ABSTRACT

Transparency has come to be the hallmark of liberal democratic government. Inspired by Woodrow Wilson’s “Fourteen Points” Speech, “open contracts, openly arrived at” is the gold standard of all democratic negotiations and deal-making at all levels of government. What if the opposite is true? Using three case studies – the 1787 Constitutional Convention, the 1993 Oslo Accords, and the 1998 Good Friday Accords – successful negotiations are better served by a measure of privacy in negotiations followed by a public referendum on the final product. This article argues that privacy allows for creative innovation, honest dialogue with one’s antagonists/enemies, and the changing of one’s mind to seek compromise. Transparency hardens negotiators into pre-negotiation stances and grandstanding for one’s constituencies and personal reputations rather than compromise and elegant problem-solving. Transparent negotiations too often turn into contests of who is the better negotiator. Privacy allows for compromise after which the final product is given an up or down vote by the public. The purpose of this study is to rethink how negotiations are better served by private talks. This study utilizes primarily first-person accounts regarding the three case studies in their approach to finding solutions while engaging public buy-in and ownership via ratifying conventions (indirect) or referendums (direct). Further, this study seeks the transferability of successful strategies from across the three case studies that can be applied to future negotiations. This study reveals the components of successful accords: (1) private negotiations; (2) face-to-face meetings with antagonists; (3) the importance of Very Important Persons (VIPs) and their respective governments; (4) the requirement of public voting on concluded deals; and (5) handling spoilers and in-group pressure. The 1787 Constitutional Convention, the 1993 Oslo Accords, and the 1998 Good Friday Accords are hallmarks of effective negotiating processes.

Dedication

This thesis is dedicated to my mother, Kathleen J. Upton, 1943-2023.

Writing this dissertation came at a time of major personal change and transition. My mother was diagnosed with terminal cancer in April 2023 … she died six weeks later, my hand holding hers. The month before she died, I retired after twenty-five years as a high-school teacher. This dissertation was written during a time of intense grieving while closing the curtain on a “First Act” career. This dissertation was an emotional salve on many levels for which I am eternally grateful.

Perhaps due to my recent personal contact with death, the tragedies that surrounded these accords – the grisly deaths and murders, even those under conditions of war – connected me to the human cost of war and peace on a level that brought tears to my eyes. To imagine the colonial wife whose husband never returned home in the name of independence and a new birth of republican-democratic government, including the British family whose soldier died an ocean away as a subject to the Crown’s law and order; the Palestinian family (still) seeking a homeland after four-hundred-plus years of Ottoman rulers and ensuing British and Israeli administrators, only to be politically ambushed by their Arab brethren; the Ashkenazi Jew carrying the collective ashes of Auschwitz to forge a new identity and state in an inhospitable Promised Land, both literal and figurative; the many Protestants and Catholics killed or injured by a car bomb on the streets of Belfast or Derry, and the trauma for all the children growing up in such an atmosphere … the hurt, loss, sadness, and grief for the many lost and, ultimately, the decision of choosing peace was marrow-deep to me while researching and writing this dissertation.

At the end of this journey, like John Hume, Martin Luther King, Jr., Mahatma Gandhi, and Jesus of Nazareth, I embrace that all change should be accomplished by non-violent ends … only and if at all possible. War remains, and I suspect always will be, a part of the human condition, fallible tribespeople we are – indeed, outside of Hume, the others died violently – but how we pursue peace is just as important as how we achieve it.

The greatest heights of my academic achievement are personally entwined with my life in a way I could never have imagined.

[The image accompanying this article is a personal photo of a sculpture in Derry/Londonderry, Northern Ireland, scenes of many conflicts during ‘The Troubles.’ It is called “Hands Across the Divide” and symbolizes reconciliation between the two sides. It was created by Maurice Harron in 1992 six years before the Good Friday Accords.]

 

1. Introduction

Transparency is all the rage these days.

In areas of public policy between constituents and leaders – be they elected or appointed – a heavy charge is leveled against decision-makers whose “secret” dealings are, by their nature, assumed illegitimate ones. If every word spoken or action is not done in public view, it follows that any subsequent deal must be questionable if not outright deceptive. Citizens demand knowing all the inner workings of deals, suspicious that only deals brokered under transparent conditions are legitimate. This largely Twentieth-century movement is a reaction to the “dark ages” when all decisions were largely made in secret, oftentimes by a group of unelected, self-selected players who met behind closed doors in the proverbial “smoke-filled room” out of the public eye. Upon the proverbial handshake, these players’ decision was a fait accompli for those who must abide by the decision, take it or leave it.

Trust in government agencies has never been lower. In our highly polarized global world, exacerbated by vast media techno-communications, the vocal ability of the few seems to “out-yell” the majority on social media and the 24/7 news cycle; the fringes’ voices have never seemed louder. Newspapers have been upgraded to TV, radio, and the internet, and news and soundbites can be zapped across the globe in mere seconds. Winston Churchill’s famous quote resonates here: “A lie gets halfway around the world before the truth has a chance to get its pants on.”Y It is thought transparency will result in better deals, as secrecy can only mean corrupt ones. Why would deals need to be conducted in secret if they were good ones?

What if the opposite is true?

Writing to John Adams from Paris in 1787, Thomas Jefferson writes regarding the secret negotiations happening in Philadelphia at the Constitutional Convention: “Paris. Aug. 30, 1787. I have news from America as late as July 19. … I am sorry they began their deliberations by so abominable a precedent as that of tying up the tongues of their members, nothing can justify this example but the innocence of their intentions, & ignorance of the value of public discussions. I have no doubt that all their other measures will be good & wise. It is really an assembly of demigods [emphasis mine].”[1]

It is clear that while he questions their secret negotiations, Jefferson does place trust in the assembly gathered calling them “demi-gods,” a balm to what he otherwise sees as “abominable” conduct by their not deliberating in public view, the “tying up the[ir] tongues.”

U.S. President Woodrow Wilson is the iconic International Relations (IR) Liberalist. His Fourteen Points Speech, delivered to a joint session of Congress in 1918, is a classic exemplar of Liberal IR theory. He states in his introduction: “It will be our wish and purpose that the processes of peace, when they are begun, shall be absolutely open and that they shall involve and permit henceforth no secret understandings of any kind [emphasis mine].”[2]

Here we see one pillar of Liberalist idealism: That all states will willingly seek the highest calling of justice and equality between states. He states unequivocally that no deal that is negotiated in secret – any “secret understandings” – can be considered a hallmark of liberal democratic institutions as had been the method of operation for many European states up to the onset of World War I. He continues the speech with his first point containing his most iconic phrase: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view.”[3]

On its face and letter-for-letter, this is a worthy Liberalist principle. Who could argue with the idea that all dealings between governments and their representatives be in the open and public view, a sentiment that future president Thomas Jefferson endorses when sharing his disdain of the “abominable” “tying of tongues” and “ignorance … of public discussion” in his letter to future president John Adams. In these two presidents’ minds (Jefferson and Wilson), it seems that secrecy is equated with deception and a lack of accountability, a judgment applied to the final product based on the process.

