By
Julian Ouellet

September 2004
 

Intractable conflicts, by definition, exist between parties that neither trust each other nor communicate with each other. Agreements made in moments of conciliation may fail, even when made in good faith, because parties are not able to enforce the terms of the agreement. In order to prevent this, enforcement mechanisms or compliance procedures should be built into any peace agreement.

This building block will consider possible enforcement mechanisms both within one state and between states (i.e., in the international system). International agreements are often more difficult to enforce because international law is rarely binding in any meaningful way. Agreements that occur within operational states, however, may find effective enforcement mechanisms that are guaranteed or enforced by the state itself, either explicitly or implicitly. But intractable conflicts that occur between a state and party within the state may be problematic because the law may be used to exacerbate the conflict

Types of Enforcement Mechanisms

"Enforcement" is often associated with authority and violence. In the context of intractable conflicts however, this is not necessarily so. Enforcement mechanisms should be understood as those methods by which negotiators can encourage compliance. As Abram and Antonia Chayes point out, the goal is not absolute compliance, but rather increased cooperation.[1]

Enforcement mechanisms fall into two categories, positive and negative. Positive enforcement mechanisms encourage compliance with an agreement by providing rewards or "incentives". Negative enforcement mechanisms encourage compliance by threatening (and using) punishments or "disincentives." Both approaches have strengths and weaknesses. Effective agreements often utilize both positive and negative enforcement mechanisms in a carrot-and-stick manner. The important thing is to use the appropriate tool for the appropriate situation.

Positive Enforcement Mechanisms

Positive enforcement mechanisms are incentives or other means for encouraging compliance in a positive way. These rewards may be monetary, or they may be political or social. If one side disarms as they promise, they may then get a promised aid package, or representation on a governing committee, or some other reward for fulfilling their part of the agreement. Another reward for compliance is what has been called "the peace dividend." If agreements are upheld and the peace becomes fairly stable, this usually brings tremendous economic, social, and political benefits to both sides. Resources that had been focused on waging the war or other conflict, can now be focused in more productive ways. This is usually seen as a great benefit, encouraging compliance with agreements whenever possible.

Other factors which encourage compliance include transparency, bureaucracy , and conflict resolution mechanisms.

• Transparency involves the collecting and sharing of information at its most basic level. It also includes policy formation and mechanisms for publicizing information.[2] Transparency creates important psychological incentives for compliance. If two parties to an agreement agree that their compliance (or lack of compliance) to the terms of the agreement will be made public, there are then higher stakes for violating the terms of the treaty and possibly upsetting the peace process.
• Bureaucracy. Chayes and Chayes also argue that bureaucracy helps to encourage compliance. Several authors have pointed out that the most likely spoilers to an agreement are elites. However, the elites must be included in any viable agreement. Peace agreements are always the result of the push and pull between the interests of the elites who are negotiating the agreement and those of the masses they represent. If the masses do not support the peace agreement, it can cost the elites their credibility. Likewise, if the grassroots citizens support the agreement, leaders will lose credibility and legitimacy if they violate it. This creates an incentive to comply with the agreement and a disincentive to violate it.
• Dispute Resolution Processes. Enforcement mechanisms should also include dispute resolution agreements. Dispute resolution agreements not only create space for mediation of disagreements over enforcement, but they also allow unclear aspects of the agreement to be reviewed and interpreted after the fact. Including a degree of flexibility in the agreement allows elites to maintain their credibility, while including the limitations that are crucial to the success of the agreement.

Such compliance processes are seen as positive approaches to enforcement, since they rely little on punitive measures for failure to meet agreed upon goals. Rather, they "mobilize feelings of shame".[3] These processes create standards of judgment by which non-compliant parties are likely to judge their own actions.

Negative Enforcement Mechanisms

Punitive measures---the stick part of the carrot-and-stick---occur in the form of sanctions, reparations, and agreement withdrawal. Even with dispute resolution systems, there will likely be violations or alleged violations to any agreement. The difficulty in designing negative enforcement mechanisms is that you have to inflict meaningful punishment for a violation, without making the costs so high it is better for the violator to just withdraw from the agreement.

