The Indian government’s talks with Naga insurgent groupings—NSCN (IM) and NNPGs (a bunch of factions) have been going on with two separate sets of outcomes: The ‘Framework Agreement’ with NSCN(IM) and ‘Agreed Position’ with NNPGs. Contradictory interpretations of these mean that resolution has remained elusive. The Centre’s interlocutors for peace talks, K. Padmanabhaiah, R.S. Pandey and R.N. Ravi, all have tried to steer towards a solution. Now A.K. Mishra is searching for common ground.
Some months back, as I prepared to lecture a group of young state service trainees on ‘interpretation of statutes’, I thought of making it a bit contextual—Nagaland centric. I narrowed it down to some words and phrases in the ‘Framework Agreement’ whose interpretation has been the bone of contention not merely with the Indian government, but among Nagas inter se—unique history and position, intricacies of the Indian system, contemporary realities, comprehensive progress, understanding each other’s respective positions, sovereignty lies with the people, sharing sovereign power, enduring inclusive new relationship, and peaceful coexistence of the two entities. These phrases have lent themselves to divergent interpretations, confusions, and an impasse.
Legislations being contextual, all possible nuances and variations of human behaviour cannot be predicted, and uncertainty always remains. Agreements that are meant to resolve issues, often become the bone of contention and the starting point for fresher conflicts and misunderstandings. The resultant discords can be traced to multiple factors. Let me dwell on a few—the discords, possible reasons and solutions.
For lasting peace and amelioration of difficulties for the people of Nagaland from unending turmoil of extortion, threat, coercion and distrust, towards better governance and prosperity, some unsolicited observations follow.
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Divergent views
Agreements aim to reconcile differences, views and result in documents that enshrine the resolved issues. The very purpose of agreements is ‘conflict resolution’ or narrowing down of differences. However, sometimes negotiating parties indulge in one-upmanship—either because of superior negotiating skills, or because one side can envision and incorporate provisions that ‘hedge’ their bets better. In such cases, disputes arise later.
Lack of openness
When negotiators don’t trust each other, the documents come riddled with riddles. Evasive agreements exacerbate differences, widen schisms. Such documents depict distrust ab initio, with words, phrases and sentences used being open to ambiguity and interpretation. The terms, phrases and clauses used imply different meanings for the negotiating parties, who, rather than attempting to bring clarity, deliberately harp on the ambiguities.
What both think of as victories are actually defeats—in trust, confidence, systems and individuals. At the negotiation stage, they result in deadlock. Mutually acceptable terms, definitions, and interpretation of terms and clauses are the sure shot way to sound negotiations.
Incorporating opposing views
Agreements are efforts at bridging the gaps, so, an oft-adopted strategy is incorporating divergent and mutually exclusive views. Naturally, such treaties are not treaties of concord but discord – being compilation of ‘divergent views’ rather than resolution of differences. A Tom and Jerry game erupts with the Jerrys who thought they were smart but finish second best under the weight of the mighty Toms. The Vietnam-China statement of 2012 where they agreed to rely on both United Nations Convention on the Law of the Sea (UNCLOS) and ‘history’ in conflict resolution is a classic.
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Treaties between the winner and vanquished
The most unequal treaties are negotiated under duress and coercion with the vanquished being at the receiving end. The vanquished must choose between pragmatic realism and an ideal situation. The loser is left to salvage whatever is possible. The outcome of the ongoing conflict in Ukraine will probably result in such an agreement.
Different legal systems
When treaties are signed between states or countries or entities having different legal systems and institutions, confusion is an outright outcome. I recollect India’s negotiations with Nepal, Ukraine and Turkey on extradition and mutual legal assistance matters where the understanding of various words, phrases and clauses of our counterparts was so different that progress was seemingly impossible. Breakthroughs came only when we resolved the variations in interpretations and uses. Such differences, though resolved at the table, do not find mention in the ‘agreement texts’ leaving room for ambiguity and misunderstandings – there can be multiple misunderstandings). Records of discussions are a way out of such imbroglios.
Irreconcilable differences
Agreements sometimes get thwarted by irreconcilable differences and positions. For example, bar on extradition of own nationals/citizens or death penalty can be sticking points. Here, one of the parties has to forego its position for the sake of mutual progress. India has acceded and reconciled to such positions of partners in many extradition treaties.
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Treaties limited by constitutional provisions
A country’s executive cannot act ultra-vires the powers devolved on it under laws. Constitutional amendments are a way out. Despite constitutional amendments being common, these have to stand the test of legal and legislative scrutiny besides echoing public sentiments. The legislature’s powers to amend or modify statutes are almost absolute and subject to the ‘basic structure doctrine’.
Breaking treaty deadlocks – RUDs
Despite efforts at reconciliation, varying interpretations are common, and these make the laws ‘living documents’. Besides judicial decisions, three methods of removing difficulties in interpretations in agreements are Reservations, Understandings and Declarations (RUDs). Sometimes when treaty misconceptions cannot be undone and are impossible to re-do, the agreements/treaty texts, negotiating parties can resort to RUDs to break the deadlock and distrust. RUDs can be at the negotiation stage or after signing and ratifications. RUDs can be unilateral too.
Unless treaties/agreements are on ‘Secret’ or ‘Top Secret’ matters between nations, they are meant to be ‘public documents’, open to public scrutiny. Making all negotiations public at all stages is neither viable nor practical, albeit bringing ‘agreed texts’ into the public domain at the negotiation stage could be an excellent strategy. Governments publishing ‘draft’ legislation on their websites for comments and inputs from stakeholders is a welcome development. By securing diverse views, it can ensure that fresh confusion does not creep in.
Conflict resolution should ideally result in friendship, not rancour. Any resolution that begins with bitterness would require application of a decent quantity of balm later. Accommodation, not compromises are the spirit and soul of negotiations.
Living with the burden of an acrimonious past is a recipe for failure. Only ghosts are known to walk with their heads and feet facing opposite directions— and we know ghosts are considered ‘evil’ in all cultures—a sure sign we are on the wrong track. With better accommodation, the impending Nagaland ‘accord’ could be a concord, not discord.
The author is Director General of Police, Prisons, Homeguards and Civil Defence, Nagaland. He tweets @rupin1992. Views are personal.