Wilson’s iconic Fourteen Point Speech is vintage Liberalism that, despite the often-misunderstood machinations of the UN today, remains a laudable goal of such a body despite the hard-nosed reality of realpolitik. IR theory aims to understand state dynamics in an effort to maintain peace and resolve conflict before such conflict erupts into violence. “[P]eace-making refers to a negotiating process which intends to reach a settlement that could put an end to the conflict; peace-building means building peaceful relationships between opposing parties and creating socio-political mechanisms that could address their needs, interests and concerns; peace-keeping means building the foundations for a long-lasting peace by creating socio-political and militaristic mechanisms to keep law, order and stability.”[4]

2. Secret Negotiations in Liberal Democracies?

The central conflict with regard to secrecy versus transparency in liberal democracies centers around the question of which yields the better deal. In today’s current understanding, it is assumed that secret dealings yield lesser and inferior accords and treaties.

Equally important, before Woodrow Wilson’s Fourteen Point speech as it is prologue to the introduction of the League of Nations – the first incarnation of an international organization to oversee the conduct of states in the name of pacific resolution to interstate conflicts – much of the push behind the League’s desire to eliminate secret treaties arose in the early part of the Twentieth century based on the conduct of specific European imperial powers before the calamitous onset of World War I.

In her paper “The Survival of the Secret Treaty,” Megan Donaldson states: “Secret treaties were seen as an autocratic anachronism, out of place in the democratic state insofar as they undermined the proper role of legislatures or, for some thinkers, citizens themselves, in monitoring foreign policy. Secret treaties were seen as inimical to peace.”[5]

It would be in the aftermath of WWI that Woodrow Wilson would propose his Fourteen Points, seeking (but ultimately failing) American enjoinment into the League of Nations. Among these, of course, is his First Point that all contracts would be “openly arrived” at, a reaction to the often fait accompli back-room dealings amongst the major European powers who were secretly trying to gain territory without having to publicize their intentions to an unsuspecting populace. In this light, it is sensible that the provision for open contracts would bring about the public transparency that so many doomed recipients of the fait accompli would desire.

What is important to note, and serves the larger aim of this article, is that the League of Nations and the UN ultimately agreed that only the final product must be registered publicly for enforcement purposes despite the question of how it was created (secret or public, bilateral or multilateral, individual versus individual). It was generally accepted that secret “dealing” (a.k.a. talking in “whispered asides” with other states) was not itself the problem but, ultimately, that there was no enforcement unless publicly registered. From the Pre-WWI “secret” treaties to the League Covenant’s “public” requirement to its rebirth in Article 102 of the UN Charter, this would push democratic values from public registry of treaties no matter their process of creation to a broadening liberal democratic ideal of total transparency, cementing the concept of open democracy in the creation of any and all international deal-making. In essence, “transparency” and/or “public” equates to public control, the ultimate democratic virtue.

The United Nations itself has very little to say regarding secret diplomacy or diplomacy of any kind, for that matter. Article 102 of the UN Charter simply stipulates that only publicly registered treaties carry any force. As for how those treaties or agreements are reached, Article 33 says quite plainly: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice [emphasis mine].”[6]

Upon agreement of a deal, accord, or treaty the parties may then register the concluded deal (both the 1993 Oslo Accords and the 1998 Good Friday Accords were registered with the UN after agreement was reached). Only upon registration in a public body can disputes between states be brought before international bodies, i.e. the International Court of Justice and/or the UN Security Council (with specific exceptions).

2.1. Secrecy versus Privacy

The word secrecy is defined as “something that is kept or meant to be kept unknown or unseen by others.” The origin of the word comes from late Middle English: From Old French, from Latin secretus (adjective) ‘separate, set apart.’[7] The key phrase is “meant to be kept unknown or unseen by others.”

Where does privacy differ from secrecy? Privacy is “the state or condition of being free from being observed or disturbed by other people; the state of being free from public attention.” It is derived from the Latin “privatus,” meaning “set apart from what is public, personal, and not to the state.”[8]

Admittedly, the differences in the definitions are narrow, however, it is argued here privacy differs from secrecy in terms of public awareness. In short, privacy is “being free from being observed or disturbed” while secrecy is “meant to be kept unknown” as in never being known in any capacity.

Secrecy is the word that the 1787 Constitutional Framers used to describe their negotiations. Though the very word itself does not appear in any official notes, the delegates used the word in subsequent correspondence. The actual notes from the Journal, the official record kept by Secretary William Jackson, and supported by future President James Madison’s own records state the following: “That no copy be taken of any entry on the journal during the sitting of the House without leave of the House. That members only be permitted to inspect the journal. That nothing spoken in the House be printed, or otherwise published or communicated without leave.”[9]

The instruction to the delegates is clear: No information regarding the proceedings is to leave the room. Windows were shut, doors locked, and sentries posted to keep away eavesdroppers lest any unfinished proposals making their way into the public discourse.

It is in the delegates’ private notes and letters where the term secrecy is used. The following is a collection from the many instances where it is directly used or inferred, all emphasis mine: “Edward Carrington to Thomas Jefferson. New York June 9. 1787 … The debates and proceedings of the Convention are kept in profound secrecy;” “Elbridge Gerry to James Monroe. Philadelphia 11th June 1787. The Convention is proceeding in their arduous undertaking with [twelve] States: under an Injunction of Secrecy on their Members.” “Phineas Bond to Lord Carmarthen. Philadelphia, July 2^nd, 1787. The deliberations of the Convention, my Lord, are conducted with vast secrecy; and nothing is known with accuracy but that their drift is to endeavor to form such a federal constitution, as will give energy and consequence to the union.” “George Mason to George Mason, Jr. Philadelphia, May 27, 1787. It is expected our doors will be shut, and communications upon the business of the Convention be forbidden during its sitting. This I think myself a proper precaution to prevent mistakes and misrepresentation until the business shall have been completed, when the whole may have a very different complexion from that in which the several crude and indigested parts might in their first shape appear if submitted to the public eye.” “George Washington to David Stuart. Philadelphia, July 1^st, 1787. As the rules of the Convention prevent me from relating any of the proceedings of it … I have little to communicate to you on the article of News.”^[10]

These are merely a few of the instances when the word secrecy was used or intimated. Yet, this article asks: What exactly was secret? The proceedings themselves were not secret. It was known from papers of the time that delegates, appointed by states, were meeting in Philadelphia for the express purpose of amending the Articles of Confederation.[11]

Yes, the notes of the debates, votes, and details of the negotiations were “secret” until well after the establishment of the new United States government, but the meeting itself was not secret and of public knowledge. Based on the intentional plans of preserving the convention’s notes and journal until well after the conclusion of the convention, it is possible that the Framers never planned to reveal their contents, only finally doing so after public pressure and well after ratification, of course. (James Madison made specific arrangements that his notes would be published only after his death.) If what was done in private (this writer’s term) – that is, set apart from direct observation – but with public knowledge and sanction, does that qualify as secret?

