Negotiation as dispute resolution mechanism in international law with reference to pertinent refugee crisis
Written By – Dr. Kajori Bhatnagar
“The most important trip you can take in life is meeting people half way”.
With is notion we can further highlight the concept of negotiation as method of dispute resolution internationally.
1.1 Concept of negotiation
Negotiation describes any communication process between individuals that is intended to reach a compromise or agreement to the satisfaction of both parties. Negotiation involves examining the facts of a situation, exposing both the common and opposing interests of the parties involved, and bargaining to resolve as many issues as possible. Negotiation takes place every day in nearly every facet of life—from national governments negotiating border disputes, to companies negotiating work agreements with labour unions, to real estate agents negotiating the sale of property, to former spouses negotiating the terms of a divorce.
1.2 International Negotiation
In addition to using a body of international law, international organizations may use ADR to create a framework for cooperation and interstate relations. In reference to international dispute regulation mechanism, international negotiation has been one of the most pervasive processes in world politics since the dawn of recorded history.
The usual outcome of successful international negotiations is the conclusion of a legally binding international agreement or treaty, culminating from deliberations lasting from several successive phases. The first phase is the pre-negotiation stage which transpires before a mutual commitment to negotiations has been made. The second phase is the process of the negotiations itself, during which the negotiating states engage in substantive discussions and bargaining. The final phase is the period between the conclusion of negotiations and the entry into force of the recently negotiated obligations.
Once the agreement enters into force, it creates binding legal obligations for its parties. In that sense, the outcome of the negotiating process is fully protected by law i.e., the parties are legally obligated to perform in good faith the obligations they have assumed, and the legal consequences of noncompliance are prescribed. Modern international law also extends legal protection to the third phase of the negotiation process – the period between the conclusion of negotiations and the entry into force of the negotiated agreement. During this period, states which have signed an agreement or expressed their consent to be bound are obliged to refrain from acts which would defeat the object and purpose of the agreement. This requirement aims to prevent prospective parties to the agreement from undermining the benefits accorded by the agreement to other prospective parties.
2.0 Concept of Cross culture negotiations: Nature of Conflict
Conflict is a feature of all human societies, and potentially an aspect of all social relationships. However, ideas about the root causes of conflict differ widely, and depending upon their variations their resolutions also differ. The conception of conflict finds its roots it in the material world, as competition between individuals or groups over incompatible goals or scarce resources, or over the sources of power needed to reach those goals or control these resources, including the denial of control to others. A different conception locates the basic causes of conflict not so much in material scarcity as in divergent perceptions or beliefs about the nature of the situation, the other party, or oneself.
2.1 Cultural variations
According to cultural geographer, Don Mitchell , “Culture is a nebulous structure of feelings that define the life of a people, and a set of productions, that reflect upon, speak to, or mould that structure of feeling through various strategies of representation.”
After analysing the definitions of the world culture, one thing can be observed that the nuances of the word “culture” develop over time rather undergo metamorphosis. With each new definition, the meaning of “culture” becomes more complex, To the contrary, the concept the word, is a product of a long developmental process greatly influenced by power relationships through which people have sought to make “culture” work to their advantage. Culture is a politically charged, and sometimes politically powerful, tool that people often manipulate to gain the upper hand (power).
In the last half of the twentieth century, it became increasingly improper for people to describe “culture” in hierarchical terms. The romanticized concept of “culture” (that cultural practices in general should not be criticized) rests on the belief that “civilization” is material, whereas “culture” is spiritual and symbolic. This way of viewing culture has created many complications for scholars, academics, religious leaders, politicians, and ordinary people
2.3 Cross-Cultural disputes and their resolution
Considering the literal interpretation, conflict occurring between individuals or social groups that are separated by cultural boundaries can be considered “cross-cultural conflict.” But individuals, even in the same society, are potentially members of many different groups, organized in different ways by different criteria, for example, by kinship into families or clans, by language, religion, ethnicity, or nationality, by socioeconomic characteristics into social classes, by geographical region into political interest groups and by education, occupation, or institutional memberships into professions, trade unions, organizations, industries, bureaucracies, political parties, or militaries. The more complex and differentiated the society the more numerous are potential groupings. Each of these groups is a potential “container” for culture, and thus any complex society is likely to be made up various “subcultures,” that is of individuals who, by virtue of overlapping and multiple group memberships, are themselves “multicultural.” This means that conflict across cultural boundaries may occur simultaneously at many different levels, not just at the higher levels of social grouping—for example, those that separate “American” from “Japanese” cultures.
