81 Pages Posted: 9 Mar 2004
This article considers an important failure of bargaining that, inexplicably, receives little serious attention in scholarly journals: the decades-long inability of Israel and the Palestinians to negotiate a treaty to end their conflict and govern their relationship. We use interdisciplinary negotiation theory as a construct for understanding this failure and deriving the principles that should underlie any United States attempt to mediate the process and help create a new legal regime for the Middle East.
Our approach to examining the Israeli-Palestinian impasse leads us to the following conclusions: The failure of the parties to date to reach an agreement based on the land-for-peace framework can be attributed to some combination of three common roadblocks to negotiation success: (a) the absence of a bargaining zone, such that no single set of agreement terms would be preferable to continued impasse for both parties; (b) internal division within one or both principal parties, such that an agent or a minority faction with the ability to block an agreement undermines a result that would benefit the party as a whole; and (c) mutual hard bargaining, such that both sides refuse to accept an agreement that would be preferable to impasse and instead hold out for an even more desirable agreement.
Because the parties' rhetoric can be consistent with any of these explanations, only an omniscient observer could know for sure which of these three roadblocks (or combination thereof) are actually the but - for cause of the ongoing impasse. Consequently, any U.S.-sponsored peace initiative would be most likely to succeed in bringing peace to the Middle East if it were to include a conscious plan to overcome each of these roadblocks. We propose that such a plan should begin with the United States presenting a non-negotiable set of terms to the two disputing parties that they can either take or leave but not bargain over, maximize the chance that the parties will accept those terms by both including side payments to the parties as part of the proposed deal and simultaneously threatening to withhold political and economic support if the deal is rejected, and take specific steps to work with the disputants and allies to limit the power of Palestinians and Israelis who are opposed to an agreement to stand in its way.
Keywords: Middle East, Israel, Palestine, negotiation, mediation
Suggested Citation: Suggested Citation
Korobkin, Russell B. and Zasloff, Jonathan, Roadblocks to the Roadmap: A Negotiation Theory Perspective on the Israeli-Palestinian Conflict after Yasser Arafat. Yale Journal of International Law, Vol. 30, pp. 1-80, 2005; UCLA School of Law, Law and Economics Research Paper No. 04-4. Available at SSRN: https://ssrn.com/abstract=512064 or http://dx.doi.org/10.2139/ssrn.512064