Professor of Economics and Researcher at the Institute of International Relations, University of Brasilia, Brasilia; Hector Di Biase, Professor of International Business and Integration at the Faculty of Managerial Sciences at the Catholic University of Uruguay, Montevideo; Gerardo Gargiulo, COPAL, Buenos Aires; Jorge Lavopa, Director, Committee on Latin American Studies, Argentine Council for International Relations (CARl), Buenos Aires; Roberto Lavagna, Former Secretary of Industry and Commerce, Buenos Aires; Alfredo Morelli, Former Under-Secretary of Mercosur and American Integration, Ministry of External Relations, Buenos Aires; Felix Pefia, Former Secretary of External Trade, Buenos Aires; Victoria Pose, Adviser, Secretary for External Trade, Buenos Aires; Marina Sanchez Bentez, Adviser, Rectorate of the National Technological University, Buenos Aires.

Notes 1. For, ostensibly, the last dispute, see Beth Simmons, "Forward-Looking Dispute Reduction: Ecuador, Peru, and the Border Issue" in this book (243-63). 2. The Economist, 21 December 1996, 10. 3. The Economist, 21 December 1996,9. 4. A number of Mercosur experts have provided personal communications to the author on these matters, or have published similar views, for example, Ruiz Diaz Lambrano (1997); Lavagna (1998); Bouzas (1999a, 1999b, 1999c); Campbell (1999); di Biase (1999); Heyman (1999); Mayoral (1999); de Seixas Correa (1999); Fundaci6n Capital (1999); Remes Lenicov (2000); Costa Vaz (2002).

Part III: Bilateral and Internal Conflict Settlements

Chapter 10

Cyprus Marie-Pierre Richarte

To solve territorial disputes, either war and/or negotiations are usually required. A backward-looking outcome, territorial partition has often been the negotiated answer to protracted conflicts, usually because no easier solution could be found. In many cases, however, this has not ensured the expected durable peace. On the contrary, partition as a solution has often become part of the conflict itself, fueling dissent, renewed nationalism, and irredentism. Such is the case of Cyprus. After a long and relatively peaceful coexistence the Christian and Muslim communities of the island separated in 1974 as a result of more-or-less covert pressure from Greece and Turkey respectively. An Ottoman territory until the early twentieth century, Cyprus became a British colony after World War I. Harshly administered and driven by new nationalist ideals, the Greek Cypriots (80 percent of the population) demanded to join Greece (enosis) while the Turkish Cypriots (18 percent of the population) called for partition and a return to Turkish sovereignty (taksim) (Richarte 1992). To overcome growing protests and violence, the British chose to divide and rule, mobilizing the Turkish Cypriots as a separate and equally empowered community. Unable to control the vigorous nationalism of the Cypriots, however, and determined to save its own strategic interests, the Crown came up with the idea of independence as a way out of the troubles. Independence from Britain was obtained in 1960, apart from two bases over which the British retained sovereignty. Independence gave equal rights to both Greek and Turkish Cypriots as constituent communities of the island and empowered them to administer it equally. The difficulties of this type of governance surfaced quickly and degenerated into an open conflict that ended with an attempted coup d'etat by the Greek military in 1974 and the subsequent invasion and partial occupation of the island by Turkish troops. Population transfers occurred, Turkish 201

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Cypriots moving north and Greek Cypriots moving south of a partition line monitored by the United Nations (UN). Being both an interethnic and an international conflict, the Cyprus problem called for distinctive resolution formulas that have changed over the years. Before 1960, the goal was to find a formula that would ensure the sovereignty of Cyprus while respecting ethnic realities. It was an internal formula but guaranteed by external powers, thus opening the way to varying interpretations. The parties' only desire was to change the formula itself-or at least its meaning-in order to obtain something different from what had been negotiated officially. This type of negotiation can hardly be considered conducive to forward-looking outcomes. From 1963 until1974 the crisis appeared nonnegotiable, war being a much sought-after alternative because the goal pursued by one community (enosis or taksim) was the most-feared outcome for the other. Thus, confrontation overtook cooperation. After 1974 political considerations called for peace and therefore negotiations. Far from contributing to a viable future, however, the negotiations were backward looking, stumbling over mutual recriminations regarding suffering and losses. The parties did not want peace or even "a solution"; they demanded justice and compensation. Many aspects of this conflict show that the successive and different negotiations that have taken place since 1960-the colonial conflict, the nationalist-ethnic confrontation, and the military intervention-have never given rise to a satisfactory settlement. Indeed, Cyprus has been the object of negotiations going back more than forty years, predating even independence. They have involved many players-the Americans, as well as the British, the Greeks, and the Turks-but only occasionally did they involve the Cypriots themselves. The case of Cyprus dramatically illustrates the failure of negotiations that are aimed only at putting an end to violence. The negotiations focused first on access to independence, then on a modus vivendi regarding the distribution of political power, and then on achieving a more-or-less peaceful balance among the parties. They dealt solely with the immediate satisfaction of the parties involved (though not always of the parties concerned) as well as with the preservation of diverse and contradictory outside interests. The successive negotiations were directed only at existing situations that needed fixing in some way or other rather than at building a lasting regime under which Greek and Turkish Cypriots would have equal entitlement to live on the island, either together or separately.

Negotiations for an Independent Republic and Their Consequences, 1960-1963: The Political Elements In 1956 when the Greek Cypriot nationalist claims became harder, and violence spread, the British mission led by Lord Radcliffe suggested a constitutional segregation of Greek and Turkish Cypriots (Foley 1962; Coyle 1983). Initially, the

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British envisaged partition of the island as a way to dissuade the Greek Cypriots from seceding and becoming part of Greece. As neither enosis nor taksim were acceptable solutions, and as there seemed no other way out of the violence, a third way was considered in 1958: independence. Independence was never a positive choice for any of the parties: not for the British who wanted to keep Cyprus as a colony; not for the Greek Cypriots who wanted reunification with Greece; not for the Turkish Cypriots who wanted Cyprus to be given back to Turkey. Independence was, however, the "least of three evils" for the respective parties involved. Thus, the independence negotiations were always tainted with the resentment that the first choice of each of the two communities (enos is or taksim) were not pursued and had to be renounced (at least officially). At the Zurich conference in 1959 the Turks in principle lifted their opposition to the independence of the island, once they were assured that majority rule would not apply (they accounted for less than 20 percent of the island population) and once they understood that enosis was forever barred (Faulds 1988). The Greek Cypriots were not present during the negotiations and were divided among themselves on the issue. The Greek Cypriot leader at the time, Archbishop Makarios, tried to reconcile the Greek community's multiple interests by presenting the possibility of independence as a step toward enosis (Crawshaw 1978). The misunderstanding was complete. The London conference that followed tried to make the agreement reached by the "mother countries," Greece and Turkey, acceptable to their respective communities. The Greek Cypriots agreed to this under pressure from Athens. During both conferences references were made only to the Turkish people and the Greek people of Cyprus and never to the Cypriot population of the island (Drevet 1991). Right after the signature of the London Agreement the Greek Cypriots insisted on recalling that they had agreed only under pressure. No measures were taken by either the British or the two "mother countries;• however, to reassure the island communities. Nobody felt happy with the outcome of the negotiations but nobody addressed it either; and all the parties stuck to their positions behind the official, but inconsistent, agreement. The establishment of a consensus, therefore, was faked, and no reassurance on either position was given. The negotiations were doomed from the very start as they did not address the real issues at stake (the nationalistic expectations of each party) and the mutual concerns of the two communities (security and cultural inheritance). Indeed, it soon appeared that both conferences had given themselves objectives that no one wanted. The so-called forward-looking outcomes embodied in the idea of independence were neither appropriate nor relevant. The constitution of the new Republic of Cyprus, which paved the way for independence, was negotiated on the basis of three guarantee treaties (Cyprus, Foreign Affairs 1960): •

The Treaty of Establishment that guaranteed sovereign bases to the British

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Marie-Pierre Richarte The Treaty of Guarantee that guaranteed the independence and territorial integrity of Cyprus and made provisions for mutual military intervention on the part of Great Britain, Greece, and Turkey, should these be breached The Treaty of Alliance that envisioned a common defense by the parties to the treaty in the case of aggression against Cyprus and the authorized Greek and Turkish troops stationed on the island

There is, however, one major ambiguity in the spirit and the outcome of those negotiations: three international treaties guaranteed the constitution of Cyprus, which meant that any internal change in the constitution or the balance of domestic power could have international consequences and justify military involvement (Zartman 2002). This was clearly a powder keg, as the subsequent years have proven. Moreover, the treaties were generous to the Turkish Cypriots; thus the Greek Cypriots saw in them a clear collusion between the British and the Turks against their vital interests. To them partnership and equality with the Turkish Cypriots seemed unjust, because the latter were fewer in number. What the Greek Cypriots saw as their legitimate claim for enosis-for they were a majority, and selfdetermination was the issue here-was prohibited, and their sense of justice was torn apart. The constitution was seen as being too demanding on the Greek Cypriots, imposing too many sacrifices with its obligation to give up enosis, majority rule, and sovereignty (over the British sovereign base areas). Moreover, the constitution had 199 articles, of which forty-eight were nonamendable. It was very strict, inflexible, and very much focused on the balance of power between the communities. The constitution was complex, and to be viable required a great deal of good-will on both sides; and goodwill was definitely not prevalent at the time. The balance was so precarious that sabotage was easy, and sabotage was soon to happen. Furthermore, the establishment of three different and distinctive administrations, one Turkish Cypriot, one Greek Cypriot, and the other national (i.e., mixed) for a total population of only half a million seemed rather bewildering. Communication and exchange networks were lost in the process. Previous reference points, in terms of language, for example, began vanishing with the imposition of English as the official language, simply adding to the confusion. Finally, the constitution was not voted but imposed upon the population. It embodied the duality of Cyprus, in spirit and organization, through its indissociable international dimension. The new constitution was the legacy of intercommunal and anticolonial strife and not a basis for a consensual democracy. It was definitely not a forward-looking step on the way to peace; it was purely a cosmetic exercise devoid of any significance for all parties involved, agreed upon only as a temporary measure and destined to be overridden in order to reach the final goal: taksim for the Turkish Cypriots and enosis for the Greek Cypriots. It was, however, the easiest way out of the conflict and violence for the British.

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In 1958 during the negotiation, the idea of partition was, for the Turks, the official political goal. "Partition or death" was their motto. The debate did not address the other options of sovereignty but dealt purely with where the border between the communities on the island should be set. Moreover, the Turkish argument was based on the need for two separate communities, with the only just and acceptable change in the status quo being self-determination for each side. The Turkish argument in fact denied both enosis and the British attempt to maintain a permanent sovereign presence on the island. As for the Greek Cypriots the republic was seen as the first step toward enosis. Nothing was laid down or proposed in the constitution to prevent the rise of conflict and provocation. On the contrary, the constitution was so rigid that any difference between parties turned into a deadlock and then open confrontation. Moreover, the negotiation, although handled and managed by the outside, primarily by the British, failed to anticipate what that external influence might be on the constitutional balance once the constitution was implemented. Needless to say, the island climate was very sensitive to outside manipulation. The negotiations linked the destiny of the island to that of Greece and Turkey and their internal political life and failed to look forward to what could be done to separate dangerously diverse issues. Far from succeeding, therefore, the constitution created the conditions for areturn to violent opposition. Both sides were obliged to deal with a constitution they did not want and that did not match their respective wishes. The Turkish Cypriots went for a literal, inflexible, and tough interpretation of the constitution, which was unsustainable; they used their veto continually, thus rendering the functioning of the state exceptionally difficult, and even impossible. The Greek Cypriots denounced the constraints of the constitution once too often and showed ill will and arrogance in applying it, failing to reassure the Turkish Cypriots that they had peaceful intentions toward them. No alternative was provided by the constitution in case things did not turn out as the drafters intended. Indeed, in 1963 deadlock was finally reached, with the Greek Cypriots proposing constitutional amendments that no longer offered equality of status to the Turkish Cypriots but merely guaranteed their minority rights. This was not acceptable to the Turkish Cypriots. Institutions were blocked, violence spread, and the separation was consolidated with the strengthening of homogeneous enclaves. The negotiators of the constitution had thought in terms of the immediate benefits: the lessening of tension and the end of violence, the withdrawal of British police, and economic savings for the Crown, among others. They thought of satisfying Greece and Turkey, but they never really thought about the communities themselves, for these were not considered important or as decision makers; the communities were not even invited to the negotiating table but were told afterwards what had been decided on their behalf. The negotiators perhaps made the intentional mistake of failing to identify the right actors and of not thinking about the future effects of their decisions; namely, was such an agreement viable? The agreement, moreover, was built on resentment and fear, not on trust

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and satisfaction. It was looking for a balance of power when no such balance existed demographically, economically, militarily, or diplomatically. It answered the need for a divide-and-rule policy that the negotiators believed could be preserved. The negotiators failed to address the real problems of the time: the identity of the Cypriots themselves, their aspirations, the external interference that had turned them against one another, the exacerbation of their differences, and the systematic erasing of a common past or way of life. Overshadowing all those and showing little sensitivity to what the consequences of the negotiation might be were the military and strategic requirements of the powers involved, the Cold War environment, and the balance of power in the eastern Mediterranean that dictated alignment to NATO and thus the end of dissension at any price. If one cared to be cynical, one could imagine that the negotiations were handled specifically with failure-and thus the effective partition of the island-in mind and that failure was the actual, even if politically erroneous, goal right from the start. As of today the question remains: could the negotiators not have foreseen the possible clashes ahead? Were they so obsessed by their colonial convictions that they thought whatever they prescribed would be obediently followed? Were they nai've or simply ignorant of local sensitivities; or did they "do it on purpose," expecting the forthcoming clashes to serve their global interests and the geopolitical considerations of Kissinger's realpolitik? Were the so-called forward-looking outcomes put on the agenda deliberately in order to fail? Many think so, but the real answer probably lies in a combination of those issues. Would the Cypriots have done better on their own? They might, but at the price of many casualties, many human rights violations, and a potential war between Greece and Turkey that could have escalated and set ablaze the whole eastern Mediterranean. Perhaps the colonial negotiators could have been more imaginative and prepared a more balanced constitution, respectful both of Turkish Cypriots' rights and the demographic and political reality of the island where Greek Cypriots were in the majority. In the four years that followed (1963-1967), the Greek Cypriots refused to negotiate with the Turkish Cypriots, who, since walking out of government bodies and withdrawing into territorial enclaves guarded by Turkish military, were considered to be rebels. The 1967 crisis saw the opening of discussions on the question of local autonomy for the Turkish Cypriots. The latter had insisted on the establishment of territorial and legal structures to prevent enosis. The Greek Cypriots asked for changes to be made to the constitution to guarantee the unity of the state (Richarte 1992). Reconciliation and a return to the framework of the constitution became impossible. Feeling quite concerned for the viability of NATO southern command, the Americans decided in 1967 to institute shuttle diplomacy to prevent Turkey from invading the island. The negotiations led by Cyrus Vance did not aim to solve the existing problems but to calm the parties (the Greeks especially, so that the Turks would not retaliate), to keep the crisis contained, and to prevent a war at

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an unfavorable moment for American interests. The Americans even backed the Turkish Cypriot position, pressing the Greeks to comply with their demands and expressing their preference for a partition of the island (Ball1982). This only accentuated the imbalance between the respective Cypriot positions, however, and rendered a peaceful settlement more elusive. The idea in Washington was to favor a limited but cathartic war over a protracted and complicated conflict (United States [U.S.] House of Representatives 1975a and 1975b). The lack of response on the part of the United States when confronted with the 1974 military events made the Cypriots believe that such a war, at that precise time, did in fact serve U.S. interests.

Negotiations for a Cease-Fire and End to Open Confrontation 1974: Introduction of Military Elements The military intervention ended in a cease-fire in the form of a partition line and population transfers. Since then, that has been the status quo. No longer is it a question of negotiating enosis or taksim but of negotiating reunification of the island or its partition. The Greek Cypriots' goal has been changed by the turn of events, but the Turkish Cypriots' goal has remained the same. The negotiations held in Vienna in the aftermath of the Turkish invasion set the tone for future failures: the United Nations called Great Britain, Greece, and Turkey to the negotiating table but once again left out the Cypriot communities. Vainly, the Greek Cypriots called for a reunification of the island that had been unduly and unlawfully divided by the use of weapons. The Turkish Cypriots insisted that their safety depended on being autonomous and separate. The international community denounced the status quo, but no specific action was taken to change it. The 1974 negotiations resulted in population transfers, thus making the separation concrete. Since then, negotiations have been conducted by the international community along three main lines: • • •

Territorial integrity (because partition was the result of an act of war and therefore illegal) Withdrawal of any occupation army Right of return for refugees (universal human rights)

The acceptance of those three ideas became the precondition for the pursuit of negotiations, and the concepts were translated into the formula of an independent, federal, bicommunal, and bizonal republic. The concepts of bicommunality and federation, however, were not interpreted and understood in the same way by both sides, and these misunderstandings appeared at the very foundations of the

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negotiation process as each side negotiated with differing and diverging notions of the same issues. For the Turkish Cypriots a federation meant the establishment of a limited partnership based on legal representation. The federal government would have only advisory capacities that could be enhanced should trust in it be proven. The sovereignty of each constituent state would be guaranteed. For the Greek Cypriots a federal state ensured the preservation of the sovereignty, independence, and integrity of the republic. The United Nations focused its efforts on a federal constitution that was the embodiment of unity for the Greek Cypriots and of separation for the Turkish Cypriots. Therefore, the negotiations handled afterwards, especially in 1978 by the Americans, British, and Canadians (the ABC Plan), and based on the establishment of an independent federal republic, were yet again doomed from the start. They were not looking to the establishment of a viable system because they had not verified that what was actually being negotiated was understood by and acceptable to both parties.

Negotiating 1980-2000: The Negotiating Elements The efforts of the 1980s and 1990s looked like a negotiations charade. There were concrete issues to negotiate even if the purpose of such negotiations was not certain; but the parties were forced into the exercise and carried it through with agility. Such is the case of the territorial issue. The Greek Cypriots agreed to negotiate with the Turkish Cypriots as to how much territory they should be given back. They insisted, however, on discussing territories with a high density of previously Greek Cypriot properties, then under the control of the Turks, in order to enable the highest number of refugees to return should a solution be found. The Turkish Cypriots did not want to talk about those specific territories because they considered them strategic in the sense that they were their sole "trade-off" to be exchanged only for recognition of the partition (Necatigil1993). The Turkish Cypriots killed the process definitively in 1984 by unilaterally declaring the Turkish Republic of Northern Cyprus, thus presenting a steadfast and concrete expression of their intent to have a separate state. Negotiations failed again regarding what percentage of territory should be given back to the Greek Cypriots and whether refugees should be authorized to reinstate their properties left in the north. What was being negotiated, however, was of no importance in these circumstances. Still, "the negotiations had to go on," and in 1988 the Turkish Cypriot leader, Rauf Denktash, obtained equality with George Vassiliou, president of the Republic of Cyprus, as representatives of their respective communities. This acceptance was viewed as a concession by the Greek Cypriots but considered as their due by the Turkish Cypriots; thus, the Greek Cypriot step forward found no matching concession from the Turkish Cypriot side. Stalemate again. The impasse was

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confirmed in 1989 when talks failed on the sudden understanding that the term "community" implied the right of self-determination for Turkish Cypriot people, thus invalidating the whole structure of talks that were based on the concept of a bicommunal federation rather than separation. A breakthrough was expected in 1992 with the introduction of a set of ideas accepted by the Greek Cypriots but rejected by the Turkish Cypriots. 1 Still based on the idea of a bicommunal and bizonal federation and on political equality between the communities, the set of ideas also included territorial adjustments and refugee relocation. Talks failed because of the insistence of the Turkish Cypriots on keeping at least 29 percent of the island territory (plus the Morphou area) and their refusal to allow Greek Cypriots to return to properties in the north whose titles had been transferred to Turkish Cypriots. Research showed that those titles had been transferred hastily to prevent the refugee returns proposed by the UN (Richarte 1992). In fact, by insisting on discussing details before the formula had met with the satisfaction of both parties, by requiring precise descriptions of specific projects, of the value of the properties concerned, and of the indemnities to be distributed, and by negotiating the projects themselves, the Turkish Cypriots waved aside the spirit of consensus, and the status quo prevailed once more. Generally, since 1993, negotiations have focused first on land adjustments; second, on the refugee issue; third, on security and guarantees; and last, on the viability of a federal government. While the Greek Cypriots have negotiated for the retrocession of some land (Varosha, for example), the Turkish Cypriots have negotiated for recognition of the still-illegitimate Turkish Republic of Northern Cyprus. 2 Thus, the parties have always come to the negotiating table with their very own agenda, which they try to pursue while faking negotiations on the official agenda, in which they have little interest. Issues of a future regime are looked at as a last resort, and negotiations fail to produce anything because they stop short at semantics. For the Turkish Cypriots a federation is a sui generis association of two states. For the Greek Cypriots it is a power bestowed by the central government that is already in place but currently deprived of a part of its territorial representation. The Turkish Cypriots object to the concept of a central government on the basis that this will again contribute to their domination by the Greek Cypriots. The equality principle is at the core. For the Greek Cypriots sovereignty derives from the central government. At no stage is the concrete nature of the future regime discussed. No constitution is debated. No rights and duties are defined. Disliking the deadlock and determined to make progress, the United Nations suggested the establishment of confidence-building measures (CBMs) meant to reassure both parties about the intents of the other. The Turkish Cypriots, however, aimed to make the CBMs the instrument of their political and economical equality with the Greek Cypriots. All the CBMs (the Varosha area, the airport, etc.) failed one after the other, with both parties walking out on the process. To add to the stalemate the Turkish Cypriots refused even to reconsider the negotiation of CBMs

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until the European Court of Justice revised its judgment regarding the blockade on exports of Turkish Cypriot goods. In 1994 negotiations reached another stalemate because the CBMs could be negotiated only when the European Court of Justice had ruled on the question of the export of goods to Northern Cyprus. Thus, the negotiation process was once more externalized and instrumentalized in such a way as to take the responsibility off the communities' shoulders and leave it to other external parties. In 1997, afraid that they had conceded too much, the Greek Cypriots in turn rejected the set of ideas just when the Turkish Cypriots changed their minds and declared themselves ready to accept almost all its elements. Dead end again. During all those years of negotiation, deadlocks appeared regularly because the ultimate goal of each party was totally unacceptable to the other, representing its worst fears; and the second possible choice represented a dead end and not a solution. Deadlock arose from the mutual perceptions of the fundamental risks incurred by each party at the hands of the other. Resorting to mediation became unavoidable. Third (or fourth) parties, such as the United Nations and the European Union (EU), were introduced to officially bring new blood to the process and thus create new momentum. The negotiation needed to be mediated; but mediation did not help the process for it introduced additional external and more-or-less concealed interests and pushed the Cypriots themselves into the background once again. Moreover, mediation as a substitute for trust can never offer a lasting way out of deadlock because, in the end, trust is not built by mediation. Once the mediators withdraw, the power they represent no longer serves as a guarantee. In 2002, negotiations aimed at resolving the conflict between Greek and Turkish Cypriots were revived by the UN with the full support of the United States and the United Kingdom under the pressure of the island's application to join the European Union. Instead of creating a mutually hurting stalemate, namely, that Cyprus entered the EU united or not at all, the less-powerful condition imposed was that Cyprus would join in any case, either as a united state or simply as its southern (Greek Cypriot) half. The failure of the talks organized by the UN at The Hague in March 2003, especially with regard to the organization of simultaneous referenda on the "Annan Plan" for Greek and Turkish Cypriots, temporarily put the seal of approval on the idea that only a united Cyprus could join the European Union and dampened the Turkish Cypriots' sense of urgency to negotiate links to it. Under the impact of UN mediation and EU pressure, both Cypriot sides also took steps to create CBMs in 2003 (for example, opening of the partition line, authorized visits for both sides) that opened the way for another type of communication between the parties. These came more out of a necessity to unleash domestic political pressure (especially from the Turkish Cypriot side) than from a true desire to promote a forward-looking solution. One can only hope that popular sentiment and aspirations will help to direct the skills of the leaders in promoting full peacemaking solutions. That would be democracy at its very best.

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Instead, the most probable outcome at the time of writing, is that it will be only half an island that joins the European Union in spring 2004 and that this partial adherence will, in turn, create complications with regard to Turkey's candidacy in 2005. The possibility remains that the Republic of Cyprus will make Turkey's accession to the EU a trade-off for a solution to the conflict, even though over the years Greece has had no success with this strategy; or the Turkish Cypriots will obey Ankara's instructions to settle the conflict in exchange for Turkey's longcoveted entry into the European Union. But how much bitterness will there be after so many decades of struggle and sacrifice, when patriotic values are bent to accommodate economic gains?

The Elusive Search for a Formula Before negotiations can proceed regarding the distribution of the detailed payoffs for the parties, the parties must agree on a formula (Zartman 1978, Zartman and Berman 1982). Formulas can be backward looking, as in "agreeing formulas," or forward looking, as in "resolving formulas," and can be defined in several ways: as an agreement where a common sense of justice governs the results; as an agreement on the terms of trade; and as a shared definition of the problem as a basis for its peaceful solution. None of these elements is present in the Cypriot negotiations. All the elements of a negotiation that come after an agreement are caught in the trap of a past that defines the terms of justice differently for each side. Each community believes that it has been treated with deep unfairness by the other. The Turkish Cypriots feel that they have been threatened and ill treated by the Greek Cypriots during the period of cooperation in the 1960s. The territory they have gained through war is theirs; it is legitimate in the sense that they defended themselves with the help of Turkey; the desire for safety and the right of the winner have made it legitimate. For the Greek Cypriots, however, justice is majority rule and land retrocession; it cannot be war, occupation, and partition. Justice is a zero-sum notion for each party. It is recognition of the partition for the Turkish Cypriots and abolition of the partition for the Greek Cypriots, two mutually exclusive notions. The parties do not want peace; they want justice. The compensation offered does not suit them because it is essentially financial, while the parties want compensation for the sufferings and the fear, and for the missing persons: things that money cannot replace. How can the Turkish Cypriots be compensated for years of exclusion from the legal government of the island or for years of fear of persecution (even if manipulated) by the Greek Cypriots? The Greek Cypriots believe that they are right and within their universal rights; how can they be compensated for the trauma caused by war and occupation, the land abandoned to the Turkish military, the despoilment of their properties, and the disruption of legitimate government? Ultimately, some forty years later perceptions of justice-and its political use-relate to real human needs, something that the

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negotiations have not addressed. What would be considered as theoretically fair or unfair today? What form could this requirement for justice take today? Justice is also mixed with power. The Greek Cypriots benefit from legal and moral power: the Republic of Cyprus legally represents the whole entity of Cyprus, even if this is effective only in one part of the territory. The Turks invaded the island and chased the Greek Cypriots south of the cease-fire line, and since then have occupied the northern 40 percent of the island. The Turkish occupation occurred in violation of international law. Prior to the events of 1974 when the Greek Cypriots benefited from majority rights, 80 percent of the population wanted to unite with Greece. Colonial interests decided otherwise but the Greek Cypriots still viewed themselves as deprived of the basic rights of the majority and victims first of British imperialism and second of Turkish ambitions. The Turkish Cypriots benefited from military force and also from moral arguments, such as a right to self-determination and a right to safety, and felt threatened under Greek Cypriot laws. They wanted only to be given equal rights, not as a minority but as a peer community. The involvement of Turkey has been purely a matter of self-defense and guarantees protection. Power is definitely on the side of the Turkish Cypriots, as their achievement of equal status during the negotiations has shown and as the continuous support of Washington, due to geopolitical considerations with regard to Turkey, confirms. Thus, there never was a balance of power that could have helped the negotiation process. The negotiations over land and the return of territory fail because they do not "look forward" in order to deal with the roots of the problem, which is basically a question of who controls what and in whose interest. The control of territory is the basis of power and justice for each community. To give up territory is to give up power and justice, and to give up these values shows weakness. Moreover, if one is weak, then the other can take advantage and advance his conquest. Various attempts to further the negotiation process have been unable to redefine the equations of power and justice. The notion of bicommunality is dear to the negotiators, but it does not take into account demographic and economic ratios between the parties, or their share of resources. A lack of symmetry is very damaging when it comes to allocating power. The Turkish Cypriots feel that they have to compensate for the imbalance that they represent in economic and demographic terms. Thus, they emphasize military power and refuse concessions the acceptance of which could be interpreted as a sign of weakness. The notion of federation is designed to reconcile the conflicting senses of justice. As the parties disagree on the notion of justice, however, they also disagree on the notion of federation. Confidence-building measures tried to address this issue by building trust among parties and instituting positive steps in that direction, but they have failed to provide reassurance because they were also used as a way of slowing down the negotiations themselves and even of making them irrelevant by proving that trust was not possible between the communities.

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The more the negotiation progresses, the more it moves away from the basics: what do the Greek Cypriots and the Turkish Cypriots want? This is where the problem lies. The Cypriots want justice. Compensation for the sufferings and the Joss of land, businesses, and properties. They do not want peace, and they consider themselves at war. Herein lies the clash between peace and justice. Justice is what the parties aim for. "Justice for Cyprus," as seen on flags, walls, and posters; but what justice? There is no desire to settle for justice. The causes of the war (strategic error on part of Greece/strategic need on part of Turkey) were dealt with during the 1974 military intervention. Athens renounced its union with Cyprus. Ankara was satisfied with the northern control of the island that preserved its naval access to the southern Mediterranean. Nothing remains to be resolved. At no stage is the future examined, only the elements of past injustice (reparations, compensation, trauma, fear, and mistrust) or of the present status quo (recognition of the North as a de facto reality, sovereignty attributed to the South by the international community). Those are the reasons why the current negotiations do not address the problems the way they should. Either they do not need to at this stage because the desire for peace is not strong enough to induce renunciation of an exclusive and nonreconcilable justice; or they are following the wrong trail by not looking ahead to the creation of a positive political regime. The bizonal, bicommunal federation that is being negotiated does not correspond to the aspirations of either the Greek Cypriots (who insist on the unity of the island) or the Turkish Cypriots (who insist on its partition). It is the lowest common denominator possible between them and they accept to negotiate on it not because it is what they want but because it imposes limitations on the other party's designs. In many ways the present negotiations reproduce what happened in 1960 when an independent republic was forced on parties who did not want it, setting off a war. Another essential element in a formula is agreement on the terms of trade. If negotiation is "giving something to get something back," the parties must harmonize their views on what to exchange before deciding on how much to exchange. The parties have always disagreed on what is to be traded and on what terms. The Turkish Cypriots negotiate to officially draw a line between themselves and the Greek Cypriots, whether that line be an international border, a peacekeepermanned boundary, or a federal line. For the Greek Cypriots all the negotiating is focused on a return to a nonexistent, mythical golden age (prior to 1960) when both communities lived together on the island, which is something that both parties never really wanted in the first place anyway. Items such as the return of Varosha to the Greek Cypriots and allowing them use of the central airport of Nicosia could be negotiated against guarantees of safety and the constitutional participation of the Turkish Cypriots. It is clearly a case of trading "territory" versus something else, but without agreement on what that "something else" in the equation might be-"security" in the minds of the Turkish Cypriots and "autonomy" as understood by the Greek Cypriots. How the Turkish Cypriots are going

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to make use of "security" or "autonomy" once these are conceded is not clear at all, and does not pave the way for their viable integration into a common political system. The problem is no longer to make concessions but to define what types of concessions the parties are ready to make. The more the negotiations have progressed or lasted in terms of time, the less focused on the future and the more attached to the processes the parties have become. It has been easier that way, but far from forward looking. The parties negotiated concessions as well as detailed and official issues, such as the form the new state entity might take, but they did not address the underlying causes of the conflict: domestic (the fact that one community did not want to live with the other) and contextual (an island that has always been hostage to its geopolitical environment). The deepest roots of the conflict have not been truly addressed because those roots go deep into Mediterranean civilization, the longstanding Greek-Turkish hostility, the fragile ethnic balance in the Balkans, and the equally fragile peace trying to emerge in the Middle East. In the process, the stakes change, and what is negotiated is the reunification of the island or the recognition of the North as a separate state. The negotiations stumble over the fact that the status quo does not have the same strategic values for the two communities. For the Greek Cypriots it is intolerable. For the Turkish Cypriots the goal (separation) has already been obtained and legitimacy would perfect it. Moreover, it is the status quo in itself that best suits the Turkish Cypriots as the slogan "no solution is a solution" emphasizes. So what is the necessity of a settlement? There is not much violence these days or just a little occasionally. The United Nations is monitoring the partition line, preventing, at least symbolically, the resumption of military hostilities. Many other dramas and conflicts occur elsewhere in the world, far more dangerous to international peace and security and far more costly in terms of human lives. Even on the Cypriot front itself there is no need, as such, for a resolution that would require strong mutual concessions and a high domestic political price to be paid by the respective community leaders. Negotiation is more attractive than war but is not particularly necessary. Both parties have lived in their own way for the past thirty years. Even if the Turkish Cypriots long for recognition, they have been able to build an economy with the help of Turkey and some Arab countries. The Greek Cypriots have developed their side of the island and have created a high standard of living for themselves, even if they still long for the land and properties that they lost in 1974: land that has little economic value but sentimental importance and that represents a memory of the past more than a promise for the future. There is no urgency for a solution, and the respective domestic political parties live off the status quo. As long as they can focus on a solution, they do not have to address other internal issues. The political agenda has been dominated by the pros and cons of "negotiating with the enemy." For four decades there has never been any serious attempt to face the difficult task of altering the value of the status quo. Linking a Cypriot solution to EU accession was designed to overcome this shortcoming, threatening to keep all or part

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of the divided Cyprus under the status quo from acceding to the European Union. A significant portion of Turkish Cypriots, however, under the obdurate leadership of Rauf Denktash, have continued to prefer their internationally unaccepted separate existence to the terms of federation offered by the Greek Cypriots under UN mediation. On the one hand, the value assigned to the alternative of war by the Turkish Cypriots remains high. The Turkish Cypriots benefit from the geopolitical support of Great Britain, Turkey, and the United States, and are not too uncomfortable with a situation that preserves their safety and their identity, even if illegally. On the other hand, the value assigned to the alternative by the Greek Cypriots (recognition of the North) is not acceptable. The status quo reinforces the de facto partition and goes against Greek Cypriots' (perceived) interests, thus maintaining a great imbalance in the process. The negotiations, however, have never handled this aspect of the problem. They have never looked at ways of recreating a balance between alternatives so that the parties would find it more attractive to negotiate than not to. Quite the contrary, the negotiators have become hostage to negotiations in which they have also intervened as peacekeepers: in the first period, Great Britain, Greece, and Turkey, as guarantors of the constitution and the status quo of 1960; later on, the United Nations, whose "blue helmets" were guarding the cease-fire line and also guaranteeing the status quo of 1974. Thus, the cost of the status quo remains cheaper than the cost of the negotiations. Only the Greek Cypriots show a true desire to find a solution, thereby conceding more in order to change the value of the status quo. The more they concede, however, the less viable and long-lasting a solution can be, for it will appear too costly once obtained, produce bitterness, and eventually send signals of weaknesses to the other side. Finally, there is no common definition of the problem on which a common definition of a peaceful solution might be based. No original, custom-made, selfreferential political project has ever been proposed in Cyprus. Negotiations follow paths already established elsewhere. No autonomous political project is sought to make it feasible to build something new in common; the focus is rather the insufficiencies of the past and the inefficiency of the present. What is negotiated is always, in a sense, peripheral to the problem. It addresses what percentages of territory to divide, refugee issues, airport use, compensation to be distributed, but never the fact that one party no longer wants to live with the other in a common space and one party does not want to renounce that space for the benefit of the other. The parties never negotiate in Cyprus because they want to and because they think that they can gain something positive out of it. The Cypriots negotiate because it is necessary, because they have to, because it is their only way-as they do not have the means of additional violence-to keep their problems on the international agenda. It is politically correct to negotiate because it satisfies a moreor-less efficient lobby (depending on where, when, for what); because there are

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wrongs that need to be righted; because it shows to the international community the true intent of the other party (which is war and domination and not peace and respect). When the Turkish Cypriots agree to talk about the establishment of a federation, it is not because they are convinced this is a viable solution but because they feel the international community does not recognize them as a separate and legal entity. It is therefore a very negative approach, at least psychologically, to take a federation as the least-damaging options left to them. This is what the moderates say; the extremists call for a total reattachment to Turkey. As a result, negotiations have been conducted only reluctantly. There is no true desire for a solution, and there is no political justification for forcing a serious search for peace upon the parties. From the early 1980s all the negotiation efforts focused on mediation itself rather than on finding a solution (i.e., on the ability of the mediators to bring the parties to the negotiating table). They were not looking at a solution any longer but at the possibilities of ensuring that the parties agreed to negotiate. The negotiation process was being negotiated. The methods of negotiation themselves must be negotiated, and leaders of both communities play an active role in jeopardizing the negotiation on points of procedure. For example, Rauf Denktash, no longer the representative of his community, appoints himself as negotiator for his community; when he decides to resign from this function he puts an additional stop on the process. The parties themselves never negotiate directly. They negotiate under the aegis of Britain, the European Union, the United Nations, U.S. diplomacy. The negotiations are always conducted because of external actions: •

•

• • •

•

Because the British wanted to preserve their colonial interests in the area, because of the oil beds and also the need for military bases in the Mediterranean; moreover, because the Cypriot case had become a real burden on both the colonial and domestic fronts Because the United States needed to preserve NATO in the eastern Mediterranean, their naval bases in the area, their control of Soviet access to the warmwater ports. Later on, because of the Middle East situation (Israel, Lebanon, Syria, and terrorism) Because the international community represented by the Security Council of the United Nations had voted a resolution asking for a solution to the conflict Because for Turkey to join the European Union, the Cyprus problem must be resolved Because the events in the former Yugoslavia and the Balkans generally might spread within the whole area, affecting Greece and Turkey and therefore Cyprus (or the other way round) Because, to coin a phrase: "This is the twenty-first century, and horrible situations must get fixed."