2.3.1 Resolving Cross cultural disputes
It is contented that there has been referred to certain strategies and models of conflict resolution thereby providing for a range of possible responses to cross-cultural ethical conflict. These are based on models by Rubble and Thomas and strategies from Buller et al. These strategies are:
Avoiding. Described as the low involvement approach, a party simply chooses to ignore or not deal with the conflict. The conflict may dissipate, but usually smoulders and flares up later. Strong parties can ignore the conflict when they are pleased with the status quo. For them, it may be a form of forcing.
Forcing. In this approach, one party forces its will upon the other.
Education -persuasion. This mechanism attempts to convert others to one’s position through providing information, reasoning, or appeals to emotion.
Infiltration. By introducing your values to another society, an appealing idea may be spread. This may be clone deliberately, or it may be unintentional. The values associated with freedom and consumerism are examples.
Negotiation – compromise. In this strategy, both parties give up something to negotiate a settlement. The resulting compromise usually leads one party or the other (or both) to feel dissatisfied with the outcome and that the basic conflict has not been resolved. The recent negotiations on unfair trade practices between Japan and the U.S. are a good example.
Accommodation. In this approach, one party merely adapts to the ethic of the other. A foreign company may meet U.S. expectations for legally precise agreements to do business in the U.S. market, and an American businessman might learn to drink said to do business in Japan.
Collaboration -problem solving. In this strategy, both parties work together to achieve a mutually satisfying solution, a win-win outcome in which both their needs are met.
2.3.2 Conflict Resolution Models
Conflict resolution as a discipline has developed theoretical insights into the nature and sources of conflict and how conflicts can be resolved through peaceful methods to effectuate durable settlements. Any of the following models could be referred for the same
- Morton Deutsch: Cooperative Model– In his view, several factors like the nature of the dispute and the goals each party aims at are pivotal in determining the kind of orientation a party would bring to the negotiating table in its attempt to solve the conflict
- Roger Fisher and William Ury: Principled Negotiation- This model asserts that “separate people from their problem”.
- John Burton: Human Needs Model: To resolve issues concerning various human rights concerns, the inevitable needs of an individual within a group could be identified, questioned and subsequently restructuring of relationships or the social system can take place in a way that needs of all individuals and groups are accommodated
- Bush, Folger And Lederach : Conflict Transformation-This model focuses on fundamental change in attitude and/or behaviour of individuals and/or the relationship between two or more disputing parties
- Conflict Transmutation- Conflict transmutation is centred on the principles found in alchemy as a set of contemplative practices that transform deeply encrusted feeling and thoughts that fuel destructive conflict behaviour.
Conflict infact permeates each and every strand of human existence and often takes shape of diabolic cyclical violence unless dealt with creatively and constructively. Though each conflict resolution theory has its own limitations yet conflict resolution as a discipline can be of immense significance in this respect and as we ruminate the current world politics where the powerful does not have qualms about resorting to force at any given opportunity, conflict resolution theories are emblematic of how military force is not always the right approach for dealing with conflict effectively.
3.0 Negotiation in Refugee Law
As, per the definition of refugee as given under 1951 Refugee Convention, refugee is a person who leaves his country of abode due to fear of persecution based on religion, race, sex, membership of political and social group. A person’s country or region of origin can influence that individual’s culture, it is not the only influence on his or her cultural identity. Cultural identity is shaped by a multitude of factors, including religious beliefs, ethnicity, schooling, social affiliations, social class, interests, gender identity, neighbourhood, profession, organization, department, workgroup in which one works, etc. Giving a broader meaning to the concept of cross-cultural conflicts, negotiation at international level that is drafting of an amicable resolution to deal with it is the need of the hour. Application of negotiation to dispute resolution in this regard can be done in three ways:
Firstly, where contracting parties could come to amicable solution via means of agreements, i.e., deliberations on inadequacy of treaty or as in case of India work on requisites of having a law on this regard.
Secondly, ‘recognition of gatekeeping’ as a negotiating tool itself. In regular parlance this phenomenon entails checking of dissemination of information that reaches the concerned crowd. Applying it to refugee law it is used as the phenomenon of checking or filtering the illegal immigrants from regular applicants. But this system itself does not have any legal character per se and is mostly a policy measure, subject to modifications and alterations by nations.
One of the illustrations of this mechanism can be seen by analysing treatment of border areas of European Union (such as Turkey, Greece etc.) as hotspots to control exodus of refugees till Refugee Status Determination is done.
Lastly, Empowering UNHCR (United Nations High Commissioner for Refugees) to be official gatekeeper. It is to be noted that as per the statute is to work as a negotiator b/w the state and the people, i.e. to assist the state in formation of legislations and for determination of refugee status applications. Negotiation in this regard can come into picture to resolve the dispute regarding the implementation of the statute to existing situation.