2.2. Open versus Transparent

Returning to President Woodrow Wilson’s Fourteen Points Speech, he posits that “[o]pen covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always frankly and in the public view.”[12]

Wilson uses the keywords “open, openly, private, and public view” to describe a process wherein no deals having been done in private or secret (set apart, from public view) are, at best, democratic, and, at worst, illegitimate.

“Open” has many definitions and uses. For purposes here, the following is applicable: “freely available or accessible; offered without restriction; frank and communicative; not given to deception or concealment.”[13] Transparent, similar to open, “open to public scrutiny; origin late Middle English, from Old French, medieval Latin transparent ‘shining through,’ from Latin transparere, from trans- ‘through’ + parere ‘appear’, to wit: “through and appear.”[14]

Using the definitions of the four keywords (secret, private, open, and transparent), no single word encapsulates the importance of “set apart” conversations that produce an accord that must be “publicly” approved. Is knowing that an event is happening without knowing the details “secret?”

Further, a larger question remains: What is the value of discussions and negotiations being private, that is, “set apart” from “public scrutiny.”

Differences can be better ascertained by recent public events.

3 Example Case Studies

       3.1 PGA Golf vs. LIV

In June of 2023, the world was stunned by the sudden announcement of a merger between the Professional Golf Association (PGA) and the LIV,Y a new golf league backed by the Kingdom of Saudi Arabia, a known human rights violator, particularly the recent, grisly murder of Saudi Arabian critic Jamal Khashoggi. For two years prior, the PGA was split between members who joined the Saudi-backed league, motivated by hefty, guaranteed salaries, and PGA players who felt that doing business with the kingdom was doing business with dictators and human-rights violators, among the most prominent of critics being the PGA’s own commissioner, Jay Monahan. The vitriol between the players and the two golf leagues led to name-calling, threatened ejections from tournaments, players leaving the PGA tour, and lawsuits.

That all changed in a day. What had once been a bitter split over doing business with known human rights offenders was now asking for “wedded” bliss.[15]

The world, players, and the leagues were, in a word, blindsided. The secret dealings were so secret in an environment of such public vitriol that nobody had even an inkling that such talks were underway with dramatic implications should any deal be reached. In the view of PGA players and supporters, motivations of moral clarity were replaced by ethical compromise, all done as a fait accompli, meaning no vote of approval by the PGA players at the outset. Here are two remarks from the players after the sudden announcement: “Nothing like finding out through Twitter that we’re merging with a tour that we said we’d never do that with.” — Mackenzie Hughes, PGA Tour player; and  “Very curious how many people knew this deal was happening. About 5-7 people? Player run organization, right?” — Michael Kim, PGA Tour player.”[16]

This particular case shows too much secrecy can be counterproductive. This was certainly not the same kind of secrecy with both the 1787 Constitutional Convention and the 1998 Good Friday Accords. It is, however, comparable to the 1993 Oslo Accords.

3.2 State of Colorado Open Meetings Law

Violations of Colorado’s Open Meetings Law (OML) prompted a lawsuit from two Democratic State Assemblypersons in the summer of 2023. Passed in 1972, the OML requires a journalist or citizen present at any meeting or gathering “… convened to discuss public business, whether in person, by telephone, electronically, or by other means of communication.”[17]

The intentions of the law are plain: No secret meetings, no secret deals, no conversations, no “whispered asides,” and any and all business conducted in plain view, and open to the public.

The difficulty arises, however, when legislators should meet each other outside the confines of official business, including emails.Y The law does address what it calls “chance” encounters: “The term does not include chance meetings or social occasions where public business is not the central purpose of the meeting.”[18]

Taken to its extreme, which seems to be the point of the law, any discussion anywhere at any time between two or more Assemblypersons is potentially a meeting if any legislative issue is discussed. Former House Speaker Terrance Carroll says that the COML is “difficulty to comply” with simply because legislators engage in “performative art” when journalists are present, thus limiting people’s ability to compromise or reach accord.[19]

The former house speaker addresses a central concern to this article: Does negotiating in public allow for compromise or, rather, lead to “performative art,” campaigning, grandstanding, and point-scoring? Transparency risks this danger: Clinging to pre-negotiation stands so as not to lose support from constituents at the cost of creating accords that solve problems that can only be attained by compromise.

3.3 The Papal Conclave

Having just analyzed in short order the extremes of privacy/secrecy and openness/transparency – the too-secret LIV/PGA merger and the too-open/transparent Colorado OML – a middle road is discussed in a time-tested and, ironically, time-honored system of electing a new pope: The Papal Conclave.

In very short order, the process of electing a new pope is a combination of secret ballot and public proclamation. When a pope dies, it is no secret. The news of the death of a pope automatically puts in motion the machinations that will elect the next one. It is a vote in secret wherein the electors (the Cardinals) are locked into a room (the Sistine Chapel in the Apostolic Palace in Vatican City) with guards posted at the door, with explicit instructions they cannot leave the room until a pope has been elected.Y Secret ballots on paper are taken, counted, and, with the standard of two-thirds of the Cardinals,Y the outcome is determined by the burning of those votes with a specific chemical that the smoke produced before a watching public will either burn black (no pope elected) or white (pope elected). We see in the term “conclave” the Latin term “cum clave” which means “with a key,”[20] harking back to the not-so-distant past when the Cardinals were locked behind closed doors until a new pope was elected.

Even before the advent of media communications to report on the ballots as they occur, it is more remarkable that in our day of 24/7 media coverage this is still the process, mostly done without controversy but rather with quite the public fanfare, ceremony, and international engagement.

3.4 Does Transparency Result in Better Accords

Does transparency result in better deals as both Presidents Wilson and Jefferson stated? Does transparency create compromise? Are deals different when conducted in public as opposed to those in private? Does transparency affect negotiating tactics, especially when dealing with antagonists or enemies? Does transparency hold participants to pre-determined positions, making public negotiations one of better negotiating tactics than actual thought-evolution and solution-innovation?

It is the central tenet of this article that the 1787 Constitutional Convention, the 1993 Oslo Accords, and the 1998 Good Friday Accords, all negotiated in some form of secrecy, yielded successful negotiating outcomes of significant compromise. Using private, direct, isolated, and face-to-face dialogue with antagonists was the more successful method to achieve compromise, more so than transparency.