• Sanctions are social, political, or economic "punishments" against a government. For example, economic sanctions may limit or completely prohibit a nation-state to import or export goods. Political sanctions might involve the withdrawal of embassies or consulates, while social sanctions might include the prohibition of a country's athletes from international sporting events.

International sanctions are a highly contentious issue and thus are probably not the best mechanism for enforcing agreements. For one, they are seldom very effective. Trade bans, especially are easily violated, so their impact on the target country may be minimal. Sanctions also tend to harm grassroots civilians more than elites. While some more enlightened elites might care about the well-being of their constituencies, others do not. Lastly, whether limited or complete, sanctions can be seen as an act of war and thus can, in intractable conflicts, be taken to be a violation of the agreement themselves.

• Reparations: It is common, especially in environmental agreements, for reparations to be used. Environmental agreements are, by nature, focused on specific instances and quantifiable areas. For example, the violator can repair an environmental violation or payments can be made to the injured party. (See, for examples, the discussions of compensation and restorative justice.)

This is more difficult to enact in the wake of armed violence. Peace agreements can be quite tenuous and stiff reparations can lead to the failure of the agreement. The failure of the Treaty of Versailles that ended World War I is a perfect example.

Thus, while reparations are useful, they are only manageable in low intensity conflicts and function only when economically reasonable. In the wake of a civil war in a poor state, it may not make sense to include heavy reparations for violation of the agreement, as the parties are probably unable to make the reparations, and the people to suffer the most from any attempt to do so would be the poorest segments of the society who were likely victims themselves during the conflict.

• Agreement withdrawal: One of the greatest threats can be withdrawal from an agreement. Parties to an agreement can place criteria in the agreement, which if transgressed, will bring about its dissolution. Typically, circumstances under an agreement should be better for all parties than circumstances without the agreement. Thus the potential for withdrawal from the agreement is a key limit on the actions of both parties.[4]

Choosing Enforcement Mechanisms

The choice of enforcement mechanisms will vary based on the situation and the appropriate scope of mechanisms available. What this means is that certain mechanisms are meaningful and useful in certain situations but inappropriate in others. It is important to understand the underlying causes of the conflict and the important structural factors contributing to and inhibiting compliance with the agreement.

A diagram, originally developed by Maire Dugan and later used by John Paul Lederach, illustrates this issue.[5]

Dugan described conflicts in terms of "nested foci". The inner-most oval is the immediate issue; the next oval is the relationship, followed by the subsystem and finally the entire conflict system on the outside. Enforcement mechanisms that are solely focused on compliance with the issue at hand (the inner circle) may miss larger structural problems that contribute to non-compliance.

Lederach uses the example of youths with weapons in Mogadishu. Part of the peace agreement there involved a disarmament program which paid youths money if they gave up their guns. This program was ill-suited to solving the problem, however, because giving the youths money did them little good. They didn't need a small amount of money, they needed jobs, and with jobs a future. The problem was eventually confronted with a guns-for-job training program which hit at the root of the problem. Guns were not simply an artifact of violence, but a means for the youths to achieve social status, as well as earn a living. They needed to be given an alternative way to earn a living, if they were to give up their guns.[6]

Thus the two key constraints in choosing enforcement mechanisms are whether people are better off withdrawing than incurring punitive measures and whether the enforcement mechanisms target the appropriate root of the problem.

• Withdrawal: The **ZOPA (Zone of Possible Agreement) has a lower limit of a "walk-away" position. That is, on a continuum of possible agreements there is a lower limit below which a party is better off with the status quo than with the agreement. This is a key constraint on an-agreements and also upon any agreed-upon enforcement mechanisms.
• Appropriateness: The other constraint, as stated above, is the appropriateness of the measure. For example, in the wake of a civil war in a poor state, it may not make sense to include an agreement on widespread reparations for violation of the agreement. Incentives must provide things people really need or want; disincentives must be worse than what would happen if the agreement falls apart.

