More Process than Peace: Legitimacy, Compliance, and the Oslo Accords
Orde F. Kittrie
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Michigan Law Review, Vol. 101, pp. 1661-1714, 2003
This article's analysis of the Oslo Accords and their failures reveals important lessons about what in a bilateral peace agreement's text can maximize, and what can diminish, the likelihood that the parties will comply with the agreement's terms. Reviewing and building upon three key books, the article makes clear that the Oslo process and texts failed to take advantage of many of the most valuable contributions that international law can make to successful peace negotiations. The failure to take advantage of these tools meant the Accords were, from the beginning, weaker than they could have been. That congenital weakness was compounded by the parties' heavy reliance on two methodological pillars - open-ended gradualism and constructive ambiguity - that proved to be disastrously counterproductive.
The logic behind open-ended gradualism was to defer issues that were hard to resolve in the hope that gradually intensifying cooperation between the two sides, and progressively increasing the concessions of each to the other, would build sufficient trust to enable later compromises. But the Accords' open-endedness as to final status arrangements enabled both sides' leaders to create dangerous expectations by promising their people unattainable results, fed each party's concerns about the other's good faith, deprived both sides' leaders of a vision of the future to sell to their people, left the process hostage to extremists, and encouraged the parties to unilaterally improve their positions on the ground for the final negotiations.
Gradualism meant almost continual negotiations. These diverted policy analysis resources from permanent-status issues to incremental changes, and created business-sapping uncertainty. Public skepticism was increased by minor interim agreements that seemed to change nothing, friction between the two leaderships was fed by missed deadlines, and changing obligations meant the Accords were unable to benefit from the compliance-promoting efficiencies of routinization.
The Oslo framers' extensive reliance on constructive ambiguity to paper over differences also seemed to create more problems than it solved. For example, it induced false public expectations as to what had been resolved and fostered dangerous misconceptions as to what had been gained or conceded. Tensions caused by ambiguity in certain areas (such as revision of the Palestinian Charter) wasted valuable negotiating energy and undermined the perceived legitimacy of the agreements as a whole.
It is impossible to say whether an improved Oslo process and texts would have brought peace. The article notes the strong argument that a successful deal was impossible because Yasser Arafat was from the beginning acting in bad faith, but argues that the possibility of such bad faith does not mean that the only lesson to be learned from Oslo's failure is the danger of signing agreements with the likes of Yasser Arafat. The article finds that analysis of the flaws of the Oslo agreements is essential for two reasons. First, the open-ended gradualism and ambiguity of the Accords clearly had a corrosive effect in and of themselves. Second, any peace deal the Israelis and Palestinians ultimately reach will likely use the Accords as a point of departure. It is therefore critical to understand which aspects of the Oslo Accords should, on the basis of experience, be disqualified from reappearing irrespective of the leader on the Palestinian side of the deal.
The article concludes with a discussion of lessons learned, including lessons specifically applicable to future Israeli-Palestinian negotiations and lessons generally applicable to designing peace negotiations, and peace agreement texts, to maximize compliance with their terms.
Number of Pages in PDF File: 54
Keywords: Israel, Palestinian, Oslo Accords, peace treaty, peace agreement, compliance, international law, ambiguity, gradualism
JEL Classification: K33, K42Accepted Paper Series
Date posted: June 30, 2007 ; Last revised: November 4, 2007
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