4. Compromise As The Core of Diplomacy

It is proposed that these three accords each share a significant degree of similarity in how the negotiations were handled. By bringing all the relevant observations together, it is hoped that this study will contribute to existing knowledge by proposing a checklist of an ideal negotiation for a very specific circumstance: Constitution-making, that is, creating a brand-new system to put in place of another. This is an important distinction as it defines itself apart from a typical “maintenance” style of republican representation. To wit, we elect Federal Congresspeople, General Assemblypersons, and local council representatives to run operations for us: Essentially, pay bills, keep the lights on, and plow the streets in winter.Y The use of ‘privacy’ in particular (as different from ‘secrecy’) is the essential component that allows antagonists to move beyond us/them battle lines into we/us paradigms. Without privacy, there is no freedom from potential criticism by not only our antagonists but, more importantly, our own in-group. When the cameras roll and the reporters ask questions, political point-scoring is the name of the game and not building relationships that move beyond designated “us/them” delineations to find compromise. The success of all three accords was accomplished by some degree of secrecy/privacy. The time for transparency was when the final accord was placed before the voters. It was this piece that was missing in the Oslo process that could not survive the assassination of Israeli Prime Minister Rabin but did allow the citizens of Northern Ireland to continue past a horrific bombing.

This study is not unique in its observations but merely a possible source to bring all the examples from three case studies together and make recommendations for further implementation. Indeed, as noted above, these particular accords and the histories that produced them have much resource study behind them. It is merely the intention here to synthesize them into a unified, comparative narrative that can better suit constitutional negotiations.

5. Methodology

This dissertation focuses on three Case Studies: The 1787 Constitutional Convention, the 1993 Oslo Accords, and the 1998 Good Friday Accords. These case studies will serve for extended analysis and transferability of insights, conclusions, and policy recommendations to be applied in future cases.[21]

5.1 Sources

For an understanding of the accords and negotiations themselves, primary sources were the most prevalent source studied. Priority was given to written and spoken first-person accounts from actual participants (primary sources).

Secondary sources were used after an exhaustive look at primary sources. Secondary sources, most notably Max Farrand’s The Records of the Federal Convention, Carol Berkin’s A Brilliant Solution, and Richard Labunski’s James Madison and the Struggle for the Bill of Rights, were important secondary sources given the dearth of sources and technical limitations of late Eighteenth-century America. For the more recent Oslo and Good Friday Accords, a wide variety of primary sources due to availability and technical advances allowed for more primary source accounts and secondary accounts based on primary sources (i.e. journals and articles). The data collected are texts, articles, journals, speeches, and videos, of written and spoken words.  

5.2 Grounded Theory Coding

As prescribed by Grounded Theory protocol, the initial research of coding data allowed for an elementary beginning of key points that would bolster the larger, more formal conclusions. Beginning with general coding, larger groupings and/or themes began to present themselves as a successful basis for these accords. In addition, identifying these larger themes also showed where lack of existence (i.e. public referendum in 1993) further supported the success of the other two (1787 and 1998). Once gathering general codes, these assisted in continued research as more data was incorporated to undergird, refine, and hone the initial codes. The second major phase of Grounded Theory coding builds upon the initial codes, narrowing them down to focused coding. Further research signified the following as focused codes that were applied to continued research: (1) private/secret versus public/transparent negotiations; (2) the importance of Very Important Persons (VIPs) in granting authority and legitimacy; (3) the importance of government involvement; (4) negotiating directly with one’s antagonists/enemies; (5) the importance of public referendum via direct or indirect elections; (6) the role physical environments play in conducive negotiations; (7) managing internal divisions within groups (a.k.a. spoilers); and (8) the role of media.

Once identified, these eight points provided the foundation for further and subsequent research, allowing for the identification of commonalities between the cases thus leading to the transferability of insights that is the overall effectiveness of the case studies.

5.3 Limitations of the Study

Limitations of the study come from the great quantities of study devoted to these chapters in world history. As such, it would not be feasible for any one person to incorporate all available sources within one lifetime. Limitations in this study stem from choices of this writer who, despite their best efforts, cannot integrate any and all perspectives surrounding, in particular, the extended histories leading up to and surrounding the accords. Care was taken, however, to seek balancing counter accounts to the conflicts themselves.

Further, focusing on three case studies limits a deeper study had this dissertation focused on an extended study of just one or even two of the case studies. However, in light of this limitation, having three case studies makes for stronger arguments and transferable common principles due to more data.

6. Principle 1: When to Engage in Private Negotiation

A central tenet of this article challenges the current Liberalist view of total transparency, summed up by President Wilson’s First Point of International Relations: “Open contracts, openly arrived at …” This is the current dominant view held by the greater range of the general public political spectrum whether it be on the right or left: Secrecy of any kind equates to poor or deceptive deal-making.

6.1 Private as Opposed to Secret

To begin, the terms “privacy” and “secrecy” will be used throughout, each used in a specific context noted by the text. As part of the discussion, this article differentiates between private and secret negotiations and will be expounded upon as the text designates. For this student, “private” does not necessarily mean “unknown.” As will be seen in the 1787 and 1998 cases, the public knew negotiations were underway, but they were not privy to the actual details regarding the discussions until after a final product, agreed by the negotiators, was presented to the public for their up or down approval. The talks were private, but the meeting was not. As seen in 1993, the negotiations were conducted in absolute secrecy: The public had no idea talks were underway.

6.2 Constitution-making

Private negotiating is required for “Constitution-Making” or “Constitution-Altering.” This term is defined as creating brand new accords or systems, in essence, creating brand new constitutions and systems of government to replace current or non-existent ones. Constitution-making is further defined as: “Constitution-making is higher law-making. The process of making a constitution and the context in which it unfolds differ from those of ordinary law-making. Constitutional change often follows exceptional political events such as internal armed conflict, the end of authoritarian rule or independence. In these moments, there is often a greater political awareness among all elements of society, leading to widespread demands for the refoundation of the political system [emphasis mine].”[22]

Privacy in negotiations in creating successful accords is required when creating the highest new levels of political systems or laws – “the refoundation of the political system” – and is not the same as routine law-making as required by elected officials who are “doing the peoples’ business” (paying bills, codifying laws, etc.). In 1787, a brand-new constitution introducing a never-seen-before governmental system is a classic example of highest-level or supreme constitutional law-making. In 1993, the Oslo Accords were creating (at least beginning a process) a fundamental reorganizing of two governments with states side by side. In 1998 Northern Ireland, new systems of shared governance were created in Northern Ireland requiring significant changes to the Irish Republic Constitution in the south. Further, constitution-making or altering involves “high stakes in divided political settings.”[23]”Constitution-making is a multidimensional phenomenon. Constitution-making is simultaneously a legal, social and political process. A constitution is a legal document that creates institutions, empowers them, imposes limits on their authority and is enforceable in court. Therefore, drafting a constitution requires an attention to technical detail to ensure coherence across the different parts of the charter and a workable system of government [emphasis mine].”[24]

As stated above, constitution-making is functioning on three levels: legal, social, and political. Current republican law-making is generally on a singular level: Altering, adding, or modifying a current legal status within already existing institutions or systems. Constitution-making is a highly political process between vastly different levels of social and political functioning, codifying an entirely new system, resulting in an ultimate (a.k.a. highest-level) social contract. In this environment, compromise is essential, thus the need for privacy to avoid political virtue-signaling, grandstanding, score-counting, and debilitating personal attacks on negotiating with antagonists from spoilers that simply detract, disrupt, or poison the atmosphere.