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The international community seems to negotiate "by the book" (setting up a democratic, rights-conscious state) without taking into consideration the reality of the island and the true political aspirations of both parties: two peoples, two communities with a common past refusing to share a common future and unable to create new links and a common identity, even on a very general basis. Thus, all windows of opportunity opened by third parties open on nothing, and no new horizon is visible. So it will remain, until they change the game....

Conclusion In Cyprus the mediators and the negotiators have never sought forward-looking outcomes. At the beginning, in the 1960s, they deliberately did not address the causes of the conflict, mainly because this did not serve their immediate interests. After 1974 there was a contradiction between providing forward- and backwardlooking outcomes. The war had been contained by a cease-fire, and a relative peace existed, even if illegally expressed with the partition of the island into two distinct and hostile entities. It was justice that was sought, not peace. The examination of what the future of the Cypriots themselves might be and how they might shape it together was never considered. The real causes of the conflict were never addressed, be they the possible cohabitation of two distinct communities or the insider role played by Great Britain, Greece, Turkey, and the United States. The cease-fire had solved the immediate concern regarding a potential global confrontation, and the great powers had more important fires to extinguish elsewhere, thus leading to a growing indifference on the part of the international community. As seen, the negotiation focused on many different elements, one coming after the other: first, on the colonial element (nationalism/independence), then on the military elements (invasion/protection/missing persons), then on the human elements (refugees/missing persons), then on the status quo (why negotiate?), then on the set of ideas (what to negotiate), then on the territorial elements (land adjustments/maps to draw), then on the confidence-building measures (trust, common interests), then on the material elements (reparations/compensations), then on the political elements (political and constitutional embodiment/representation and status), then on the international community's commitment (UN success or failure/U.S. involvement), and most recently on the European ramifications (Turkey's role in the European Union/the accession of Cyprus to the EU). In the latest round, ending with the Greek Cypriot community's rejection vote of 21 April 2004, Cyprus was above all a piece of EU political maneuvering, despite the dedicated efforts of the UN mediator. Whatever the reasons for the lack of forward-looking outcomes, the process itself was also questionable. In fact, the parties and mediators were negotiating in order to be able to negotiate. Negotiations have been "dispossessed"; they have become a charade played by the international community and a few lobbyists.

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As a result they have borne bitter fruits: consolidation of the Turkish presence, separation of the communities, a growing economic gap, loss of a common frame of reference, impossibility of finding a mutual ground for discussion, to name a few. The negotiations accumulated "mistakes" by • • • • • • • • •

• •

•

not including the main parties concerned and thus failing to gain their cooperation; imposing results on them without ensuring a security system that would guarantee their acceptance of the negotiated outcomes; overlooking the search for a balance of power that would undermine the value of the status quo; being off the track on emotional issues (looking for justice); keeping a process inherited from predecessors, simply adding more details to be negotiated and making negotiators lose sight of the main issue; needing to be negotiated; becoming instrumentalized and being used as a tool against itself; providing an excuse for a lack of true commitment and therefore a lack of action; aiming solely at solving immediate concerns without addressing forwardlooking questions, such as what form any possible cooperation might take and the conditions for its preservation; concentrating on a solution (the establishment of a federation) for which there is no agreement on principle and definition; providing negative outcomes and faits accomplis at each step in the process that then become negative baggage and reasons for additional demands for justice; perpetuating a losing process.

What remains to be negotiated today is the definition of federation based on geographical and economic concessions. How long can such a political regime last when no agreement can be reached on the concept or on the terms themselves? For example, what exactly is a federation? Where does the sovereignty lie? What about military involvement? How does one define authority? Each side has its own interpretation of what a bizonal bicommunal federation means and how proper governance should be conducted. How would the new federation handle conflicts that might arise in the future? After a couple of years of functioning, problems may well arise in the day-to-day conduct of governmental affairs over which no party would any longer wish to compromise. A federation, as it is presently negotiated, could offer a legal opportunity for the Turkish Cypriots to secede after some time; such a secession would infuriate the Greek Cypriots who could wish to react, annulling the results of the negotiations, as occurred in 1963, 1967, and 1974. How would a future outburst of violence be handled along the partition

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line (if it were then a federal border) once the United Nations had departed? Can negotiations focus on creating a Cypriot consciousness that would be able to overcome the distrust and the centuries-old hostility between Greeks and Turks if the respective motherlands start to clash again? Should not the international community, as a whole through the United Nations or individually on a country basis, make it a priority to focus its efforts on all the above-mentioned issues to keep the negotiation process alive and prevent it from remaining a purely cosmetic exercise? Is the necessity of keeping the negotiation process on the agenda worth the mockery being made out of it by the parties involved? Hasn't the point been reached at which we should agree to work only on forward-looking solutions (the political desire of the communities, the strategic requirements of their allies, the feasibility of a common political structure) and put aside both the past and the need for revenge and justice? Can the Cypriots work at a reconciliation that calls for forgiveness rather than at a justice that calls for punishment? Shouldn't we threaten to leave the Cypriots to their sad destiny (which many countries advocate, partly because of the financial cost of keeping the United Nations force in Cyprus) if they still refuse to agree to a solution or keep on just pretending to want one? Should we not call for new and original ideas (and maybe not westernized political concepts of state organization that do not work in this part of the Mediterranean), some practicality, even cynicism, and a little bit more geopolitical and economic sense?

Notes 1. UN Document S/24472, 1992. 2. Cour Europeenne de Justice, jugement du 5 juillet 1994.

Chapter 11

Expecting Satisfaction: Negotiating a Durable Peace in South Africa Robert B. Lloyd

How does one negotiate beyond a mere cessation of hostilities in order to develop a new regime that establishes legitimate institutional mechanisms and grapples with the deeper issues related to a violent civil conflict? Will such negotiations succeed where others failed? Did previous attempts fail because they aimed primarily at simply ending a painful conflict with specific peace agreements or because they were ambitious and idealistic in attempting to transform a violent and unjust society into a civil and just one? These are among the questions that occupy the minds of international negotiators. A successful political settlement-and its subsequent implementation-must satisfy the parties' expectations regarding the resolution of the conflict's causes. How deeply, then, do these causes need to be resolved for the parties to be satisfied? This chapter answers that question by examining the negotiation process in South Africa during the 1990s. Not only did the outcome of those negotiations resolve the basic causes of the conflict, but the democratization provisions also proved crucial both in overcoming previous failed negotiations and in establishing a durable settlement. Disputes stemming from the conflict's root causes remained but were managed within a legitimate regime. African National Congress (ANC) partisans expressed dissatisfaction that their desire to transform South Africa into a just society was being frustrated by certain provisions of the agreement. Postelection policies designed to achieve that just society provoked a strong opposition response. The opposition argued that the ANC was not adhering to the agreement and was biased in its definition of justice. Despite these differences, widespread support for 221

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the new democratic regime and for the electoral mandate of the ANC precluded a return to armed hostilities. A decade has passed since the April 1994 elections in South Africa that were the culmination of years of intensive negotiations over what, at the time, appeared as intractable and violent disputes. As a result of those negotiations and elections a new and legitimate government was formed, democratic principles of justice were enshrined in a new constitution, and political violence declined rapidly. South Africa is by all accounts a classic example of negotiations clearly rescuing parties that are locked in a painful, mutually hurting stalemate from a looming catastrophe. This chapter examines how the South African negotiations dealt with backward- and forward-looking approaches to overcome its apartheid past and establish a new regime. In understanding how the negotiation process in South Africa led to a durable settlement, two questions arise. First, why did the negotiators decide to devise a new regime and how exactly did they construct it? Second, did the inclusion of provisions related to a forward-looking outcome foster or hinder the establishment of a durable peace? These questions relate, as will be seen, to a more basic one: How much of the conflict needs to be resolved-at the very least to prevent a renewed outbreak of fighting and at best to establish the stable and positive relationships required to work out future disagreements? 1 Scholars differ on the degree of resolution required to achieve a durable peace. At one end of the continuum, conflict terminators argue that a cease-fire is sufficient to lay the basis for the eventual settlement of differences. In the middle, conflict managers agree on the need to end hostilities but believe that the most important goal of negotiations is to establish institutions to handle ongoing conflict. At the opposite end, the conflict transformationists believe that only the most radical resolution will suffice to end deep-seated conflict (Burton 1990a). Lederach (1995), for example, argues that a conflict must be transformed and will disappear only after the needs and interests of the parties in conflict are legitimized and the relationships are restructured toward increased equality and justice. 2 The parties must therefore resolve the conflict's underlying causes to establish a just and durable peace (Zartman and Rasmussen 1997). The South African case affords an opportunity to determine the degree to which the negotiations needed to resolve the conflict in order to establish "normal politics"-an institutional and ongoing method of resolving intrastate political conflict through negotiations and compromise. Understanding the degree to which a conflict is resolved comes less through an analysis of the specific details of South Africa's negotiated political settlements and more through an examination of people's expectations to see if they are satisfied with the degree to which negotiations have resolved their grievances. In this approach, expectations are a critical element in the degree to which a conflict must be resolved for a durable peace to be established. Licklider (1999), for example, argues that the one of the keys to a successful settlement "seems to be what the

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parties expect to happen in the future." In South Africa this future arrived through a convergence of expectations among contending parties over how to balance the desire for peace and the demand for justice.

Negotiating a New Regime Negotiations in South Africa specifically included provisions to establish a new regime. 3 What, then, caused South Africans to be dissatisfied with the old regime, and why did the negotiators representing the two major parties decide to negotiate a new regime? For the National Party (NP) negotiators it was clear by the late 1980s that simply tinkering with the old regime was not a viable option. Previous attempts under former National Party leader P. W. Botha to relax the strict application of apartheid legislation and co-opt Indian and colored voters into the development of a new parliament had failed to satisfy black expectations for political reform. Furthermore, the periodic tests of mutual strength that took place during both prenegotiations and negotiations showed the National Party negotiators that co-opting the ANC was unlikely to succeed. A backward-looking option that sought to preserve Afrikaner power was not sufficient to meet the expectations for power by black opposition movements. This insight made the National Party recognize that negotiations would have to give rise to a new regime which they gradually realized they would be unable to dominate. Domestically, the National Party negotiators faced a number of factors that made the negotiation of a new forward-looking regime more feasible. Within South Africa growing weariness of the economic, political, and social costs of the conflict increased pressure on the government to negotiate. A classic, mutually hurting stalemate had developed. 4 Domestically, polls of white South Africans showed very high levels of dissatisfaction with the policies of the government. Although white South Africans-the core constituency of the National Party government-showed much skepticism toward life under an ANC-led government, the dissatisfaction with the current political situation gave some freedom to the National Party negotiators. The international environment was also favorable for negotiations. Results of previous negotiations that had led to an independent Namibia were promising and had provided the National Party with some experience in managing transition to majority rule. The negotiations that had led the former South African colony of South-West Africa to independence as Namibia helped provide a blueprint for the types of issues that would face South Africa itself. Namibia gave South African leaders experience of managing a change of political regime. Negotiations there led an Afrikaner minority to cede power to a majority black population. Before negotiations Namibia had also experienced civil conflict in which unilateral attempts at resolution-in that case by the South African Defense Force and its guerrilla rival, the South West African People's Organization (SWAPO)-had failed.

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The disintegration of the Soviet Union and sudden loss of appeal of Marxism as an ideological challenge to political and economic liberalism was a godsend to National Party negotiators. Within South Africa fears of Communist insurgency had proved potent in determining the country's foreign policy. Diplomatic efforts on the part of the United States which mediated in the conflicts neighboring South Africa, increasing trust and reducing tension, also facilitated the process. A final reason was simply the demographic realities. As the Afrikaner constituency of the National Party was but a minority of both the politically enfranchised white population and the disenfranchised black, Indian, and colored majority, the implementation of apartheid had never garnered widespread support. Furthermore, the economic and social interdependence of whites and blacks, reinforced by industrialization and urbanization, had undermined the effectiveness of apartheid from the moment it was introduced. Fueled by these socioeconomic and demographic realities, in the 1970s and 1980s the government moved away from a strict application of apartheid and toward some type of political accommodation with the nonwhite populations. The African National Congress, the other major party in the negotiations, had its own reasons for desiring political change through negotiation. In marked contrast to the National Party, the ANC had, since the 1955 Freedom Charter, been on record as desiring a fundamental change in the regime. 5 Furthermore, the ANC and other African, Indian, and colored opposition movements had grown increasingly dissatisfied with the response of successive South African governments to their demands. Active resistance grew throughout World War II and culminated in the mineworkers' strike in 1946. During the 1950s open defiance increased as the National Party-controlled legislature passed apartheid legislation. In subsequent decades, expectations for ever-more-radical changes grew. In 1975, for example, the ANC produced a document entitled Forward to Freedom which argued that the underlying causes of the South African conflict related to European imperialism and colonialism, the exploitation of the working class by the rich, and the private ownership of wealth. The document called for the root causes of the conflict to be resolved through the introduction of a socialist political system established by military victory. 6 By the late 1980s it was clear that political changes were looming in South Africa. The ANC responded to the increased likelihood of negotiations by adopting the Harare Declaration in 1989. 7 The Harare Declaration, showing clearly the change in ANC expectations, broke with Forward to Freedom in that it called for a negotiated political settlement and dropped Marxist rhetoric. Nevertheless, dissatisfaction with the old regime remained, clearly precluding any settlement that did not eliminate all vestiges of racial discrimination. Thus, the National Party's inability to co-opt the ANC during negotiations was directly related to the organized and effective opposition of black, Indian, and colored South Africans to the apartheid regime.

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The ANC recognized that gaining power would involve some backwardlooking trade-offs because of the concerns of whites about their vulnerability in a post-apartheid South Africa. Nevertheless a number of factors led to the party's newfound support for a democratic regime. First, the ANC realized that the National Party was willing to cede power provided that a democratic limited government model formed the basis of the new regime. As the ANC anticipated winning an election, such a political system would provide the vehicle by which power could at last be achieved. Thus, democracy became in many ways a bargaining chip during negotiations. Once the chip was played, a dynamic was put in motion that led to the establishment of a new regime at the conclusion of the implementation phase of the negotiated settlement. Second, within the ANC a new crop of leaders had cut their teeth on violent protest. These leaders had been at the forefront of domestic opposition to apartheid while the older ANC leadership was away in exile or imprisoned. Nelson Mandela was a mythic but remote figure for these more radical leaders. The older ANC leadership, by contrast, was more moderate politically, preferred to negotiate a new political system that had something left in it to govern, and felt some urgency to negotiate as a number of the more senior leaders were becoming old and frail. Finally, the waning of Communism caused the ANC to reconsider its objectives. The collapse of the Soviet Union reduced support for the organization. The failure of Communism to achieve its objectives elsewhere made its appeal less attractive, even though the South African Communist Party was a major constituent oftheANC.

Expectations for the Settlement The two parties' reasons for devising a new regime are clear; but how, specifically, did negotiations provide for it? The answer to that question lies primarily in examining more closely how negotiations handled the expectations of South Africans regarding the resolution of grievances. To assess both how the regime was devised and the degree to which the conflict was resolved, one must first understand how the negotiation process provided outcomes to satisfactorily meet the parties' expectations regarding the resolution of the causes of the conflict. Polls of both black and white South Africans demonstrate very high levels of dissatisfaction with the overall political situation in their country before and during the negotiation process. 8 Personal interviews with South Africans in 1997 regarding the reasons for their dissatisfaction readily identified these grievances. 9 Their responses may be divided into two categories: specific, concrete grievances; and the more abstract "underlying" grievances. The two are related but differ somewhat. For example, a substantive grievance might be that "Mandela is in jail," but the underlying issue (mentioned especially by the more educated respondents) is "apartheid"-which put him there.

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Concrete grievances include disputes regarding the visible manifestations of apartheid and specific acts of repression necessary to maintain these policies. Opposition elites-influential persons in the society-commonly cited the bans against black political organizations and the jailing of Nelson Mandela. Closely related to the bans against opposition organizations were grievances about the lack of blacks in government and the lack of a vote. Opposition elites also identified a number of more general grievances laid at the feet of the National Party. The most common grievance was against the principle of apartheid. A second grievance was racial discrimination, primarily against blacks. A third grievance was the lack of a democratic political system in South Africa. There were differing views of democracy among opponents of the apartheid regime. The Inkatha Freedom Party, for example, equated democracy with multiparty democracy while the ANC did not. A fourth common grievance was the lack of respect for human rights and equal rights before the law. The authoritarian political culture of the National Party government also was frequently cited. Reflecting their personal circumstances black nonelites-individuals with little influence and of low socioeconomic status-tended to focus less on abstract issues and more on specific and concrete grievances. They consistently emphasized the need for better housing, greater employment opportunities, and increased provision of such government services as roads, electricity, and schools. It could be argued that for black nonelites these "goods" were their objective and that apartheid, with all its associated problems, lay in the way of attaining both greater personal liberty and economic advancement. Black nonelites agreed with black elites on the need to remove apartheid but paid greater attention to those daily aspects of the political system that impinged most directly on their lives. The personal interviews of South Africans revealed high levels of intense feeling against the National Party government. The comments of those opposed to the government were emotional and exhibited particular animus toward National Party leaders and, to a lesser extent, whites in general. Those interviewed did not limit themselves to an explanation of the grievances that caused the conflict but emphasized the moral and personal failings of government officials that underlay it. In short, the conflict happened because the "other side" was composed of "bad" people. Their responses attempt to explain why, in effect, the South African conflict was so intractable. Opposition groups differed, however, in their perceptions of the government and the reasons for its actions. The ANC respondents, and those generally sympathetic to the ANC, emphasized the moral failings of the leaders of the National Party. They were also more likely to express highly critical personal views of whites in general and of the National Party in particular. They viewed the National Party almost as an inherently malignant growth that had to be excised. The words used to describe the party members include "arrogant," "deceptive," and "privileged few." One ANC government security official put it this way: "It was

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almost a war of attrition. We made demands. They rejected. We fought, and they suppressed. So that was hardly a situation that was conducive to our saying we were satisfied" (author interview with Azhar Cachalia, January 1997, Pretoria). Inkatha and white liberal respondents, in contrast, were more restrained in their criticism. For example, Inkatha members tended to view the National Party less as morally deficient and more as simply inept. They felt that the party was bound by fear and was shortsighted in its policies. Some white liberals remained critical of the government but showed some sympathy toward a National Party grappling with deep-seated social, ethnic, and racial divisions in the country. Given the testimony of those opposed to the National Party government, is it possible to identify a single underlying cause of the South African conflict? Taken together, the responses of those interviewed allow the inference that the underlying cause of the conflict was the political and economic inequality between whites and blacks and a perceived blocking ofopportunity to achieve equality. One could argue, taking the study of cause and effect one level deeper, that the underlying cause was a fundamental lack of respect for South Africans who differed racially (and to a lesser extent culturally) from Afrikaners. The problem of infinite regression soon appears. No matter at what level the causes of the conflict are examined, however, the practical outcome was the National Party's refusal to expand access to the political and economic system to allow other groups sufficient influence to overcome Afrikaner rule. If the perceptions and arguments are accepted as both valid and representative of those opposed to the government during negotiations, then overcoming the conflict required a political system open to all South Africans, equal opportunity (but, more likely, equal outcome), and a feeling on the part of blacks that they commanded the respect of whites. The first objective, a political system, was achieved as a result of the political settlement. The other two sources of conflict are difficult to achieve through a negotiated settlement because they cannot be resolved through specific agreements, an issue that will be examined fully later in the chapter.

Negotiation Process What specific provisions in the negotiation process answered these grievances? Shortly after the unbanning in February 1990 of the ANC, the Pan Africanist Congress (a more radical breakaway rival to the ANC) and the South African Communist Party (a separate but closely linked partner of the ANC), a whole series of negotiations began in South Africa. The objective of these talks was to deal with the populace's widespread dissatisfaction with the political situation, and they led to a number of agreements between the various parties in the country. The successive agreements resulted from negotiations aimed not only at satisfying opposition grievances but also at stemming the tide of political violence that had

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unexpectedly engulfed the country. At times the negotiations broke down temporarily, which was traceable to differing expectations of what they were intended to achieve. The final outcome of the whole series of negotiated agreements was to reduce the "expectation gap" between the two major parties. Negotiations focused initially on process and were necessary to set the stage for later talks on substantive issues. The Groote Schuur Minute, signed near Cape Town in May 1990, was the first such agreement. The document committed both sides to the principles of resolving violence and intimidation, as well as promoting stability and peaceful negotiations. The Pretoria Minute followed up the Groote Schuur Minute and affirmed its principles. Signed in August 1990, the Pretoria Minute marked the ending of the armed confrontation in South Africa. Disagreements over details of the Pretoria Minute regarding the status of Umkhonto we Sizwe (the military wing of the ANC) and the release of political prisoners led to another meeting to settle outstanding differences. The D. F. Malan Accord, signed in February 1991, addressed such procedural questions. The agreement was the first to grapple with substantive issues of education and land, a clear concession by the National Party to the ANC. After the opposition movements were unbanned, political violence in South Africa escalated significantly. The rapid increase Jed to the signing of the National Peace Accord in September 1991. The government, the ANC, and the newly organized Inkatha Freedom Party met with other political and civic organizations to pledge an end to South Africa's political violence. A number of committees and commissions were created to address the causes of the violence. The accord's major provisions included codes of conduct for political parties, security forces, and the police. 10 The National Peace Accord removed remaining obstacles to substantive negotiations. 11 In late December 1991 representatives from nineteen South African parties met at the Convention for a Democratic South Africa (Codesa) in Kempton Park, a Johannesburg suburb. Codesa 1 led to the signing of the Declaration of Intent, agreement on general constitutional principles, the establishment of working groups, and the first movement toward a formula for agreement. Codesa reconvened for a second round in May 1992. This round collapsed within a few weeks because of disagreements over the role of the proposed democratically elected constituent assembly and escalating political violence. Specifically, on 17 June 1992 forty residents of Boipatong township in the Transvaal were killed, allegedly by supporters of Inkatha. What followed has often been called "the winter of discontent." The Boipatong massacre also led the United Nations, prodded by the ANC, to send an American mediator, Cyrus Vance, with a view to reviving the stalled talks and reducing violence. Although cited as the reason for suspending negotiations, the political violence obscured the fact that the ANC and the NP were far from reaching consensus. A South African political analyst, Steven Friedman, later wrote that the talks failed because the ANC and the government had different objectives for the negotiations. ''The ANC assumed

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it had come to the World Trade Centre in Kempton Park to accept the NP's surrender; the latter believed it had come to negotiate participation in an NP-ruled state" (Friedman 1993, 6-7). The stalling of negotiations and the spiral of political violence led the parties to more realistic and sober evaluations of their relative strengths and weaknesses. Within a few weeks of the September 1992 Bisho massacre, the ANC and NP convened bilateral talks, principally between ANC Secretary-General Cyril Ramaphosa and the South African minister of constitutional development, Roelf Meyer. The two negotiators not only discussed bilateral issues but simultaneously conducted talks with adversaries and allies from other Codesa parties. After months of closed-door negotiations, the ANC and the government forged a consensus regarding both the process and the substance of the transition. This so-called record of understanding broke the impasse that had blocked negotiations. The two parties pledged to create a combined assembly/constitutionmaking body, to develop a democratic constitution, and to maintain constitutional continuity through an interim/transitional government of national unity. The record of understanding also resolved an outstanding strategic question: whom would the NP choose as a major alliance partner? The decision of the National Party to resolve the conflict primarily through negotiations with the ANC meant that Inkatha was forced to play a relatively minor role. Inkatha responded to the record of understanding within the month. The head of Inkatha, Chief Buthelezi, along with the leaders of the homelands of Ciskei, KwaZulu, and Bophuthatswana, allied with right-wing white political organizations to form the Concerned South Africans Group (Cosag). This alliance, with its counterproposal of confederation, failed to derail the NP/ANC pact. The later collapse of the black homelands and the decision of the white right to participate in the April 1994 elections isolated Inkatha, whose sense of anger increased. As a result the resolution of the conflict in South Africa did not extend deeply into Inkatha's home area of KwaZulu. The dissatisfaction oflnkatha members with the record of understanding, and the effect this had on the conflict's resolution, will be examined shortly. Despite Inkatha misgivings, the way was now clear for Codesa to reconvene in March 1993, again at the World Trade Centre in Kempton Park. The new forum now included twenty-six parties and was therefore renamed the Multiparty Negotiating Forum. On the two ends of the political spectrum, the Azanian People's Organization (Azapo)-a left-wing black organization-and the Afrikaner Weerstandbeweging (AWB)-a white far-right group-boycotted the meetings, and Cosag soon walked out. Given the degree of consensus forged earlier between the ANC and the government, however, the pace of negotiations was relatively rapid. In September 1993 the South African Parliament, legislating itself out of existence, approved the Transitional Executive Council Bill. The focus now shifted away from negotiating agreements and toward their actual implementation.

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Satisfaction with the Settlement In South Africa negotiations decisively shifted the conflict from armed confrontation to a new democratic regime where disputes were resolved peacefully. Negotiations created the mechanisms that overcame the mutual distrust, addressed the grievances, and reached accord on a new constitution to resolve continued conflict peacefully. Specific agreements included the widening of the electoral franchise, the systematic dismantling of apartheid-era political entities (such as Bantustans), the decentralization of power through the creation of stronger and more provinces, limited power sharing, and the protection of minority rights. Thus, a forwardlooking settlement had delivered South Africa to the doorstep of the conflict managers. Were people satisfied? This is an important question because "success" (defined as a durable agreement that overcomes the conflict) ultimately depends on people's satisfaction with both process and outcome. Overall, those interviewed expressed fairly broad and deep support for the negotiated agreement. The most enthusiastic supporters of the agreement were white liberals and black nonelites. Compared with NP government officials, elites in the ANC, as well as those in other parties sympathetic to the ANC, were less enthusiastic about the agreements. Even though the ANC won the elections and gained power, too much (in their view) had been negotiated away in order to achieve this outcome. They agreed that the new, democratic government was far better than the previous one but were disappointed that the many compromises inhibited the "transformation" of the apartheid state. Commonly cited examples include the creation of the government of national unity (GNU), the retention of a white civil service and security forces in charge of implementing the agreement, local government administrations still based on race, and more devolution of power to the provinces. This latter item was seen as slowing decision making and costing too much money. Vincent Maphai, a prominent black activist and intellectual, wistfully stated in a personal interview: "My gut level reaction is that the ANC gave up too much. At the intellectual level, however, you have to focus not just on what you give but also what you get. ... My heart is so, but my mind is satisfied" (author interview with Vincent Maphai, 21 January 1997, Pretoria). These comments are fairly typical of those given by other ANC supporters. They strongly expected to gain political power without needing to compromise with the apartheid government. Both the polls and the in-depth interviews show that the process of overcoming the conflict depended on the willingness of both parties to settle for less than each had hoped to gain. A forward-looking outcome was in tension with the zero-sum, distributive aspects of backward-looking compromises. Regret at settling for less was overcome by a realistic assessment of the strengths and weaknesses of each side's bargaining position. White liberals were a very satisfied group. During apartheid a series of white liberal political parties had arisen to contest apartheid but all lacked sufficient

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power to defeat the National Party. Many also believed, however, that the ANC was not committed to democratic principles either. Therefore, they never expected that negotiations would lead to actual agreements designed to construct a democratic South Africa on the foundation of an apartheid state. On a pragmatic level, several thought that the agreement accurately reflected the balance of power existing within the country. By lowering the stakes, the transitional instruments, such as the Transitional Executive Council and the government of national unity, were very helpful tools in aiding the transition from apartheid to democracy. Most black nonelites were most satisfied with how political violence declined as a result of the agreements. There was considerable finger-pointing regarding who was responsible for the violence. One respondent blamed Inkatha's head, Buthelezi, while another suggested that the ANC was trying to grab power during Codesa. Yet another, pointing out that violence increased substantially in the Reef (Johannesburg) area around the time of the agreement, blamed all the parties. The National Party members interviewed, all of whom were involved in the negotiations, expressed satisfaction with the agreements. One National Party member stated that if the ANC's Harare Declaration were considered as the starting point for bargaining positions, the NP had won more points than it had lost. His view was shared, in fact, by many of the ANC supporters interviewed. For example, he mentioned that the ANC gave up a centralized, unitary state for a federal system. For its part, the National Party bargained away a system of entrenched power sharing and veto rights for minorities. All the NP officials interviewed agreed that negotiations involved compromise and that the party was continuing to support the constitutional arrangements that arose from these talks. 12 One group of respondents adamantly dissatisfied with the agreement was the Inkatha Freedom Party. Their dissatisfaction stemmed from a number of factors related to the process and substance of the negotiations that led to the agreements. The responses of Inkatha members were extraordinarily consistent even though the individual respondents came from quite diverse geographical, ethnic, and racial backgrounds. This consistency, in contrast with the broader range of responses among other groups of respondents, makes it almost possible to speak of an "Inkatha position." Inkatha respondents' procedural dissatisfaction arose when the Inkatha leader, Buthelezi, and King Goodwill of the Zulus were not allowed to send separate delegations to the Codesa talks at Kempton Park. The decision undercut the ability of Inkatha to broaden its constituency beyond Zulus. A source of dissatisfaction on substantive grounds was the signing of the record of understanding between the National Party and the African National Congress. Not only was this a breach of good faith by the National Party, according to Inkatha, but also it constituted a sellout of the party to the AN C. Other specific dissatisfactions included the agreements' perceived lack of recognition of traditional African culture and local government. A follow-up survey in June 2003 found that Inkatha's strident opposition

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to the agreement had largely dissipated. General unhappiness with the ANC, however, remained. 13

Backward- and Forward-Looking Approaches In its earliest stages ANC/NP negotiations were aimed toward cutting a deal, a backward-looking approach. The subsequent dynamic of negotiation and protest, however, led to more radical changes than were anticipated by the National Party and less radical than were desired by the ANC. Did these provisions to address the underlying causes of the conflict foster or impede its resolution? To answer this question it is first necessary to see which grievances the negotiation process resolved and which it left outstanding. Resolved Issues

All those interviewed agreed that the armed confrontation ended with the signing of the Pretoria Minute in August 1990 when the ANC formally agreed to suspend the armed struggle and to seek to resolve the conflict through a negotiated settlement. These statements indicate that the parties desired to move, at the very least, to a position advocated by the conflict managers. Consequently, the degree to which respondents thought the conflict had been resolved remains crucial to settling the debate between the conflict managers and the transformationists. The respondents did not identify any immediate causes of the conflict as unresolved by the negotiated agreement and its implementation. On the former opposition side Thandi Orleyn, a political activist who was also a strong ANC supporter, said that "the liberation movements were giving up a lot" but that she was nevertheless satisfied with the settlement of the immediate causes: "The major conflicts have been resolved" (author interview with Thandi Orleyn, 17 January 1997, Johannesburg). A second respondent, who throughout the interview was extremely critical of the National Party government and its policies, also stated that the immediate causes of the conflict had been resolved: "The political settlement has resolved the conflict" (author interview with Peter Vale, 16 January 1997, Cape Town). All respondents agreed that the agreement and its implementation had resolved many of the immediate causes of the conflict. First and foremost, the conflict over an Afrikaner-ruled apartheid state was resolved. Some respondents elaborated upon this basic grievance by further identifying the denial of human rights and dignity as the most egregious aspect of apartheid. The related illegitimacy of the government, viewed as racially exclusive and unfair, was likewise seen as resolved. Several respondents also felt that the settlement resolved uncertainty regarding the relationship of these two actors. First, the stalemate between the ANC and

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the NP was overcome. Second, as an ANC government official pointed out, the settlement also determined who would govern South Africa (i.e., the ANC). The implementation of the agreements thus also resolved the conflict among the competing black South African parties as to who would actually rule South Africa. 14 Nevertheless, this particular outcome of the negotiations remained a source of continuing irritation to the Inkatha Freedom Party. The respondents were very satisfied that their expectations had been met regarding the establishment and organization of a democratic state. South Africa would have a democratic constitution with a common citizenship in a single state, to the satisfaction of almost everyone interviewed. Many of the respondents expressed a sense of wonder, surprise, and joy at the outcome. This may be because their expectations were initially very low that the conflict would be resolved peacefully (as indicated in the first survey question), let alone that the negotiations would lead to the establishment of democratic institutions on the remains of an apartheid state. F. Van Zyl Slabbert, the former head of an opposition party, expressed his reaction thus: "As . . . a liberal democrat all my life I could not believe it. It [the settlement] was remarkable. [W]e were able to transition from an authoritarian state to an emerging democracy in just three years. We have had national, provincial, and local elections. I was in charge in the local elections, and they were peaceful. Democratization gets high marks" (author interview with F. van Zyl Slabbert, 21 January 1997, Johannesburg). The potential for subnational secession and white minority revolt, questions of great concern in the early phases of negotiations, were considered to have been resolved. The respondents strongly expected that South Africa would remain whole, and seemed satisfied that Inkatha leader Buthelezi and conservative Afrikaners had not carved pieces out of the country. The black homelands had been reincorporated into South Africa earlier in the negotiation process. Unresolved Issues

Many of those interviewed thought that although the political settlement had resolved the immediate causes of the conflict, its underlying causes had not been resolved, which tends to support the position of the conflict resolutionist and manager. Which issues did the respondents indicate were unresolved? Three quite disparate categories of respondents expressed doubt, but for quite different reasons, as to whether or not the conflict had been overcome: rank-and-file Afrikaners, traditional Zulus, and elite ANC members. The issue of identity and protection of minority rights was often mentioned as a source of continuing conflict by Afrikaner and Zulu respondents. Afrikaners saw the ANC as oppressing language and culture rights, the Afrikaans language being downgraded from its "firstamong-equals" position in South Africa by the ANC. The issue of education in the Afrikaans language, in particular, was a source of tremendous anger. None of the respondents thought that this growing dissatisfaction with the ANC government

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was likely to break out into violence in the near term, however, although several thought it possible in the longer term. The Inkatha Freedom Party stated that the ANC was using intimidation and force against them in their home province of KwaZulu-Natal. Inkatha political leaders believed that the ANC was against Zulu traditions and institutions of local governance. A new source of grievance among Zulus was the breaking of an ANC pledge to seek international arbitration to resolve the ongoing and violent conflict in KwaZulu-Natal. Just days before the April 1994 elections, the ANC committed itself to support arbitration and, on that promise, the Inkatha Freedom Party agreed to participate in the elections. 15 The breaking of that promise, in the eyes of Inkatha, confirmed the duplicity of the ANC, leading to a further erosion of trust. Nevertheless, political violence in KwaZulu-Natal and South Africa as a whole has clearly been subsiding over the past few years. The downward trend suggests that some level of political accommodation is developing between supporters of Inkatha and the ANC. This was confirmed by the author in a June 2002 study that interviewed South Africans in the largely Zulu province ofKwaZulu-Natal. The cause underlying the conflict, inferred from respondents' comments on what was resolved and unresolved by the settlement, was inequality between blacks and whites, exacerbated by a white-ruled government that blocked opportunities as well as the growing expectations of blacks to advance politically, economically, and socially into the same ranks. The respondents did not think that the underlying cause of the conflict had been truly resolved. This suggests that the political settlement in South Africa resolved the immediate causes but not the roots of the conflict. Furthermore, most respondents, while noting the unresolved root causes, nevertheless agreed the conflict had been overcome. This does not lend support to the transformationist position, at least in the short run. Collectively, the respondents identified several areas of remaining conflict, including: • • •

Overcoming the legacy of centuries of racial domination, black resentment, and an authoritarian government Meeting the expectations of the black majority for tangible improvements in their personal circumstances Building national unity while at the same time dealing with demands for selfdetermination by culturally, ethnically, linguistically, and racially distinct segments of the South African polity.

