The Art of International Negotiations

The methodology of engaging international relations seems to be breaking down. Two issues that come to mind are the US attitude to the International Criminal Court, and Brexit.

Regarding the ICC, on September 10, John Bolton, the US National Security Advisor, announced that Washington would “use any means necessary” to push back against the influence of the ICC. The ICC was established in 2002, and has succeeded in convicting a number of war criminals from Africa and former Yugoslavia, although one can question exactly the nature of the sovereignty of the broken laws. Thus a senior military man could be prosecuted for the actions actually carried out by more junior soldiers, even in the absence of clear evidence of such orders. Obviously, people carrying out, or even worse, ordering murder, torture, etc, need punishing, but there also needs to be some sort of sovereignty, the reason being that, in my mind anyway, justice needs to be blind to the origin or nature of the perpetrators. If it is only the losing side that gets prosecuted, it is essentially victor’s justice, which is usually little better than revenge. Given that the US, Israel, China and Saudi Arabia have refused to ratify the founding document, on the basis that it had unacceptable consequences to national sovereignty, the concept of “international” is clearly questionable.

Now, as far as I know, no US citizen has ever been indicted, probably because it would be futile, but apparently there has been agitation regarding US soldiers in Afghanistan, particularly regarding alleged torture of detainees. Now, the argument then is, if the crime took place in Afghanistan, the fact that the US has not ratified the court is irrelevant, and any perpetrator of a crime against a ratified member can be prosecuted, irrespective of the nationality, or at least that is the view of the ICC. Of course, arresting such a person is another matter. Here, however, there is a further issue. Some of what is alleged, e.g. waterboarding and indefinite detention without due process, apparently occurred with the permission of very senior US officials and politicians, and apparently the President. This raises the question, exactly how does such an organization decide whether the President of the United States has ordered or permitted something that is illegal? But if the United States is exempt, why are lesser countries susceptible to prosecution? Is it a case of might makes right?

In any case, Bolton’s statement that the US would ban any such members of the ICC from entering the US, and it would sanction their funds and prevent them from using the US financial system is certainly a shot across the bow. The question then is, is this the way of going about negotiations? Or does the US feel there is no alternative? It is certainly acting as if the rest of the world is some sort of unfortunate added extra. In terms of international relations, the United States, through President Trump’s recent speech at the UN, has effectively declared it feels it wishes to separate its interests from those of the rest of the world. America first! I for one agree that all is not right with the UN, but I do not believe that attitude helps.

The Brexit negotiations are more confusing. The EU rules meant that when Britain elected to leave, there was a two-year period to sort out all the consequences, but at least the last six months of that appeared to be required to put the agreement in place, which left 18 months to reach the agreement. That has almost expired. The EU has decided that the UK has been “dawdling”, and trying to present the EU with a deal that would have to be agreed at the last minute, or no deal. The problem with that approach is that “no deal” works both ways, and the assumption that the other side is desperate to have a deal may be misguided. However, there are issues on which the EU is quite obstinate. One is that if the UK wants access to the EU markets, Britain must accept the free movement of citizens, and stopping that is one of the reasons Britain elected to leave the EU. There are other demands by the EU: manufactured goods must be by the EU rulebook; the European Court of Justice will have overall jurisdiction; the UK must retain European labour and environmental laws. Now it is reasonable to require such things for goods that are shipped to the EU, but the EU should have no say on goods that do not touch the EU as it is none of their business.

Some seem to predict a total disaster for the UK if they leave with no deal, however we should note that the UK buys £318 billion from the EU, and exports £235.8 billion. So, if all trade stopped, the EU would suffer an extra £82 billion. But the situation is worse than that because Britain’s exports of manufactured goods to Europe include an extensive array of parts, etc. These days, large complicated objects are not made by one company, but rather they are assembled from parts supplied by a large number of different manufacturers. So trade will not stop, and it is in both sides’ interests to keep it going with as few hold-ups as possible.

The other major problem is the Northern Ireland border. Theresa May offered a tolerably straightforward solution, which would allow smooth crossing of the border provided certain “paperwork” (essentially electronic in this case) was properly completed. The EU have responded by saying Northern Ireland must remain fully within the customs union, which effectively means that Northern Ireland would become part of Eire in all but name. No UK prime minister could accept that. As a negotiating stance, President Macron of France has stated the British plan is unacceptable because “it does not respect the integrity of the single market.” Effectively that is saying, either be in the EU or do not trade with it. That is a fairly tough stance. President Macron went further and called some of the Brexiteers liars. Not exactly diplomatic.

There is fairly clear evidence the attitude towards the UK from Brussels has hardened, and they seem to be forcing Britain to opt for “no deal”. Mrs May, being pushed into a corner, has responded by saying that it was unacceptable for the EU to reject her plan and offer nothing in return except “no Brexit”. To succeed in negotiations, both sides need something, and in this case, both sides need trade to continue. Neither side does well out of a failure. But both sides also need reasonably good will, and a desire to reach an agreement. Not a lot of promise there. It is hard to get rid of entrenched pig-headedness.

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