As seen in these three case studies, engaging in private diplomacy (private talks with public awareness) is a better option when (1) the resulting product will result in a paradigm shift in societal restructuring (constitution-making), as opposed to governance in existing systems (i.e. republican representation); (2) the importance of the general public to know that changes are possible without negotiation specifics (privacy) to avoid blindsiding; (3) the importance of negotiating out of the public eye to allow for change, evolution, and modification of pre-negotiation thought in participants, leading to compromise centered on creative-innovation, and (4) create consensus through evolving positions that ultimately suit the larger group rather than a narrow pre-conceived audience,  functioning under the agreement that Nothing Is Agreed Until All Is Agreed or Committee of the Whole while simultaneously committing any final product to a public referendum.

6.3 1787

For the Framers meeting in Philadelphia, they were under no illusions about the great need before them. The Articles of Confederation, written quickly in a Revolutionary War fervor as the newly “independent” colonies were engaged in a violent conflict with their mother country, the expediency required for navigating a war in concert with the other colonies was a vastly different undertaking than establishing a brand-new government or confederation in a post-war peace. Historian Carol Berkin sums up the Framers’ minds: “It was this sense of crisis that led them to Philadelphia in May 1787, where they gathered behind locked doors and bolted windows to overthrow the legitimate government established by the Articles of Confederation and, by writing the Constitution, to stage what can only be called a bloodless coup d’état.”[25]

They understood they were forced by circumstances to create a new system, completely replacing two systems in a matter of a decade: the former colonial system whereby they were subject to a mother country and the Articles of Confederation, a wartime confederation done by individual colonies cum states working in loose concert to engage in war against the mother country.

Perhaps the best summary of the need for secrecy is by James Madison himself. “It was . . . best for the convention for forming the Constitution to sit with closed doors, because opinions were so various and at first so crude that it was necessary they should be long debated before any uni­form system of opinion could be formed. Meantime the minds of the members were changing, and much was to be gained by a yielding and accommodating spirit. Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth and was open to the force of argument. … [N]o Constitution would ever have been adopted by the convention if the debates had been public.”[26]

In sum, discussion in secret, as per Madison, allows people to change their opinions with new information. Until the final vote, the system was “crude” and “immature.” To use a rather pedestrian example, the negotiations were the raw cake batter not having been baked into the final cake for consumption by the larger public.  In public, Madison felt negotiators would prioritize consistency of opinion above the value of their arguments, and detractors would sabotage ideas that were not complete or final.

Just how important secrecy would be enforced to the delegates is affirmed by General George Washington, president of the convention: “As the rules of the Convention prevent me from relating any of the proceedings of it, and the gazettes contain more fully than I could detail other occurrences of public nature, I have little to communicate to you on the article of News. … I have had no wish more ardent (thro’ the whole progress of this business) than that of knowing what kind of Government is best calculated for us to live under. No doubt there will be a diversity of sentiment on this important subject; and to inform the Judgment, it is necessary to hear all arguments that can be advanced. To please all is impossible, and to attempt it would be vain; the only way therefore is, under all the views in which it can be placed — and with a due consideration to circumstances … to form such a government as will bear the scrutinizing eye of criticism and trust it to the good sense and patriotism of the people to carry it into effect.”[27]

Public criticism, where issues of reputation and ego are vulnerable can cause difficulties, especially for such men of high standing. Alexander Hamilton states, “[h]ad the deliberations been open while going on, the clamours of faction would have prevented any satis­factory result.”[28]

For the Framers it was important that no details get to public ears while the new constitution was still in embryo form. Only when a final and agreed upon document was created would it be then turned over to the people (via the state ratifying conventions) for their approval.

6.4 1993

The contrast of the Oslo Accords wherein completely secret meetings facilitated by a third party (Norway) could not be more different than the “public” talks convened by the United States in Madrid, Spain, in 1991. The public talks were a complete failure and stalled out rather unceremoniously, thus preventing any forward momentum regarding the Israeli-Palestinian issue. That the peace process was ineffective was most notably remarked by Secretary of State James Baker’s quip of giving out the White House phone number in a press conference, bemoaning the lack of results and seriousness on the part of prominent players. What would come as a complete surprise (a total blindsiding) a mere two years later, was the emergence of the Declaration of Principles (DoP) created by a small number of people with direct talks between Israel and the Palestinian Liberation Organization (PLO).

More information regarding the creation of the talks is needed at this point. Yossi Beilin met Norwegian Terje Rod Larson, director of the Fafo Research Institute, on 29 April 1992. During this time, as noted in his book, Israeli law made it illegal to meet with any member of the Palestinian Liberation Order (PLO) under the leadership of Chairman Yasser Arafat. Beilin shares his disgust with the law: “[H]ow can it be that Israeli law forbids me to talk peace with a Palestinian who wants peace and is in conflict with those who oppose it [including his own people]?”[29]

Larson proposed secret meetings between Israelis and the PLO under the guise of an academic conference hosted by Norway. In seclusion and in luxurious surroundings, surrounded by the Norwegian countryside, a small group of negotiators could hammer out a deal without all the public posturing that had hampered the 1991-92 Madrid and Washington, D.C., meetings.

The talks began in January of 1993 at Sarpsborg, Norway, hosted by the Norwegian government under the auspices of the Fafo Institute with hosts Terje Rød-Larsen and his diplomat-wife Mona Juul. The five participants – three Palestinians and two Israelis – were housed and shared meals together, an important footnote regarding any and all negotiations. They met over several months, locations changing regularly to allow for secrecy but were always housed together for constant contact between the participants. As Beilin notes, they were in “a bubble in where [they] were absolved from the obligations of official protests and official posturing, from meaningless oratory and the slamming of doors. In the world of Oslo, we could simply search for common ground, firmly believing that it existed.”[30]

After fourteen meetings and a marathon conference phone call across three continents, the Declaration of Principles (DoP) produced a brand-new document. It was higher level lawmaking in its beginning the creation of a Palestinian state alongside Israel, a transformational change in the formal relationship between the two peoples.