Transforming South Africa Once in power, the ANC-led government, while largely honoring its commitments to the National Party, began pursuing policies to deal with the root causes of the conflict. How did the new ANC-led government attempt to resolve the underlying

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causes of the conflict, and did this attempt impede the success of negotiations? It is important to note that the final political settlement did not achieve all the objectives that the ANC had proposed in the Freedom Charter, Forward to Freedom, and the Harare Declaration documents. The transitional constitution required a number of compromises, both within the ANC and between the ANC and the National Party government. For the ANC, the demands of the Freedom Charter for nationalizing major sectors of the economy and for governmental seizure and redistribution of private land were negotiated away in favor of entrenching private-property rights. This concession decisively moved the ANC away from a socialist stance to a more free-market approach and essentially repudiated the Marxist rhetoric of the Forward to Freedom document. These aspects of the political settlement were at the time a source of disappointment to many black South Africans. One respondent sympathetic to the ANC stated with obvious regret that the settlement, by abandoning many of the objectives contained in Forward to Freedom, prevented the use of methods such as nationalization to resolve root causes. In this view the ANC, to compete during the elections, had to employ political rhetoric to gain support, leading to unrealistic expectations among "an illiterate and unsophisticated community" (author interview with Thandi Orleyn, 17 January 1997, Johannesburg). Once in power the ANC had to deal with heightened expectations but had fewer ways of meeting them. This suggests that any negotiated political settlement precludes a priori the resolution of root causes because any agreement entered into by two or more parties must include compromise. 16 "Transformation" was a term commonly used by those sympathetic to the ANC government to describe the process whereby the underlying causes of the conflict would be resolved. As time went on, however, "transformation" came into wider use, appearing in interviews, government publications, and media reports. 17 When Pravin J. Gordhan, a respondent who had been one of the principal ANC negotiators during the settlement, was asked what "transformation" means, he replied: For me transformation means that you have to drive your society towards a vision [of] real democracy, not just a putative one. Where you empower vast sections of society to meaningfully participate in making decisions that impact on their lives. It also means creating a democratic/constitutional/human rights culture [u]sing the new constitution to imbue in people a new value, a new morality, a new sense of dignity, and respect for each other. This is going to be crucial to getting the reconciliation process to advance to a significant degree. Economically, it means that those who do have economic power begin to share it with those [who] don't (author interview with Pravin J. Gordhan, 14 February 1997, Cape Town).

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Responding to demands from its constituency, the ANC has attempted to resolve the underlying causes of the conflict through three policies: the Reconstruction and Development Program (RDP), the Truth and Reconciliation Commission (TRC), and Black Empowerment/Affirmative Action. Each of these policies deals with some aspect of the conflict's underlying cause. The Reconstruction and Development Program One demand of the Freedom Charter, the establishment of a social safety net of housing and medical care, was not conceded in negotiations. Once in power, the ANC-led government, with the support of the National Party, announced the Reconstruction and Development Program (RDP). The RDP was designed as a policy framework and program that "must go beyond the Charter to an actual programme of government" (Mandela 1994, i). Its objectives were sweeping and comprehensive. ''The RDP is an integrated and coherent socioeconomic policy framework seeking to mobilize all the people of South Africa and its resources to reduce poverty and provide opportunity and growth in a stable society where human rights are paramount" (South Africa Foundation 1995, 30). The RDP, a classic Keynesian program of economic stimulus, planned to increase expenditures by approximately ten billion dollars over a five-year period to provide housing and other infrastructure improvements to black South Africans. Insufficient funds and poor initial results led to the RDP being quietly shelved within two years. A number of government agencies did, however, take over its tasks, and the RDP did attempt to address the substantive grievances that had been stated in the Freedom Charter. The failure of the RDP indicated that South African expectations for resolving both the immediate and underlying causes of the conflict could not be met through increased government spending. The Truth and Reconciliation Commission The second policy designed to deal with the underlying causes of the conflict was the Truth and Reconciliation Commission (TRC). The TRC was the mechanism intended to uncover activities of all parties in the past as a way of understanding the truth of the hidden apartheid era and of setting the stage for forgiveness and healing. Soon after de Klerk's 1990 speech, the South Africa-based Institute for Democracy (Idasa) began urging such a mechanism through a number of articles and editorials in its influential Democracy in Action publication. In fact, the executive director of Idasa, Alex Borraine, eventually left the organization and was appointed to lead the TRC. The ANC views the purpose of the TRC as "healing the wounds of the past" so that a principle of the Freedom Charter, "South Africa belongs to all who live in it, black and white," can be implemented. As Nelson Mandela stated in 1996: "True reconciliation does not consist in merely forgetting the past. It does not

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rest with black forgiveness, sensitivity to white fears, and tolerance of an unjust status quo, on one hand, and white gratitude and appreciation underlined by a tenacious clinging to exclusive privilege, on the other. Fundamentally, it has to be based on the creation of a truly democratic, non-racial and non-sexist society so that everything that leads to racial and ethnic tension and conflict in our society is done away with. A serious challenge therefore faces our white compatriots ... what is it that they must do to make a meaningful contribution to this vital national objective" (African National Congress 1996).

Black Empowerment/Affirmative Action A third policy designed to redress grievances relates to employment. The black empowerment/affirmative action programs of the ANC government are designed to expand opportunities for blacks and to address decades of injustice in hiring practices. 18 Political patronage for ANC supporters is another unstated reason, but support for affirmative action is strong even among such opponents of the ANC as the Inkatha Freedom Party. Widespread black support for affirmative action suggests that this will be one of the more successful programs designed to deal with the root and legacy aspects of the conflict. Nevertheless, affirmative action has backward-looking characteristics in its emphasis on zero-sum, redistributive policies.

Conflict Termination, Management, or Transformation? South Africans agreed that negotiations had ended the conflict. They commonly cited as proof the establishment of a legitimate, democratic government with strong constitutional protection for human rights, that has moved conflict from the battlefield to the ballot box. But to what degree has the settlement resolved the conflict? On the most basic level, the agreements and their implementation brought peace by halting the armed confrontation. On a somewhat deeper level, they also dealt with most of the grievances first articulated in the Freedom Charter. This would meet the minimal standards of the conflict terminators. The creation of a new democratic regime was forward looking and supports the conflict manager position. But did the settlement resolve the underlying causes of the conflict, creating cooperative, problem-solving outcomes? The ANC was forced to compromise on its demand for total power. For example, the political settlement hindered the ANC from using the power of the state to redress the underlying cause of the conflictinequality between blacks and whites-because it could not nationalize industry, seize private land, replace the predominantly white civil service with supporters loyal to the ANC, or prevent the decentralization of central power to the new provinces. While both forward- and backward-looking processes contributed to a

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successful outcome, they did not wholly close the expectations gap between the two parties. Opposition responses (now to an ANC government) were wary of postnegotiation policies that attempted to resolve the deeper causes of the conflict. Whites interviewed were well aware of the ANC policies of transformation. The RDP, perhaps because it had been scaled back, did not provoke much comment. In fact, the NP leaders supported increased government spending on blacks. One of their publications stated this explicitly: "The NP will continue to give its wholehearted support to the [ANC] government's efforts ... to alleviate the plight of the poor, the deprived, and the unemployed" (National Party Newsletter 1996b). Two other ANC policies, Black Empowerment/ Affirmative Action and the TRC, provoked a very strong reaction from many white respondents. They believed that the ANC was promoting blacks to fill government positions at the expense of better-qualified whites. This was viewed as unfair and expensive. Opposition to affirmative action was not limited to the Afrikaners. Tony Leon, the leader of the opposition Democratic Party said in a speech at the 1997 opening of parliament, "In 1990, while holding high office in the ANC, Justice Albie Sachs wrote often of the previous regime: 'The struggle against apartheid is precisely the struggle against separateness and a struggle to be the same.' Instead of implementing that vision, government policy is creating a new form of group preferences and entitlements so that an affirmative action job today means-no whites need apply!" (Leon 1997). Despite the opposition to this aspect of transformation, the ANC remained committed to the policy. In his opening speech to the parliament, President Mandela stated that the government's policy was based on the constitution. His defense was in response to opposition MPs' charges that the ANC's policy was racist. Mr. Mandela said, "We cannot claim to have realized everything we wish to achieve, but no one can question the commitment of the government to deal with the root causes (italics added) of this problem." He stated that the policies were designed to provide training and fair opportunities to those disadvantaged by law for many years. This issue illustrates a dilemma facing the ANC since the Codesa negotiations. Is the party's vision for South Africa nonracial or multiracial? Affirmative action and black empowerment seem to indicate a growing emphasis on a multiracial and politically popular strategy. The second aspect of transformation that provoked responses by a number of whites was the Truth and Reconciliation Commission. Several individuals interviewed thought the TRC was politically biased against the National Party and the lnkatha Freedom Party. One noted that all the members of the commission were ANC supporters. Another said that the outcome of the TRC was the discrediting of the National Party as a viable political opposition as the details of its suppression of black opposition movements came to light. A few whites noted that a second and unforeseen consequence of the TRC had been a growing split in the country

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along racial lines. In their eyes, resentment rather than reconciliation had followed the uncovering of the truth of the apartheid era. Many whites interviewed, including a National Party government official, thought the ANC-dominated commission was focusing more on the truth about government activities and not on the reconciliation between the races. The National Party stated: "For true reconciliation to be accomplished, it is of fundamental importance that the Commission should handle the issue of amnesty in an equitable manner. Any attempt to apply stricter standards than those used so far, will lead to injustice and threaten reconciliation" (italics added). Thus, the desire of the ANC to transform South Africa, and to meet its constituency's expectation of resolving the underlying cause and its effects collides directly with minority's fears of domination (National Party Newsletter 1996a). 19 Several political analysts interviewed expressed the view that whites were withdrawing from the political system, a phenomenon evident in everything from tax dodging to emigration. In terms of negotiation outcomes this indicates a passive resistance to ANC attempts to address the conflict's underlying causes. The responses of Afrikaners and English-speaking liberals suggested a difference between the reactions of the two groups. English-speaking liberals were much more optimistic about the future but were also concerned about high rates of emigration by English-speaking friends and colleagues. By contrast, the Afrikaners interviewed adamantly stated that they were staying in South Africa but were more pessimistic and angrier than the English speakers. For their part the ANC respondents and those sympathetic to the ANC-led government were well aware of these attitudes. They dismissed white opposition to affirmative action and to some aspects of the TRC as an attempt to retain white privilege. In their view they were the democratic majority and had received a mandate in the April 1994 elections to implement their vision of a South Africa free from any residual effects of apartheid.

Conclusion How important to the establishment of a durable settlement was the inclusion of forward-looking outcomes during negotiation? After examining the case of South Africa it is clear that a negotiated political settlement must resolve at least the immediate causes of the conflict. Furthermore, the evidence suggests that a negotiated political settlement-because it involves compromise-will be less likely to resolve all the underlying causes of the conflict. Even though the postelectoral outcome strongly favored one party, the compromises limited the ability of that party to achieve its view of justice. Nonetheless, given the vast gap in expectations between the two parties that existed at the beginning of negotiations, the inclusion of provisions for a new regime was crucial to establishing a durable settlement.

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The South African case suggests that postelection attempts to resolve a conflict's root run into difficulty. The likelihood of success is lower if the attempt is not perceived as fair by all parties to the conflict, if it did not form part of the original agreements, and if it threatens the interests of those who no longer are in government but who retain substantial power. Thus, the transformation of a conflict by tackling its root causes is a Herculean task. Divergent interests, differing perceptions of justice, and unhealed memories remain. The outcome of South African negotiations suggests that the resolution of specific grievances and the institutionalization of a conflict within normal politics provide the best opportunity of dealing later with its root causes. This will happen if the parties continue to be dissatisfied with the settlement yet coexist within a political system where a measure of trust in one another and commitment to a democratic system have been established. The South African case in particular strongly suggests, however, that the nature of the compromise settlement itself precludes a deeper resolution, even if the party desiring a deeper resolution enjoys considerable legitimacy and electoral support. Thus, the case of South Africa does not lend any support to those who argue that negotiations to resolve a conflict are doomed to failure unless the root causes are addressed and transformed (Azar and Burton 1986). The South African settlement, while largely forward looking, made strategic compromises with whites that enabled the country to end apartheid and establish a democratic regime. Conflict is now managed within legitimate institutions and processes. In support of the transformationist position, at least in the long run, soon after elections in 1994 South Africa turned its attention to the past. The TRC, the institutional mechanism for examining the past, sought to balance the demands of justice with the desire of many to forget the past and move on. In this tension of peace versus justice, South Africa chose a broad definition of justice that reflects the forward-looking nature of its settlement. The focus of the TRC was less on punishment and legal redress of injustice-a backward-looking approach-and more concerned with establishing the truth of the past and emphasizing the inherent rights and dignity of all South Africans caught up in the apartheid regime. Finally, ANC policies to resolve deeper causes of the conflict, such as black empowerment, have provoked opposition, but there is little evidence that a return to violent conflict is even a remote possibility.

Notes 1. Hampson (1996) provides an excellent review of the factors associated with a successful settlement. 2. In Kriesberg and Thorson (1991) it is argued that the two approaches are sometimes complementary as seen in conflicts-like Mozambique-where Track II diplomacy has paved the way for later official diplomatic efforts.

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3. Zartman (199Sa) presents a brief, but thorough, examination of the South African negotiations, paying special attention to the formulas developed during each agreement, and the way in which these led to the resolution of the conflict. He argues that the lack of trust toward the National Party government by the opposition parties meant that procedural resolution (setting up a new system) preceded the resolution of substantive disputes. 4. According to Maphai, now of the Human Sciences Research Council (1994), existence of a stalemate was not universally perceived. Within both the ANC and among its critics there were serious doubts about whether or not the National Party still had the upper hand through its control over the state, especially the military. S. The Freedom Charter was the first systematic document that laid out a political and constitutional vision of a free, democratic, and nonracial South Africa. In mid-1990, just after the ANC was unbanned, its department of political education produced a document designed to "help activists understand the meaning of the most recent advances towards a negotiations process." The section on the Freedom Charter is an excellent overview of the Charter in light of the move to negotiations. (See: The Road to Peace: Resources Material on Negotiations. Marshalltown, South Africa: ANC Department of Political Education, 1990). 6. A similar document is the Executive Committee's Declaration of the African National Congress (S.A.) at Morogoro, Tanzania (1975). Each document is a strident call to arms for "the worldwide struggle against racism, colonialism, and fascism," (identified with Portugal, "the Pretoria regime," and the United States). These documents are available from the ANC Web site at http://www.anc.org.za. 7. Kathrada (1990), head of the ANC department of information and publicity, provides a brief review of how the Harare Declaration relates to negotiations. 8. The South African polls were conducted by the Human Sciences Research Council's Center for Sociopolitical Analysis, Monitor Publications, Indicator SA, and the South African Chamber of Business. 9. A total of thirty-nine South Africans from Johannesburg, Pretoria, and Cape Town were interviewed in January and February 1997. The survey instrument elicited responses regarding satisfaction over the government's handling of the conflict, expectations about the agreement and its implementation, and perceptions on whether or not the conflict was over. South Africans representing most major segments of the population were interviewed, although the sample was biased toward elites (i.e., opinion makers and the very well-informed and influential). 10. A brief, but comprehensive overview of the National Peace Accord was printed in the Sunday Star (Johannesburg) on 1S September 1991. 11. Sisk (1991) gives an excellent analysis of the gulf in expectations over how to resolve the grievances after the National Peace Accord cleared the way for substantive talks. 12. The National Party, attempting to broaden its constituency, subsequently renamed itself the New National Party. Its lack of electoral support led it to form an alliance first with the Democratic Party and then with the ANC, its erstwhile opponent. 13. The author interviewed 160 South Africans in June and July 2003. The survey questions were designed to elicit attitudes on the implementation of the settlement. The responses of Inkatha members indicated general support of the agreement and its implementation. Their views did not vary significantly from those of other groups.

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14. Welsh (1993) argues that the deadlock between the ANC and the NP set the stage for Samuel Huntington's concept of "transplacement," in which democratization resulted largely from joint action by government and opposition groups. 15. The last-minute mediation of the Kenyan, Washington Okumu, that brought the agreement between the ANC and Inkatha is covered in Cassidy (1995). 16. Mitchell argues that success is inherently relative precisely because the settlement is a compromise both in its agreement and its implementation (Hampson 1996). 17. One ANC document, Advance to National Democracy: Guidelines on Strategy and Tactics of the African National Congress- February 1991, Section 4, provides an overview of the character and forces of the transformation as negotiations were just beginning. This is available at the ANC Web site: http://www.anc.org.za. 18. In 1997 President Mandela defended affirmative action during his opening speech to the South African Parliament saying, "After years of neglect and exclusion, any other course of action would be disastrous." 19. South Africa's colored population has also shown signs of increased anger with the ANC policies, particularly affirmative action. They believe the government is advancing blacks at their expense. Coloreds have demonstrated several times in the Cape Town area (U.S. News and World Report 1997, 9).

Chapter 12

Forward-Looking Dispute Resolution: Ecuador, Peru, and the Border Issue Beth A. Simmons

Once we are through with these problems, Latin America will have no inherent con.flict.-Francisco Tudela, Peru's Foreign Minister, 1995, talking about the Peru-Ecuador border dispute, as reported by Inter Press Service, 17 February 1995 If we analyze the history of Ecuador and Peru, we can see that we never had problems in places where the border was defined, which means that now . . . we are sure that we will never again have con.flicts.-President Jamil Mahuad of Ecuador, upon final border demarcation, 13 May 1999 The border between Peru and Ecuador is the only site on the Latin American continent where deadly international conflict has broken out repeatedly since World War II. Lives were lost in bloody battles between the armed forces of those two countries in 1941, 1981, and as recently as 1995. Yet, in October 1998 Peru and Ecuador signed a series of accords, the centerpiece of which was the definitive end put to the boundary differences between the two nations. In addition to a final delineation of their border, the two governments established four bilateral technical commissions charged with addressing navigation, integration, confidence building, and, most crucially, border demarcation in the disputed region. 1 While it is obviously premature to argue that the territorial conflict between these two countries has been resolved for all time, never in the history of their bilateral relations has the prognosis for a final resolution of this dispute looked so good. 243

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The years since 1995 mark an important turning point in a long history of tense bilateral relations between Peru and Ecuador. As the history of such disputes in Latin America will attest, the resolution of conflicting territorial claims often involves highly sensitive issues with strong connections to notions of nationalism and national identity. Strong emotion-based political barriers to resolving such disputes may exist, and, for that reason, border settlements throughout Latin America and elsewhere have taken decades or more to craft and implement. Discussions can move glacially. Agreement can be elusive; ratification of international agreements highly contentious. In some cases peaceful discussions have been preceded by full-fledged war; elsewhere, threats of military confrontation or minor border clashes have punctuated diplomatic talks. Yet the costs are high if territorial disputes go unresolved. Throughout history territorial disputes have contributed to violent interstate conflict worldwide and continue to be a primary cause of the kind of regional instability that has manifested itself in the post-Cold War period. 2 Settling disputed borders on a mutually acceptable basis removes an important irritant to relations, though it is of course hardly a guarantee of harmonious relations. The developmental opportunity costs are also high: persuaded by their military establishments, governments may spend more on protecting their claims to a contested border through arms than on developing the underlying value of the land. 3 Finally, clearly defined jurisdiction over borders is a precondition of international economic discourse and integration. Disputed borders act as barriers to bilateral and even multilateral economic relations. Mutually accepted borders are crucial in providing the confidence that investors need to make physical investments in frontier regions, in providing the certainty that exporters need to establish cross-border trade, and even in providing the confidence governments need to invest in economically productive infrastructure (as opposed to military installations) along and across the border region. 4 Overall, mutually accepted borders are important for providing the certainty necessary for investment and economic growth. In the mid-1990s leaders in Peru and Ecuador began to weigh these benefits against the continued costs of disputing and, occasionally, fighting over their border in the remote Cordillera del Condor region. This chapter seeks to explain the institutional context in which such a move was made possible. Two factors in this context are especially compelling. The first is the role played by the regional "guarantors" in monitoring the military situation, mediating with creative suggestions, and arbitrating the final border solution. The second is the resort to forward-looking institutional arrangements that hold out some hope of a future stream of benefits to continued cooperation. Counterfactual arguments are notoriously difficult to sustain, but it is likely that in the absence of these two factors Peru and Ecuador would not be on their way to peaceful settlement of their territorial dispute. This chapter is structured as follows: the first section will provide some background on the century-long border dispute between Ecuador and Peru; section two

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will look at the effort to cease military activities and to search for a peaceful resolution (the Itamaraty Agreement of 1995); section three will examine the forwardlooking aspects of the "definitive" solution reached in October 1998. Though it is still too early to be sure that this dispute is forever resolved, the cooperative agreements are an obvious bid by leaders in both countries to create sufficient surplus benefits to calm domestic opposition to the settlement. With leaders in both countries in politically sensitive positions regarding not only the bilateral peace but also a host of pressing issues, there has been a clear need to offer hope of future gains to particular domestic political constituencies. The agreements made in 1998 were a forward-looking way of garnering and maintaining domestic support for peace.

Background to the Dispute Regional Context

Nearly every border in Latin America has been disputed at some point in its history. 5 Most of these claims date back to the colonial era and result from uncertainty about the colonial administrative boundaries and the lack of information about the continent's physical geography. In the early nineteenth century it was hardly crucial where exactly these lines fell, as they usually passed through sparsely populated jungle or mountainous areas that were largely unexplored and practically beyond colonial administrative control. As most of these areas were under the dominion of the Spanish Crown, there was little reason to undertake precise border delineation on the continent (James 1959). Upon independence most of the emerging states in the region accepted the principle of uti possedetis which provides that newly decolonized states should inherit the colonial administrative borders they held at the time of independence (Ratner 1996, 590-624). There was disagreement, however, over what constituted evidence of such "possession." According to one view, only Spanish legal documents could define borders (uti possedetis juris); but another view posited that lands actually held at the time of independence were the basis for continued possession (uti possedetisfacto). For example, Brazil claimed large stretches of land beyond the borders that were stipulated in treaties between Spain and Portugal simply because it had the strongest claim to their "control" (Ratner 1996, 595). A number of these disputes involved military clashes, even full-fledged war, though this method of resolving uncertain borders was much more common in the nineteenth century than in the twentieth. 6 Bilateral negotiations are the most common approach to settlement and have sometimes been augmented by various forms of non-binding third-party involvement. 7 Latin America stands out from all other regions in its surprisingly frequent incidence of legally binding thirdparty forms of involvement: there have been some twenty-two instances of legally binding third-party arbitrations or adjudications with respect to sovereignty over

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territory in Latin America. Certainly, relative to every other region on the globe, the Latin western hemisphere has a stronger tradition of using formal legal procedures to resolve disputes over contested territory. 8 Arbitration was an especially popular form of dispute settlement in Latin America around and shortly after the turn of the twentieth century, but several recent cases indicate continuing interest in this form of dispute settlement, including the recent use by El Salvador and Honduras of the International Court of Justice (ICJ) in 1992 and Chile and Argentina's use of arbitration to settle their contested border in the Laguna del Desierto region in 1994 (Simmons 1999a). Arbitration is hardly a panacea for peace, as the case of Ecuador and Peru suggests. Specific points of territorial disagreement have been arbitrated in the past, but comprehensive agreement has been elusive, at least until9 October 1998. Ecuador has effectively failed twice to comply with an arbitral award relating to territorial conflicts with Peru, once in 1910 by threatening noncompliance which deterred a ruling by the king of Spain, and once in 1960 when it rejected a 1945 ruling rendered by a Brazilian naval official. In 1998, however, both sides accepted a territorial-agreement package involving an arbitrated decision of the four guarantor powers. The role of these powers has been crucial to settlement, as I shall argue below. A Brief History of the Border Dispute from Independence to 1995

The border dispute between Ecuador and Peru has been the most persistent and seemingly most resistant to resolution of any in the western hemisphere. The conflict arose virtually at the birth of these two nations from the Spanish empire. It survived World War II, outlasted the Cold War, and in 1995 was the locus of military conflict between Peruvian and Ecuadoran forces. Yet the natural resources of the shared Condor mountain range-gold, uranium, and oil-do not appear to be significant, and the territory, especially from the Peruvian side, is difficult to access and has only minimal infrastructure. 9 The 883-mile-long border has been in dispute intermittently since Ecuador's secession from Great Colombia in 1830. 10 Since 1884, Peru and Ecuador have been involved in at least thirty-four episodes of bloody military confrontation over sovereignty in the Amazon. 11 Major clashes broke out on the border in 1941 and continued for four months. Peru's military prevailed in that confrontation and, in early 1942, the two sides signed the Rio Protocol, the first jointly ratified treaty in more than a hundred years, to attempt to establish the boundary. 12 That agreement generally followed what was known as the "status quo line of 1936;' to which both Peru and Ecuador had agreed, even though it meant a territorial loss to Ecuador of some five thousand square miles (Marcella 1995). On 29 January 1942 the governments of Argentina, Brazil, Chile, and the United States also signed the Rio Protocol, indicating their willingness to guarantee its observance and execution.

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In implementing the 1942 Rio Protocol, more than 95 percent of the border was actually demarcated, under difficult topographical conditions, except for a small section. At six points along the demarcation of the border, disagreements were referred to the guarantor countries and were managed by Brazil, acting as lead guarantor. One of the areas, including the contested Cordillera del Condor, was the subject of an arbitral award authorized by the Rio Protocol and rendered by a Brazilian naval officer, Captain Braz Dias de Aguiar, in July 1945. Both countries initially accepted the award unconditionally, and the Binational Demarcation Commission immediately began to demarcate the border on the basis of that ruling. Demarcation might have proceeded smoothly had Ecuador not contested what it asserted was new geographical information that, according to officials, had come to light as a result of aerial photography in 1946. As interpreted by Ecuador this information disclosed a Cenepa River watershed far more extensive than that implied by the Rio Protocol. The newly elected government of Ecuadoran president, Galo Plaza, used this opportunity to halt demarcation in 1948. In 1960 Ecuador officially declared the award of Braz Dias de Aguiar and the Rio Protocol null and void, claiming the latter to be inexecutable due to the "new" geographic information. Ecuador also denied the treaty's validity, citing its imposition on Ecuador after an armed conflict. 13 Following its rejection of the arbitral award and the protocol, Ecuador made a conscious effort over time to link its position to analogous cases of arbitral rejection in the region: the Argentine position on the 1977 Beagle Channel arbitrations and the Venezuelan position on the 1899 Essequibo decision regarding Guyana, for example (Child 1985, 97). Peru, with the concurrence of the four guarantors (as spelled out in a diplomatic note of 9 December 1960) took the position that the treaty could not be unilaterally abrogated. From the Peruvian perspective the 1942 Rio Protocol "ended a century-long bilateral boundary dispute by defining the border following the 1936 decision to declare the territorial status quo." 14 Until negotiations reopened in 1995 Peru had denied that a territorial dispute between the two countries existed. The border has been the site of varying degrees of tension for the past four decades. Despite a number of cooperative agreements on the use of binational river basins and the passage of individuals and vehicles in the 1960s and 1970s, fighting broke out in 1981 (in the "Paquisha Incident") when Ecuadoran forces attempted to take over three Peruvian military posts in the Condor area. Border violence has been sporadic ever since, usually peaking around January each year, which coincides with the month that the Rio Protocol was signed. By one count, confrontations between the armed forces of the two countries have occurred in thirteen of the past nineteen years since the Paquisha Incident (Mares 1996-1997, 542-52). Despite Peru's proposals to complete the demarcation of the border, no agreement had been possible as long as Ecuador rejected the Rio Protocol and Peru insisted on it, as the framework for a settlement.

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By the early 1990s prospects for settling the border dispute seemed to improve. In Peru the newly elected Fujimori government faced serious economic problems, including cumulative inflation of two million percent over the five-year course of the previous Garcia administration (1985-1990), widespread impoverishment and continuing problems in servicing the external debt, as well as internal unrest fomented by the Maoist guerrilla group, Shining Path (Palmer 1990). Beset by a number of urgent domestic problems, the Fujimori government judged that Peru was in no position to fight a border battle with its neighbors. Consequently, his administration tried to improve relations with all their neighbors, including Ecuador. In 1991 President Fujimori made a state visit to Ecuador, the first ever by a Peruvian chief executive. Sensing an opening to resolve the long-standing dispute that year, Bolivia, Colombia, and Venezuela offered to mediate within the framework of the Andean Pact.l 5 For its part Ecuador also proposed in that year to submit the whole problem to mediation by Pope John Paul II who had successfully assisted the Argentines and Chileans in resolving their dispute over the Beagle Channel in the 1980s. The Peruvians, however, refused to renegotiate the Rio Protocol and insisted that pending demarcation matters be submitted to an expert as provided for in that agreement.l 6 In 1992 in a letter to his Ecuadoran counterpart Rodrigo Borja, President Fujimori proposed completing the demarcation of two small sections of the common border in exchange for an agreement to grant navigation rights to and through the Amazon River; this, so that Ecuador would have an outlet to the Atlantic Ocean in accordance with Article VI of the Rio Protocol. 17 Peruvian proposals offering the use of port facilities on the Amazon and its tributaries in return for final border demarcation were reiterated in various forms during 1992-1993, but the Ecuadoran government continued to insist that the Rio Protocol was invalid and demanded its revision to ensure Ecuador's sovereign territorial access to the Amazon. Minor military clashes broke out near the Sabanilla River in August 1993, but the dispute remained stalemated until violent conflict erupted in early 1995. 18 The 1995 Border War and Its Diplomatic Aftermath

Mass violence between Ecuador and Peru, on a scale larger than at any other time this century, flared up on 26 January 1995 in the Cenepa Valley near the forty-ninemile unmarked stretch of border on the Condor mountain range, 220 miles south of Quito and 590 miles north of Lima. Fighting was intense around the Tiwintza military base which both sides claimed to be within their own territory. Although relatively brief-the major outbreak of fighting lasted only nineteen days-the conflict is estimated to have resulted in somewhere between 200 and 1,500 casualties, the loss of nine aircraft on the Peruvian side and two on Ecuador's, and an estimated cost to both sides of up to one billion dollars. 19 Despite the war's brief duration, the risk of its escalation was thought to be significant. In a matter of

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days, five thousand troops had been introduced into a fifty-five-square-mile area; six Peruvian divisions were deployed along the coastal plain, and the equivalent of four Ecuadoran brigades were brought to the immediate front. With naval fleets on alert, high-performance fighter-bombers forward deployed, and armies from both sides engaged in combat in the Cenepa region, escalation in February 1995 seemed a distinct possibility (Weidner 1996,52-5 8). Both sides were eager to prevent such an outcome. President Fujimori was quick to call for a demilitarized zone to be monitored by the guarantor group, as specified in the Rio Protocol. 20 Within a month the conflict had been contained and agreements were in place for a cease-fire and separation of forces. On 17 February 1995 the two sides signed the Itamaraty Agreement which was drawn up in Brazil by representatives of the four guarantors. The agreement did not address territorial issues but only military and cease-fire conditions. Observers from the guarantor nations established posts near the conflict zone to verify implementation of the cease-fire. While neither country had made any territorial gains during the nineteen-day conflict, the war and its subsequent fatal skirmishes in March, May, and September 1995 had a fundamental impact on the resolution of the border dispute. One important consequence was the opportunity it provided for Ecuador to take a more flexible position on its thirty-five-year opposition to the Rio Protocol. By most accounts, Ecuadoran military forces had dealt a tactical blow to Peruvian forces, in sharp contrast to their engagements in 1941 and 1981. It is widely recognized, however, that the long-term balance of forces is, and will remain, in Peru's favor. This may have provided a window of opportunity for Ecuador's leaders to make principled rather than coerced concessions. Shortly after the cessation of hostilities, Ecuadoran officials announced their willingness to work within the Rio Protocol's framework to resolve the dispute. Arguably, this step was politically easier for President Sixto Dunin-Ballen to take after a relatively strong military showing. 21 If it is true that Ecuadoran leaders in the 1990s have sought ways of extricating themselves from the defiant position taken on the Rio Protocol, the respectable military showing in 1995 gave them an opportunity to make these concessions with their dignity intact. The acceptance of the Rio framework was a significant concession that, in turn, opened the way for discussions of the underlying territorial issue. The conflict led to a second and related consequence: a far more active involvement in the resolution of the dispute on the part of the four guarantor nations. Military representatives of the guarantors were essential to implementing the cease-fire and separation of forces, which would have been extremely difficult to achieve, given the dense terrain, the highly commingled deployment, and the absence of neutral observation, coordination, and communication (Weidner 1996). Furthermore, the guarantor process was central to reestablishing communications between Ecuador and Peru at both the military and diplomatic level.

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The military chiefs of the four guarantor countries monitored a military meeting near a border garrison between high-ranking military officials from Peru and Ecuador in February 1996-the first time such officials had met face to face since the conflict broke out in January 1995. Also facilitated by the guarantors was a meeting between Ecuador's foreign minister, Galo Leoro, and his Peruvian counterpart, Francisco Tudela, in Lima on 17-18 January 1996, the first contact of this kind in fifty-four years. Meeting again in late February the foreign ministers signed two agreements. The first required their governments to list what they regarded as underlying "substantive impasses" in the peace process and to deliver them to the guarantor nations; it also laid out a plan for reduction of forces at the Peruvian PV-2 observation post, where the conflict occurred, to be verified by the Military Observation Mission Ecuador-Peru (MOMEP). The second agreement specified the creation of a joint military working group charged with crafting a confidence-building "bilateral mechanism" between the two countries that would, among other things, make future weapons purchases more transparent. 22 Also in the presence of the guarantors, the two governments signed the Santiago Agreement on 28 October 1996, committing them to addressing theremaining "impasses" surrounding the dispute. The meetings, held in Brasilia during 1997 and once again attended by representatives of the guarantors, were aimed at achieving a definitive conclusion of the underlying territorial dispute, as required by the February 1995 cease-fire agreement. Both sides made major concessions as preconditions for these talks: they were conducted in accordance with the Rio Protocol-a prime Peruvian demand-and with the acknowledgment that a territorial dispute did in fact exist between the two countries-a central concession to the Ecuadoran position. 23 This shift significantly increased communications between the two countries on the central territorial issue and signaled a strong desire to reach a definitive resolution. Such a rapprochement was achieved almost exclusively in accordance with the Rio Protocol and with substantial guarantor involvement. 24 Overall the 1995 border war between Ecuador and Peru has had three major consequences that bear on the settlement of the border dispute and, more broadly, on regional stability. First, the conflict provided a window of opportunity for moderation on the part of Ecuador, whose leaders seemed to recognize that the correlation of military and diplomatic forces, at least in this case, was not in their long-term favor. Second, the conflict reactivated a concerted international effort to resolve it through the process spelled out in the Rio Protocol and with the assistance of the guarantor countries. Third, the conflict raised the specter of rearmament and the remilitarization of politics in the region, with troubling consequences both for security and continued economic and political development. All parties seemed to realize that the potential costs and risks could escalate unless efforts were made to settle the problem definitively.

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Addressing Territorial Impasses: "Backward-Looking" Outcomes At the root of this century-long dispute was disagreement over the legitimate boundary line separating Ecuador's authoritative jurisdiction from that of Peru. It was of course essential to address past demands and grievances if this conflict between neighbors was to be eliminated once and for all. Discussions began with the enumeration of the "impasses" that had to be addressed in order for a comprehensive border agreement to succeed. A commitment to create a list of impasses was secured in February 1996, and an agreement to discuss them was negotiated in Santiago in October 1996. Substantive negotiations over where to draw the line took place over the course of 1997, beginning with the "easiest" (the Rio Napa and Lagortococha/Guepi geophysical lines, areas close to Colombia and distant from the site of the undeclared war in 1995). Both Peru and Ecuador, however, brought to these negotiations two fundamental impasses, originally presented as virtually nonnegotiable. First, Peru insisted on complete demarcation of the border, as established by the Rio Protocol, while Ecuador, at the beginning of the talks at any rate, continued to refer to the protocol as partially inexecutable. Second, Ecuador insisted on "free and sovereign" access to the Marafi6n-Amazon, while Peru offered access through some arrangement consistent with Article VI of the protocol, but absolutely not on the basis of Ecuador's "territorial sovereignty." 25 Over the course of the 1997 discussions it became apparent that in order to solve the problems of the past century it was necessary to think about institutional arrangements for the future. With the guarantors actively attempting to insert conciliatory proposals at crucial points in the discussions, 26 Ecuador and Peru signed on 19 January 1998 an agreement to establish four commissions, each composed of three members from Ecuador and three from Peru, to tackle the main areas of contention: commerce and navigation (on the basis of Article VI of the Rio Protocol), border integration, confidence-building measures, and on-site border demarcation. The contours of a possible settlement were now becoming clearer: border demarcation (likely along the lines envisaged by the earlier Brazilian arbitration decision) in return for Ecuadoran access (on some basis short of sovereign control) to the Amazon River. The agreement called for the demarcation commission to be composed of geographers and legal experts charged with examining and attempting to resolve the outstanding territorial claims. Ecuador's lead negotiator, Edgar Teran (a former ambassador to the United States), claimed that the agreement would lead to a "final solution," 27 and foreign minister, Jose Ayala Lasso, termed the agreement "a dignified and realistic solution that satisfies the legitimate national interests" of both countries. 28 In principle, demarcation for nonsovereign access to the Amazon was an acceptable bargain. 29 Yet, despite a flurry of diplomatic activity during the spring of 1998 the leaders of the two countries could not agree on ttie opinions of the

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commissions responsible for commerce and navigation and for on-site border demarcation. While a number of conditions presented favorable conditions for resolution of the issue (Simmons 1999b, 16-19), domestic support for a definitive solution was sensitive to the exact terms of the agreement, and military support was generally positive, though hardly unequivocai. 30 When it came down to the sensitive issue of definitively accepting a border line, the parties decided to delegate final decision making to the guarantors. With only a very short distance unresolved, the final politically difficult concessions could be made by the four powers that had done so much to disengage the parties and monitor the peace on the border since 1995. When the decision was made, largely in Peru's favor, both sides accepted the arrangements. The final decision did, however, provide a symbolic victory for Ecuador: one square mile to Ecuador within Peruvian territory near Tiwintza where the last bastion of Ecuadoran resistance took place in 1995 was transferred to Ecuador. The formula was highly creative, though. It separated sovereignty from ownership, retaining the former for Peru and transferring the latter to Ecuador. Despite opposition to this arrangement by some groups within Peru, notably in the border town of Iquitos (Lama 1999), this proved to be a formula that resolved the issues of the past and allowed the two leaders to look to devising a mutually beneficial future.