External Limits on Enforcement Mechanisms

Peace agreements are limited by three major external factors: the relative power of the parties, the rule of law, and the interest of empowered outside actors.[7]

Parties' Power: The relative power of the parties comes into question if one party is significantly weaker than the other. In this case, the dominant party will tend to impose its will on the less powerful party. But this asymmetrical relationship may not yield a lasting agreement. In this situation, the parties may need to adjust their bargaining position or call in a third party to help even the playing field. Third parties may also be required in cases where both parties are relatively powerless in order to guarantee the agreement.

Rule of Law: Another factor in the structure of agreements is the rule of law. As Chayes and Chayes note, international agreements are decided outside the "shadow of the law," and thus enforcement mechanisms will be very different from agreements decided between parties within cohesive states.[8] Agreements that take place within a state do not necessarily require explicit enforcement mechanisms because the state itself can guarantee the agreement. Legal systems and policing can guarantee the sanctity of any legal agreement. On the other hand, international agreements have no parallel coercive or legal instruments to enforce agreements.

Outside Actors: Lastly, in intractable conflicts that require third party involvement, the interest of the third party is crucial. In larger international conflicts, the interest of the UN or outside powerful parties such as the United States, the European Union, or NATO can be the deciding factor in whether or not the international community takes an interest in the peace process or contributing to the enforcement of the peace agreement. Many ethnic conflicts require international peacekeepers to stabilize the situation for a number of years, before the peace agreement really "takes hold." Thus the willingness of the disputants to accept such outside peacekeepers, and the willingness of outside parties to contribute peacekeepers is key to the successful enforcement of many agreements

Roles for Third Parties in Enforcing Agreements

In theory, the main parties to an agreement should agree to the methods and standards by which the agreement is to be enforced. However, in practice, even when parties do agree on the substantive provisions of an agreement, they may find it difficult to actually enforce the agreement. Third parties are important because, as neutral guarantors of the agreements, they can monitor it objectively, whereas the involved actors could not, by definition, be objective in respect to the agreement. In intractable conflicts, third parties are usually the best hope for beginning negotiation and seeing it through and ensuring compliance to the agreement obtained.

Summary

This building block has laid out the general enforcement mechanisms that can be built into agreements. Specifically, positive compliance procedures and negative enforcement mechanisms can operate together to encourage compliance with the agreement. But, when creating a system of incentives and disincentives one still needs to construct an external environment that fosters such a structure. To this end, one must consider the relative power of the parties collectively and individually. One must also consider the efficacy of law in any given conflict. Third parties are in a unique position to oversee these tasks. Thus it often falls to third parties to design and implement enforcement mechanisms.

http://www.inece.org/1stvol1/hajost.htm : Mechanisms: Reparations; Compliance Monitoring; Evaluation, Notification, Consultation; Reporting Data , mobilization of shame.

Yarborough and Yarborough, ISQ 30,1. pp 7 --21.

[1] Chayes and Chayes, "Compliance Without Enforcement."

[2] Chayes and Chayes, "Compliance Without Enforcement."

[3] Hajost and Shea http://www.inece.org/1stvol1/hajost.htm

[4] Chayes and Chayes, "Compliance Without Enforcement."

[5] Maire Dugan, "A Nested Theory of Conflict," Women in Leadership 1, no.1, summer 1996 and John Paul Lederach Building Peace: Sustainable Reconciliation in Divided Societies. Washington, D.C. U.S. Institute of Peace Press. 1997, pp. 55-57.

[6] Lederach, Building Peace, p. 58.

[7] Stedman and Downs, also Keck and Sikkink

[8] Chayes and Chayes again

Use the following to cite this article:
Ouellet, Julian. "Enforcement Mechanisms." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2004 <http://www.beyondintractability.org/essay/enforcement-mechanisms>.

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