6.5 1998

In the leadup to the 1998 Good Friday Accords, there were many secret meetings held across Northern Ireland, most notably between Sinn Feín President Gerry Adams and John Hume, leader of the SDLP. In short order, Sinn Feín was the political arm of the Irish Republican Army, a paramilitary group that had waged a war of terror across NI with the ultimate aim of reuniting it with the Irish Republic. Clergymen, respected and visible community members, facilitated these secret meetings between the violent IRA and the non-violent SDLP. As was to be expected, once the media got word about these clandestine meetings between terrorists and pacifists, the blowback was intense. Gerry Adams acknowledges the importance of these meetings despite their unpopularity: “Secrecy has been an essential part of the peace process. While my preference is that the process should be open, transparent and accountable, the reality is that there have been many times when private meetings have played a pivotal role in resolving difficulties, in reassuring a potential ally or building confidence with an opponent [emphasis mine].”[31]

Once elections were held establishing negotiators who would hammer out a peace-deal, the media was not allowed inside Castle Buildings at Stormont in Belfast. There was, however, a media throng outside the gates. They were privy to all the comings and goings of negotiators, and were available for many a press conference, adding speculation, hyperbole, and drama to the proceedings underway inside. It was clear and vital that the general public knew that talks were ongoing and that should a deal be reached, they would be voting for its final approval very similar to the ratifying conventions of 1787. Not having critics or spoilers inside the negotiations certainly helped. However, despite the injunction of secrecy, playing for votes and grandstanding with an all-too-accommodating and easily accessible press waiting outside clearly added to the difficulties by projecting criticism into an unfinished and still evolving product, a point of emphasis in this dissertation. In light of this, it is noteworthy the participants of 1787 and 1993 deserve praise for remarkable discipline in this matter.

6.6 Summary and Conclusion

Privacy is an advantage for constitution-making or altering when creating new highest-level political systems. Having the privacy to engage in honest, difficult, tedious, and important discussions benefits participants with the space to engage in meaningful dialogue and creative innovation when fashioning complex accords. Too many of the problems that complex negotiations face – especially when coupled with the very democratic reality and necessity of compromise – cannot be had with outside critics causing havoc on the perceived injuries to the participants to unfinished and evolving realities. Until there is a final product, the social pressure of constituents and supporters, especially with their inability to recognize or appreciate the difficulty of compromise, makes negotiating in privacy (not secrecy) an important reality. Without negotiating and compromise, outside critics, spoilers, and armchair quarterbacks can afford their idealism and no-compromise stands. In the reality of hardcore and difficult compromise, making deals requires difficult choices that are all too easy for critics to tear apart, especially since they were not privy to the hard work of negotiations.

7. Principle #2: The Importance of VIPs

For lack of a worthy academic term, VIPs (Very Important Persons) will be used to signify the importance of a high-status individual whose investment of political capital and focused attention is a vital piece for creating accords. Not only is this investment of political capital vital before and during negotiations,it is also equally important in implementing accords after the closing of the deal as was the case in both 1787 and 1998 seeking approval by the voters. Further, as we will note, different VIPs can play a pivotal role only after entering the process in support of a public referendum as part of the cross-cultural debate that occurs when citizens are considering an up-or-down vote as was notably the case in Northern Ireland and the Republic of Ireland. The significance of VIPs in the entire process is important as it creates urgency and motivation in the beginning, keeps discipline and focus during the negotiations themselves, and after when they are needed to fully close the deal with voters.

7.1 1787

As noted earlier by Thomas Jefferson, the men who gathered at the Philadelphia Convention were “demi-gods.” Jefferson believed these men to be influential men of high ranking appointed by their states, men who were well-known in their states as deserving the undertaking of updating the war-exigent Articles of Confederation to a peacetime republic of states. In fact, this writer argues that only these men of significant standing would be able to present a whole new system of government – under the paramount conditions of public ratifying conventions – which was not the original purpose. These were men who were selected ad hoc, specific for this convention. Yes, they were men who were of various and considerable public stature (i.e. politicians, statesmen, lawyers), but, as will be a premise of this private negotiation theory, they were selected for this specific task only with no guarantee of continued patronage after. Again, it is because it was because of these men that they were able to, as Berkin described, pull off a “bloodless coup d’état.”

Despite this collection of high-standing men, amongst the Framers themselves, of course, it starts with one man: General George Washington, hero of the War of Independence. It is noteworthy that Washington himself knew what was at stake. He also knew how important his investment of his deserved, war-won prestige and political capital was in giving birth to not only a new nation but a new view of the relationship between a government and its people that would reverberate across the world to this present day.

As was the case with the assassinations of U.S. President Abraham Lincoln and Israeli Prime Minister Yitzhak Rabin, the deaths of important leaders had major impacts on the deals they created: Reconstruction in the case of the former, and full implementation of the Oslo Accords in the latter.

There was another important VIP at the Constitutional Convention, a giant among men. While he was not on the same level as General Washington, he was, perhaps, the most famous American in Europe prior to the American Revolution. While his star was dimmed by General Washington, his influence at the Convention marked him equally as influential. We speak here of Benjamin Franklin who endorsement of the Constitution was equally as important as the General’s.

7.2 1993

Israeli Prime Minister Yitzhak Rabin was a soldier and war hero for the people of Israel. He fought to establish and maintain a brand-new state in the volatile Middle East. He also came to understand the futility of violence in resolving the Palestinian-Arab-Israeli conflict. While he was not privy to the initial conversations and meetings surrounding the Oslo Accords, he invested significant political capital in supporting the Accords. The handshake with his long-time nemesis, PLO Chairman Yasser Arafat, would be his death warrant. Whatever problems there with the introduction of the accords to general Palestinian and Israeli populations, achieved in near total secrecy with a surprise blindsiding, Rabin campaigned tirelessly for the proposed and long-hoped-for two-state solution. It would be a far-right Israeli settler, convinced by far-right critics that Rabin was a traitor to Israel, who would assassinate Rabin as he was leaving a pro-peace rally in support of the Oslo Accords. Perhaps no other assassination, second only to U.S. President Abraham Lincoln, would have so detrimental an effect. Rabin notes in his final speech his own evolution with regards to violence: “There are enemies of peace who are trying to hurt us, in order to torpedo the peace process. I want to say bluntly, that we have found a partner for peace among the Palestinians as well: the PLO, which was an enemy, and has ceased to engage in terrorism. Without partners for peace, there can be no peace.”[32] He was dead mere minutes after saying these words.

As will be central to this article, the absence of a public referendum makes it nearly impossible to withstand the removal of a VIP. Without Rabin, the soldier turned peacemaker, assassinated by his own countryman, the peace process begun with the Oslo Accords never again held the same momentum and gravitas. It was eventually stalled out in a series of slow deaths (though some important changes were instituted).

VIPs are important to create impetus, gravitas, and momentum in concluding successful accords, but individuals, by themselves, are not enough. Had Washington died prior to ratification by the States, it is entirely possible that ratification would have failed (though impossible to know). However, had Washington died after ratification and prior to his administration, it is more than likely that the Constitution would have been implemented because the voting gave official public sanction that could withstand the loss of one man even one so vital as the General. By contrast, in the case of Rabin, without a public confirmation in place, the loss of one individual did derail the process. What is significant to note, however, unlike Abraham Lincoln, assassinated by a southerner who had recently lost the Civil War, Rabin was killed by one of his own Israelis who saw him as a traitor to his own countrymen.