Addressing Future Benefits: Forward-Looking Outcomes Content of the Major "Forward-Looking" Decisions of 1998 The agreements signed in Brasilia in October 1998 reflect not only decisions on the question of whose territory ends where, but also focused attention on future benefits of broader Ecuadoran-Peruvian cooperation. This was a strategy to direct attention away from the zero-sum nature of the division of territory and to develop institutions that would enhance social, economic, and military cooperation and understanding between the two societies, especially in the sensitive border regions. The Presidential Act of Brasilia stressed that they were "resolving in a global and definitive manner the controversies between the two Republics so that, based on their common roots, both project to a promissory future of cooperation and mutual benefit."31 Indeed, the array of cooperative arrangements that presidents Fujimori and Mahuad agreed to submit to their domestic ratification processes was stunning. From a treaty on trade and navigation to programs for binational borderdevelopment projects to memoranda of understanding on tourism cooperation,32 one obvious aspect of this agreement seemed to be to shift expectations to the future rather than to dwell on the purported injustices of the past. The centerpiece of the settlement was the Comprehensive Agreement on Border Integration, Development, and Coexistence. This agreement stresses various forms of cooperation in the border region meant to reverse the years of

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negative propaganda to which past governments had regularly exposed their people. Article 3 emphasized interactions among "young people, through educational, sports, ecological, and cultural programs and events." Article 5 created a "Peruvian-Ecuadoran Committee on Coexistence" which, among other things, was to "coordinate programs, projects, and activities that will generate closer community bonds and interests between Peru and Ecuador." Harnessing both public and private participation,33 a series of technical committees were also to be formed to address the specifics of the border regime, commercial development, education, health, and fishing. 34 Priorities included the design and coordination of programs conducive to economic and social development, such as transportation, irrigation, tourism, and agriculture, as well as activities facilitating knowledge and educational exchange.35 A new border regime was agreed to enhance commercial and tourist traffic through the opening of new and more liberal border crossings. 36 Where would the money come from to implement these programs that would significantly improve social and economic life across the newly recognized border? Title V of the Comprehensive Agreement envisaged a ten-year plan, to be developed by a bilateral executive board and an international advisory committee to develop programs to encourage social, economic, and environmental infrastructure, as well as to promote private-sector investment in these areas in the border regions. 37 A highway linking Mendez, Yaupi, and Borja-to be completed by 2005-was a top priority. 38 These projects were to be financed by direct contributions of the governments of Ecuador and Peru, a bilateral fund for peace and development, monies raised by an international Ecuador-Peru financial consulting group, a bilateral group for the promotion of investment, "and others."39 The agreement envisaged support for the larger projects from the Inter-American Development Bank, the Andean Development Corporation (ADC), specialized agencies within the United Nations system, and "governments of friendly countries."40 Particular attention was paid to the obvious area of future security in the border region. In an exchange of notes, the two presidents reaffirmed "the renouncement of the threat and use of force in the relations between Peru and Ecuador."41 An Ecuadoran-Peruvian binational committee on mutual confidence and security measures was agreed, the major purpose of which seemed to be to enhance information sharing, effective communications, and coordination, primarily between each country's armed forces. One important function of this committee was to enhance mutual communication through the routine verification of military incidents. 42 More broadly though, it was also charged with developing "interest and understanding in national societies on issues related to encouraging confidence and security," for example, through parliamentary meetings and courses, seminars, and other events. 43 The binational committee on mutual confidence and security measures was intended to be largely an exercise in military attitude adjustment. Each national contingent was to be staffed by three generals (or admirals) and a diplomatic officer with the rank of ambassador. 44

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The two presidents also signed the Trade and Navigation Treaty that spelled out the rights and responsibilities of both countries with respect to Ecuador's guaranteed (but nonsovereign) 45 access to Amazonian shipping routes. This treaty begins by reemphasizing all of Ecuador's rights as enumerated in Article IV of the Protocol of Rio de Janeiro (1942). Article 2 of the Trade and Navigation Treaty gives Ecuador explicit access to an (unnamed) river through Peruvian territory that will permit it to connect its shipping directly with the Amazon. 46 The agreement also gives Ecuador the right to enjoy free land transit by public-access roads and the use on a nondiscriminatory basis of dock services available at specified points on the river, and it states, "These rights will be exercised freely, without cost, continuously and forever." Several articles in the treaty provide for national treatment of Ecuadoran shipping and cargoes. 47 In order to facilitate storage and transshipment, Article 22 provides for the creation for fifty years (renewable) of two trade navigation centers financed, constructed, operated, and administered by a private Ecuadoran firm, appointed by the Ecuadoran government subject to Peruvian regulations. Article 24 provides that goods shipped through Peruvian territory (though not goods destined for Peru) are to pass duty-free, while Article 35 reciprocally grants most-favored-nation status. Finally, the Trade and Navigation Treaty contains provisions for the resolution of future disputes. It establishes an Ecuadoran-Peruvian Trade and Navigation Commission charged with addressing controversies arising from the treaty. 48 If the commission cannot solve controversies arising from the agreement within sixty days, the matter is to be referred to the ministries of foreign affairs of both countries, to be handled through diplomatic means. 49 Opposition to This Vision of the Future No matter how creatively the resolution of this dispute is approached, emotional and rational opposition is unavoidable. Initial resistance, especially in Peru, was not insignificant. Some of this resistance resulted from the perception that Peru had all along been on the stronger legal ground with both the 1942 Rio Protocol and a subsequent arbitration decision supporting its territorial claims. Why, many Peruvians asked, should they negotiate any concessions to Ecuador? Upon announcement of the settlement, riots broke out in some towns, notably in the border city of Iquitos, the capital of the Amazon department of Loreto, where five people were killed in the unrest. Among Peruvians there was also concern about the agreement inasmuch as it was seen as a highly personal project of President Fujimori who was constitutionally a lame duck but whose designs on a third term in office were well known. Did he have the authority to commit Peruvians to longterm irreversible agreements? Certainly Fujimori 's staunch opponents expressed their intention to denounce the agreement once he was out of office, though with what degree of seriousness was unknown. In Ecuador the collapse of the economy

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resulted in political chaos and constitutional crisis, though explicit attacks on the agreement with Peru were relatively muted. Despite these difficulties final demarcation of the border was accomplished, to much fanfare, on 13 May 1999. On 17 June 1999 the armed forces of Peru and Ecuador bade farewell to the MOMEP forces which had stayed to assure the success of the demarcation. During the demarcation process, opposition continued from a number of sectors, as did military tensions that gave rise to the rumor of a possible coup d'etat (Lama 1999). Meanwhile in Iquitos, 3,000 people protested the peace treaty for two days in a row. Troubled by a failing economy and increasing protests at home, President Jamil Mahuad visited Peru in August 1999 to consolidate the gains negotiated in October. Hundreds of protestors in Iquitos in the Peruvian Amazon demonstrated against the plan which they believed gave Ecuador far too many commercial rights in their region. Political leaders in the area opposed the thaw with Ecuador (Krause 2000). Indeed, opposition parties within Peru continued to warn that they would attempt to revoke the peace agreement after Fujimori's term ended-a claim that the highly controversial election leading to a third term for the president made more difficult to implement. The focal point of opposition for these groups were the concession made to Ecuador regarding the right to free navigation on Peruvian rivers and, more especially, the construction of two duty-free Ecuadoran trading centers in the Peruvian river ports of Sarimiriza and Pebas. While these did create forward-looking benefits, the opposition believed the distribution of those benefits to be asymmetrical and feared the economic dominance of Ecuador in the region (Lama 1999). Focusing on the Future: Consolidating Commitments, Demonstrating the Gains By any measure, the level of commitment on paper to the vision of a mutually cooperative relationship in the frontier region has gained momentum, even in the face of the difficulties both governments have encountered. Within the first year of settlement the two leaders had signed some sixteen agreements. As of his August 1999 visit to Peru, Ecuador's foreign minister, Benjamin Ortiz, summed up progress on the Ecuadoran side as including five binational roads, seven jointdevelopment hydrographic watersheds, and more than three hundred social and developmental projects. He added that the funds for these agreements would come from loans from the Inter-American Development Bank, the Andean Development Corporation, and the World Bank. In addition the two presidents announced an assortment of joint projects, including the extension of parks, construction of river port installations, bridges, roads, forestry projects, schools, and clinics that were said to total up to US$3 billion over several years. They also signed a freetrade agreement that would remove tariffs from 585 agricultural, consumer, and industrial goods (Krause 2000; see also NewsBank Info Web 50 ).

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It seemed clear that improved commercial relations, and the infrastructural projects these would necessitate, were the glue intended to prevent the border agreement from coming undone. The trade benefits expected from this agreement were substantial: the declared goal of the Ecuadoran and Peruvian governments was to increase bilateral trade from little more than $300 million in 1998 to $6 billion annually by 2008 (Taylor 2000, 18; see also Madera 1999). Mahuad and Fujimori tirelessly promoted the economic benefits of the settlement. Upon final demarcation Mahuad pointed out that the river transport of machinery for a major construction project in the Amazon city ofManaos, Brazil, would mean $500,000 in savings for Ecuador (Lama 1999). Expectations were clearly that the economic sector would gain the most from the settlement, with most of the gain coming from the removal of barriers to trade between the two countries, the return of political stability, and the end to the economic crisis in the region. The idea of a binational park straddling the region was also an ingenious way of pleasing the indigenous population of this remote region. The settlement plan received significant support from some of the indigenous groups, many of whom had long held that the territory under dispute belonged to neither Ecuador nor Peru. 5 1 Viewing the border as a perversity that unnaturally divided people of similar tribes, indigenous leaders generally termed the creation of a park as a "victory for the people of the Amazon." 52 After fifty-six years of separation the indigenous peoples of the region saw the establishment of the park as an opportunity for families to become reunited. "It is the unification and reacquaintance of Shuar brothers that moves us to participate in the construction of this ecological park for peace," said Jose Luis Kimbikiki, a local Shuar leader. 5 3 This combination of economic development and a natural preserve has thus allowed for a supportive coalition of traders and indigenous peoples in Ecuador. Only about four years (at the time of writing [2000]) have elapsed since Peru and Ecuador agreed to settle their border dispute and to embark on an ambitious jointly determined future. The experience to date is limited, but there are reasons to believe that a forward-looking strategy has contributed significantly to the diminution of tensions in the region and to relations between Ecuador and Peru generally. In Quito a centrist paper noted, "We no longer treat the frontier with Peru like any other frontier. There are so many efforts to convert it from a border line into a geographic region for development. ... All the negative energy expended by the two countries in confrontation seems to have been transformed into energy for building bi-national integration" that holds the rich promise of "electrification exchanges, irrigation of immense agricultural zones, petroleum transport, and complementary commercial links" (Taylor 2000, 18). Meanwhile, on the other side of the border, El Comercio, a conservative Lima newspaper, noted, "Businessmen in Ecuador and Peru now find an open path to significantly increase current trade flows, create enterprises with mixed capital, and establish other modern forms of cooperation including joint efforts to penetrate third markets." A Madrid news agency summed up by saying that presidents Jamil Mahuad

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of Ecuador and Alberto Fujimori of Peru had "achieved an important gain: at last, they have succeeded in disarming the psychology of confrontation that in the past has guided political and historical thinking in both countries." The international community has seemed willing to support this vision of a cooperative peace between the two neighbors. Clearly they lent their authority to the process of settlement through military presence, monitoring, diplomatic intercession, and in the end a form of arbitration. Moreover, to some degree, financial support has been forthcoming. Some of these talks have been delayed by Mahuad's departure from the presidency,5 4 but both governments, as well as the international donor community, have continued to express support for the agreements and the raft of development projects that secure the deeper project of integration. In March 2000 the Consultative Group for Ecuador-Peru met in New Orleans and expressed support for the ten-year, $3 billion binational development plan. 5 5 At that meeting (the consultative group's first}, the international community pledged grants of more than $160 million, in addition to the $500 million the two countries had already been pledged by the Inter-American Development Bank and the Andean Development Corporation (Corporaci6n Andina de Fomento). In particular, the ADC announced its intention to provide financing for rural roads in Ecuador and also announced the signing of a preinvestment loan for Peru. The World Bank indicated that it plans to provide an additional $200 million in support of the border region. 56

Conclusions In October 1998-for the first time in some fifty years-in the presence and with the participation of representatives from Argentina, Brazil, Chile, and the United States, Ecuador and Peru committed themselves to the substantive details of resolution to a border dispute that had festered for over a century. This study has emphasized that providing incentives for civilian governments to resolve border issues has encouraged serious discussion. Favorable trends in public opinion, as well as political will and a pressing need to devote more attention to development, economic, and social issues, set the stage for reconsidering, and with any hope rejecting, the more intransigent positions that have characterized the past. 57 The government of Alberto Fujimori in Peru and successive governments in Ecuador knew the costs of disputing their international boundary. The most obvious incentives to settle the territorial issue arose from a desire to avoid the kinds of costs incurred in the 1995 war. Aside from the obvious toll in human lives and national resources used to pursue territorial claims, however, an increased awareness of the indirect opportunity costs of territorial conflict persuaded the parties of the need to settle the conflict. For example, while regional trade grew, the dispute stunted bilateral economic relations significantly. Peru exported more to Bolivia than to Ecuador ($166 million compared with $147 million between 1992 and 1994), despite the fact that Ecuador's gross domestic product was almost three

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times the size of Bolivia's. Moreover, Ecuador bought $684 million worth of exports from Colombia between 1992 and 1994, and only $147 million from Peru, even though Peru's economy was only slightly smaller than Colombia's. 58 The territorial dispute between these two states contributed to this distorted trade relationship. With a growing modern and internationally oriented commercial sector, both countries knew that much could be gained commercially by resolving the conflict. The creative effort to focus on the benefits of cooperation rather than the zerosum aspects of acreage tapped into the desires of these and other groups to put the past behind them. While there were concerns about the division of benefits, especially manifest in the various displays of opposition that erupted in lquitos, with significant support from the international community it will be hard to deny that peace is better than the alternatives. The idea of a natural preserve, or a "peace park;' stressing the common ecology of the region rather than the division of the territory, also had the potential to bring the indigenous peoples into a supportive coalition for a lasting settlement. As has often been the case in the histories of these two countries, the willingness of the military within each country to support the legitimacy and peace of the border has been key. After all, the military does not gain directly from these settlements and indeed may see its role in the region decline and its claim therefore on national resources diminish in the face of a reduced threat. Both militaries officially endorsed the agreements, though important military figures in both countries were reluctant at various points in the discussions to embrace the accords fully. 5 9 With the departure of MOMEP, it became more crucial than ever that the security and confidence-building measures in which the military establishments had played a major role should work both to provide assurances of the other side's activities and intentions and also, over time, change perceptions of the adversary in a way conducive to broader cooperation. In this sense, the forward-looking institutions established by Peru and Ecuador are essential to settling the differences of the past. Commercial, social, and ecological interdependence are in the process of being substituted for nationalist competition based on unproductive and exaggerated national myths and deep distrust. It is too early to declare a definitive end to past disputes; but the institutional structures now being developed should do much to make a reopening of past conflicts an unattractive option to the people of Ecuador and Peru.

Notes I. Santiago Accord, November 1997; Brasilia Declaration, January 1998. 2. Studies include Geortz and Diehl (1992), Huth (1996), Kocs (1995), Vasquez (1993), and Kolodziej and Zartman (1996). 3. In the 1970s, for example, when the Pastaza-Marafi6n basin near the border with Ecuador seemed to promise future oil revenues, the Peruvian government obligated its

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anticipated oil revenues for several years in advance through the purchase of military equipment to secure the territory. See Krieg (1986). 4. Preliminary research using a gravity model of trade suggests that the mere existence of a border dispute between two countries can cost millions of dollars in bilateral trade foregone. See Simmons (2004). 5. The classic sources on the history of territorial conflicts in the region are Ireland (1938 and 1941). 6. Peru and Colombia fought viciously over their borders early in the nineteenth century. The War of the Pacific (1879-1883) resulted in the transfer of Bolivian territory to Chile, including the port city of Antofagasta, thereby depriving Bolivia of access to the Pacific Ocean. Victors in the War of the Triple Alliance (1865-1870) transferred significant portions of Paraguay's territory to Brazil. In this century, the Chaco War (1932-1935) over the vast grazing lands between Paraguay and Bolivia cost a quarter of a million lives. In 1941 Ecuador and Peru fought a border war that resulted in the territorial agreement that Ecuador disputed up to 1998. 7. Occasionally such efforts produce successful settlements, as when representatives of Pope John Paul II mediated a solution to Argentina and Chile's dispute over the Beagle Channel in 1984. Often, however, the efforts of third parties are rebuffed or their proposals rejected. Prior to the outbreak of the War of the Pacific, the United States tried unsuccessfully to mediate Bolivia and Chile's territorial dispute. A number of states have offered at various times to mediate-with little success-in Honduras and Nicaragua's border dispute before that case was settled by the International Court of Justice (the United States and Mexico during border clashes in 1907; Salvador in 1933; and Costa Rica, Venezuela, and the United States in 193 7). In 1965 Britain and Guatemala requested the United States to mediate in determining the boundaries of newly independent Belize, though the two sides ended up rejecting the U.S. proposal. 8. By comparison, similar rulings apply to only one small case in continental Europe (thirty-six acres between Belgium and the Netherlands); two among the independent states in Africa; two in the Middle East; and three in Asia, the Far East, and the Pacific. 9. EFE News Agency, Madrid, 6 February 1995. According to British and U.S. studies, reports of the Peruvian National Mining and Oil Society have confirmed that there is a productive open-pit gold mine at Yanacocha, near the region in conflict. In Ecuadoran territory, the Pachicutza gold mine was discovered within the past few years and is being exploited by the Canadian company Tux Gold. Peruvian sources assert there are uranium resources, although their number and importance are still unknown. The presence of oil in the area has never been confirmed; no company has ever conducted serious oil prospecting work in the C6ndor mountains range. 10. A number of proposals for definitive lines have been made over time, including those contained in the Pedemont-Mosquera Protocol (1830), the Garcia-Herrera Treaty (1890), the Mendez-Pidal Line (1908) and the Spanish Council of State Line (1909), the "Status Quo" Line (1936), and the Rio Protocol Line (1942). See Krieg (1986, 36). 11. Figures cited by Mares (1996-1997). 12. An English translation of this treaty can be found in Krieg (1986, Appendix I). The treaty was ratified in Peru as Legislative Resolution No. 9574 of the Peruvian Congress Approving the Rio de Janeiro Protocol, 26 February 1942. The Ecuadoran Congress approved the Rio Protocol twenty-six votes in favor, three against, and five abstentions in the Senate, and by forty-three in favor, three against, and three abstentions in the House of

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Representatives. The only other bilateral treaty in force prior to 1942 was the Treaty of Alliance and Friendship of 1932 (the Pando-Novoa Treaty) which defined Peruvian rights with respect to Tumbes, Jaen, and Maynas, leaving a comprehensive boundary agreement for a later date. 13. See Embassy of Ecuador (1995). Despite Peru's decisive victory in 1941, the 1942 treaty seems to have envisaged the transfer of very little territory (perhaps some 5,392 square miles net) from Ecuador to Peru, compared with the 1936 line. See also Marcella (1995). 14. Eduardo Rivoldi, Commercial Attache, Embassy of Peru, "Letter to the Editor;' Journal of Commerce, 26 April 1995; see also EFE News Agency, Madrid, 3 March 1995. In March 1995 President Sixto Duran-Ballen continued to demand that the 1942 Rio Protocol must be changed, while Peru's president continued to insist that "the clauses of the Rio Protocol are clear, and ... bilateral treaties cannot be revised on a unilateral basis." 15. EFE News Agency, Madrid, 8 October 1991. 16. Radio Programa del Peru, 11 January 1991; SWB AU1192, 3 September 1991; Latin America Weekly Report, 9 January 1992; EFE News Agency, Madrid, 16 October 1991. 17. Radio Programa del Peru, 10 January 1992. Article VI of the Protocol reads: "Ecuador shall enjoy the same concessions as those enjoyed by Brazil and Colombia as regards navigation on the Amazon and its northern tributaries, as well as those that are agreed upon in a Trade and Navigation Treaty destined to facilitate free and unhindered navigation on the aforementioned rivers." 18. The Ecuadoran foreign minister described the incident as "a minor scuffle," and not an "unmanageable situation" (Voz de los Andes (Quito), 13 August 1993). 19. Official figures are toward the low end, while "reliable sources" place estimates toward the high end; see Mares (1996-1997). See also Marcella (1995, 21). 20. Radio Programas del Peru, Lima, 2 February 1995. 21. This agreement was not without criticism in Ecuador. Former Ecuadoran president, Rodrigo Bmja (1988-1992), called the agreement "a step backward, which for me is unacceptable." See "Ecuador, Peru Agree to End Three-Week Border War; Former President Criticizes Pact" (Chicago Tribune, 18 February 1995, 16). The proposal, which Peru had supported earlier, was not previously acceptable to Ecuador. The agreement was criticized by opposition forces in both nations as diplomatically weak. 22. In the aftermath of the fighting, each side claimed a need to rebuild its forces to maintain previous military capabilities. Voz de los Andes (Quito), 24 February 1996. In December 1995, Ecuador announced its decision to buy four Kfir fighter-bombers (Israel's version of the French Mirage), despite protests from Peru. Voz de Los Andes (Quito), 15 December 1995 in Foreign Broadcast Information Service (hereafter "FBIS") Daily Report/Latin America, 18 December 1995,242. Peru, too, announced an arms-replacement program. On 26 November 1996 President Fujimori confirmed the purchase of an unspecified number (probably eighteen) of Sovietbuilt MiG-29 fighters from Belarus-the first Soviet fighters in any South American country. According to President Fujimori, the purchase was a "purely defensive measure, meant to reestablish strategic equilibrium." See Sally Bowen, "Peru Deal on MiG Jets Confirmed" (Financial Times [London], 26 November 1996, 8). Shortly after President Fujimori announced the aircraft purchase, sources inside the Peruvian air force reported the acquisition of fourteen Sukhoi Su-25 ground-support air-

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craft (and a significant quantity of sophisticated air-to-surface missiles) which analysts agreed could conduct ground assaults while the MiG-29s flew high cover. Peru's prime minister, Alberto Pandolfi, denied reports of the Su-25 acquisition and emphasized that the MiG purchase was to replace obsolete aircraft and those destroyed during the 1995 border war with Ecuador. See "Arms Race to Threaten Talks" (Jane's Intelligence Review 4, no. 2 [1 February 1997, 16]). In November 1997 Ecuadoran military officials responded to Peru's purchases by saying they were considering the acquisition of up to fifty U .S.-made F-16 or F-18 planes, also reportedly for purely defensive purposes. According to the BBC, General Paco Moncayo confirmed in November 1997 that Ecuador was considering the purchase of more jet fighters. BBC Summary of World Broadcasts, 8 November 1997-American Television, Lima, 6 November 1997 and 12 November 1997, original source: Voz de los Andes (Quito), 10 November 1997. See also Latin America Regional Reports, Andean Group (9 December 1997, 6). In addition Chile, Peru's traditional rival in the region, announced its intention to purchase advanced fighters, particularly the U.S. F-16, the Swedish JAS-39 Grippen, or the French Mirage 2000-5. See "Some in Latin America Fear End of U.S. Ban Will Stir Arms Race" (New York Times, 3 August 1997, 11). 23. Roger Atwood, "Peru, Ecuador to Begin Full-Scale Border Talks" (Reuters, 29 October 1996). "Ecuadoran Defense Minister on Peace Process: Relations with Peru" ( BBC Summary of World Broadcasts, "Expreso" (Guayaquil), 4 November 1996). According to Ecuadoran defense minister, General Victor Manual Bayas (ret.), Ecuador got two things from the Santiago Agreement: a tacit admission that a dispute did in fact exist and a way to reach the Amazon (though agreement on how such access was to be obtained remained an "impasse"). 24. Other third parties have played a persuasive role in accepting and complying with the cease-fire but have urged cooperation with the guarantors. For example, Pope John Paul II sent envoy Cardinal Carlo Furno to persuade leaders to respect the cease-fire and peace agreement. The envoy also expressed support for the work of the four guarantor countries monitoring the cease-fire. The envoy's visit did not amount to a full-fledged mediation mission, because only Ecuador had officially asked for the Vatican's intervention; ("Pope Sends Peace Envoy to Ecuador and Peru" [Reuters, February 27, 1995]). In June 1995, OAS Secretary-General Cesar Gaviria said that he was willing "to contribute to a definitive solution" to the border dispute between Ecuador and Peru, but made it clear that this offer was subject to efforts by the Guarantors ("OAS Willing to Mediate between Ecuador, Peru" [Xinhua News Agency, 6 June 1995]). 25. For Article VI, see Mares (1996-1997, 99). EFE News Agency, Madrid, 2, 5, and 15 May 1995. On 2 May, for example, Fujimori categorically rejected the possibility of giving Ecuador a sovereign outlet to the Amazon River through Peruvian territory. 26. Voz de Los Andes (Quito) in FBIS Daily Report/Latin America, 18 April1997. 27. International Herald Tribune, 21 January 1998,3. 28. Agence France Presse, 20 January 1998. 29. Inter Press Service, 23 February 1998. See also "President Alarcon Confirms Decision to Continue Peace Talks," Voz de Los Andes (Quito) in FBIS Daily Report/Latin America, 10 June 1998. 30. Indeed, a serious problem throughout the negotiations was the tendency of both militaries to call for further armaments, which cast doubts on the willingness of both

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governments to settle peacefully. With reference to Peru, see "Arms Race to Threaten Talks" (Jane's Intelligence Review 4, no. 2 [1 February 1997, 16]). While Bucaram was telling the Peruvians during his January 1997 state visit that there would be no arms race, Ecuadoran defense minister Victor Bayas was issuing statements that Ecuador would purchase defensive weapons as needed. Voz de los Andes (Quito) in FB/S Daily Report/Latin America, 14 January 1997. The Ecuadoran military justified these purchases as merely compensating for the "enormous amount of arms" that had gone far beyond renovation of capabilities devastated by the 1995 conflict, and that, they claimed, amounted to reinforcement of Peru's military position (Lima Radio Programas del Peru in FB/S Daily Report/Latin America, 14 January 1997). While defense ministers do this all the time, in Ecuador the defense minister is traditionally identified with the military so that when he spoke he tended to do so in the name of the armed forces as well. 31. Presidential Act of Brasilia, 26 October 1998, para. I. Note: all references to official agreements are taken from the Peruvian Ministry of Foreign Affair's official Web site. The translations are often awkward, and there are many typographical and grammatical errors, but I have adjusted these where the mistakes are obvious. 32. Agreement enumerated in the Presidential Act of Brasilia include the following: - Trade and Navigation Treaty, according to what is established in Article VI of the Protocol of Peace, Friendship, and Boundaries of Rio de Janeiro; - Comprehensive Agreement between Peru and Ecuador on Border Integration, Development and Coexistence that includes therewith the Peruvian-Ecuadoran Coexistence Committee Regulations; - Agreement on People, Vehicle, Maritime and River Vessels, and Aircraft Transit; - Peruvian-Ecuadoran Border Committees Regulations; - Organizational Structure of the Bilateral Plan for Development of the Border Zone; - Programs of the Binational Border Region Development Plan; - Organizational Structure for Bilateral Peace and Bilateral Fund for Development; - Agreement on the Acceleration and Deepening of Free Trade between Ecuador and Peru; - Project for an Agreement by Notes Exchange to design the Technical-Economical Feasibility Study of the Puyango-Tumbes Binational Project; - Project for a Memorandum of Understanding on the Urban-Regional and Services Programme for the Axis Tumbes-Machala; - Project for a Memorandum of Understanding on the Peruvian-Ecuadoran Highway Interconnection; - Project of Agreement for Electrical Interconnection; - Agreement for Contracting a Prefeasibility Study for the Binational Hydrocarbon Transport Project; - Project for a Memorandum of Understanding for Strengthening Mutual Cooperation on Tourism; - Project for an Agreement for the Development of a Technical Cooperation Program on Fisheries; - Memorandum of Understanding on Educational Cooperation. 33. 34. 35. 36.

Article 7. Article 8. Article II. Articles 12-15.

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37. Articles 18-20. 38. Article 21. 39. Article 22. 40. Article 28. 41. Exchange of Notes on the Agreement about the Establishment of the PeruvianEcuadoran Binational Committee on Security and Mutual Confidence Measures. 42. Article 5(6 and 7). 43. Article 5(11). 44. Article 6. 45. See Article 34: the treaty cannot be interpreted to affect the sovereignty of either party. 46. These rivers were subsequently named in an Executive Communication. They are: "the Napo River sector, in the area included between the Yasunl and Aguarico Rivers; and in the Guepl and Curaray rivers." (Communications regarding navigation: No. 2064166/98-GM, Quito, 26 October, 1998.) 47. Articles 6, 14, 19, 31, 32,33 for example. 48. Article 37. 49. Article 38. 50. News Bank Info Web. 1999. Text of a report by the Ecuadoran CRE Satellital Radio Web site on 28 October. BBC Worldwide Monitoring, 28 October. 51. When the war broke out in 1995, indigenous groups from both countries endorsed a joint declaration to keep the peace which did not, however, keep some members of the local groups from joining one of the national armies. (Kintto Lucas, "Ecuador-Peru start work on Park of Peace" [Inter Press Service, Quito, 3 June 1999]). 52. Kintto Lucas, "Ecuador-Peru start work on Park of Peace" (Inter Press Service, Quito, 3 June 1999). 53. Kintto Lucas, "Ecuador-Peru start work on Park of Peace" (Inter Press Service, Quito, 3 June 1999). 54. Causing postponements in discussion with the Inter-American Development Bank, for example. See http://www.iadb.org/exr/PRENSA/2000/cp0800e.htm. 55. Of this amount, $2.4 billion was to come from official and multilateral sources and $600 million from the private sector. Of the $2.4 billion from official and multilateral sources, approximately $600 million was to be provided during the tenyear period in the form of grants. See Inter-American Development Bank Web site: http://www.iadb.org/exr/PRENSA/2000/cp4300e.htm. 56. See http://www.iadb.org/exr/PRENSA/2000/cp4300e.htm. 57. See, in general, the importance of developmental objectives as an incentive for settling border disputes in Latin America, see Dominguez (200 I). 58. All figures are from the Inter-American Development Bank. 59. Statements by members of Peru's military were reportedly what prompted patriotic marches in October 1997 that were hostile to an accord with Ecuador. (The Guardian [London], 5 November 1997, 17). In Ecuador influential officers in the armed forces, such as General Moncayo, at various points in the negotiations of the agreements, continued to be reluctant to accept any agreement based on the 1942 Rio Protocol (Latin America Weekly Report, 10 February 1998, p. 64.)

Chapter 13

Negotiation Processes and Postsettlement Relationships: Comparing Nagorno-Karabakh with Mozambique

Daniel Druckman and Terrence Lyons1

There is a kind of "ripeness" that leads parties to the table to negotiate an end to wars or related forms of violence and another that motivates parties to seek resolutions of the issues that provoked the violence. The former is usually understood in terms of cutting the costs incurred from a mutually hurting stalemate, the latter can be understood in terms of perceiving opportunities (referred to also as "mutually enticing opportunities") for improving conditions and relationships (see Zartman 2000). The former depends on an escalation of hostilities, with the parties negotiating a cease-fire to end the violence. This kind of negotiation, producing backward-looking outcomes, is similar to the objective referred to by Ikle (1964) as normalization. 2 The latter is more likely to occur in the context of a deescalation of hostilities, with the parties negotiating over the issues that caused the violence and seeking to redefine their relationship, including the creation of new institutions. This kind of forward-looking negotiation is similar to the objective referred to by lkle as innovation. 3 Of particular interest is the relationship among negotiation processes, outcomes, and postsettlement relations. This chapter explores this relationship with reference to two contrasting cases: one that illustrates cutting costs because of a mutually hurting stalemate; and the other illustrating an attempt to seize opportunities to achieve a resolution of political issues. This analysis is presented as a starting point for developing a typology of terminations and resolutions (see Kressel, Fontera, Fontenza, Butler, and Fish [1994] on this type of distinction). 265

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With this larger objective in view, we place greater emphasis on the methodological approach used (which will be applied to a larger sampling of cases) than on case-specific policy implications for the conditions conducive to lasting peace. (See MacFarlane and Minear [1997] for an example of a policy analysis of Nagorno-Karabakh.) This analysis highlights the connections among negotiating process, outcome, and the postsettlement relationship between the parties. The sequence is emphasized in discussions of integrative and distributive models of bargaining, introduced initially by Walton and McKersie (1965). Referred to also as problem solving and competitive bargaining, these models present alternative portrayals of negotiation. While problem-solving negotiators are nonmanipulative, other-oriented, and cooperative in the sense of seeking absolute or joint gains, distributive bargainers attempt to manipulate the process, are self-oriented, and seek to maximize the difference in the parties' gains. Carnevale and Pruitt (1993) found that problem solving is more likely to occur when negotiators show significant concern for the others' outcomes as well as their own, when the parties exchange information about their underlying priorities or values and needs, and when they are all convinced that an integrative solution is possible. Kresse! and his associates (1994) demonstrated that the problem-solving (in comparison with the distributive or settlement-oriented) approach is active, involving efforts to generate hypotheses and make diagnoses, thus presenting a substantial cognitive challenge to bargainers. Bartos (1995) showed that this approach can improve the chances for agreement if effort and sincerity are put into the information-search process and if negotiators interact face-to-face. He also found that distributive bargaining is faster and more efficient but that the chances for getting an agreement are reduced. Results from our simulation study (Druckman, Broome, and Korper 1988) show that competitive bargaining led to expedient agreements (when they occurred) while cooperative (problem-solving) bargaining was more likely to produce lasting agreements. The prospect for lasting or durable agreements, referred to here also as resolution, is increased when bargainers conduct problem-solving discussions. This occurs for two reasons: the atmosphere of cooperative discussions is likely to increase good feelings or the expression of positive emotions; the procedure of searching for information about interests and needs is likely to increase understanding of the others' viewpoints. Druckman and Broome (1991) found that increased liking and understanding (together rather than separately) contributed to agreements. These are the factors that also contribute to a sustained positive relationship among the parties needed for postsettlement peace or peace building. Although it is not surprising to discover that competitive, relative-gains behavior has been prevalent in international relations (Hopmann 1995), a significant post-Cold War shift away from the paradigms that support this behavior (realpolitik) toward paradigms that encourage integrative behavior (idealpolitik) (Sandole 1995) can be discerned. In this study we examine some implications for the postsettlement

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period of different types of negotiated agreements, a case in which a cease-fire was negotiated, and a case that resulted in a political resolution. Of particular interest is the comparison between the cases with regard to the links between the negotiating process, its outcome, and the postsettlement relations among the parties.

The Cases In an attempt to understand the conditions that lead to one or the other type of negotiating process, we have chosen to examine two recent cases where the parties agreed to end a period of intense warfare. In one case, the conflict over NagornoKarabakh, the parties agreed (in 1994) to a backward-looking cease-fire that ended the violence between Armenia and Azerbaijan but left long-term issues of both peace and justice unaddressed. In the other case, the civil war in Mozambique, the parties signed a forward-looking peace accord (in 1992) to end the war of insurgency that Resistencia Nacional Mo~ambicana (Renamo) had waged against the government for fifteen years. The Nagorno-Karabakh case illustrates a settlement that did not address the issues that gave rise to the hostilities. The Mozambique case illustrates an agreement that did address the issues and led to a changed relationship between the parties. These cases serve as exemplars of contrasting postsettlement situations. Although they differ in many ways and thus would not be regarded as a focused comparison, the cases are viewed as examples of contrasting "cells" in a typology of negotiated agreements. Nagorno-Karabakh, a mountainous, mainly Armenian-inhabited enclave southwest of Baku, Azerbaijan, is the subject of a conflict that has its origins in the nationalities policies of the Soviet Union as applied in the Caucasus region. Despite Armenian displeasure with the divisions among their ethnic brethren, the conflict remained suppressed and latent under Soviet rule. In 1988 a series of violent demonstrations in Yerevan and Stepanakert and population relocations to their respective ethnic homelands suggested that the new openness within the Soviet Union would provide an opportunity for heightened conflict. In 1990, just before the Soviet Union dissolved, the conflict between Armenia, the Nagorno-Karabakh Armenians, and Azerbaijan escalated dramatically, marking the first and one of the most violent conflicts between post-Soviet republics (Mooradian and Druckman 1999). Following the independence of Armenia and Azerbaijan, the Armenians in Nagorno-Karabakh proclaimed their own independence in January 1992. War raged during 1992 and 1993 with both sides convinced at various times that they could win on the battlefield and attempts at mediation by a variety of international actors failing. During the course of the conflict an estimated fifteen to twenty-five thousand people were killed and six hundred thousand Azeris were displaced from Nagorno-Karabakh, nearly the entire prewar population. An economic blockade severely crippled Armenia. Armenian forces from Nagorno-Karabakh, with the

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support of the Republic of Armenia, forced Azeris out of Nagorno-Karabakh and several adjacent provinces in 1993 (Greene 1998; Walker 1998). During the conflict a number of mediation attempts were put forth, with few results: • •

• •

•

•

In September 1991 Russian President Yeltsin and Kazakhstan President Nazarbayev offered to host talks to no avail. From February to May 1992 Iran tried to use its historical relationship with both Armenia and Azerbaijan before being marginalized by the Commission on Security and Cooperation in Europe (CSCE). Kazakhstan President Nazarbayev tried mediation again in August 1992 but failed because of Armenian perceptions of bias. The Minsk Group, created by the CSCE, intervened in the conflict from February 1992 to December 1994 which eventually resulted in the May 1994 ceasefire. Russian mediation in the form of shuttle diplomacy by envoy Kazimirov took place from November 1993 to December 1994 but failed to produce results partly because of competition with the CSCE and suspicion on the part of Azerbaijan. The cochairs of the Organization for Cooperation and Security in Europe (OSCE) have continued efforts to mediate the conflict from January 1995 to the present.

The May 1994 cease-fire has generally held but the agreement has not resolved underlying differences. Mooradian and Druckman argue that "the settlement achieved in 1994 has not led to a resolution of the issues that divide the parties. The battlefield calm following the cease-fire has not provided an opportunity to address those issues in negotiating fora. Rather than bringing the parties together, the agreement has served to separate them" (Mooradian and Druckman 1999, 724-25). According to Walker, the lack of agreement beyond the 1994 ceasefire is attributable to Baku's unwillingness to accept the Karabakh Armenians as a party to negotiations, Baku's insistence that negotiations on status and other issues begin after the Karabakh military withdraws from areas beyond Karabakh's borders, and the inability of the OSCE to reach an agreement on the composition and command of a peacekeeping force (Walker 1998; see also Maresca 1996). Mozambique was the site of one of the most devastating conflicts during the 1980s and 1990s. The ruling Frente da Libertar;iio de Mor;ambique (Frelimo) and the insurgent Renamo engaged in a brutal conflict that destroyed political, social, and economic life across the country. As a result of the war, one million of Mozambique's fifteen million people died, 1.5 million became refugees, and three million were driven from their villages to become internally displaced. Troops from Zimbabwe intervened in Mozambique to protect critical transportation

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corridors, and international relief organizations provided most of the means of survival. After a long series of discussions, and pressed by a hurting stalemate created by losses on the battlefield, an urgent need for famine relief, and growing pressures from civil society to end the conflict, the two sides signed the Rome Peace Agreements in October 1992 (Hume 1994; Vines 1996; Turner, Nelson, and Mahling-Clark 1998). The process that resulted in the Rome accords began with a series of exploratory talks with a wide variety of intermediaries (Msabaha 1995; Schneidman 1993). In 1988 the government of Kenya, which had ties to the insurgent leadership, explored the possibility of talks. The following year Mozambican Catholic Church leaders met with Renamo representatives in Kenya and began shuttling between the two parties. Frelimo issued a twelve-point peace plan in April (calling for a process that began with a cease-fire and then substantive talks) and Renamo responded with a sixteen-point plan in August (calling for removal of foreign troops and elections). In late 1989 representatives of both parties met in Kenya to discuss options for peace. In 1990 the Community of Sant'Egidio, a Catholic lay organization based in Rome, became involved and in July 1990 held the first round of talks. The talks proceeded through ten rounds over the next two years. Sant'Egidio facilitated the discussions with Italy, the United States (U.S.), and other external powers serving as observers, providing technical assistance and applying pressure and inducements from time to time to keep the process moving. President Robert Mugabe of Zimbabwe met with the parties just before the final agreement was signed in October 1992, providing regional support for the process. The two parties rarely met face-to-face except in formal opening and closing meetings, and most of the discussions were conducted by mediators and observers meeting with each party separately (Bartoli 1999). The agreement called on the international community to play critical roles in implementing the Rome agreement. The UN operation in Mozambique (UNOMOZ) assisted in monitoring the cease-fire, demobilized both armed forces, created a unified national army and police force, removed land mines, assisted in economic rehabilitation and resettlement of refugees and internally displaced persons, and monitored the elections. Under the agreement a supervisory and monitoring commission (CSC) chaired by UN special envoy Aldo Ajello was established to oversee the overall implementation. The implementation process was slow and difficult, but the cease-fire held, demobilization took place, and elections were eventually held in October 1994.

Analytical Approach Our aim in this project is to generate lessons about some of the conditions that would be conducive to achieving terminations and resolutions. We will do this by

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examining, in retrospect, two case studies with known negotiation outcomes and aftermaths. To facilitate analysis, the cases are compared in line with the dimensions derived from the literature on international negotiation discussed below. By superimposing a common framework on the cases, as a lens through which the cases are viewed, we are able to develop profiles of contrasting experiences. This is a limited analysis for several reasons. The many differences that exist between the cases preclude a causal analysis in the sense of identifying timelagged relationships between independent and dependent variables. (There are many more variables than cases.) We cannot specify directionality with respect to the negotiation process and the relationship between the parties. Does the process reflect or direct changes in interparty relationships? Our reasoning regarding these connections is circular. The small number of cases examined also precludes a correlational analysis intended to discover relationships among many variables. (This analysis depends on a larger case-to-variables ratio.) A lack of detailed information about the negotiation process in the Karabakh case also precludes the kind of time-series analysis that would allow postdiction of outcomes or consequences. (See Mooradian and Druckman [1999] for an example with incidents over a six-year period.) The kind of analysis that we can perform is typological. It is in the tradition of the most different systems design (MDSD) methodology where we search for contrasting types. 4 Each case is an exemplar of an ideal type of postsettlement relations. The contrasting profiles that we develop may have diagnostic value for other cases by distinguishing, in prospect or retrospect, those that are ripe for termination from those that are ripe for resolution. The diagnosis refers to the set of conditions that move a process toward or away from durable political agreements. It is useful in the heuristic sense of generating hypotheses about possible conditions. A more definitive diagnosis awaits a larger sampling of cases that reflect a wider array of ideal types. An expanded typology will emerge from the larger sampling and analysis of cases.

The Comparative Framework The comparative framework consists of several parts. One part comprises those aspects of negotiation found to distinguish empirically between different types of negotiating objectives, such as normalization, innovation, redistribution, extension, and side effects (Ikle 1964; Druckman, Martin, Allen Nan, and Yagcioglu 1999). Another part derives from the bargaining-process analysis categories devised originally by Walcott and Hopmann (1975). A third source of categories is from the experimental literature on bargaining, as reviewed, for example, by Druckman (1994). Finally some framework categories come from a body of writing, loosely referred to as "ripeness theory" in international conflict resolution

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(e.g., Stedman 1997). Spotlighted in this analysis are the framework categories of process, outcome, and postsettlement relations. In their evaluation of Ikle's (1964) framework, Druckman and his associates defined a number of variables within the broad categories of parties, issues, process, conditions, and outcomes (Druckman, Martin, Allen Nan, and Yagcioglu 1999). These categories were used in that study to judge whether the profiles of the thirty cases sampled from the Pew series could be distinguished in terms of Ikle's five objectives. The results showed that the cases were indeed distinguished in terms of those objectives and further identified a sixth objective, referred to as multilateral regime negotiations, which emerged on the world scene during the 1980s. These profiles are used to compare the two cases used in this study. Of particular interest in this analysis is the distinction between ripeness leading to backward-looking negotiations to cut battlefield costs (as in Ikle's normalization) and opportunities seized in forward-looking negotiations to produce political resolutions (as in Ikle's innovation). Our analysis places the negotiation process, regarded as one category in our framework, in the spotlight. Process is interpreted in terms of the distinction between distributive or competitive and problem-solving or cooperative approaches. We are interested in knowing whether the negotiation process in each of the cases was primarily competitive, cooperative, or mixed. Drawing on a variety of sources, we define the contrasting approaches in several ways: whether the negotiators emphasize relative power (differences in outcomes) or absolute (joint) gains (Hopmann 1995), whether they view the negotiation primarily as a distributive or integrative bargaining problem (Walton and McKersie 1965), whether they emphasize their positions or their interests/values (Fisher and Ury 1981 ), and whether they discuss and make concessions or exchange information as their primary activity (Kressel, Fontera, Fontenza, Butler, and Fish 1994). These distinctions are also similar to the bargaining-process analysis categories of hard and soft bargaining (Walcott and Hopmann 1975). Each was construed in terms of a seven-step scale ranging from -3 (most distributive or competitive) to +3 (most integrative or cooperative); a zero point is "neutral" in the sense that a statement is neither competitive nor cooperative. The four scales were used to code all of the available documentation on the negotiating process in the two cases. Four graduate-student coders were trained to judge the statements in terms of the scaled categories. The results are presented as frequencies of statements coded in each scale category. Also emphasized in the analysis-and drawn from the framework-are the outcomes and the postsettlement relations among the parties. Outcomes consist of the terms of the agreement and the extent to which a comprehensive settlement was reached. The postsettlement periods are compared in terms of the orientations of the parties toward the conflict, roles played by third parties, and regime and institutional changes. The distinction between viewing a conflict as a contest or as a problem to be solved has been shown in experiments to have a strong influence on a party's willingness to reach agreements and thus to perpetuate or

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ameliorate the conflict (Druckman 1994). The opportunities taken or missed during the negotiation are sustained by the activities of various third parties and by the extent to which the agreed-upon changes are actually made. These factors influence the durability of a settlement and thus the evaluation of the extent to which the conditions were ripe for resolution. We superimpose these categories on the cases for comparison. The authors convened a panel of knowledgeable observers to judge both cases. While judging the two cases on all of these dimensions, we also performed more detailed coding of the process and discuss at some length the conditions, including changes in relationships, that evolved during the postsettlement periods. These "modules" of the overall frameworks are spotlighted in order to probe relationships between negotiating process, outcomes, and postsettlement changes, which is the primary purpose of the project.

Information Sources Interpretations turn on the categories used to code the material. The distinction made between competitive and cooperative bargaining has implications for the relationship between the parties prior to, during, and after the negotiation is concluded. They also depend on the type of information available for coding. Different kinds of information are available for the two cases. For Mozambique Hume's (1994) book provides round-by-round descriptions of the Rome talks by a direct observer of the process. For Karabakh we have the daily news reports from Armenia made available from the Armenian Assembly of America. The reports prepared during 1994 provide summaries of the cease-fire talks conducted in May as well as events and commentaries surrounding them. Insofar as these largely reflect an Armenian point of view, they are tilted toward that side of the conflict. Although the one-sided perspective on the process presents a problem, it does not render the material useless. It is likely that the approaches reflected in these statements shed light on the kind of negotiation process in train. After all, the Azeris did not counter Armenian competitive posturing with a cooperative rebuttal. Our earlier events coding showed similar actions taken by both sides during this period (Mooradian and Druckman 1999). Thus, our coding was guided by the assumption that one side's competitiveness (or cooperativeness) was reciprocated by the other side. (For evidence on the importance of reciprocation in international negotiation, see Druckman and Harris 1990; and Larson and Druckman 1998.)

The Analysis In this section, each case is analyzed separately in terms of the same format (see table 13.1). Judgments made on all categories of the framework precede the more detailed analyses of process, outcome, and postsettlement relations. The cases are compared in the next section.

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Table 13.1 Comparing the Cases on Nineteen Aspects of Negotiation Mozambique Number of parties

Breakdown in negotiations Exposure to media

Bilateral (other nations as mediators/observers) Somewhat symmetrical (superior government access to resources and legitimacy but stalemate on the battlefield) Long-term, hostile Some divisions between ruling party's military and political wings High-level for both parties Many addressed Security, political (party law, electoral system), implementation issues, humanitarian issues Moderate Relatively long (see process category discussion below) Some suspensions, but talks continued Local, not international

Changes in political context 'fYpe of agreement 'fYpe of outcome Third-party assistance

Broad contextual changes, regional transformation Comprehensive Regime change, new institutions Active, problem-solving approach

Sponsors' support

Regional support for government

Implementation Relational changes

Very strong Yes

Relative power

'fYpe of relationship Intraparty disagreement Delegation status Number of issues 'fYpe of issues

Time pressures Length of talks Process

Nagorno-Karabakh Trilateral (self-interested third parties and supporters) Somewhat asymmetrical (Armenia had stronger force, but Azerbaijan held property) Long-term, hostile Yes, both for Armenians and Azeris High-level for all parties Few addressed, many unaddressed Security issues addressed, political issues (including autonomy) unaddressed Moderate Very short (see process category discussion below) Frequent and intense, with recurring fighting Local and within the diasporas, not international Broad contextual and regional changes Partial Impasse, partial, fragile agreement Intermittent, distributive-bargaining approach Aid from Russia; U.S. favored Armenia Weak No

Karabakh

Categorical judgments The 1994 negotiations to arrange a cease-fire between the warring parties are judged in terms of the dimensions shown in table 13.1. The talks were trilateral, between Armenia, Azerbaijan, and Nagorno-Karabakh and were somewhat asymmetrical given Armenian superiority in terms of troop strength. This advantage to Armenia was balanced in part by Azerbaijan's edge in appealing to international legal norms regarding changing international borders and the political support Azerbaijan received from neighboring states. The relationship was long-term (in that Armenians and Azeris had lived in the same region for centuries) and hostile (as indicated by the violence of the conflict). Intraparty divisions and disagreements were relatively high for all parties, as differing

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Table 13.2 Process in Nagorno-Karabakh A. Relative/Joint gains B. Distributive/ Problem-solving C. Positions/ Interests D. Concessions/ Exchange of information

+2

+3 0

11

5

0

4

3

0

2

7

-3 12

-2 7

-I

0

32

12

9

2

30

18

8

5

3

7

2

+I

2

0

factions within the three sides often flared up, and this complicated negotiations. All three delegations sent high-level representatives to the talks. The talks concentrated on relatively few issues, most notably security questions relating to a cease-fire and questions relating to an observer force to monitor the cessation of hostilities. A much larger series of issues, relating to underlying grievances, questions of sovereignty, and long-term political arrangements were left out of the talks. Time pressures during the negotiations were moderate, with a hurting stalemate making a timely settlement urgent but no formal deadline having been established. The talks were quite short. The talks broke down frequently and were punctuated by several returns to fighting. Media attention was minimal internationally, but newspapers and other reports from the region and from the diasporas followed the talks closely. There were a number of changes in the political context, with a leadership change from Petrossian to Kocharian in Armenia and significant transitions taking place in a number of neighboring states following the breakup of the Soviet Union. The outcome was clearly a partial settlement, characterized as a minimal cease-fire agreement. Following the agreement the conflict remained at an impasse with little movement toward a broader, sustainable agreement. Third-party assistance was intermittent through the various OSCE and Minsk Group mechanisms and tended to favor a distributive-bargaining approach. External aid played a role with regard to both parties, with Russian assistance important to Azerbaijan and U.S. support for Armenia. Implementation following the agreement was weak. As indicated by the continuing tensions and occasional skirmishes, relational changes did not take place. We conclude that this profile is similar to Ikhrs normalization negotiation.

Process analysis The number of statements coded for each scale category is shown in table 13.2. For example, the twenty-five statements coded on the relative versus absolute Uoint) gains scale were distributed into 12 (-3), 7 (-2), 2 (-1), 1 (0), 2 (+1), 1 (+2), and 0 (+3). The mean for this scale is -1.92. The means on the other scales are -1.52, -2, and -0.64, respectively.

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Taken together these results indicate that the Armenians strongly emphasized relative gains, used distributive or competitive tactics, punctuated their discourse with positional language, and preferred (at least to some extent) discussing concessions rather than exchanging information. There is little doubt that these actors and commentators were engaged in a competitive, rivalrous dispute characterized by hard bargaining. Outcome The negotiation outcome, signed in June 1994, consisted of an agreement between the parties to observe the cease-fire while discussing further the deployment of international monitors in the zone of conflict and with a view to making progress toward the signing of a political agreement. This is judged as a partial agreement that does not include political issues. Little progress has been made since then on an agreed international peacekeeping force or on a political settlement concerning the status of Karabakh. Postsettlement period A situational diagnosis of this case in terms of "ripeness theory" suggests that the cease-fire was designed to cut costs for both sides and that neither side has been willing to entertain talks toward a broader resolution of the issues surrounding Karabakh. As discussed in Mooradian and Druckman (1999) the parties continue to be committed to winning. This commitment has not waned during the years since the cease-fire: there are few if any internal divisions within the parties, especially in the respective militaries; the leadership changes that did occur tended toward the more rather than less hard-line; public opinion on both sides has shown unwavering support for the regimes and may have been even more hard-line than the leadership; and losses in legitimacy occurred only for the regimes seeking an agreement. These are the conditions conducive to continuing conflict rather than resolving it. To the extent that both societies have little incentive to resume the fighting-no apparent gains from winning on the battlefield, nor a change in the status quo, nor improved economies-they are unlikely to push for a resolution of the issues that divide them. (See MacFarlane and Minear [1997] for other disincentives for resolution.) These are also the conditions for avoiding discussions about establishing a regional security regime. Without such a regime (as is currently the case), the situation in the Caucasus remains unstable. The negotiation process and the broader conflict are intertwined as mentioned above: competitive orientations lead the parties to avoid discussions about establishing cooperative regimes which, in turn, perpetuates the conflict in a cyclical manner. Of interest is the practical question of what can be done to break into this cycle? The conditions that were ripe for ending the fighting did not evolve into opportunities for resolving the conflict. This was mostly because of the negotiating orientations of the parties (discussed above) and the influence of various third parties whose efforts have been conducive to continuing, if not escalating, the conflict.

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A variety of types of third parties have played an important role during the postsettlement period but have mainly served to perpetuate rather than ameliorate the conflict since the cease-fire agreement. Three types of parties, in particular, have influenced the course of events: national governments, international organizations, and nongovernmental (humanitarian-aid) organizations (NGOs). Key nations have been Iran, Russia, Turkey, and the United States. Russia has been the most actively involved third party in the conflict throughout the 1990s, including the failed mediations prior to the cease-fire and during the post-cease-fire settlement period. Russia's role as an honest broker has been compromised (or trumped) by its interest in maintaining control over the region, especially with regard to the region's energy products and the basing of its forces. The United States has been distracted by other hot spots, in particular former Yugoslavia, and its own domestic politics that include election cycles and the influence of the Armenian interest groups. The apparent pro-Armenian thrust of its assistance policies has called into question its role as an impartial mediator. Although Iran's close relationship with both Armenia and Azerbaijan gave its earlier mediation efforts legitimacy, it has more recently tilted toward Armenia as a reflection of its concerns over the spread of Azeri nationalism. Turkey's support for Azerbaijan provides some balance to the apparent favoritism shown by the other third parties for Armenia. This support is based on Turkey's historical antipathy for Armenia and concern about the Russian presence along their northeastern border. The OSCE has been involved in the conflict since 1992 when it took the leading role in mediating prior to the cease-fire. It has continued to play a key mediational role in implementing the cease-fire agreement and in attempting to achieve a political settlement. It has been ineffective, however, mainly because of the influence of two of its members, Russia and the United States. The lack of a shared perspective, which could emerge through internal negotiations, has prevented the organization from presenting a coherent plan for a peacekeeping force and from specifying the parameters of autonomy for Karabakh. The failure of the OSCE to act on these issues has been compounded by a reluctance on the part of the parties to seek a settlement. None of the parties has been persuaded by the OSCE or any of the other third-party actors to regard a political settlement with a sense of urgency. Further complicating the situation is the role played by NGOs. By making aid contingent on progress toward a political settlement, many humanitarian organizations have created a self-defeating cycle: lack of progress produces diminished aid which serves to fuel the conflict which, in turn, further diminishes the levels of support. On the other hand, unconditional aid may have the effect of increasing the dependence of the parties on the donor organizations. While this would increase the leverage of those organizations in moving the parties toward a compromise on the political issues, it is likely to be the sort of agreement that would not last: an agreement reached for expedient reasons, where parties have few alternatives, is likely to lack durability (see Druckman, Broome, and Korper 1988). Thus,

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humanitarian organizations are caught in a "no-win" situation. Neither contingent nor noncontingent aid policies are likely to produce a lasting political settlement. We conclude that this pattern of third-party involvement and actions has probably led to a perpetuation rather than a diminution of the conflict. Third-party interests have reinforced the parties' competitive orientations, leading each to prefer the status quo over any proposed political settlement. For these reasons, Karabakh is an example of an agreement that emerged from a hurting stalemate, which is one source of ripeness. The backward-looking negotiation process served normalizing objectives. It has not led to the kind of political agreement that develops from taking advantage of enticing opportunities, which is, as mentioned, an element in negotiations for forward-looking outcomes. The case of Mozambique presents an example of how opportunities were seized in negotiation to produce a more lasting and innovative political agreement. Of interest are the lessons that may be learned from this case for the Karabakh conflict. Mozambique

Categorical judgments As noted in table 13.1 above, the Mozambique talks in Rome were bilateral between the government and the insurgents, with a number of other states and organizations serving as mediators and observers. The Catholic lay organization Sant'Egidio facilitated the talks and emphasized problem-solving processes. Relative power was somewhat symmetrical, with the government in Maputo possessing international legitimacy but with the long-standing stalemate on the battlefield signifying a sort of balance. Both parties faced significant pressures from their domestic constituencies and regional allies to end the conflict (Vines and Wilson 1995). The relationship was long-term, dating back to before Mozambican independence, and hostile, as demonstrated by the fierceness of the fighting. Intraparty disagreements did not impose too great a hurdle in the talks, although it was sometimes unclear who had the authority to speak for Renamo, and divisions were evident between the political and military wings of Frelimo. Both sides sent high-level delegations to the talks. A large number and wide range of issues were discussed in Rome, although issues relating to security and political provisions dominated. Time pressures existed, given the hurting stalemate on the battlefield which was aggravated by drought and famine, but no irrevocable deadline was imposed. The talks were relatively long, lasting twenty-four months from July 1990 through July 1992 and playing out over ten rounds. The agreement was signed in October 1992. The talks would break down from time to time but never collapsed completely. As with Nagorno-Karabakh, international media paid little attention. Specialized reports and the media in interested countries followed the meetings closely but Sant'Egidio maintained strict confidence on many important meetings and decisions. The Mozambique talks took place in the context of significant regional

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change, as South Africa moved to end apartheid and the erosion of Cold War rivalries after 1989 opened up new options. The agreement was relatively comprehensive, dealing with issues ranging from cease-fire verification procedures and a humanitarian-aid declaration to political party laws. It was also unrealistic in terms of implementation and included a number of deadlines and benchmarks relating to demobilization that could not possibly be met. The framework therefore needed to be continuously renegotiated during the implementation process as deadlines slipped and new terms had to be bargained. Third-party assistance, particularly in the form of Sant'Egidio, represented a long-term, active commitment to a problem-solving approach. Sant'Egidio received considerable support for its mediation from a variety of observers and technical teams (particularly relating to the military and security provisions). France, Italy, Kenya, Portugal, Russia, South Africa, the United Kingdom, the United States, the Vatican, Zimbabwe, and the United Nations (UN) all provided support at various times. Most of the negotiations were conducted with the two parties meeting separately, except for formal opening and closing ceremonies. External support to the parties came in the form of large amounts of humanitarian assistance to the government and continued presence by Zimbabwean troops within Mozambique in support of Maputo's interest in maintaining control over critical transportation routes. Renamo received considerably less support, although Kenya and the private businessman Tiny Rowland did assist the movement financially. The United Nations provided one of the most comprehensive peaceimplementation support missions to Mozambique. Large amounts of aid contributed to successful demobilization and elections. International aid further contributed to Renamo's transformation from an insurgent group to a political party (see below). The need to continue negotiations during the implementation process deepened and institutionalized the joint decision-making and problem-solving models initiated in Rome. In the end the relationship between Frelimo and Renamo changed from parties engaged in violent conflict on the battlefield to parties engaged in political competition in a relatively effective electoral setting. Renamo continued to mistrust Frelimo but eventually accepted the United Nations as a "guarantor" of the agreement and accepted its provisions. This profile resembles a mix of Ikle's description of normalization and innovation agreements: new institutions and termination of the abnormal, third-party pressures and inducements of mutual benefits, interest in innovation that shifted from one party to the other during the course of the long negotiations, and fighting that likely would have continued if no agreement had been reached. The Rome talks represented a blend of both bargaining and problem-solving processes and became more oriented to innovative negotiation in the final rounds. The move toward innovation became even more pronounced during the implementation process when the UN facilitated ongoing discussions in a series of joint commissions responsible for implementation.

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Table 13.3 Process in Mozambique

A. Relative/Joint gains

-3

-2

-1

2

9

11

0 0

26 22 2

14 18 7

4 3

B. Distributive/Problem solving

17

C. Positions/Interests

13

D. Concessions/Exchange of information

25

5

+1 10 32 8 7

+2

+3 5

18 6 8

10

4

Process The number of statements coded for each scale category is shown in table 13.3. For example, the thirty-eight statements coded on the relative versus absolute (joint) gains scale were distributed as 2 (-3), 9 (-2), 11 (-1), 0 (0), 10 (+1), 1 (+2), and 5 (+3). The mean for this scale is -0.21. The means for the other scales are -0.15, -1.1, and +0.51, respectively. These results indicate that the negotiations were divided between competitive and cooperative approaches. Although their discourse was more positional than interest-based, they exchanged more information than concessions. This pattern resembles a mixed-motive negotiation consisting of both bargaining and problem solving. The mix of normalizing and innovation objectives, of power sharing and institutional-creation issues, combined in forward-looking outcomes, produced a durable political resolution that has led to the emergence of relatively stable democratic institutions. These codings are consistent with observer reports. Hume states that, "Both sides wanted to find an alternative to stalemate and destruction. The mediators helped the parties find that alternative.... The mediators concentrated on developing mutual recognition and respect, rather than relying on outside leverage to push the parties together. Their first step was to begin a dialogue between the parties that could open the way to reconciliation" (1994, 146). Bartoli similarly speaks of the "transforming power of the experience of adversaries talking with one another and with others in a setting that is conducive to constructive dialogue" (Bartoli 1999, 250). Bartoli further adds that "in walking through the process step by step, Sant'Egidio members learned what was possible; indeed, each step revealed a new level of possibility" (Bartoli 1999, 262). The qualitative data from observers is therefore consistent with the quantitative data from the content analysis, providing additional reliability to our characterization of the negotiations in Rome. Outcome The Rome Peace Agreements resulted in the cessation of hostilities, demobilization of the insurgent forces and restructuring of the state's military, and multiparty elections in 1994. Conflict on the battlefield was replaced by political competition, military processes by an essentially political process, and the goal of victory by the goal of peace (Bartoli 1999). This success may be more the result of an effective implementation process focusing on the imperatives of continuing negotiations after the formal signing of the agreement rather than on the content

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of the settlement signed in Rome itself. As one analyst stated, "The negotiators in Rome were primarily concerned with creating a political process and engendering a political fact that would shift fundamentally the course of Mozambican history. The fine points of how to implement that which was agreed would be dealt with after the documents were signed" (Berman 1996, 61). Both Renamo and Frelimo continued to mistrust each other despite the signing of the Rome Accords but agreed to accept the settlement in part because they could no longer sustain the conflict. Observers remarked immediately after the signing that "clearly the peace settlement will be balanced on a knife's edge.... Given the deep-seated distrust between Renamo and Frelimo, any incident along the path to national elections ... has the potential of sending the whole process into reverse" (Alden and Simpson 1993, 127). Some assurance was provided by the large United Nations operation which was especially important to Renamo, but deployment of international peacekeepers was slow and beset by problems. One of the most important outcomes of the Rome talks was a process of joint decision making, consultation, and problem solving that persisted through the implementation process, putting in place new institutions and new patterns of behavior that provided the context for successful implementation and elections. In Mozambique the construction of a lasting peace "required still more negotiation and planning" following the Rome Accord (Synge 1997, 52). Hume ( 1994, 138-39) argues that, "Despite the efforts of the mediators and the observers, especially their military experts, the parties never seriously discussed the practical elements of these documents .... They had stipulated a timetable they could not possibly keep to, even in the first weeks after a cease-fire.... Because of the defects in the agreements, the process of implementation would have to be constantly preceded or accompanied by a process of renegotiation." Joint decision-making bodies, such as the supervisory and monitoring commission (CSC) and the cease-fire commission (CCF), brought together the major political actors with the major donors in a consultative process chaired by the special representative of the UN Secretary-General (Alden 1995, 105-6). Other specialized commissions dealt with reintegration of ex-combatants, reform of the Mozambican defense forces, and preparations for the election (Turner, Nelson, and Mahling-Clark 1998). These interim institutions created the context for overcoming some of the legacies of the civil war and, in doing so, promoted the demilitarizing politics whereby new institutions shape the parties' expectations and strategies over the course of transition from war to peace (Lyons 1999). A critical component of this successful implementation was the well-funded and creatively managed peace implementation mission undertaken by UNOMOZ. All told, the UN spent US$1 billion to assist in implementation (Chachiua and Malan 1998; Alden 1995), one of the first priorities being demobilization and the creation of a new Mozambican armed forces containing soldiers from the two warring parties. UN peacekeeping played a critical role in overcoming the security dilemmas during the implementation process (Walter 1999). 5 Frelimo's decision

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to accept a large UN military presence marked a major breakthrough in the negotiations. Equally important was the creation of the joint cease-fire commission that provided the opportunity for verification and problem solving. Demobilization, however, was a slow and complicated process marked by regular delays and difficulties in enforcement. More important than the actual reintegration of soldiers into either civilian life or a new security force was the process of creating a credible set of institutions that built confidence in the peace process. UN Special Representative Ajello stated, "I know very well that they will give us old and obsolete material, and they will have here and there something hidden. I don't care. What I do is create the political situation in which the use of those guns is not the question. So that they stay where they are" (cited in Hall 1994, 24). The international community recognized that buildingRenamo up to become a viable partner in the peace process was a condition for successful implementation (Manning 1998). Ajello stated that "it was necessary to help Renamo to achieve a minimum level that could allow the functioning of the whole mechanism" of the peace agreement (cited in Chachiua and Malan 1998, 22). Renamo insisted that there could be "no democracy without money" (Vines 1996, 146). After initial concerns from donors reluctant to fund a party with a particularly brutal reputation, a $19 million fund was established to help Renamo transform itself into a political party. In addition to financial inducements, the international community worked to "socialize RENAMO into the rules of democratic competition, and to make its legitimacy contingent on fulfilling its commitment to peace" (Stedman 1997, 41 ). During the course of the talks and implementation period, Renamo was transformed from an insurgent force characterized by some as the Khmer Rouge of Africa into a political party capable of winning a substantial number of votes. The new political party marginalized a number of its military leaders and came increasingly under the control of civilians (Manning 1998). Mozambique demonstrates that the way in which disputes relating to electoral administration are managed can provide the context for building new institutions and norms that promote the demilitarization of politics and increase the chances of an effective postconftict election. The Rome Peace Accords left many issues relating to the elections vague and subject to decisions made by the parties through the commission for supervision and control. A series of controversies between Renamo and Frelimo over the composition of the national elections commission (CNE) in particular contributed to the postponement of the election. After a series of discussions and with the active involvement of the UN special representative, the parties reached an agreement on the composition of the CNE. Frelimo won ten seats, Renamo won seven, and other political parties won three. The partisan balance made efficient decision making difficult but increased the confidence of each party in the process. Over time and under the leadership of the Brazao Mazula, its independent chair, the CNE developed a reputation for nonpartisan decision making (Synge 1997). For example, when Renamo leader Dhlakama charged fraud and announced a boycott of the election, the Renamo representatives on

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the CNE joined their colleagues in rejecting his charges unanimously. Unlike the cease-fire commission and other commissions that included international actors along with representatives of the parties, the CNE was an independent and wholly Mozambican organization. After its leader threatened to boycott the elections at the last minute, Renamo accepted the election results despite losing the 1994 vote. Joaquim Chissano, the candidate for Frelimo, won 53.3 percent of the vote for president while Afonso Dhlakama, the Renamo candidate, won 33.7 percent. Frelimo also won 129 (52 percent) of the seats in parliament whileRenamo won 112 (45 percent) in the 250seat assembly. Each party won five of the country's ten provinces. Turnout was 87 percent (Vines 1996; Lloyd 1995). Unlike in South Africa where Nelson Mandela had provided his opponents with seats in the cabinet, Chissano refused to provide Renamo with any positions, despite Renamo's majority share of the votes in five provinces.

Postsettlement period Following the 1994 election Renamo accepted its position as the opposition and participated actively in parliamentary debates. The party seemed to calculate that if it played by the rules of the game, it could prosper. In 1998 Mozambique held municipal elections as part of a process to decentralize political power and institutions. Renamo chose to boycott those elections, arguing that it did not trust the new electoral commission and that the local offices would hold little effective power. A number of independent candidates did compete and won some seats in a number of the major cities (Blacken and Lyons 1999). In 1999 Mozambique held its second set of national elections. Renamo competed but again lost to the incumbent Frelimo party. As in 1994 Renamo alleged fraud but accepted the results and took up their seats in the parliament. The peace process in Mozambique represents a case where a hurting stalemate on the battlefield, accentuated by the additional hardship of drought, created a moment when the conflict became ripe for resolution. This ripeness was reflected further in the pressures on both warring parties from civil society (particularly church groups) to end the war, as well as growing problems within both parties unable to provision their armed forces that were nearing collapse. This ripe moment resulted in a well-managed and supported set of talks in Rome that included elements both of problem solving and distributive bargaining. The two parties eventually recognized that the moment was ripe not only for a cease-fire but also for the creation of a new set of institutions that would provide opportunities for a broader peace. The two parties recognized an opportunity to make a settlement that protected their most vital interests and allowed them to transform their competition on the battlefield into competition for votes in free elections. This mutually enticing opportunity for improved relationships was possible in part because of effective third-party assistance in the peace-implementation phase and in part because the transition was structured around a series of joint decision-making bodies that put in place new institutions and norms to effectively demilitarize politics.

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Mozambique continues to struggle with severe poverty, a growing sense of frustration at the slow pace of change in much of the country, crime fed in part by the ready supply of small arms in the aftermath of the civil war, and the shocks of floods and other natural disasters. Nevertheless, to date, the agreement signed in Rome has held.

Case Comparisons The cases can be compared in terms of the profiled aspects of the negotiation with special attention being paid to the process, outcome, and postsettlement periods. Interestingly, the postsettlement period in each case largely reflected the way the negotiations were conducted. The 1994 cease-fire talks in the Karabakh case fit the profile of a normalization negotiation toward a backward-looking outcome that provided a durable agreement to stop the fighting. The competitive or rivalrous process, evidenced by the statement-coding results, continued through the postsettlement period, and was aggravated further by the roles played by the various third parties. The 1992 Rome agreement in the Mozambique case fit the profiles of an innovation and regime negotiation and concluded with a durable political settlement, a forward-looking outcome with constructive but not retributive justice, and a comprehensive peace mechanism. The relatively cooperative process, evidenced by the statement-coding results, continued through the postsettlement period and was bolstered by the emergence of an accepted electoral system. Of note, in particular, are the large differences between the cases on the four process dimensions: differences (in terms of scale units) of 1.71, 1.37, 0.90, and 1.15 respectively (compare tables 13.2 and 13.3). A rounded average of -2 (very competitive) on three of the four scales of the Karabakh case contrasts with a rounded average of 0 (neutral point on the competitive-cooperative dimension) on three of the four scales for the Mozambique case. Although it is difficult to argue for causality, these data suggest that the negotiation process and the orientations or approaches taken by the negotiators influenced, or even precipitated, the postsettlement relations among the parties which, in turn, paved the way for the societal changes that did occur (Mozambique) or did not occur (Karabakh). The intertwining of negotiation process and relationship among the parties makes it difficult to specify directionality. It does not, however, make it difficult to regard the negotiation process as being diagnostic of an interparty relationship that extends into the postsettlement period.

Lessons Learned and Further Research The analysis of Karabakh and Mozambique suggest several lessons about relationships among negotiation processes, outcomes, and the postsettlement period. The

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following lessons can also be regarded as hypotheses to be evaluated in further comparative case analyses. 1. Hurting stalemates motivate parties to seek settlements that reduce the costs of warfare. To the extent that the settlements sought are limited to security matters, the negotiation process is less likely to address issues that can lead to a resolution of the conflict. 2. The negotiation process provides opportunities to address the political issues that divide the parties. These opportunities are more likely to be seized when the parties adopt a problem-solving orientation toward the discussion. They are less likely to be sought when the parties' orientations are distributive. (By problem solving we refer to a cooperative process in which parties search for information about each other's interests and values. By distributive we refer to a competitive bargaining process in which the parties use tactics designed to win a contest.) 3. Third parties can play a critical role during the negotiation. To the extent that they encourage the parties to adopt problem-solving orientations, they contribute to creating the conditions for resolving the political issues that divide them. To the extent that they attempt to manipulate the process to serve interests other than conflict resolution, they create (or reinforce) the conditions that perpetuate the conflict. 4. Third parties are also critical during the postsettlement implementation period. To the extent that their involvement is conditional on achieving outcomes that serve their interests as distinct from conflict resolution, they encourage the parties to adopt a distributive orientation that is likely to perpetuate the conflict. To the extent that their involvement is not conditional on serving their own interests as distinct from conflict resolution, they encourage the parties to adopt a problem-solving orientation that is likely to facilitate the discovery of solutions to the conflict. 5. Political agreements are more likely to be sustained if the parties create institutions or establish regimes. As parties and relationships evolve in the context of the settlement, an institutional context capable of managing conflicts that arise and reinforcing problem-solving orientations is needed. The institutions reinforce the agreements that in turn serve to perpetuate the institutions in a circular manner. One path toward durable political agreements takes the following form: Cooperative (integrative) orientations-+ problem-solving negotiations-+ political agreements-+ cooperative regimes -+ supporting institutions -+ cooperative (integrative) orientations The parties' (including third parties') orientations facilitate the negotiations and contribute to creating the conditions that sustain the agreements.