7.3 1998

In stark contrast to Oslo, the 1998 Good Friday Accords reveal a weighty trio of VIPs and their respective governments investing deep reserves of political capital that ultimately led to a successful agreement.

U.S. President Bill Clinton was the first U.S. president to visit Northern Ireland, that in itself is an important public statement. Up to his presidency, Northern Ireland presented a difficult quandary for U.S. presidents. The United Kingdom was a staunch ally of the U.S. and criticizing an ally for its inability to govern the small state next door to the Irish Republic threatened that relationship. Clinton’s direct involvement put the UK/U.S. relationship under significant strain as it gave the focus on the conflict as more than just an intra-country affair, but as a matter of international concern.

The violent period known as the ‘The Troubles’ began once Westminster, the seat of government of the United Kingdom, dissolved home rule in Northern Ireland due to increasing violence in 1969 between the Protestant majority and Catholic minority. Outside of a pivotal pronouncement by U.S. President Jimmy Carter (1977) stating that the Irish Republic had the right to voice concerns about how the Northern Ireland situation next door was addressed, U.S. policy gave NI a wide berth for fear of straining relations with their British ally. It was Bill Clinton, however, who made peace in NI a central tenet of his administration, including visiting the beleaguered country on three occasions, the first president to do so. In addition, Clinton alone made the decision to grant Sinn Feín President Gerry Adams a visa to enter the United States to shore up support among the powerful Irish-American constituency, and thereby grant Adams full legitimacy as a negotiating partner in seeking peace in the troubled region, much to the chagrin of the British government and his own State Department.

Irish TaoiseachY Bertie Ahern was a vital contributor to the accords. For most outside the island of Ireland, the role of the Irish Republic in the affairs of NI has always remained a mystery. Due to the Irish Constitution, written in 1936, advocated by Fianna Faíl Taoiseach Eamon de Valera (part of the 1916 Easter Uprising and former colleague turned civil war antagonist of Irish patriot Michael Collins), the Irish Constitution asserted Irish control over NI since the six counties of Ulster were not included in the Irish Republic, instead carved off into a separate entity during the 1921 Partition of Ireland. Any deal would require the Irish Republic to cede control of NI to the consent of the majority. Ahern came from a tried-and-true IRA family, and changing the Irish Constitution was no small feat. It was especially fitting that such a change could only come from a member of de Valera’s party, Fianna Fail.

Ahern was engaged in the negotiations even at great personal cost. His mother died the week before the final week of negotiations that produced the Good Friday Accords.[33]

In the final week of negotiations, Ahern flew from his mother’s funeral in Dublin back to negotiations in Belfast that afternoon which were far from certain. Ironically, this commitment only affirmed his importance. Investing political and personal capital in the throes of profound grief was a huge investment in the peace process.

The third VIP in this perfect alignment of VIP stars is British Prime Minister Tony Blair. Born to an Irish mother, he was always sympathetic to Ireland/Northern Ireland issues having spent summers in his mother’s native Ireland until the Troubles made it too dangerous (his mother married a British man and moved to England where Blair would be born).

There is an even more vital function of a VIP. Once the accords were signed, the approval was sent to both populations in NI and the Irish Republic for their approval. To be sure, all the participants from Trimble to Adams to Blair to Ahern were campaigning hard for passage and end the conflict that had torn apart both parts of Ireland for decades. Making a deal was one challenge; selling the deal was another. Enter an unexpected endorsement from an unanticipated but not altogether surprising VIP.

Bono, the lead singer of the Irish rock band U2 and one of the biggest public acts in the world for over four decades, jumped into the campaign for passage of the GFA. He states: “[B]itterness can be a hard taste to spit out, so when it came to the actual referendum in 1998, the vote was looking too close to call. … As the youth vote was not looking certain, three days before the referendum U2 were asked to take part in the Concert for Yes. We were delighted but only agreed on the condition that the two opposing party leaders could come onstage and shake hands. … We felt sure that the symbolism would travel further than any words. … So both men agreed to walk on, and in a moment that signified why John Hume and David Trimble would later win the Nobel Peace Prize, they shook hands for about three seconds. … I stepped in to lift their hands high into the air … an image far more powerful than words.”[34]

In hindsight, Bono was proved wrong about the slim chance of passage as the referendum passed by significant majorities. Still, the symbolism of his VIP endorsement on the stage with those two men cannot be understated in the importance of VIPs to securing public implementation. Like Bono or Benjamin Franklin, VIPs do not have to be politicians, an important distinction.

In contrast to the tragic example of Yitzhak Rabin, the importance of the public referendum can be seen in the response of the people after the most lethal bombing in the Troubles history mere months after public passage of the referendums in both the North and South. In August 1998, three months after the passage of referendums in both Northern Ireland and the Irish Republic, a splinter group of the IRA detonated a carbomb in Omagh, County Tyrone, Northern Ireland, one of the most lethal events of the entire Troubles. Ahern, Blair, and Clinton visited the mourning community and, despite the tragedy, it did not derail the peace process from moving forward. It is the opinion of this writer that this was because of the public referendums wherein the majority had endorsed peace as a means of moving forward and not moving back to the violent past. Weeks after these visits, a permanent ceasefire was authorized by the IRA, bringing full and lasting peace to Northern Ireland.

7.4 Summary and Conclusion

Senator George Mitchell relates an amusing story about a delegation of NI unionists and republicans who traveled to South Africa. It was so contentious that neither party would sit in the same room with the other. It took President Nelson Mandela of Apartheid South Africa scolding both parties before they finally agreed to be in the same room.[35]

The importance of VIPs throughout the entire process of deal-making – from the initial support of beginning talks; to negotiating face-to-face with designated enemies, at worst, antagonists, at best; to campaigning for public approval – is a crucial factor in creating deals that succeed. George Washington and Benjamin Franklin were trusted men of their time whose presence at the convention among the many “demi-gods” that Jefferson intones created conditions wherein public trust could be conveyed. Further, the single importance of Washington as bringing the thirteen states into one – e pluribus unum – in the figurehead of his presidency was the ultimate confidence measure for ratification by all thirteen states. Israeli Prime Minister Yitzhak Rabin was an important VIP in the Oslo Accords. Though he was not privy to direct negotiations, only learning of the existence of the backchannel talks late in the process, he became a tireless advocate for peace and a stunning story himself: The old soldier and founder of Israel at its founding now the statesman for peace. We see in his sudden assassination the ultimate limit of what VIPs can achieve without public buy-in by a public demonstration of support: Passage in a public referendum. The triumvirate of Blair, Ahern, and Clinton (rightfully placed third in the trio in this writer’s estimation), along with the tangential US endorsement via George Mitchell, shows how crucial VIPs are in creating the conditions for peace and putting in the hard work to enable the blood, sweat, and tears of the many players to conclude a deal.