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The kinds of lessons drawn from our analysis reflect the methodological approach used. The contrasting orientations (competitive and cooperative) and processes (distributive and integrative) emphasized by the lessons derive from our decision to compare contrasting cases in the tradition of the most different systems design (Faure 1994). An advantage of this approach is that it establishes exemplars, similar to ideal types, for comparison with other cases. A disadvantage is that it precludes verifying the sort of causal paths suggested in the final lesson learned above. For this sort of hypothesis testing, we would perform a focused comparison in the tradition of the most similar systems design. Another shortcoming is that the findings may be limited to the chosen cases. A more robust analysis would consist of aggregate analyses of many cases sampled from a known universe of conflicts that resulted in settlements or resolutions. The development of a theory about relationships among negotiation processes, outcomes, and the postsettlement period would benefit from these alternative research strategies. They are suggested as next steps in research on this topic.

Notes I. The authors acknowledge the researchassistanceofCynthiaG.Irmer, Naomi Baden, Aly I. Jamal, and Jamal Najjab. 2. Ikle's (1964) description of normalization consists of a focus on: termination (by a cease-fire, truce, or resumption of diplomatic relations) of the abnormal; the strong influence of the situation at the time of negotiations; the potential for the stronger party to win by force instead of negotiation if the talks are prolonged; and continuation of fighting or subsiding of fighting by tacit truce if no agreement occurs. 3. Ikle's (1964) description of innovation consists of a focus on: new institutions or other arrangement of mutual interest; the inducement of mutual benefits; the possibility of interest in innovation shifting from one side to the other when negotiations are prolonged; and the status quo continuing if no agreement occurs. 4. Note the difference between the most different systems design (MDSD) and the most similar systems design (MSSD). The latter, MSSD, matches cases in terms of their similarities in order to perform a focused comparison. Matching is done as a means of control in order to reduce threats to internal validity, similar to experiments. The former, MDSD, is usually performed with a large number of heterogeneous cases in order to provide a robust test of hypotheses but can also be performed with a small number of cases as in this analysis (see Faure 1994). 5. Walter (1999) suggests that international "guarantees" explain the success of the Mozambican peace process. We argue here that a set of institutions and processes put in place during the implementation process succeeded in demilitarizing politics and creating a new institutional context for successful transformation of the structures of war into the structures of peace. For more, see Lyons (2002).

Part IV: Conclusions

Chapter 14

Looking Forward and Looking Backward on Negotiation Theory I. William Zartman

The findings of the cases outlined in the preceding chapters may be inconclusive either because they are limited in number or not fully representative, but they are at least clear. They show that forward-looking outcomes are closely related to success in negotiating conflict settlements and that backward-looking efforts bring failure. Before exploring this conclusion in detail, however, it is worthwhile examining the notion of success. Success has been the subject of much academic debate lately, largely because of the need to make a clear yes-no judgment for the purposes of quantitative methodology (Walter 2002). Methodological impositions on the matter of nuanced judgment and phased definitions have driven the debate into unreality as well as into healthy reconsiderations. One conclusion of the discussion is that agreement alone is not a sufficient mark of success although, in the process, the importance of agreement as a necessary ingredient in success has often been overlooked. While the subject of conflict termination without an agreement is a worthy one for research, it does not tell much about the requirements of effective negotiation. Agreement is prima facie evidence, a necessary but not a sufficient condition for successful negotiation. Growing scholarship has, however, emphasized that agreements are not self-implementing and that implementation is therefore a complementary element that is also necessary for success (Hampson 1996; Walter 2002). The debate then turns to duration, where it gets lost in numerical details to the exclusion of more substantive elements. A given period of time without a return to violence may be a minimal measure of success in negotiation, but that period may 289

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also contain sublimated conflict, preparations for the next round, and a status quo frozen in management (Fortna 1998; Werner 1998). In addition to the procedural measure of duration, a more judgmental substantive element of transformation needs to be taken into account, an element admittedly more difficult to quantify than time (even if one could agree on its length). All these elements-agreement, duration, transformation-need to be considered individually to render a threestaged evaluation of success, not a single yes-no judgment. By these counts all the conflicts considered here except (the current situation in) Cyprus and Palestine, have been subject to a final negotiated settlement. Cyprus, though settled once by negotiations in 1960, fails on the second test; and Palestine made a major step toward settlement at Oslo in 1993 which also subsequently failed. Alone among the cases, France-Germany did not reconcile through a single negotiated agreement, but their specific reconciliation involved a number of agreements along the way that are still in course. All agreements, apart from the above two, also pass the test of duration, whatever the length of time chosen. A few, however, have not assured their durability (despite the impressive numbers) by effecting a meaningful transformation of relations between the conflicting parties. Westphalia, Vienna, the Austrian State Treaty, Mercosur, the Peru-Ecuador treaty, South Africa, and the Mozambique agreements all changed the relations among the parties and installed a new regime within which the parties could cooperate. The Egyptian, Jordanian, and Nagorno-Karabakh agreements, different in nature, have held for respectable periods of time but have effected no transformation of the relations between the parties, even though the two Israeli treaties with Egypt and Jordan resolved specific bilateral issues and grievances on borders and other matters. It would be inaccurate in any of these three cases either to count the negotiations as a failure or to ignore the distinction between conflict management (Nagorno-Karabakh) or minimal settlement (Israeli treaties) and full forward-looking transformation. The negotiations need to be judged for what they are and what they produce, and not be assigned a single pass-fail grade. Against this background clear conclusions can be drawn about the relationship of forward- and backward-looking negotiations to process and to success, variously judged. The small number and large variety of cases from which these conclusions are drawn do not limit their validity; they merely set up initially supported hypotheses that other studies can test further. First, there is near unanimity that backward-looking negotiations are unable to reach a conclusion and only reiterate the conflict in diplomatic terms, as "war by other means." As long as France and Germany, and the parties to the Thirty Years' War and the Napoleonic Wars before them, continued to look for accountability and punishment and maintained their just rights in their relationship, no settlement was possible. Similarly, as long as the occupying powers of Austria demanded reparations and restitution for Austria's war crimes as the basis for a state treaty, no agreement could be achieved. As long as the Arab states and Israel resolutely looked backward and remained anchored in what the former expressed as

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"the three no's of Khartoum" (1968)-no recognition, no negotiation, no peacethe negotiation remained at the same dead point of twenty years earlier; and this situation was repeated in the same backward-looking refusals of "no recognition" of Israel by the Palestinians and vice versa. In Karabakh the Armenians and the Azeris, two peoples heavy with past grievances, focused on these to the exclusion of any agreement, much as the Greek and Turkish Cypriots-and behind them the Greeks and Turks-have done since the independence of Cyprus in 1960. In Mozambique too, the Frelimo government and the Renamo rebellion harped on about their grievances against each other and wondered why the other side did not admit its guilt, thus producing no effective negotiation. In South Africa the two sides long focused on past grievances-the first move of the National Party was to offer to trade renunciation of violence by the African National Congress (ANC) as the price for Nelson Mandela's release from prison, an exchange that was rejected because it focused on the past rather than on the solution of common problems. Finally, Ecuador and Peru moved nowhere in their border dispute because each based its position on the legalities of its past title, to the point where Peru even denied the existence of Ecuador as a party at a crucial moment. The record is striking. When parties base their position on a repetition of their past grievances, their past legalities, and their demands for reparations and punishment, negotiation is, in fact, war: an attempt to eliminate the other party by another means, not the search for a solution. As Abu Ala' a said at Oslo after the initial exchanges of grievances between the two sides, "Let us not compete on who was right and who was wrong in the past. And let us not compete about who can be more clever in the present. Let us see what we can do in the future" (Elon 1993). Moreover, Uri Savir (Savir 1998) recalls telling him, "I'm sure we can debate the past for years and never agree. Let's see if we can agree about the future . . . . We had arrived at our first understanding. Never again would we argue about the past. This was an important step, for it moved us beyond an endless wrangle over right and wrong. Discussing the future would mean reconciling two rights, not readdressing ancient wrongs." Failure to turn the back on ancient wrongs has meant that present wrongs have also piled up in the decade since Oslo. Second, there is also heavy evidence in support of the reverse proposition, that forward-looking negotiations lead to a resolving outcome. The numbers are not as overwhelming as in the first case; some of the instances studied did not end in an agreement and are thus not available to test the second proposition. In Westphalia it was the provision of a new state regime that allowed the parties to overcome their three decades of conflict, while at Vienna it was the creation of a new interstate regime in Europe that ended the one decade of war. In the Austrian case it was the provision of a new status for the country that opened the way to a successful conclusion to the negotiations; in Peru-Ecuador it was the agreement to substitute future development for past litigation as a formula that made resolution possible. Similarly, a new common trade status, the Common Market of the South (Mercado Comun del Sur-MERCOSUR), allowed Argentina and Brazil to begin

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measures to overcome their past rivalry and to turn their attention to building a common future. The French and the Germans consciously negotiated the spirit and institutions of future cooperation to replace the heritage of their past animosities, and it was the concomitant growth of Europe that allowed the two neighbors to constitute the Paris-Bonn axis of their common project. In the same way, black and white South Africans built a new political system together, working out new institutions to replace the deadlock to which the old system had led them, just like the Mozambicans who transformed their wars into political competition. In the process both countries by no means removed all their old grievances but rather used their new political mechanisms to work them out. In a few cases the results are more limited, sharpening the message. In Karabakh the warring parties arrived at a cease-fire that has held for nearly a decade; but as they never turned to building future relationships, the basic conflict continues. Egypt and Israel settled their past grievances in their territorial and security settlement, but they prevented themselves from consummating that backward-looking basis with forward-looking relationships; both parties remain frustrated, disappointed, embittered, unable to move ahead. In Bosnia many parts of the Dayton Agreement were backward-looking, reifying the ethnic divisions of the country while consolidating the existence of one country. Other aspects did, however, provide mechanisms-courts, elections-with room to grow into dispute-settlement institutions for the future. Third, in some settlements, long-range peace was achieved and backwardlookingjustice was set aside, usually as the price for peace. In the Austrian State Treaty the very basis of the agreement that finally made a treaty possible was the ending of reparations for past injustice; the provisions for a future status on which peace could be built then became possible. Between Ecuador and Peru, the justice of past legal claims was pushed aside in favor of the construction of peaceful relations. Argentina and Brazil provide a clear example of superordinate values as they shift from the pursuit of justice to the creation of welfare as the cooperative basis of peace. In the Middle East the peace treaties of Israel with Egypt and Jordan dwelt little on justice as accountability, except for the justice of the recognized frontiers, and focused on mechanisms for keeping the peace in future relations. In Mozambique the pursuit in justice of the perpetrators of the awful crimes of the past insurgency was put aside in the settlement, and instead forward-looking mechanisms were provided-notably in the provision for elections-to implement justice in the future as the basis of the peace agreement. In an equal number of cases, however, while the focus was on forward-looking peace agreements, justice was not forgotten. Instead, its provision under controlled conditions was the doorway to acceptance of the agreements. Between France and Germany, the very basis of the post-World War II settlement was to eschew the harsh justice that followed the previous world war and Jed to its successor. The peace of reconciliation was made possible, however, by the use of various forms of justice, from the Ntirnberg trials to settling accounts with collaborators, with many

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national measures in between, although the collective responsibility of Germany still remains debated. In South Africa peace was achieved in part through the Truth and Reconciliation Commission (TRC), designed to assuage feelings of past injustice and replace the need for retribution. Again, the provision of a mechanism for both justice and reconciliation made peace possible, even though the satisfactoriness of the mix continues to be challenged by some. In Bosnia the establishment of the International Criminal Tribunal for Yugoslavia two years before the Dayton agreements freed the negotiation process from the need to deal with retributive justice and was explicitly accepted by the parties (probably with crossed fingers) in the agreements. In this case justice was a condition of agreement for the mediator rather than for the parties. In contrast, in a number of cases, as noted in the second conclusion, the inability to meet demands for justice has blocked the construction of peace. IsraeliPalestinian relations remain mesmerized by the burden of injustice, exacerbated in the new millennium by the injustice compounded by Israeli and Palestinian terror. At a lesser level of violence, Azeri-Armenian relations remain blocked by single-minded insistence on conflicting demands for justice over territorial and population claims, although the conflict-management measure that brought the 1994 cease-fire has lowered the costs of the conflict without bringing resolution. Similarly, in Cyprus, the pursuit of justice has not been put aside, to date, in order to achieve lasting peace. Fourth, by extension, in notable cases where a forward-looking outcome was finally achieved, the forward-looking establishment of a new relationship rested on the settlement of some very basic backward-looking elements of both peace and justice. A number of these cases could move to resolution and even transformation because minimal peace was agreed to and observed. Only at Westphalia, Vienna (in a sense), and Dayton was peace the result, not the precondition, of negotiation; the other settlements followed-sometimes at a considerable distance-the end of combat, and even in the three exceptions mentioned, combat was much abated when the talks began. Once an end to the fighting had been established, a number of cases were resolved, but only because forward-looking provisions to deal with the underlying causes of injustice formed the basis of the agreement. This is a much broader provision than the previous, where the matter of retribution for past injustices was dealt with; the present conclusion points to the need for a forward-looking revision of the entire system so that injustices perpetuated in the past would no longer be possible in the future. Peace would not have been achieved in South Africa if the racial majority had not been brought into political control in exchange for the white minority's preservation of its economic and social position. Peace would not have been achieved in Mozambique without a recognition of the equal standing of the parties before the elections tribunal as the just solution. The Camp David agreements and the Washington treaty between Egypt and Israel were based on achievement of Egypt's primary goal, the reversal of two decades

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of Israeli occupation of the Egyptian Sinai, which Egypt paid for with the establishment of peaceful relations with the former occupier and only token linkage to the continued occupation of Palestinian territory (Telhami 1990). The formulas for these agreements embodied a solution of justice, establishing a new basis of relations, and were paid for by compensating the concerns of the conceding party. They were not based on a backward-looking notion of justice as accountability or retribution. Even in cases such as Peru-Ecuador, FranceGermany, and Argentina-Brazil, the formula for the agreement was the establishment of new relations on the basis of equal respect between parties constructing a forward-looking cooperation, a positive-sum notion of justice replacing a zerosum notion as the grounds for peace. In sum, the establishment of a new relationship is the essence of forwardlooking outcomes. 1 Relationship is a positive concept (there are also negative relationships-such as conflict relationships-but a different word should be reserved for those). One of the dictionary definitions of the word relationship, "a state of being mutually or reciprocally interested," comes close to a notion that contains interdependence, interaction, cooperation, collaboration, mutuality, respect, and predictability in dynamic patterns of dealings between parties. Different forms of a relationship apply to different situations. They can comprise regular occasions to interact and cooperate, mutually profitable interdependencies, mechanisms for handling future conflicts, and growing norms on mutual dealings. Relationships as forward-looking outcomes are not just soft feelings, however, but must be institutionalized to provide regular, reliable norms and expectations that impede future conflict. The new international systems established at Westphalia and Vienna, the Austrian State Treaty, the European Community and then Union, the Common Market of the South, and the new political systems in Bosnia, Mozambique, and South Africa are all cases-more imperfect in some instances than in others-of specific institutions containing both frameworks for cooperation and mechanisms for handling future problems.

Relation to Process It is clear that in many cases forward-looking peace and justice have been achieved by ignoring demands for backward-looking justice, and that in other cases provisions for handling backward-looking justice have been the price paid for the establishment of forward-looking outcomes. What variables might explain this difference? France-Germany and South Africa were cases where the specific provision of some forms of retributive justice was present to make the reconciliation and other aspects of the forward-looking agreement possible. These provisions were part of the negotiation process and of the satisfaction with which the parties greeted the settlement. That there was not more of a backward-looking focus was because

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of the conscious decision and general attitude of the parties who sought to look forward in establishing new relationships-a truly transforming approach to the conflict. So the questions become: How was such an approach instilled in some cases and ignored in others? And also, how could such an approach become so pervasive that it excluded insistence on settling past accounts? In all the forward-looking cases, such as Austria, Mozambique, Brazil- (and then Chile--) Argentina, Peru-Ecuador, Israel-Egypt, Israel-Jordan, and the Oslo phase of Israel-Palestine, the decision was made ahead of time, or at the beginning of the negotiations, to shed a zero-sum mentality and look ahead rather than backward. Thus, it was a state of mind or strategic approach by the parties that allowed the construction of positive relationships, rather than these relationships' growing out of the dynamics within the negotiating process itself. The parties came to a decision (or internal factions with the decision already made came to power) that peace could not be achieved through the exclusive pursuit of past grievances and that such a pursuit was counterproductive, bringing neither retributive justice nor peace. A new tack was needed. The phrase itself suggests that time on the "old tack" was required to bring this lesson home, both in the conduct of the conflict and in the approach to previous, unproductive negotiations. The turn to forward-looking outcomes did not prevent concern over the achievement of justice in the new relations or the attainment of absolute gains for the parties, as seen, but it prepared for the establishment of new mechanisms and relationships as the path to those gains for both parties. It also saw a new regimeunification and neutrality in Austria, multiparty elections in Mozambique, normal interstate relations with Israel for Jordan and Egypt, cooperation in development for Peru-Ecuador and Brazil-Argentina, and even unity in separation in Bosnia (under pressure)-as preferable to continued violent conflict for rights and justice. As presented, the stories only suggest how this change in attitudes came about or how the initiator communicated a change of heart to the other party. Some standard answers do apply, however. In most cases-Middle East, Northern Andes, Bosnia, Mozambique-new, forward-looking attitudes came from the mediator, who, tired of the continual recurrence of debilitating violence, called on the parties to search inside themselves for a better instinct as an entry to a better future (Zartman 2000a). Tired too, responding to a realization of ripeness, the parties responded, awkwardly, unevenly, variously; and together mediators and parties moved into the exercise of crafting a future. In other cases-Westphalia, Vienna, Austria, France-Germany, Mercosur, and, curiously, South Africa-one or more of the parties saw recent gains that it wished to preserve against impending loss and so enticed the others into negotiations that would preserve their gains or at least protect them from further losses. In the seventeenth century the French, Dutch, Spanish, and Swedes all edged each other into negotiations to keep from losing more in the incessant war under the pressure of an all-around hurting stalemate, the French hurting a bit less than the others. In the early nineteenth century the cost of war and the gains of the

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allies upon the defeat of Napoleon turned them from war into a "pacted" protection against loss. In the mid-twentieth century the "four men in a jeep" in Vienna turned to a null-possession formula of neutralization to protect against loss when reparations and separate suzerainties proved unattainable. At the same time France and Germany discovered the need to change their attitudes toward each other in order to protect themselves against a repetition of the losses of 1812, 1870, and 1917; the notion of making gains together then followed naturally but separately. Moreover, at the end of the century the white minority in South Africa suddenly came to its senses and sought to keep its socioeconomic position by giving up its political dominance (Zartman 1995a), while the South American neighbors brought to fruition a series of attempts to make new economic gains together. In line with the teaching of prospect theory (Farnham 1994), all but the last show attitudinal changes designed to avoid losses or protect recent gains, rather than to achieve new gains; perhaps the exceptional nature of Mercosur explains its still-slow progress. Others, who have never or not yet gotten to forward-looking outcomes, like the Israelis and Palestinians have rushed into a mad cycle of imposing losses on themselves, and incidentally on each other, oblivious to the gains they could produce together, acting not only against any prevailing theory but also against all common sense. Perhaps more insightfully, one-sided gains in Cyprus, favoring the Greeks, and in Karabakh, favoring the Armenians, provided no incentive for either the stronger or the weaker to put an end to conflict and seek forward-looking negotiations. As the sides refused to feel any impelling pain in their situation, mediation attempts in all three cases had no purchase on the conflict and could not bring about the necessary attitude change. In process terms, how did the change in attitudes, when it occurred, translate into a succession of events? Seven steps can be outlined. Although they are termed "steps" their sequencing is only approximate and may vary according to the type of case. They begin with two backward-looking steps, the first of which is mutual recognition. Mutual recognition implies an acknowledgement between the parties of each other's existence; there are also some deeper meanings, including acknowledgement of the moral equality (though not necessarily the equality in terms of power) of the other, of the dignity of the other, and even of the wounds of the other and the other's role in their cause. While this beginning is already assured in many cases, its absence in others-and perhaps in some surprising cases-has stopped productive negotiations cold. The famous remark of Prime Minister Golda Meir, "Who are the Palestinians?" in response to the Palestinians' refusal to recognize Israel is a clear denial of mutual recognition that prevented any negotiations until 1993 at Oslo. The majority in South Africa were regarded as noncitizens or lesser people under apartheid, making justice their only focus and violence their only means. Probably the most surprising but telling case was the Peruvians' clincher in their argument over their border, that neighboring Ecuador had no standing in court because "it didn't even exist," the arrangements in question

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having been made with Gran Colombia to which Peru claimed that Ecuador did not accede. Parties that do not exist find a hard time being heard in their calls for peace and justice. The second step is an end to the .fighting, a backward-looking outcome. Immediate peace must precede justice and is a precondition for it. There are two sides to that relationship: the implication is that peace comes first but that it contains the promise of justice. Peace is not unrequited disarmament but a down payment on the resolution of the problem, as violence is a means of attaining attention and justice. Full peace can come only as a consequence of the mutual recognition of grievances, the necessary second step after the mutual recognition of parties that begins the process. Furthermore, peace as the promise of justice cannot come in such a way as to preclude attention to justice later on. In all the successful cases presented (except Palestine and Cyprus) peace came first. Yet neither the conclusion nor the examples are as neat and clear as one might think. There are important exceptions in detail to the rule. For one thing, peace cannot be seen as absolute. It is entirely rational-and, indeed, may be a sign of seriousness of intent-for parties to resort to tactical violence during peace negotiations as they try to improve their position on the margins in moving toward a final agreement (Darby 2001, especially 532-53). The line is fine but it emphasizes the fact that occasional violence must not be used as an excuse to break off negotiations. Again, one must observe carefully the source of the disruptive violence. In some conditions of conflict, such as internal wars, the negotiating party may have uncertain control or poor communications with all of its lieutenants. Or violence may come from dissident factions contesting the very policy of negotiation and seeking to disrupt it. The negotiating parties should not let themselves be seized as allies by spoilers (Darby 2001, 54-57). Finally, sharpening a previous point, parties-and particularly unequal parties-cannot be expected to give up their means of struggle without knowing the outline of what they are giving it up for. Carried to a certain point this last "detail" may deny the principle: unlike all the others the Dayton accords were a cease-fire agreement, not the product of a ceasefire, reversing the preferred sequence, since the shape of the Bosnian state was negotiated before the fighting actually stopped. It is still not clear when this reverse sequence is preferable to the general rule. The third step involves a change of attitudes and a critical shift from negotiations focused on the conflict to those designed to create positive relations, from backward-looking to forward-looking agreements. Conflict involves negative attitudes between the parties; recognition replaces these with mutual attitudes that are at least neutral, but forward-looking outcomes require positive attitudes. The previous steps involve getting the conflict off the agenda; the turning point concerns getting the postconflict matters back on the agenda in a new and broader way. It should be remembered that in talking of "parties," the reference is not simply to a leader or a leadership group (often itself divided into hawks and doves) but also to

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the public behind them, which they have used for support during the conflict and now again need for support during the forward-looking process. Thus, changes in attitudes require both a "teacher-training" and a "public-education" process. The shift from negative to positive feelings cannot be accomplished without a transition; in order to discover reasons why they can work together, the parties first have to get over the reasons why they fought each other. This can be a longrange task as was carried out within the new types of states in seventeenth-century Europe, within twentieth-century France and Germany, or in the communities of South Africa as they nurtured new relations; or it can be a shorter-term policy decision as among the "big four" occupiers of Austria or the three cooperators of Mercosur. In the absence of such a decision and broader policy engagement, the first two steps remain of limited effect, successful perhaps only in looking back on the conflict. Thus this step has been absent between Armenia and Azerbaijan, between Israel and Egypt, between Israel and Palestine, generally absent among Bosnians, and perhaps Jess so between Israel and Jordan. The fourth step involves the establishment of institutions for constructing a new set of relations and mechanisms for handling future eruptions of conflict. It has two components. The first, involving the new political system (state, regime, international system) is designed to embody the new relations overcoming the causes of the previous conflict. Within this is the second component, the morespecific provisions (courts, commissions, security forces, other special arrangements) for dealing with a recurrence of the conflict. The first is broadly aimed at prevention, the second at management. Together, they make up the core of forward-looking provisions in an agreement and set the stage for conflict transformation. The range of new systems is as broad as the spectrum of cases studied, and the perfect formula depends very much on the particular type of conflict and injustice to be overcome. In the aftermath of the Thirty Years' War, the Napoleonic Wars, and World War II, a new interstate regime was required to overcome the problems at the root of the conflicts. In the southern cone of Latin America, it was an economic regime, much like the very early stages of the post-World War II European settlement which laid the cornerstone for the new relationship. A similar new regime may have been necessary to eradicate the problems in the Middle East, but all that was available (because of the partial, bilateral nature of the settlements) was a set of border treaties. A new bilateral relationship was all that was required in the Peru-Ecuador case, and even that was unattainable in the Armenian-Azeri case. In many of the other cases-Austria, South Africa, Mozambique, Bosniathe new political system was an intrastate matter, and even that was unattainable in Cyprus. Similarly, the conflict-management mechanisms for future conflicts vary just as greatly. Elections and other participatory governmental institutions were important in South Africa, Mozambique, and Bosnia (Reilly and Reynolds 2000), courts in Bosnia, joint commissions on the River Jordan, the system of conferences and

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concerts after Vienna, bilateral coexistence and security committees and a trade commission in the Andes, and a growing panoply of institutions in the European Community and then Union. Commentators on Mercosur noted the absence of dispute-settlement mechanisms; no special provisions were made or probably needed in Austria. The fifth step, close in time to the fourth, is the erasure of damage. To complete the elimination of the conflict, the notion of impunity must be eradicated: for the sake of their victims and as an adjunct to future conflict-management mechanisms, the perpetrators of violent excesses must not be left to feel they can get away with them. The debate still continues as to the appropriate form of accountability and the appropriate mixture of accountability and forgiveness in conflict transformation (Hayner 2000; Zartman 2000b). There is a two-step process involved-atonement or the acknowledgement of responsibility, and the request for pardon and response of forgiveness, the two elements in the Truth and Reconciliation Commission popularized by the South African experience. The human mind contains two counterbalancing proclivities: one to demand revenge and a settling of scores for injustice, and the other to forget and erase memories of past atrocities (McNally 2003). The second runs to the point of blanking out traumatic events, replicated in traditional societies by efforts to clear the record of tears in the social fabric. While such erasures-at best-are never complete and tend to leave scars when wounds heal, they do indicate a human desire to get on with life. Indeed, revenge itself is a matter of evening the score or leveling the field again, of removing the injustice, and mechanisms of accountability are a means of establishing normatively acceptable replacements for revenge. In asymmetrical endings to conflict, the issue of accountability is inevitably in the hands of the victor, but it must be established in such a way as not to prevent further forward-looking reconciliation. International norms on accountability still show enormous variability and only slow evolution to the kinds of standards present in domestic criminal law and traditional customary practices. 2 The path from Napoleon's exile through the Ntirnberg trials to the international criminal tribunals on Yugoslavia and Rwanda and eventually the International Criminal Court is jagged and bumpy, and it does not run through Mozambique, Israel and Palestine, or Cyprus. TRCs in various forms have become parts of peace agreements and postconflict processes beginning with Algeria in 1983 and going on to Peru, Sierra Leone, Liberia, El Salvador, Rwanda, Guatemala, as well as South Africa, and called for in Algeria, Israel and Palestine, and Congo, among others, although the best form is still not a matter of consensus. Popular wisdom maintains that senior officials should be held responsible and common folk should be forgiven, but such practices are scarcely universal and the line between the two is uncertain (as recent efforts to hold junior officers as accountable as their superiors in Argentina show). In sum, there is much to be done to work out appropriate measures of accountability in individual cases and

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to standardize these measures into accountability regimes to facilitate, in turn, the creation of individual measures and the elimination of impunity. The sixth step, also requiring much innovation and development, is the recreation of the record of the past to support the reconciliation of the future. The effect of forgetting and atonement comes together in the "work of memory" (Ricoeur 2000; Rosoux 2001) that is needed to provide a social basis for the transformation of the conflict. The history that was written to support the conflict, on both sides, was an instrument of mobilization and conflict for each party; it needs to be replaced by a common history that is both accurate and evenhanded in its factual account and supportive of the efforts of accountability and reconciliation. If the history and imaging of the other party as taught in the educational systems is at variance with the conflict-resolution agreements, conflict-management efforts will rest on a sandy foundation. In the contemporary period, France and Germany, South Africa, and Israel have made notable efforts to redress the nationalist images of their history textbooks; others among the cases presented lag behind. The effort has been captured in many slogans: "Memory makes us, we make memory" (Tonkin 1992); "Remember enough not to begin again, forget enough not to want vengeance" (Maila 1991); "We are the inventors of our past and prisoners of our future" (Zartman 1998). Finally, the guarantee of the transformation is a common project, the outgrowth of the new political system established in the fourth step. A common project means working together, collaborating in a shared destiny so that each party cannot pursue its own programs or even achieve its own identity without the other. It has been frequently noted that the Franco-German reconciliation was not made possible merely by efforts at Franco-Germany reconciliation but depended completely on the construction of Europe. Similarly, Austria normalized its regional relations within the evolving European construction. In a like manner, the end of the Thirty Years' War and Napoleonic Wars depended on the construction of a European state system and the Concert of Europe, respectively. The South African transformation of 1994, as opposed to the limited constitutional dispensations offered in the mid-1980s, embodies a common project under a new political system. Against these positive examples, others among the cases presented stand as yet incomplete. Israel created a set of bilateral relations with its neighbors, Egypt and Jordan, that settled outstanding issues but not a common project of a Middle East security community. Argentina, Brazil, and neighbors have established the legal structure of a common market, but analysts and practitioners alike look to a broadening and deepening of the regime-"Relaunching of Mercosur"-to get beyond the negotiation of past obstacles and dependence on "presidents' diplomacy." Parties in Bosnia and Mozambique have established and followed the rules of electoral rather than armed competition and have cooperated to an extent in the institutions of governance, but they have still not entered in the common project of building state, society, and economy together. Their conflicts are managed but not yet resolved or transformed.

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These stages are "megasteps," of increasing magnitude, dedication, and difficulty. They have room for important feedback effects from each step to facilitate and strengthen preceding steps. They underscore the fact that management of conflicts must contain a promise of resolution or will lead to conflict renewal, and that resolution is incomplete and unstable without early steps toward the ultimate transformation of conflict and consolidation of relationships. They also show that forward-looking goals are achieved by steps, sometimes uncertain in their essential content, unequal in their progression, but necessary one by one. Without forward movement, and forward-looking negotiations to produce it, the parties are certain to fall back into renewed conflict, bereft of peace and of justice.

Notes 1. This discussion builds on the concept advanced by Harold Saunders (Saunders 1987; Saunders 1991; Saunders 1993) and Stedman, Rothchild, and Cousens (2002), but places it in a negotiation rather than a prenegotiation or circumnegotiation process. 2. On traditional practices, see Zartman (2000b).

Chapter 15

Lessons for Practice Victor Kremenyuk

Negotiation is one of the best and most efficient means of conflict management and resolution. It serves as an instrument or tool for those who wish to end a conflict; and it can just as easily serve as a tool for those who wish not to end a conflict but rather switch it from the military to the diplomatic/political domain (Schelling 1960). Negotiation can also be used as a smoke screen, as when those who simply want to create a pause in the violent stage of the conflict negotiate a cease-fire. In all cases negotiation serves as the instrument for handling conflict; the relationship between the two is absolutely clear. That does not mean that negotiation should be treated as an integral part of conflict management. What, in essence, is "conflict management"? It is a certain strategy, a mode of action, whose goal is the acquisition of ways and means of establishing control over a conflict, when and if a conflict happens, of using that control for the purpose of resolving the conflict, and, ultimately, of preventing any possibility of the conflict reemerging (Bartos and Wehr 2001). This is a complicated sum of undertakings which, if devised appropriately, may lead to some sort of stability that guarantees avoidance of another confrontation (always assuming, of course, that another confrontation is unwanted, because if the general strategy changes and conflict becomes desirable, then "conflict management" will mean something totally different). For the purposes of this research, however, the denomination of "conflict management," as outlined, pertains. What, therefore, is the relationship between conflict management and negotiation? First of all there are other means of conflict management and resolution than negotiation; these include third-party intervention, arbitration, appeal to the legal institutions, referendum, and popular vote. All these means or tools are treated as equally important in both the conflict-management process and negotiation. 303

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Second, negotiation is a certain type of human activity with its own area of existence and its own rules of life, and it has become a special occupational area with its own laws and its own mindset. As such it may overlap with conflict management, just as navigation overlaps with shipbuilding; nevertheless, it is still something quite different and should be given its due weight. There is another, reverse side of the same statement. The process of negotiation, its evolution, arrangement, purposes, methods, and other features may become highly dependent on the impact of the conflict-management tasks. In other words depending on the stage and type of conflict management (conflict reduction, conflict control, conflict transformation, conflict resolution), the process of negotiation may change and acquire new and different qualities. The process of negotiation will change in terms of format, contents, and structure in accordance with its actual purpose, "to reduce violence, to put the confrontation within some legal or moral limits, to negotiate prerequisites for the end of conflict" (Bartos and Wehr 2001). The real research task is to distinguish conflict resolution and conflict management from negotiation. Understandably, the terms are interrelated, and they clearly form part of the same political process. Academically, however, they should not be taken as being one and the same thing; in other words, they should not be regarded as synonymous. The aim here is not just the (albeit legitimate) desire to keep the research academically clean; it is also to help practitioners and those engaged in negotiations and conflict management to understand and better use both processes without confusion (Zartman 2002).

The concept of backward- and forward-looking outcomes fits easily into the framework of conflict management. If one imagines moving through the process of conflict management from the most simple and most immediate steps (ceasefire, end of violence), through the various intermediate stages (conflict reduction and conflict control), and then on to the increasingly sophisticated stages (conflict resolution and prevention), it should become clear that the process and format of negotiation will not be the same at each stage. While there will be repetition of some of the general characteristics of the process, there will also be some modification or changes, depending on the stage of the negotiations and whether they concern forward- or backward-looking tasks. In each case the negotiation will have a different and upgraded "super-task" which, of course, will change the contents of the process greatly. The more responsible and more complicated the task that is set for negotiation, the more substantial and profound the measures the negotiators will need to use in order to ensure a swift and fluent negotiation process; for example, mobilization of expertise and financial resources, appeals to interested international and domestic groups and organizations, and the introduction of any necessary changes into the negotiation strategy. For example, within the process of negotiations during the United StatesSoviet accommodation that began roughly after the Cuban missile crisis and

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continued for about thirty years up to the end of the Cold War in 1989-1990, it is possible to identify significant changes. The process started with urgent steps to limit the risks of inadvertent conflict, then extended to cooperation in some marginal areas (not marginal in importance but in location). As a result of the theoretical analysis of negotiations on forward-looking outcomes, the forward-looking approach now exists in reality, and it has already been used by many people on different occasions: partially, totally, currently, and historically. The idea of regarding negotiation as an effort to draw a definite and final line under a closing period in the evolution of an issue, conflict, or controversy is not new, having occurred on a periodic basis to decision makers, especially when a distinctive period in human history was nearing its end. Some cases, such as the Congress of Vienna in 1815 or the Versailles conference in 1919, are well known and have been studied in depth, including in this volume. To put it simply, existing experience in the area of negotiations has already allowed practical recommendations to be developed on conducting a negotiation where the participants share the goal not only of putting an end to their conflict but also of creating a regime to help prevent future conflicts or solve any that should arise. One of the purposes of the authors of this volume has been to try to identify those cases in which the idea of forward-looking solutions has been successful. Of course, in some cases, forward-looking solutions did not bear fruit, and it is the task of the academic to discover why not: was there no intention of obtaining a successful outcome, or was some other motivation at play? The net understanding of the lessons for practice of the whole idea of forwardlooking outcomes can be presented as follows. Negotiations are regarded as completely successful not just when an agreement has been signed but also when (and if) that negotiated agreement is not challenged by any of the participants or outside parties-in other words, when negotiators have managed to conclude a treaty that corresponds to the needs of all parties concerned and that, moreover, incorporates those needs within a workable scheme, the validity of which is agreed by everyone. The success of an agreement can depend on two aspects: the first is the quality of the agreement as such; and the second is the adequacy of its implementation and the compliance with it by the participants. In some of the cases studied in this volume, compliance with a specific agreement was not investigated. What mattered first and foremost was the quality or relevance of the agreement, in other words, its ability to cope with the issues and meet the legitimate interests of the sides concerned; for in some cases an agreement may reflect a balance of forces favorable to one side only, or the ability of one side to win the test of wills and skills at the negotiation (Underdal2002). In every case the test of the validity of an agreement comes only after it is signed, when the true quality of the agreement as a means of resolving the contested issue is revealed. In essence, the concept of forward-looking outcomes is integral to the problem of the quality of agreements and of the negotiation process.

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Because of the nature of this process, and other processes of human activity, it is difficult to work out relevant criteria that could give an unchallengeable evaluation of the quality of performance. The concept of forward-looking outcomes in this case provides a measurement tool and a means of judging the quality of the process and of the outcome. This introduction may explain the logic of the lessons for practice introduced in the text that follows. This is divided into a) the quality of the negotiation and its outcome and b) the preparation for the negotiation, its conduct and its result, especially the implementation stage.

Preparation: Planning and Preplanning Negotiation begins with planning. Planning may have many different aspects. It may mean polishing one's shoes, or it may mean studying the issue at stake in depth. It may mean incorporating someone's cronies into the negotiating team, or it may mean inaugurating a long process of consultations with all parties concerned as well as with any experts whose knowledge may become instrumental in forging a final agreement (Rothstein 1972). Generally speaking, then, the planning for a forward-looking negotiation will mean only one thing: a highly organized process of negotiation preplanning and planning that must take into account, in advance, a possibly comprehensive settlement that will crown the whole process. This, in essence, is what the whole idea of "forward-looking outcomes" is all about: planning for an outcome that will exclude any possibility of rejection or other form of sabotage of the agreement once it is signed. A good example of what is meant by a "comprehensive settlement" is the case of the strategic arms-reduction negotiation between the United States and the Soviet Union. How the negotiation process played out, how all the delicate issues of the balance of concessions were treated, and how the final text of the agreement was achieved are already well known (Hopmann 2002). Left out of the negotiation and the agreement, however, were not so much the verification procedures, which were indeed negotiated, but the technical and financial issues: the payment mechanism for all the operations linked to the reduction in the number of warheads, their storage and protection, and for the reprocessing of the weapons-grade plutonium into low-enriched uranium for power plants. To save the agreement the United States Congress agreed to raise the money (Nunn-Lugar amendment). This interim solution indicates quite clearly that had a forward-looking approach been used for this negotiation, it might have helped avoid the unnecessary financial and technical problems that followed later. From this point of view, a preplanning stage, including perhaps a thorough examination of how best to solve the problem at issue, a possible follow-up, and agreement on the desired solutions, may be the best way of proceeding and the

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best remedy possible for other similar negotiations. When one has to negotiate a complicated problem with numerous offshoots that may play a pivotal role in the development of an important international issue (e.g., arms control and the end of the Cold War), then the best advice would be to start careful planning of the negotiation well in advance, making substantial domestic preparations and undertaking an adequate consultative effort with the other side (Arbatov 2002). The following issues may be dealt with at the preplanning and planning stage: •

• •

• •

Drafting a possible shape for the agreement with all the necessary and desirable elements being included in one consistent and comprehensive text: a single negotiated text (Fisher and Ury 1981 ), for example, the text of the final document of the Law of the Sea Conference (Sebenius 1984) A "prenegotiation" of this text, with the participation of domestic agencies and experts, to identify possible pitfalls, controversies, and trade-off areas An evaluation of possible expense or funding that may follow the agreement and its implementation, and identification of the sources of such funding; assessment of possible technological, propaganda, creative, and similar needs for implementing the expected agreement Identification of possible areas in international law and international relations with which the new agreement, once signed, will interact A diplomatic sounding out, on a formal or informal basis, of the other side's attitude toward both the agreement and its development. In short, the preplanning and planning stages should be used to try to conceptualize the possible shape of the agreement and foresee both the process of negotiation and the follow-up implementation.

If and when something like an acceptable model for an agreement is available, the negotiator may start the usual regular procedure of planning for negotiation, already described in numerous works on the process of negotiation. The preplanning stage should also incorporate at least some effect on the future negotiation process, for example, strategy, possible concessions, or possible domestic agencies that may become international. Of course it is impossible to plan completely for the negotiation process: being a blend of art and science, negotiation can only partly be planned and predicted. The effort will always depend on the creative and improvisational skills of the actors. It is advisable, however, for a skeleton of the future agreement to be known and for thought to be given to possible ways of achieving that agreement and preparing for it.

Realization: Process of Negotiation There are always at least two different approaches to negotiation. The first is the desire to advance an agreement at any cost, irrespective of whether the negotiated

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agreement will work, solve the contested issue, or survive the end of negotiation. This approach should not be treated as shortsighted or overly formal; nor should it be aimed only at the visible goal of bringing personal recognition and career success at the expense of the subject of negotiation. Very often its origin may and should be explained as deriving from the need to achieve any agreement at any cost because the value of successful completion of the negotiation grossly outweighs any possible complexities that may follow. Naturally enough, such an approach and the agreement signed as a result of it very often become exposed to mismanagement or to the inability of both sides to follow it (Ben Dor and Dewitt 1987). The second approach puts the center of gravity in negotiation not so much on the process but mainly on the agreement, its relevance, and its efficiency in solving the controversy. The more negotiation is regarded and treated as a means of decision making, the more the focus of attention in it comes closer to the contents of the agreement and the issues related to its implementation, verification, and the provision of conditions for its performance. Rather often, both approaches intermix because they do not exclude but complement each other. Understandably, the forward-looking approach can be identified with the second approach. Its essence is not simply in emphasizing the primary importance of the agreement; it firmly stands on the position that only an agreement that gives almost a guarantee of success, a virtually one-hundred-percent hope that, once achieved, it really will solve the issue and serve as a tool to control the situation in the future, deserves to be negotiated and consented to. Such an approach, and such an understanding of the purpose of negotiation, clarifies what may be suggested as a lesson for practice. First comes the issue of organizing the process of negotiation. One good example of how a forwardlooking negotiation was organized is the Versailles Conference of 1919. Hordes of experts on different aspects of negotiated agreements-military, financial, economic, legal, geographic, ethnic, religious, and others-were involved and distributed among different groups and subgroups of negotiators. Each group, or committee of negotiators, was assigned a specific task and was involved in indepth work on the basics of a future agreement before these were confirmed by a plenary meeting. This example gives a fair description of what might be the main lesson of the forward-looking method regarding the practice of negotiation: a careful and comprehensive organization and planning of the whole process. All possible aspects of the future agreement discussed and consulted upon at the preparatory stage should now be treated as individual cases for negotiation; they will be discussed by professional negotiators and experts both as individual agreements and as important parts of the general agreement. Special (technical and methodological) means of negotiating the comprehensive agreement should also be introduced. In addition to breaking the agreement down into meaningful parts, other methods can be used, such as computer modeling (as instanced at the United Nations Conference on the

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Law of the Sea), shuttle diplomacy, passing certain highly individual or highly controversial issues over to specific forums, inviting known experts to participate, and confirming successful implementation. In some security-related areas negotiating an agreement without making any provisions for inspection and other forms of verification would be simply unthinkable. First, however, the postnegotiation period does not necessarily mean only procedures of verification (and compliance) but also a much wider spectrum of actions: implementation, continuation of negotiation, inclusion of new members, and finally the creation of a regime. Second, the subject of negotiation must include a strong element of provision for the postnegotiation period, especially for successful compliance with the agreement achieved. Such an orientation can hardly change the essence and dynamics of the process of negotiation. The process will continue to be as it has always been, namely, dependent on strategies and negotiation techniques; only, however, to an extent. The need to introduce a forward-looking approach may overburden the negotiation process, add to it an unusually large number of details, and, finally, complicate the achievement of the ultimate goal. Good historical examples of cases of this type are also included in this volume: the Middle East, for example.

Outcomes: A New Format? The concept of the forward-looking approach puts a strong emphasis on the necessity of reaching an agreement that will not only be protected from aging but also robust enough to withstand external and internal challenges. A forward-looking outcome means, at least, that a negotiated agreement must incorporate as many "safety valves" and other precautions as possible. That will inevitably complicate the process of negotiations and the contents of the agreement; the negotiated text may become overburdened with details which may prove to be stumbling blocks for the process of negotiation but which will nevertheless facilitate implementation, once the agreement is accepted (Underdal 2002). The negotiated agreement, being an outcome of negotiations, should, in essence, reflect the structure of the negotiated problem. As a solution of that problem it should also incorporate all the elements that aim to prevent misunderstanding and growth of uncertainty, as well as ensuring compliance so that the agreement can play its role and fulfill its task. As is well known, a negotiated agreement not only provides a solution to the disputed problem but plays a constructive role of "confidence builder" in the relations between antagonists. Thus, when an agreement provides a sense of cooperation, of mutual interest and perspective, it fulfills its objective and the wider role of a systematizing mechanism. As a lesson for practice, this means that the format of negotiated agreements should change somewhat and become much more substantive; they should bear the stamp of the cohesion ofthe negotiators' interests, their shared desire to solve the disputed problem, at the same time assuring an acceptable future for the agreement

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and a wider relationship. What is new about this approach is the attempt to emphasize the importance of a much more sustained effort in forging the agreement. In a way, one may insist that the traditional format of agreements should be changed and that, as well as solving the contested issue, agreements should be tasked with building up a relationship for further cooperation. This is not something completely new; it is not something that essentially changes the practice of negotiations into an attempt to attain eternal peace, build a concert of great powers, or develop a regime governing some specific area of relations. It does, however, attempt to go further, beyond the immediate subject of negotiations and beyond the agreement on the immediate subject, to use a particular negotiation and a particular agreement either to build a wider relationship that could help solve other contested issues in the same manner as the first or to create a favorable regime for further solution of the specific issue, thereby minimizing possible controversies over it in the future. To achieve all these goals the format of an agreement has to be substantially extended to enable it to incorporate 1. a fuller pattern of solutions that, from the very start, can shed light on the possible future pitfalls and weaknesses of the agreement and suggest potential remedies; 2. a special procedure for implementing the agreement that oversees the individual and common actions of the signatories in an orderly way; and 3. methods of financing the implementation of the agreement and verification procedures. In short, the signed agreements should, as much as possible, be delegated to joint efforts and joint mechanisms and as little as possible left to individual or unilateral efforts. This is not to underestimate or cast doubts on unilateralism. Unilateral efforts frequently become an extremely important part of implementing an agreement; but the focus here is to obtain a balanced agreement conveying the sense of a bestpossible solution of the negotiated issue, a joint understanding of any difficulties at the implementation stage, a preview of the actions of each side individually and jointly, and either a mechanism of prompt negotiations in case of problems, or a standing arrangement to take over any problem once it appears. From this point of view, of course, the traditional format of the agreements should be modified to enlarge their scope and incorporate all possible aspects. In the same way that the negotiated agreements of the 1970s and 1980s led, in almost all areas of international relations, either in the direction of regime building (including trade-and-development issues, environment regimes, and human rights) or toward the building of new types of relations (e.g., ending the Cold War), the need to promote and advance a more robust international system of negotiations

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would now advocate changing the existing formats of agreements to meet the criteria of the forward-looking approach.

Implementation: Who Pays and Who Controls? Implementation plays a significant role in the whole idea of forward-looking outcomes. That is not to say that the whole thing is about implementation and verification. Negotiation is not just about talks as such and does not just involve signing an agreement. The whole idea of negotiation, in its advanced form, is much wider and incorporates the entire sequence of events, from the first glimmers of understanding that a disputed issue must have a negotiated settlement, through preplanning and planning when the possible schemes of solution are discussed and drafted, to the negotiation stage, and then to agreement and, ultimately, implementation. It should thus be clear that the forward-looking concept treats the whole negotiable solution as one process, including the aftermath. It would not be wrong to say that this concept treats the negotiation process as one endless process of solution that ends only when the disputed problem disappears, a slight exaggeration, of course. At the implementation stage, the concept of the forward-looking approach views outcome as an important part of negotiation; this is because the entire negotiation process can be regarded as relevant and completed only after it has produced a successful outcome. Understandably, there will be people who would insist that this is not negotiation as such and that the situation just outlined should be treated as "settlement" or "conflict resolution" whereas "negotiation" is only a part of the process that deals with the period when the sides meet to talk. Appropriate as it may be, this approach simply disregards the growth of the importance of negotiation which has seen a dramatic increase largely because implementation has also become an inalienable part of the whole process of negotiated settlements. Implementation is intimately connected with the whole process of negotiation seeking forward-looking solutions. Even at the preplanning and planning stages one has to think about implementation, for what may seem appropriate and easy to implement in the early stages may later turn into insurmountable obstacles when the time comes to put them into practice. If such a scenario occurs, then the value of all the previous stages, even if they were praised and hailed as a "breakthrough" at the moment of signature, will come to nothing. At the table, one negotiates not only the text of the agreement as such but also the process of implementation, including verification, funding, appropriate technology, training of personnel, costs of storage, and cost of reprocessing. The more sophisticated the subject of negotiation and the type of the suggested solution, the more important the problem of implementation. That must be borne in mind by negotiators even if they are not personally responsible for the continuation of the process once the document has been signed.

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Victor Kremenyuk

Post Scriptum

The present book on forward- and backward-looking outcomes in negotiations has taken some time to produce, and not just because of the large distances between contributors and between editors and publishers. The real problem lies in the evaluation of the long- and short-term consequences of the process of making negotiations a universal tool for conflict management and conflict resolution. The end of the Cold War was negotiated at multiple levels and by multiple forces with dozens of issues of different magnitudes and varying complexities being resolved. The somewhat na'ive argumentations of those who believed that the end of the Cold War would bring simpler questions to the fore came to nothing. What did become the essence of the international-negotiations menu was globalization and its consequences in different areas, the resolution of the most difficult conflicts (Arab-Israeli), and the bringing of highly sophisticated subjects (space, the greenhouse effect, nonproliferation of weapons of mass destruction) to the negotiating table. The expectations of those who thought that the creation of a new system of negotiations would facilitate the process and make it stronger and more resistant to outside pressures were dashed. Thus, the idea of forward-looking outcomes may help to accommodate the growing complexity of the issues, the growing number of actors and their interests, the growing number of agreements, and the need to see to their implementation. It means that the process may develop along two different lines: on the one hand, the introduction of additional forms and mechanisms of negotiation to compensate for the complexity (i.e., matching the complexity with new mechanisms the number of which may become unmanageable) and on the other to perfect the process of negotiations, adding to it elements that may help to manage complexity, to consider far-reaching consequences, and to introduce elements of planning into the negotiation process. In the 1920s and 1930s the idea of economic planning (which existed at that time only in the Soviet Union) was considered irrelevant, and it took several decades before it acquired a respectable status. Prior to the Cuban missile crisis the idea of policy planning was also regarded with skepticism, and it took some time for all the major nations to shift toward planning their policy. The idea of negotiations planning, which is strongly endorsed in this book and which may raise some skepticism today, will inevitably prevail; moreover, it will come to acquire a respectable status in the policy-planning arsenal.

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Index Note: Page numbers in bold refer to tables (and Appendix I); those in italics refer to figures. Notes are indexed only when they contain substantial additional information. Abdallah IT, king ofJordan, 134 absolutism, effect of Westphalia on, 33 Abu Mazen, Palestinian representative, 130, 131, 138 Abu Nidal group, 124 accountability, 5-6, 299-300 Adenauer, Konrad, 164, 165, 168-69 African National Congress (ANC): and Communism, 224; and desire for new regime, 224-25; expectations ofCodesa, 228-29; Forward to Freedom (1975), 224, 235; Freedom Charter (1955), 224, 235,236,237,241n;llarare Declaration (1989), 224,231, 235; identification of grievances, 22627; leadership of, 225; and postelection policies, 221-22,23337, 238-39, 240; relations with National Party, 223,224,229, 291; and satisfaction with settlement, 230,231-32,234; unbanned,227 Afrikaners: and preservation of power, 223; and unresolved issues, 233-34 Afrikaner Weerstandbeweging (AWB), 229 agreement. See settlement Ajello, Aldo, U.S. special envoy to Mozambique, 269, 281 Albright, Madeleine, U.S. Secretary of State, 107, 134, 136 Alexander I, Tsar, 36,5 1-52; and Congress of Vienna 37, 42, 43, ?Inn; preferences and position on

Poland, 46, 47, 58; Russian interests, 48,49-50 Alfonsin, Raul, president of Argentina, 180 Algerian war, 162 Allon Plan (1976), 119, 133 "Allon Plus" (1997), 133 Amazon river, Ecuadoran access to, 154, 251 Amir, Yigal, murderofRabin, 131 Amsterdam, 14 Andean Community, 183 Andean Development Cmporation (ADC), 253, 255, 257 Andean Pact, 248 Annan, Kofi, UN Secretary-General, 21 0 Antwerp, Dutch blockade of, 14, 15, 30 Arab-Israeli conflict, 113, 121; backward-looking outcomes, 14142, 144-48, 150; conflict management (1970-1975), 148-51; conflict resolution period ( 19742000), 142, 151-54; forwardlooking outcomes, 141, 142, 150, 154-56; overview, 141-42; structural factors, 142-44; war (1948-1973), 141-42, 144-48 Arafat, Vasser, PLO leader, 116, 117-18, 121, 122; at Camp David talks, 136-37; meeting with Rabin, 123; and Oslo Agreement, 124, 127, 129, 130; rejection of Clinton plan (2000), 138; renunciation of terrorism, 118, 127; and resentment 327

328

oflsraeli settlements, 134 arbitration, 303; in Latin America, 246, 259n; Mercosur, 191-92, 195. See also mediators Argentina 187, 246; Beagle Channel arbitration (1977), 247, 248; and Brazil, 178, 180; guarantor of Rio Protocol (1942), 246; and Mercosur, 177, 184 argumentation, in work-of-memory negotiations, 169 Armenia, and Nagomo-Karabakh, 26768,272,273-74,293 Asia-Pacific Cooperation Forum, 177 Asuncion, Treatyof(l991), 180,181, 183; and early negotiations, 184, 185; modified, 189 Augustine, Saint, 158 Austria, 76, 87; four-power occupation of76-77, 78; role in negotiating Austrian State Treaty, 86; status in international law during anschluss period 76, 82. See also Austrian State Treaty Austrian Empire: and Congress of Vienna, 36, 40; principle of dynastic rights, 57; and Quadruple Alliance, 3 7; territorial compensation (negotiated at Vienna), 44-5; and Triple Alliance (1815), 52 Austrian Neutrality Act, 80, 85 Austrian State Treaty: and Austrian neutrality, 75, 77, 80-81, 83-84, 86; backward-looking provisions of, 81, 87; and democracy, 77, 79, 80, 81; forward-looking provisions of, 8182, 83-84, 87, 291; minority rights, 80, 81; negotiations (1946-1955), 77, 85, 87; options available to negotiators, 75-6, 78-81; provisions to prevent recurrence of conflicts, 84, 85; significance of relations with and status of Germany, 78,79,80,82-83 auto industry, Mercosur negotiations on, 187-88, 192 Ayala Lasso, Jose, 251 Azanian People's Organization (Azapo), 229 Azerbaijan, and Nagomo-Karabakh, 267, 268,273-74

Index

balance of power: and concept of"just equilibrium," 54, 56-57; Congress of Vienna and, 38, 39, 43, 48; in Cyprus constitution, 206; and negotiation at Munster, 24-25; Talleyrand's view of, 57. See also power, asymmetries of Balkans: effect on Cyprus negotiations, 216; overaccentuation of past, 16062, 175n. See also Bosnia; Yugoslavia Baltic states, 17 Barak, Ehud, 133, 134; and Camp David talks, 135-37; and Clinton's settlement plan (2000), 138 Bayas, General Victor, 26ln, 262n Beagle Channel arbitration (1977), 247, 248 Begin, Menachem, 119-20 Beilin, Yossi, 125, 130, 131, 138 Beilin-Abu Mazen plan, 130, 131 Belgium, 16, 30,48 Ben-Gurion, David, 118-19 Bentinck, Lord William, 45 Berezina River, Battle of, 36 Bildt, Carl, II On Boipatong, massacre (1992), 228 Bolivia, and Mercosur, 177, 183, 184, 186 borders: importance of mutually accepted, 244; and IsraeliPalestinian conflict, 114, 117, 128, 136, 138; South America, 178, 245, 246, 259n; in Westphalia negotiations, 23, 30. See also PeruEcuador border dispute Borja, Rodrigo, president of Ecuador, 260n Borraine, Alex, 236 Bosnia: constitution (1995), 108; constitutional court, I 08; Contact Group,93,94-95,97, 104; federation agreement with Herzegovina (Washington Agreement), 97, 98, 108, l!Onn; High Representative, 106-7, !!In; indictments of Bosnian Serb leaders, 100-101; international mediators, 89-91,92, 103; multiplicity of participants, 95-97, 98-99; negotiating leverage, 99-

Index

101, 107-8; Peace hnp1ementation Council, 106, 107; peace negotiations (1991-1995), 89, 92, 93-94; provisions for government structures, 105-8; War Crimes Tribunal, 98, 100, 104, 293; war (from 1992), 91-6. See also Bosnia, Dayton negotiations Bosnia, Dayton negotiations, 89--91, 95, 100, 101-5; and borderterritory, 104-5; forward-looking provisions, 103, 105-8, 109; insistence on justice, 90, 100-10 1; regional issues, 102-3; role ofleaders, 1012; role of nationalists, 106-7; settlement, 103, 161. See also Dayton Agreement Bosniacs: alliance with Croats against Serbs, 99-1 00; and Dayton Agreement, 101, 102-3, 104, 105, 161; and war, 91, 92, 95,96 Bosnia-Herzegovina, 97, 98, 108, 110nn, 161 Bosnian Croats, 91, 95, 97; and Dayton Agreement, 10 I, 102, 105 Bosnian Serbs: and Dayton Agreement, 102, 105, 161; and massacre at Srebrenica, 94; and peace negotiations, 93-4, 95, 98, 100101; and war, 91,92 Botha, P. W., 223 Brabant, 30 Brazil, 181, 187, 249; and Argentina, 178, 180; guarantor of Rio Protocol (1942), 246; and Mercosur, 177, 181, 184 bribery, 24 Bush, George H. W., U.S. president, 93, 184 Buthelezi, Chief, 229,231,233 Calvinism, 12, 31 Camp David: agreement between Egypt and Israel, (1978), 119, 120, 142, 152-54, 293-94; Israeli-Palestinian meetings (2000), 135-37 cane sugar, Mercosur negotiations on, 189 Cardoso, Fernando Henrique, president ofBrazil, 181

329

Carter, Jimmy, U.S. president, 152, 154 Castlereagh, Lord, 36-37, 42, 52; and balance of power, 48, 54, 56-57; constraints on (domestic public opinion), 44, 50; negotiating strategies, 50, 52, 53-54; position and preferences on Poland, 46, 47; at Vienna, 40, 41, 43,44 Catalonia: uprising (1640), 15, 16, 17; and Westphalia negotiations, 20 Cathcart, Lord, British delegate in Vienna, 51 Catholicism, 12, 18, 31 Caulaincourt, Marquis de, 38 chambre mi-partie (bilateral chamber) to establish borders ofNetherlands, 30 Chatillon, Congress of, 37 Chaumont, Treaty of(I814), 37, 39, 40, 54 Chigi, Fabio, papal nuncio, as mediator at Westphalia, 28 Chile, 246; and Mercosur, 177, 183, 184, 186 Chirac, Jacques, 171 Chissano, Joaquim, and Frelimo, 282 Christopher, Warren, U.S. Secretary of State, 104 citizens, of nation states, 11 Clinton administration (U.S.), and Bosnia, 93, 107, 11 On Clinton, Biii, U.S. president, 130, 133, 134; and Camp David negotiations, 135-37; settlement plan (2000), 137-38 Cold War, 305; end of, 312 colonies, negotiations on (Congress of Vienna), 45,48 common interests, 166 common projects, value of, 300 communication: Congress ofVienna, 50; problems at Westphalia, 20, 25 Communism, South Africa and, 224, 225,227 Communist party, in Austria, 79 compromise, 4, 54; on Austria State Treaty, 80, 86; in Bosnia, 98-99; at Congress of Vienna, 48, 50, 52, 54, 57; and ethnic values, I 14; problems of in Israeli-Palestinian conflict, I 14, 124, 126, 132, 134,

330

139; on representations of past, 163; in South African political settlement, 230, 235,239, 240 Concerned South Africans Group (Cosag), 229 conflict: causes of, 1, 2; effect of changes on negotiation, 115, 265; ending, 1, 6, 89, 91,222, 297; trnnsformation, 6,222,290 conflict management, 1, 6; 1973 ArabIsraeli war, 148-51; provision for, 84, 85, 298; relation to negotiation, 303--4; and shift to conflict resolution, 154-55; South Africa, 240; tools for, 303. See also outcomes conflict resolution, 1; and closure, 90; established at Westphalia, 33; "ripeness" theory, 265, 270-71, 282; South Africa, 221-23 conflict suspension, 1, 2, 265; in Bosnia, 99-100; Egypt and Israel, 145 consensus, 13; faked (Cyprus independence conferences), 203; in Mercosur negotiations, 182, 184, 187, 190; at Vienna, 50,60 Contarini, Alvisi, doge of Venice, at Westphalia, 27,28 Corbin, Jane, 125 Cordillera del Condor region (PeruEcuador border dispute), 244, 246, 247 Croatia, 97, 107, 11 On Croatian Serbs, and peace negotiations, 95 Croats, 95, 161; alliance with Bosniacs against Serbs, 99-1 00; and war in Bosnia, 91, 92, 94, 96 Cyprus,201,202,216,290,291; 1974 negotiations, 207-8; bicommunality, 207, 212; civil confrontation ( 1963-1967), 206--7; constitution, 204, 205; demands for justice, 293; and European Union, 210-11,215, 217; failures of negotiations, 217-19; federation proposals, 208, 209, 218; guarantee treaties, 203--4; independence (1960), 203--4; motives for continuing negotiation, 215-17; negotiations (1960-1963), 202-7;

Index

negotiations (1980-2000), 208-17; partition (1974), 201-2, 207; partition (as goal for Turkish Cypriots), 205, 218-19; population transfers, 201-2, 207; territory (negotiations and concessions), 208-9, 212; Turkish invasion (1974), 201-2; Turkish Republic of North Cyprus declared (1984), 208, 209; value of status quo, 213, 21415 Czartoriski, Prince Adam, 51 Czechoslovakia, and Germany, 170 Dahlbert, Coimt, French delegate to Vienna, 51 d 'A vaux, Count, French delegate at Westphalia, 26 Dayan,Moshe, 148 Dayton Agreement, 103; and disputed border strip, 104-5;endgame, 1045, 107-8, 109; fuilure to achieve settlement, 105-8, 109; implementation, 102, 106, 108; weaknesses of, 90-91, 161. See also Bosnia deadlock, stable, 155-56 de Ia Besnardiere, Count de, 51 democracy: differing views of (South Africa), 226, 230-31; movements for (Bosnia), 90, 92, 102; and states system, 18, 33 Democratic Party, South Africa, 238 democratization: Dayton provisions for, 103, 105, 106, 108; Paraguay, 184; South Africa, 221,225,233 Denktash, Rauf, Turkish Cypriot leader, 208, 215, 216 Denmark, I 7, 19, 29 Dhlakama, Afonso, and Renamo, 281, 282 Dias de Aguiar, Captain Braz, 247 disputes: arbitral settlement of (Mercosur), 191-92; resolutions, 246,291-92 Durl'm-Ballen, Sixto, president of Ecuador,249,260n Ecuador, 251, 261-62n; and binational committees with Peru, 253; and demarcation of border ( 1942-1948),

Index

247; opposition to agreements, 25455; relations with Peru, 244,246, 291; trade with Peru, 257-58. See also Peru-Ecuador border dispute Egypt, 126; and Camp David meetings, 152--4, 293-94; and conflict resolution of Arab-Israeli conflict, 142, 143, 150-51; peace with Israel (1979), 121; and Soviet Union, 147, 152; war with Israel (1956), 14446; war with Israel (1973), 148--49. See also Arab-Israeli conflict Eighty Years' War (Spain and Netherlands), 16, 29-30 El Salvador, 246 Enlightenment, the, 55 enosis (union of Cyprus with Greece), 201,202,203,204,205 equality, of states (in Europe), 13, 23, 33 Eshkol, Levi, 118, 119 ethnic conflict: nature of, 114. See also Bosnia Eugene, Prince, viceroy ofltaly, 45 Europe: balance of power in (Congress of Vienna), 38, 39, 58; before Peace ofWestphalia, 11, 12, 22; "conference system" (Concert of Europe) as outcome of Congress of Vienna, 48, 55-56, 58, 59; effect of Westphalia on European regime, 32-33; hierarchy of states, 12, 16, 18,22 European Advisory Commission (EAC), 76-77 European Court of Justice, 210 European integration, translateral negotiation in, 20 European Union, 177, 183; and Balkans, 93; and Cyprus, 210--11,215, 217; and Israeli-Palestinian negotiations, 137, 138; and Mercosur, 183, 186 events, and meaning, 159-60 Farouk, King, 144 Fatah organization, 125, 135, 137 Ferdinand III, Emperor, 19,25-26 Ferdinand IV, king of Two Sicilies, 45 Feudalism, 12, 17 Finland, 17 Flanders, 30

331

Fontainebleau, Treaty of(1814), 36 foodstuffS, Mercosur negotiations on, 188-89 France, 12, 16, 18; and Algerian war, 162; and Austrian State Treaty, 76, 78; and Congress of Vienna, 36, 39, 40--41, 49, 58; and First Treaty of Paris, 37; frontiers of(Congress of Vienna), 37-38, 49; and initiatives in Balkans (from 1994), 93; intervention in Catalonia, 15, 16, 17; interventions in Thirty Years' War, 14, 16; and Peace of Westphalia, 16, 25, 27; relations with Germany, 16, 31, 32; relations with Netherlands, 15, 16, 17, 19, 27, 30; and Sinai, 145; and Spain, 15, 30; and Triple Alliance (1815), 52. See also Franco--German relations Francis I, Emperor of Austria, 44, 51 Franco---German relations: negotiation processes, 167-74; and official memory, 159; power balance between, 166; reconciliation agreements, 290, 292-93, 294; work ofmemory, 163-64, 165 Frederick William III, king of Prussia, 44,51 Frederik Hendrik, Prince of Orange, 15 Free Trade Area of the Americas: and Mercosur, 183, 186, 187; Miami declaration (1994 ), 187 Frente da Liberta~ao de Mo~ambique (Frelimo), 268, 280--81 Friedman, Steven, 228-29 Fujimoro, Alberto, president of Peru, 248,249,252,254,255,257; arms acquisitions, 260-1n Furno, Cardinal Carlo, 261n Galicia, province of, 48 Gaulle, Charles de, 159, 164, 165; and negotiations in work of memory, 168-69,170,173 Gaviria, Cesar, 261n Gaza, port for, 134 General Agreement on Tariffs and Trade (GATT), 177; Uruguay Round (from 1986), 178, 195 Gentz, Friedrich von, 44, 51

332

George IV, king of England, as Prince Regent, 44, 51 Germany: centralized state bureaucracy, 12, 17; and Congress of Vienna, 43, 45; and Czechoslovakia, 170; and initiatives in Balkans (from 1994), 93; peace agreement with Sweden, 31, 32; pressure for unification (1814), 38, 48; Prussia and, 48; relationship with Holy Roman Emperor, 31-32; relations with France, 16, 31, 32; relations with Sweden, 17-18; sovereign states within, 16,31-32. See also FrancoGerman relations Germany, Federal Republic of, 79, 83; and negotiations on Austrian State Treaty, 78, 80, 82-83 Giscard d'Estaing, Valery, 171 Goldstein, Baruch, killings in Hebron, 128-29 Goodwill, king ofthe Zulus, 231 Gordham, Pravin J., 235 Great Britain, 12, 16, 17; and Austrian State Treaty, 76, 79; and Congress of Vienna, 36, 40, 50, 54; and Cyprus, 201,202-3, 204-5,210, 215; and initiatives in Balkans (from 1994), 93; and Quadruple Alliance, 37; and Sinai, 144, 145; and Triple Alliance (1815), 52 Greece: and Cyprus, 201, 204, 205; demand for independence (1814), 38 Greek Cypriots: and guarantee treaties, 204; and negotiations (1980-2000), 208-17. See also enosis Grotius, Hugo, and mare librum, 13 guarantors: Mozambique, 278; PeruEcuador border dispute, 249-50; role of, 13, 30, 202, 285n. See also treaty guarantees Gustavus Adolphus, king of Sweden, 17 Habsburg, House of, 15, 57. See also Austrian Empire Hague, The, 14,210 Hamas group, 125, 129 Hamburg, Franco-Swedish negotiations (1641), 19

Index Hammarskfold, Dag, UN SecretaryGeneral, 145 Hardenberg, Prince, of Prussia, 37, 48, 51; position and preferences on Poland, 46, 47; at Vienna, 40, 42, 43 Havel, Vaclav, 170 Hebron, 129, 132-33 Henry IV, king of France, 16 Herzegovina, 91, 97, 98. See also Bosnia-Herzegovina history, teaching of, 161 Hizbollah group, in Lebanon, 132 Hoffmann, J.G., 51 Holbrooke, Richard, 94, 101, liOn Holland, kingdom of, 48 Holland, province of, 15 Holy Roman Empire, 12, 16, 17, 31; Osnabriick settlements, 31-32; relationship of emperor and German states, 31-32 Honduras, 246 human rights, 6; Bosnia, 90, 98, 103, 108; Cyprus, 206, 207; Palestine, 130; South Africa, 226, 232, 235, 236,237 Humboldt, Baron Wilhelm von, 44, 51 Huseini, Paisa!, West Bank leader, 124 Hussein, king ofJordan, 117, 118, 119, 130, 131-32 idealists, and welfare, 4 Illyria, 45 implementation, 289, 311; adequacy of, 305-6, 307, 309; Dayton Agreement, 102, 106-7, 108; of Mercosurrules, 179, 181,183,185, 193, 195; Mozambique, 269, 278, 279-80, 281; ofOslo Accords, 12833; in South Africa, 221, 232-33 impunity, 5, 299 information, in work-of-memory negotiations, 169 lngermannland (St. Petersburg region), 17 Inkatha Freedom Party: and affirmative action progrnm, 237; dissatisfaction with settlement, 231-2,233,234, 238; and National Peace Accord, 228; role in negotiations, 229; view

Index

of democracy, 226; view of National Party, 227 innovation, 265, 278, 285n institution building, 13, 298-99; and conflict-management systems, 298. See also Mozambique; South Africa Inter-American Development Bank, 253, 255,257 International Court of Justice (ICJ), and dispute settlement, 246 International Monetary Fund, 11 On intifada: from 2000 (second), 137-38; in occupied territories (1987), 116-17 Iquitos, Peru, 252, 254, 255 Iran, and Nagomo-Karabakh, 276 Iraq, invasion of Kuwait, 121-22 Islamic Jihad, 129 Israel: 1973 war (Yom Kippur), 148-49; changing approaches to conflict, 118-21; and Egypt, 116, 121; ethnic homogeneity, 119, 124; and idea of Greater Israel, 120, 124; and Jordanian option, 118, 119-20, 121; military power of, 114-15, 143, 144, 146-47; and negotiations after 1973 war, 148, 150--51; and occupied territories, 119-20; operations against Palestinian Islamic fundamentalists (19951996), 132; and Oslo II Accords, 130; popular recognition of Palestinian rights, 117; recognition of Palestinian state, 131; secret channel of negotiation with PLO, 123, 124-25; and self-rule for Palestinian territories, 119-20; settlements in occupied territories, 120, 124, 127, 130, 134-35, 136; and Syria, 121, 132, 143, 155-56; view ofPLO, 116, 120-21, 127. See also Arab-Israeli conflict; IsraeliPalestinian conflict; IsraeliPalestinian negotiations (Oslo Accords) Israeli Labor Party, 119, 120, 124 Israeli-Palestinian conflict, 113-15, 290; asymmetry of, 114-15; Camp David Accords, 119, 120, 135-37; in context of Arab-Israeli conflict, 121; Sharm El-Sheikh

333

memorandum (1999), 134; Taba talks (2001), 138; transformation of, 115-22; Wye Valley Memorandum (1998), 133 Israeli-Palestinian negotiations (Oslo Accords), 123-38,291, 293; agenda, 126-28; Declaration of Principles (1993), 126, 129; extremist reactions to, 129; as forward-looking, 126, 127, 139; implementation and stagnation, 128-33; loss of impetus, 139; mediators, 125-26; parties to, 12325;refugeesissue, 118,136,137 Italy, 38, 45 Itamaraty Agreement (1995), 245, 249 Izetbegovic, Alija, president of Bosnian Republic,98, 101,103 Jericho, 127, 128 Jerusalem, 132, 133; status of, 128, 130, 135, 136, 137-38 Jews, Congress ofVienna negotiations on,45 John Paul II, Pope, 248, 259n, 26ln Jordan, 118, 120, 121, 152;joint delegation with Palestinians (Madrid), 122, 123-24; and PLO, 117, 118-19, 122 Jospin, Lionel, 164 "just equilibrium," concept of (Castlereagh), 54, 56-57 justice: as backward-looking, 103, 131, 139, 292; as barrier to peace, 293; concepts of, in Congress of Vienna negotiations, 48, 54, 55; and human rights (Bosnia), I 03, I 08; insistence on (Dayton agreement), 90--91, 100, 103, 104, 292; notions of (Palestine), 131, 139; and peace negotiations, I, 5-6; and power (Cyprus), 212, 213; and reconciliation, 292-93, 294; in South African settlement, 240; and Westphalia negotiations, 12, 13, 3132; as zero-sum notion (Cyprus), 211-12. See also outcomes, forward-looking Karadzic, Radovan, 98, I 00, I 04

334 Kenya, and Mozambique, 278 Kimbikiki, Jose Luis, 256 Knuyt, Johan de, 26 Kosovo conflict, 107, 110-lln Krajina, seized by Croats (1995), 94 Krakow, 47, 48 Krushchev, Nikita, 83 Kuwait, Iraqi invasion (1990), 121 KwaZulu-Natal province, 229,234 Langres Protocol (1814), 36 languages of negotiation: and Mercosur, 180; at Westphalia, 21 Larsen, Mona Juul, 124 Larsen, Terje, 124-25 Laskov, General Chaim, 118 Las Lefias,Mexico, Mercosur summit in (1994), 183, 184 Latin American Free Trade Association (ALALC), 179, 195 Latin American Integration Association (ALADI), 179, 192, 195 lawyers, in delegations to Westphalia, 26 Lebanon, 132; Israeli troop withdrawals, 134, 137 Leibach conference (1821), 56 Leon, Tony, 238 Leoro, Galo, foreign minister of Ecuador, 250 liberalism, Congress of Vienna views of, 57-58 Likud Party, Israel, 117, 120, 132 Limburg,30 Lithuania, 17 Liverpool, Lord, British prime minister, 51 London conference (1959), on Cyprus, 203 longitudinal negotiation, 19-20 Longueville, Due de, French ambassador to Westphalia, 26 Louis XVIII, king of France, 44 Lublin, Union of, 17 Lutheranism, 12, 31 Luxembourg, 30 Madrid Conference (1991), 122, 123-24 Mahuad, J ami!, president of Ecuador, 243,252,256-57 Makarios, Archbishop, 203 managers, moving conflict to political

Index

level, 6, 240 Mandela, Nelson, 173,225, 226, 236-37, 238 Maphai, Vincent, 230 Marafi6n-Amazon, Ecuadoran access to, 251 Marrakesh Agreement (1994), 177 Masseret, Jean-Pierre, 170 Maurits, Prince of Orange, 15 maximization of outcomes, by force, 2324 meaning, and events, 159-60 media, control of, 107 mediators: external interests of(Cyprus), 210; international (Dayton), 89-91, 92, 103; role in changing attitudes, 295; use of, 28; at Westphalia, 19, 28 Meir, Golda, prime minister oflsrael, 148 memory: and concealment of past, 16263; and conflict resolution, 158-64; events and meaning, 159-60; and history, 175n; individual experience, 173; nature of (human), 158-59; and negotiation, 164-67; negotiation processes, 167-74; official, 159, 161; overaccentuation ofpast, 160-62; personal, 173; and propaganda, 161; shared, 171-72; and time, 173; and trust, 157; uses of, 160-64; variables ofnegotiating, 172-74; work of(creation of common representation of past), 163-64, 165-67, 173,300. See also past Mercosur (Mercado Comun del Sur), 177, 291-92; arbitral dispute settlement, 191-92, 195; backward-looking issues, 194-95; Brasilia Protocol (1991 ), 182, 184, 191; characteristics of negotiations, 181-83; Common Market Council, 186; Common Market Group, 184, 185,189, 191;complexityof negotiations, 182-83; conflicts within, 192-93; early moves toward, 179-SO; external negotiations, 183, 186-87; flexibility of negotiations, 183, 195; forward-looking, 195-96; founding

Index

years (1991-1994), 183-85; implementation ofrules, 179, 181, 183,185,193, 195; issues of negotiation, 187-89; national interests in, 180-81; negotiation processes, 183-87, 196; Olivos Protocol (for dispute solution), 19192, 196; operating period, 185; Ouro Preto Protocol, 182, 185; presidential diplomacy within, 186; prospects for, 193-94; "relaunching'' (2000), 194; structures and dynamics, 190-91 Metternich, Prince, 42, 51, 52, 54; and Congress of Vienna, 38, 40, 43,4950; and Langres Protocol, 36-37; position and preferences on Poland, 46, 47; and restoration of"order," 48, 57-58; strategies, 50, 52 Meyer, Roelf, 229 Milosevic, Slobodan, Serbian president, 90, 92, 93, 110-lln; and Bosnian Serbs, 100-101; at Dayton, 90, 101, 104, 107; and early negotiations, 93-94,98, 99; and War Crimes Tribunal, 104 Minsk Group, 268, 274 Mitterrand, Francois, 157, 170, 171 Mladic, General Ratko, 100 Montevideo, Treaty of (1980), 179 Moscow Conference (1943), 76 Moscow Memorandum, on Austria (1955), 77 most different systems design (MDSD) analysis, 270 Mozambique, 291; armed forces reforms, 280-81; compared with NagomoKarabakh, 272, 273, 283; conflict, 268-69; national elections commission (CNE), 281-82; negotiation analysis, 277-83; negotiation process, 279, 279; outcome, 279-82, 292; postsettlement period, 282-83; Rome Peace Agreements (1992), 269,277,279-80,281,283 Mubarak, Hosni, president ofEgypt, 130, 134 Mugabe, Robert, president of Zimbabwe, 269

335

MUnster, negotiations for Peace of Westphalia, 11, 19,20-21,22;use of power in, 23-25 MUnster, Treaty of, 24 Murat, Joachim, king of Naples, 45 mutual recognition, 296-97 Nagomo-Karabakh, 291, 293; compared with Mozambique, 272, 273, 283; conflict, 267-68; information sources, 272; negotiation analysis, 273-77, 273; negotiation process, 274-75, 274; outcome, 275; postsettlement period, 275-77; trilateral talks, 273-74 Namibia, 223 Nantes, Edictof(l598), 16 Naples and Sicily, 17,43 Napoleon I, Emperor (Bonaparte), 36, 40,44 Nasser, Gamal Abdel, president of Egypt, 144, 147 nationalism, in Bosnia, 106-7, 109 National Party (NP) (South Africa), 223, 241n; and democratization, 225; and identification of grievances, 22627; relations with ANC, 223, 224, 229, 291; and satisfaction with settlement, 231, 238-39 nation states, 11, 13; and principle of equality, 13, 23, 33 Nazarbayev, Nursultan, president of Kazakhstan, 268 negotiation, 4, 19, 20; as admission of weakness, 23-24; approaches to, 307-9; bilateral, 152-54, 245; and change of attitude, 297-98; closure (endgame), 90, 104; and conditions for work of memory, 166-67; confidence-building measures (Cyprus), 209-10, 212; toward conflict resolution, 1, 2, 3, 308; to end violence, 1, 2, 3; and expectation, 221, 223; and implementation, 311; intergovernmental (Mercosur), 18182; learning model of, 143-44, 14851; and memory, 164-67; motives for, 265; move from multilateral to bilateral (Egypt and Israel), 152-54;

336

and notion of success, 289-90, 305; pairs of strategies (Janus faces of), 2-3; participation of those responsible for atrocities, 96; patterns of processes (Mercosur), 190-91; preparation and planning, 306-7; relation to conflict management, 303--4; third-party involvement (Latin America), 24546; workofmemory, 167-74; zerosum, 4, 211,252. See also mediators; negotiators; outcomes negotiation analysis: comparative framework, 270-2, 273; information sources, 272; lessons from, 283-85; methodologies, 270; Mozambique, 277-83, 279; Nagomo-Karabakh, 273-77, 273; negotiation process and, 271, 284; outcomes, 271; postsettlement periods, 271-72, 275-77,284 negotiators: distributive bargainers, 266, 284; effect of public opinion on, 50; options available to, 75-76, 78-81; problem-solving, 266, 284; role in work of memory, 173-74 Nesselrode, Count, Russian foreign Minister, 40, 43, 44, 51, 52 Netanyahu, Binyamin, 132-33, 137 Netherlands, 12, 16, 30; Eighty Years' War ended at Westphalia, 29-30; prenegotiations with Spain (from 1621), 14--15; relations with France, 16, 17, 19, 27, 30; and Sweden, 1718; Twelve Years' Truce with Spain (1609-1621), 19 nongovernmental organizations (NGOs), and Nagomo-Karabakh, 276 normalization, 265, 278, 285n North Atlantic Treaty Organization (NATO), 75, 100; and Austria, 79, 80; and Bosnian war, 94, 100; and Cyprus, 206, 216; and Dayton negotiations, 106, 107; and Federal Republic of Germany, 83 Norway, as mediators in IsraeliPalestinian negotiations, 124--25, 126 Olivares, and San-Lucar, Gaspar de Guzman, Count-Duke of, 14

Index Organization for Security and Cooperation in Europe (OSCE), 106; and Nagomo-Karabakh negotiations, 268, 274, 276-77 Orleyn, Thandi, 232, 235 Ortiz, Benjamin, foreign minister of Ecuador, 255 Oslo Accords, 123-38, 291; Declaration of Principles (1993), 126; Interim Agreement (Oslo II), 128, 129, 130 Osnabriick, negotiations for Peace of Westphalia, 11,19,27,31-32 outcomes: and format of negotiated agreements, 309-11; and implementation, 311; maximization of, 23-24; and notion of success, 289-90, 305; process and, 4-5, 6-7, 294-301,304 outcomes, backward-looking, 289, 29091; Austrian State Treaty, 81, 87, 290; cease-fire in Bosnia, 108-9; Congress of Vienna, 38, 39; end to fighting as, 297; Israeli-Palestinian conflict, 131, 290; mutual recognition, 296-97; NagomoKarabakh, 275, 277; Peru-Ecuador negotiations, 251-52; South Africa, 225; territorial partition (Cyprus), 201; and unresolved grievances, 290-91; Westphalia, 21-2, 29; work of memory, 167-68. See also justice outcomes, forward-looking, 289, 291-94, 308-9; Arab-Israeli conflict, 141, 142, 150, 154--56; Austrian State Treaty, 81-82, 83-84, 87, 291; and changes in attitude, 295-301; common projects, 300; conflictmanagement mechanisms, 298-99; Congress of Vienna, 39, 48, 55, 5657; Dayton Agreement, 103, 105-8, l 09; establishment of institutions, 298-99; Israeli-Palestinian conflict, 131, 139; Mercosur, 195-96; Mozambique, 279-82; new relationships as essence, 294; not sought in Cyprus, 217, 219; Peace of Westphalia, 11,29-32; PeruEcuador negotiations, 252-57, 291; and prospects for dispute resolution, 291-92; and settlement of injustices, 293-94; South Africa,

337

Index

233-34, 292; work of memory, 167-8,300 Owen, David, Lord, 109n, 11 Onn Oxenstiema, Johan, Swedish ambassador to Westphalia, 26 Palestine, 290; Declaration of Independence (1988), 117; partition (1947), 114, 116. See also Palestinian territories, occupied Palestine Liberation Organization (PLO), 115, 121; and Arab-Israeli conflict, 143, 152; contacts with Israel, 123; isolation in Arab world, 121-22; nonrecognition oflsrael, 116, 127; and Oslo Accords, 124--25; transformation of approaches, 116-18. See also Israeli-Palestinian negotiations Palestine National Council (PNC), 116, 133; Political Communique and Declaration of Independence (1988), 117 Palestinian National Authority (PNA), 115, 127, 129; elections, 131, 139-

40n Palestinian National Charter, 127 Palestinian Problem: specificity of, 11315. See also Israeli-Palestinian conflict Palestinian territories, occupied, 119-20, 135; Clinton's settlement plan for, 137-38; Gaza, 116, 120, 126-27, 128; Israeli proposals to partition, 125, 129, 133, 136; Israeli troop withdrawals, 126--27, 128; Jewish settlements in, 120, 124, 127, 130, 134--35, 136; radicalization of, 135; violence in, 128-29; West Bank, 116, 118, 119, 120, 126--27, 130, 133; Zones (under Oslo II), 130 Palestinians: Arab states and, 115; right to statehood, 114; status in Israel, 118-19 Pan Africanist Congress, 227 Pandolfi, Alberto, prime minister of Peru

26ln Papacy (Holy See): authority of (Westphalia), 23, 26-27, 32; as comediator at Westphalia, 20, 28;

and Congress of Vienna, 43; role in Thirty Years' War, 16,18 Paquisha Incident (1981), 247 Paraguay: democratization, 184; and Mercosur, 177, 180 parallel negotiation, 19, 20 Paris, Peace of(First), 36, 37, 39; and constitution of Congress of Vienna, 43,44 Paris, Peace of(Second), 39, 40, 58 past: concealment of, 162-63; overaccentuation of, 160-61; recognition of, 165, 168, 300 Pauw, Adriaan, Dutch diplomat at Westphalia, 26 peace: contradicting justice, I, 5--6, 293; as forward-looking plan (Palestine), 131; as priority, 3, 145, 297; result of negotiation, 293. See also conflict; outcomes, backwardlooking peacekeeping forces: Bosnia, 92; Sinai, 145-46. See also UNOMOZ; UNPROFOR Peres, Shimon, 121, 124, 129, 131 Perigord, Dorothee, countess of, 51 persuasion, 54 Peru: and binational committees with Ecuador, 253; opposition to agreements, 254, 255; relations with Ecuado~244,246,247,291;

Shining Path Maoist guerrilla group, 248; trade with Ecuador, 257-58 Peru-Ecuador border dispute, 243, 259nn; attempts at arbitration, 246-47; background, 245-48; border demarcations, 247, 251-52; and guarantor nations, 246, 249-50, 252; Military Observation Mission Ecuador-Peru (MOMEP), 250, 255, 258; Rio Protocol (1942), 246-47, 248, 249, 250, 259n; war (1995), 248-49,260-61n Peru-Ecuador negotiations: backwardlooking outcomes, 251-52; Brasilia agreements (1998), 252, 262n; Comprehensive Agreement on Border Integration, Development and Coexistence, 252-53; focus on long-term benefits, 255-57;

338

forward-looking outcomes, 252-57, 291; indigenous peoples of region, 256; joint projects, 253, 256-57; military support for legitimacy and peace, 258, 263n; opposition to agreements, 254--55; Santiago Agreement (1996), 250; Trade and Navigation Treaty, 254, 256 Petrisch, Wolfgang, High Representative in Bosnia, llln petrochemicals, Mercosur negotiations on, 189 Philip II, king of Spain, 12 Philip IV, king of Spain, 14 planning, for forward-looking: negotiations, 306-7 Plaza, Galo, president of Ecuador, 247 Poland, 17, 29; as issue to be addressed at Congress of Vienna, 37, 39, 4142, 42, 44-45; position and preferences of Quadruple Alliance on, 46, 47, 48, 58 Portugal, I 6, 17; and Congress of Vienna, 40; and Westphalia negotiations, 20 power: asymmetries of, 142-43, 166, 190; and justice (Cyprus), 212, 213; and learning from costs of war, 143-44, 148-51, 155; and military strength, 50, 106, 143, 144-45, 150-51; and negotiating strategies (Congress ofVienna), 53-54 precedence, factor at Westphalia, 22-23, 26-27 preplanning stage of negotiations, 306-7 process and outcome, 4-5, 6-7, 266, 294-301,304-6, 307-ll. See also outcomes Protestantism, 12, 16, I 8 Prussia, 37; and Congress of Vienna 36, 40,45 public opinion(domestic): and change of attitudes, 298; effect on negotiators (Congress ofVienna), 50; and work ofmemory, 172-73 "pure problem resolution," work of memory as, 166 Quadruple Alliance (1814), 37, 41, 53; positions and preferences, 46; and secret article on balance of power in Europe, 43. See also Vienna,

Index

Congress of Qurei, Ahmed (Abu Ala), 125,291 Rabat, l974summit, 116 Rabin, Yitzhak, 121, 124, 125, 129; meeting withArafat, 123; murder of, I 30-3 I; and Oslo Agreement, 127, 130 racial discrimination, South Africa, 226 Radcliffe, Lord, British mission to Cyprus (1956), 202 Ramaphosa, Cyril, 229 rank and status, as factor at Westphalia, 20,26-27 Razumovksy, Count, 44, 5 I realism: and asymmetries of power, 14243; and explanation of Camp David; negotiations, 152-53; and security,

4 reconstruction, in work-of-memory negotiations, I 69--71 Redman, Charles, 93 Reede, Godard van, Dutch diplomat at Westphalia, 26 religion: freedom of(Westphalia), 23, 31, 32, 33; as source of political power, 33; and theory of monarchical sovereignty, 3 I; as tool, 18 Renamo, Mozambique insurgents, 268, 269, 278, 280; and postconflict elections, 281-82 reparations, 5, 290, 292 Republika Srpska, 108 revenge, 299 Roman Catholic church, I 2, 18, 31; in Mozambique, 269 Ross, Dennis, U.S. special Representative, 132 Russia, 17, 32, 37; and Congress of Vienna, 36, 40; and initiatives in Balkans (from 1994), 93; and Nagomo-Karabakh, 268, 276. See also Soviet Union Ryswick, Congress of(I697), 20,21 Sachs, Justice Albie, 238 el-Sadat, Anwar, president of Egypt, 148, 150-51, 152-54 Saddam Hussein, 121 Sagan,Wilhelmine de Courlande,

Index

duchess of, 51 Said, Edward, 135 Salvi us, Count, Swedish delegate at Westphalia, 26 Sant'Egidio organization, as facilitator (Mozambique), 269, 277-78,279 Sarajevo, 94 Sarney, Jose, president of Brazil, 180 Sartawi, Dr lssam, 124 Saudi Arabia, 152 Saunders, Harold, 123 Savir, Uri, 124 Saxony, as issue at Congress of Vienna, 36,37,39,44--45 Saxony, king of, 43 Schroder, Gerhard, 165 Serbia: effect of UN trade sanctions on, 99. See also Yugoslavia Serbs: and peace negotiations, 95, 98; and use of memory, 161; and war in Bosnia, 91, 92 Serven, Count de, French delegate at Westphalia, 26 settlement: duration, 289-90; evaluation of success of, 289-90; and format of negotiated agreements, 309-11; as forward-looking outcome, 91; and implementation, 311; and transformation, 290 Shamir, Yitzhak, 117, 124 Sharm El-Sheikh (Egypt): memorandum (1999), 134; summit (2000), 137 Sharon, Ariel, visit to Temple Mount (2000), 137 Sinai Agreement (Second) (1975), 116 Sinai Peninsula: disengagement ( 19741975), 116, 149, 150; Israeli penetration into, 144--46 Six-DayWar(1967), 118, 119,147--48 slave trade, Congress of Vienna negotiations on abolition, 45 Slavonia, 94, I 0 I South Africa, 173; 1994 elections, 222; apartheid, 224,226, 230--31; Black Empowerment/Affirmative Action policy, 237, 238; and causes of conflict, 221-23, 234, 237-38; expectations gap, 237-39; fear of communist insurgency, 224; identification of grievances, 225-

339

27; Institute for Democracy (Idasa), 236; minority rights, 233; negotiation of new regime, 223-25; negotiation process, 227-29; political violence, 228; Reconstruction and Development Program, 236, 238; satisfaction with settlement, 230-32, 242n, 294; transitional constitution, 235; Transitional Executive Council Bill (1993), 229, 231; Truth and Reconciliation Commission, 236-37,238-39,293,294,299 South Africa, negotiations: backwardlooking approaches, 232, 240; Convention for a Democratic South Africa (Codesa), 228-29; D. F. Malan Accord (1991 ), 228; forward-looking approaches, 23334, 292; Groote Schuur Minute ( 1990), 228; Multiparty Negotiating Forum, 229; National Peace Accord (1991), 228; Pretoria Minute (1990), 228, 232; resolved issues, 232-33, 240; unresolved issues, 233-34,240 South African Communist Party, 225, 227 South African Defense Force, 223 South America: border disputes, 178, 245, 246, 259n; trade in, 178-79 South Asian Association for Regional Cooperation (SAARC), 177 South West African People's Organization (SWAPO), 223 sovereignty: and autonomy, 183; concept of (national), 16, 18, 33; of German states, 31-32; and Mercosur negotiations, 183; monarchical, 31; recognition of at Westphalia, 22-23 Soviet Union: and 1973 Arab-Israeli war, 148-9, 152; and Austrian neutrality, 81, 84; change in foreign policy on death of Stalin, 83, 86; collapse of, 122, 224, 267; and fourpower occupation of Austria, 75, 76-77; and options fOr Austria's future, 77, 78-81, 82-83; strategicarms-reduction negotiations, 304-5, 306; and U.S. interests in Middle

340 East, 122. See also Russia Spain, 12, 13, 16-17; and Congress of Vienna, 40; prenegotiations with Netherlands (from 1621), 14--15, 17; and South American borders, 245, 246; Twelve Years' Truce with Netherlands (1609-1621 ), 19; Twenty Years' War (with France), 30; at Westphalia, 16-17, 25, 29-30 Srebrenica, massacre of(1995), 94, 100 Stackelberg, Baron, Russian delegate at, Vienna 51 Stalin, Josef, and Austrian State Treaty, 82,83,86 states: hierarchy of(in pre-Westphalian Europe), 12, 16, 18,22;and precedence in Westphalia negotiations, 22-23. See also nation states Stein, H. F. K., Freiherr vom und zum, 44,51 Stewart, Lord, British delegate in Vienna, 51 Stoltenberg, Torvald, 124 success, notion of, 289-90, 305 Sudetenland, 170 Suez Canal, 148 Suez crisis (1956), 145 Sweden, 12; and Congress of Vienna, 40; at Westphalia, 17-18,27,31,32 Swiss Confederation, at Westphalia, 20 Switzerland, Congress of Vienna negotiations, 45 Syria, 132, 147, 152; and Israel, 121, 132, 143, 155-56; war with Israel (1973), 148-49 Szasz, Paul 11 On taksim (partition ofCyprus), 201,202, 203,204 Talleyrand, Charles Maurice, due de, 37, 42, 43; character and contribution of, 61-2; coalition-making strategy, 53; negotiating skills, 50-54, 62; and organization of Congress of Vienna, 40-41; and position of France in Europe, 48, 49; position and preferences on Poland, 46, 47; view of "just equilibrium," 57 Teran, Edgar, 251 Thant, U, UN Secretary-General, 147

Index

third-party intervention, 303; Latin America, 245-46. See also arbitration; mediators; negotiators ThirtyYears'War, 14,16-17 Thurn und Taxis, Prince von, 25 Tordesillas, Treaty of(1405), 13 translateral negotiation, 19, 20,29 Trauttmansdorff, Count von, 25-26, 28 treaty guarantees: concept of, 56; Cyprus, 202, 203-4, 215. See also guarantors Triple Alliance (January 1815), 52, 54 Tudela, Francisco, foreign minister of Peru, 243, 250 Tudjman, Franjo, president of Croatia, 93, 97, 98, 100; at Dayton, 102-3, 107 Turkey: and Cyprus, 201-2, 204, 205, 210-11, 216; delegation at Congress of Vienna, 43; and NagornoKarabakh, 276 Turkish Cypriots: and guarantee treaties, 204; and negotiations (1980-2000), 208-17; partition as goal for, 205. See also taksim Twenty Years' War (France and Spain), 30 Umkhonto we Sizwe, status of, 228 UN High Commission for Refugees, 106 United Arab Republic, 147 United Nations: and Arafat's address (1988), 117-18; and Bosnian war, 92, 96, 100; and Cyprus, 202,209, 210,215, 217; and Dayton negotiations, 106; inMozambique, 269,278, 280-81; and Palestinian right to statehood (1947), 114, 116, 117; Resolution 181 (on partition of Palestine), 133; Resolution 425 (border of South Lebanon), 134; Resolutions 242 and 338 on Palestinian self-determination (1974), 116, 117, 118, 127; and Sinai conflict (1956-1957), 145; trade sanctions in Balkans, 94, 99, 110-lln United Nations Emergency Force (UNEF), 145-46, 147; Second (UNEF II), 149 United States, 92, 93, 122; and 1973

Index

Arab-Israeli war negotiations, 14849, 150-51, 152, !54; and Arafat, 117-18; and Austrian State Treaty, 77, 79; and Cyprus, 206-7,210, 215; guarantor of Rio Protocol (1942), 246; and implementation of Dayton, 102, 107; and initiatives in Balkans (from 1994), 93, 94--95; and Israeli-Palestinian negotiations, 126, 133, 134; and NagomoKarabakh, 276; and PLO 116, 12021; process of negotiation with Soviet Union, 304-5, 306; role in Bosnian peace negotiations, 96-97; and Sinai, 145; and South Africa, 224 UNOMOZ (UN forces in Mozambique), 269 UNPROFOR (UN Protection Force), 92 Uruguay, 187; and Mercosur, 177, 180 Van Zyl Slabbert, F., 233 Vance, Cyrus: and Bosnia, liOn; negotiator in Cyprus, 206 Vance-Owen plan, for Bosnia, 11 On Varosha, Cyprus, negotiations on, 209 Vassiliou, George, president of republic of Cyprus, 208 Venezuela, and Essequibo decision (1899), 247 Venice, comediator at Westphalia, 20, 28 Verdun, battle of, I71-72 Verona conference (1822), 56 Vienna, Congress of, 20, 33, 40, 45; agenda, 37, 38, 39, 44-45; chronology of, 70; context of, 3839; events leading to, 63-9; Final Act, 39, 40, 45; formal opening, 40, 44; outcomes, 48, 55-56, 58-59; social ambience, 51. See also Quadruple Alliance (1814) Vienna, Congress of, negotiations, 39; assessment of, 55-59; backwardlooking (finalization of existing treaties), 38, 39; bilateral meetings, 42, 45; committees and forums, 42, 45; complexity and ambiguity, 5960; delegations to, 43-44, 50-51; distribution of functions, 42; to establish "just equilibrium," 54, 56-

34I 57; exclusion of France from, 404 I; forward-looking aspects of negotiations, 39,55, 56-57, 291; human factors and personalities, 49-53; intrigues, 54, 58-59; organization, 40, 41; process, 4854; to reestablish "order" (dynastic), 57-58; stakes, interests and power, 48; structure of, 40-5, 42, 46, 47, 48; and territorial adjustment, 49, 54,56-57,59 violence, 2; sources of, 297 war crimes: and accountability, 299; and participation in negotiations, 96 War Crimes Tribunal (Bosnia), 98, I 00, 104,293 Warsaw, Duchy of, 44 Warsaw Pact, 75 Washingron Agreement (1993) 97, 98, IIOnn Waterloo, Battle of, 39, 40 Weizsacker, Richard von, 170 Wellington, Duke of, 52; at Congress of Vienna, 45, 50 Westphalia, negotiations (1644--1648), 19-20; backward-looking process of, 21-22, 29; composition of delegations, 25-27; forward-looking outcomes, 11, 29-32, 291; inflexibility of mandates, 22-23, 29; limited real agreement, 29-30; processes, 20-22; role of mediators, I 9, 28; status of delegate states, 22 Westphalia, Peace of(l648), I 1, 29 will, and work of memory (negotiations on), 166 women: influence at Congress of Vienna, 51; role of ambassadors' wives in negotiations, 24, 26 World Bank: and Dayton negotiations, 106, liOn; Ecuador-Peru projec1s, 255,257 World War I, 171-72 World War II, 159,171 Wye Valley Memorandum (1998), 133 Y eltsin, Boris, Russian president, 268 Yemen, 147 Yugoslavia, 90, I07; break-up of, 16062. See also Setbia

342

Zimbabwe, and Mozambique, 268, 278 "zones of possible agreement," work of memory as, 167

Index

Zurich conference (1959), on Cypriot Independence,203

About the Authors

Patrick Audebert-Lasrochas is director of the Negotiation-Communication Department at HEC-CRC, Paris. He is a member of LEARN, the Laboratory for Applied Studies and Research on Negotiation at the University of Lille which comprises leading academics and professionals in the field of conflict management and negotiation. He is author of the book Profession: Negociateur. Mr. Audebert-Lasrochas was one of the organizers of the International Conference held in Paris in 2004 at Irene, the Institute for Research and Education on Negotiation in Europe, to mark the 250th anniversary of the birth of "Talleyrand, Prince of Negotiators." His doctorate is in management science from the University of Lille. Juan Carlos M. Beltramino has been Professor of International Negotiation at the Institute of the National Foreign Service (ISEN), Buenos Aires, since 1993. As a career diplomat he participated for four decades in a number of bilateral and multilateral negotiations as the representative of his country. He has lectured extensively and published articles and papers on theoretical and practical aspects of negotiation discipline as well as two books on Antarctic affairs and geography. His major research interests in international negotiation are related to its human dimension and in particular to law, power, culture, and ethics. Franz Cede was legal adviser to the Austrian foreign ministry, has participated in numerous international conferences and bilateral negotiations, and was a regular delegate to the General Assembly of the United Nations. In 1999 Dr. Cede became Austrian Ambassador to the Russian Federation and since 2003 he has been Austrian Ambassador to Belgium, also representing his country at NATO. Dr. Cede is a frequent lecturer at Austrian and foreign academic institutions. He is a member of the German Society of International Law, the Austrian ILA-Branch, and the scientific consultative group of the Austrian Human Rights Institute in Salzburg. He is a coeditor of the Austrian Review of International and European Law (ARIEL). His particular interests are the codification process in the UN system, European law, and human rights issues. 343

344

About the Authors

Daniel Druckman is the Vernon M. and Minnie I. Lynch Professor of Conflict Resolution at George Mason University in Fairfax, Virginia, where he has also coordinated the doctoral program at the Institute for Conflict Analysis and Resolution. He received a PhD from Northwestern University and was awarded a best-infield prize from the American Institutes for Research for his doctoral dissertation. He has published widely (twelve books and more than one hundred thirty articles and chapters) on such topics as negotiating behavior, nationalism and group identity, human performance, peacekeeping, political stability, nonverbal communication, and methodology, including simulation. He is a board member or associate editor of eight journals. He received the 1995 Otto Klineberg Award for intercultural and international relations from the Society for the Psychological Analysis of Social Issues for his work on nationalism, a teaching excellence award in 1998 from George Mason University, and an award for the most outstanding article of 2001 from the International Association for Conflict Management. He is therecipient of the 2003 lifetime achievement award from the International Association for Conflict Management. Christophe Dupont is Director of the "Negotiation Laboratory" at the Business School of Lille, France; he is also a consultant at CRC Conseils Associes, Jouyen-Josas, France. He is author of La negociation: conduite, theorie, applications, and coauthor of several books and articles on negotiation. Janice Gross Stein is Belzberg Professor of Conflict Management and Negotiation in the Department of Political Science at the University of Toronto, the Director of the Munk Centre for International Studies, and a Fellow of the Royal Society of Canada. She has authored over eighty books, book chapters, and articles on issues of international security, negotiation processes, and peacemaking and public policy. She has also been active as a member of international advisory panels including, most recently, the Committee on International Conflict Resolution of the National Academy of Sciences in Washington, D.C. and the Committee on International Security of the American Academy of Sciences. She has lectured widely throughout North America, Europe, and the Middle East. Her Massey Lectures were published as The Cult of Efficiency, which was nominated for the Shaughnessy-Cohen Prize in Political Writing, the Donald Smilie Prize, and the Pearson's Readers' Choice Award. She has worked extensively with government and the voluntary sector and also provides regular news commentary for CBCandTVO. Victor Kremenyuk is Deputy Director at the Institute for U.S.A. and Canada Studies of the Russian Academy of Sciences in Moscow. His areas of interest are international conflict resolution, crisis management, foreign policy, and the negotiation process. He has published more than one hundred works in Russian and other languages and, most recently, edited a state-of-the-art compendium sponsored by IIASA entitled International Negotiation: Analysis, Approaches, Issues.

About the Authors

345

His contributions include Processes of International negotiation (F. MautnerMarkhof, ed.), Windows of Opportunity (G. Allison, W. Ury, and B. Allyn, eds.), and Cold War as Cooperation (R. Kanet and E. Kolodziej, eds.) He is an IIASA Research Associate. Robert B. Lloyd is Assistant Professor of International Relations and Chair of Seaver College's International Studies and Languages Division at Pepperdine University in Malibu, California. He received his PhD from The John Hopkins University's Paul Nitze School of Advanced International Studies in Washington, D.C. He was a country director in Mozambique for an international development nongovernmental organization during that country's civil war. Prior to that he worked as a project manager in Kenya and South Africa. Terrence Lyons is Assistant Professor at the Institute for Conflict Analysis and Resolution, George Mason University. He previously served as a Fellow at the Brookings Institution, Washington, and at the International Peace Research Institute, Oslo. He has participated in talks to resolve conflicts in Ethiopia and served as Senior Program Advisor to the Carter Center's project on postconflict elections in Liberia in 1997. Among his publications are Demilitarization of Politics: Peace Implementation and the Transformation of the Institutions of War (forthcoming); Voting for Peace: Postconflict Elections in Liberia (Brookings, 1999); Sovereignty as Responsibility: Conflict Management in Africa (coauthor, Brookings, 1996). Paul W. Meerts studied political science and international relations at the universities of Amsterdam and Leiden. He has been Research Fellow in Dutch political history at the universities of Lei den and Groningen, as well as coordinator of diplomatic training at the Netherlands Society of International Affairs and the Netherlands Institute of International Relations, "Clingendael." Since 1990 he has been Deputy Director of the Clingendael Institute. As a consultant in diplomatic negotiation he has trained diplomats and civil servants in more than 70 countries. He has written on interstate bargaining, focusing on its political dimensions. Paul Meerts holds an honorary doctorate from the National University of Mongolia Vitaly V. Naumkin has been President of the International Center for Strategic and Political Studies, Moscow, since 1991. In 2003 he became Visiting Professor of the Department of Political Science, University of California, Berkeley. Professor Naumkin is head of the Middle Eastern Department of the Institute of Oriental Studies at the Russian Academy of Sciences, editor-in-chief of the Vostok-Orients journal of the Russian Academy of Sciences, and Professor of the Faculty of World Politics at Moscow State University. His is author of more than four hundred publications in Russian, English, Arabic, French, German, Italian, and other languages. James C. O'Brien is a principal of The Albright Group, a global strategy firm. He was special presidential envoy for the Balkans in the Clinton administration and

346

About the Authors

previously served as Principal Deputy Director of the State Department's Office of Policy Planning. He participated in numerous high-profile international negotiations and played leading roles in shaping the Dayton Agreement for peace in Bosnia, in efforts to avoid war over Kosovo, and in drawing up agreements to control weapons of mass destruction in the former Soviet Union. He is a graduate of Yale Law School and Macalester College in St. Paul, Minnesota. Marie-Pierre Richarte has a PhD in geopolitics from the Sorbonne University in Paris, France. She has studied, both in the United States and Europe, protracted conflicts and their impact on territorial organization and power shifts. She has been a political officer in the Office of the Secretary-General of the United Nations, working firsthand on preventive diplomacy and negotiation in many peacekeeping operations. She is currently a consultant for McKinsey and Company, a global management consulting firm. Valerie Rosoux graduated in political science and philosophy and has a PhD in International Relations from the Universite Catholique de Lou vain (UCL), Belgium. She is a Research Fellow at the Belgian National Fund for Scientific Research (FNRS) and teaches International Negotiation at UCL. Her latest publications are Les usages de la memoire dans les relations internationals (Brussels: Bruylant, 2001) which won the Lemonon Award of the Institut de France; La memoire du gaullisme: culte ou instrument? (Paris-Brussels: LGDJ - Bruylant, 1998); Human Rights and the Work Of Memory in International Relations, published in the International Journal of Human Rights in June 2004; Secrecy and International Negotiation, published in the Journal of Information Ethics in 2003; and La paix au Rwanda: invraisemblable pari? published in the Revue de prevention et de reglement des differends, in Spring 2004. Beth A. Simmons is a Professor in the Government Department at Harvard University. Her research interests include international political economy and international law. Her book, Who Adjusts? Domestic Sources of Foreign Economic Policy During the Interwar Years, won the 1995 Woodrow Wilson Award for the best book published in political science. Professor Simmons is currently working on three projects: territorial conflict and trade, diffusion of economic policies, and international law and human rights. I. William Zartman is Jacob Blaustein Professor of Conflict Resolution and International Organization at the Nitze School of Advanced International Studies (SAIS) of The John Hopkins University. He is the author of The 50% Solution, The Negotiation Process, and Positive Sum, among other books. He is organizer of the Washington Interest in Negotiations (WIN) Group and Director of the Conflict Reduction in Regional Conflicts (CRIRC) Project conducted by SAIS and the Institute for the U.S.A. and Canada Studies in Moscow.

About the Authors

347

Irina D. Zvyagelskaya has a doctorate in Science (History) and is Vice-President of the International Center for Strategic and Political Studies. She is also Head of Section at the Institute of Oriental Studies at the Russian Academy of Sciences. Since 2000 she has been lecturing at MGIMO (Moscow Institute of International Relations under the Russian Foreign Ministry). Her publications deal with conflicts, international relations, and security issues (mainly in the Middle East and Central Asia).