8. Principle #3: The Vital Importance of Public Referendums

It is thought that deals made transparently provide accountability because, as is usually the case, closed-door, secret, and/or back-channel deals are made fait accompli, to wit, the bearers of the deal must accept what has already been decided. The private talks/public vote coin allows the deal-making to occur out of the public view on the implicit understanding – from the outset – that any deal made is not concluded until the public approves by ballot. This is the tradeoff for private negotiations. The public participating element comes down to three components: (1) the selection of delegates to the accord creation; (2) the public debate that ensues once the accord passes to the public for approval; and (3) the ownership that is “contracted” when the public accepts mutual accountability for implementation of the accord by a majority vote.

Once the accord is presented to the public, it creates ownership if it is approved. In the ensuing debates in the run-up to the vote, whether they be formal as in interviews, newspaper articles, and pamphlets or informal as in everyday “kitchen table” and “water cooler” conversations to social media, talk radio, and news shows, the public parses out the meaning and value of the accord thereby creating ownership, a vital contract created between them and the governing authority. This public conversation is where the public decides if the deal is acceptable and, once decided, especially in the affirmative, it creates the momentum to withstand and overcome obstacles that are going to arise, even in tragic cases such as the deaths of the VIPs (Rabin) or terrorist bombings (Omagh). It is important that all matters pertaining to VIP creation and endorsement ultimately be handed over to the only long-lasting and final approval: The voter. In summary, it is the public debate about the accord and ultimate approval of the accord that provides the transparency that is so often sought as the ultimate accountability.

8.1 1787

The delegates to the Constitutional Convention were appointed by the states. This is indirect representation as the state legislatures, elected by eligible voters, then appointed the delegates. While indirect in their selection, these men were highly regarded as capable and worthy of engagement in this important enterprise. As noted, Jefferson called these men demi-gods given their high social standing and, for most, their contributions to the War for Independence directly in military or public service via the Articles of Confederation and individual states’ efforts.

One potential vulnerability with the selection of the delegates by states and not by the voters directly is that it can be argued that the delegates are a “part of the power establishment, deeply familiar with politics at the state and confederate levels,”[36] and thus could be interested in maintaining the status quo. If they were appointed by state assemblies, these “demi-gods” had already attained some measure of political and social advantage, even more so had they served in the Revolutionary War crisis in some capacity, whether in the continental army or a political body. Ideally, elections should be held wherein voters choose whom they send to specific, private negotiation of a constitution-making or altering convention and they need not be necessarily politicians.

Once in session, the negotiations were held in strict secrecy (their word) as they did not want to present any unfinished product to leak to the public before a final deal was agreed. They knew from the outset that the risk for all their work, effort, and time could fail by a rejection of the states. Still, they undertook this knowing from the beginning that it would be up to the voter via the states to make the ultimate decision. “When they were done, they submitted their handiwork to the citizens for ratification rather than attempting to impose it through assassination or military force. In this way, they invited their neighbors to share responsibility for the fate of their experiment in representative government. … By calling for the consent of the states rather than the delegates, a few individual dissenters would not jeopardize the appearance of unanimity.”[37]

This last part is critically important. In such a complex undertaking as creating a new system of government, the idea of unanimous decision with no detractors would be impossible; such are the affairs of humankind. The Framers knew complex problems require complex solutions built around compromise and pleasing everyone would be an impossibility.

Rather than send the Constitution to the Confederation Congress, the new system required specific ratifying conventions in each state, apart from the normal political system. Setting up state ratifying conventions, with the sole purpose of the citizens directly electing delegates to argue up or down the new system, created the second piece: Public ownership through public debate.

This is where the average citizen now becomes an integral part of the accord: From informal conversations at the market or the tavern to formal letters and articles advocating one side or the other, the average citizen is now creating ownership of the new system should it pass. Even for the detractors and critics, they would have their say and, should they ultimately lose, as they did in this case, they can accept that the majority were in favor, and thus work alongside the community having been outvoted. Slightly out of order here, but an anecdote from Patrick Henry serves this purpose. Having worked valiantly against ratification, once the debate had been settled by Virginia ratifying the Constitution, Labunski notes: “A decision was made to go find Patrick Henry and invite him to the [anti-constitution] gathering. When Henry arrived, he urged the group to abandon its effort to create trouble for the new government. He said “he had done his duty strenuously, in opposing the Constitution, in the proper place, and with all the powers he possessed. The question had been fully discussed and settled, and, that as true and faithful republicans, they had all better go home! They should cherish it and give it fair play and support it too [emphasis mine].”[38]

Even should there be acrimony by those rejecting an accord, the power of democracy and majority rule is the solace that comes from knowing that more thought differently than oneself and allows, in a strange way, the ability for the detractor to legitimately work to implement it despite their misgivings and doubts (in most, but not all, persons).

While tedious and laborious, the creation of the state ratifying conventions allowed for a great public debate to engage the entire fledgling United States. While we accept that voting was limited to certain land-holding white men, we can be sure that the conversations surrounding it included all people. It is this public debate that creates the ownership on the part of they – the inhabitants – who must live under it.

Succinctly put by Dr. Franklin: “We have however done our best and it must take its chance.” Of course, had the system been rejected that would require a brand-new start at tackling the problems that needed the convention in the first place.

8.2 1993

Without a public referendum to create ownership by the citizenry, the assassination of a leader who carries the full weight of the deal creates an incredible risk to the process of implementation as most notably seen by the assassination of Israeli Prime Minister Yitzhak Rabin. A referendum – a reflection of the majority will of the voters – would step into the vacuum created by the powerful loss of a VIP.

According to Nader Said, head of the research group Arab World for Research & Development (AWRAD) that polled Palestinians shortly after the signing of the Oso Accords on the White House lawn: “I remember the day the Oslo agreement was signed. Hundreds of thousands took to the streets to celebrate the auspicious event. There was optimism everywhere. Opinion polls showed 65 percent in support of the peace process, only 28 percent against.”[39]

In the immediate aftermath, public support was decidedly high by a 3-to-1 margin.

To be fair, a public referendum would be difficult in places such as the West Bank and Gaza where the electoral infrastructure was not in place as in Israel proper (a part of the OA was putting elections in place in these territories), a long-functioning democracy with an election and voting system already in place. Indeed, part of the negotiations of the Oslo Accords included voting by Palestinians living in Israeli-controlled West Bank. As a result of the accord, the first legislative and presidential elections would be held in 1994 (also electing the antisemitic Hamas in 2005). This, as mandated by the accord, created the Palestinian Authority and Council and elected Abbas as the first Palestinian President (also outlined in the OA). At the end of the day, it is clear that there was no public referendum to accept the Oslo Accords specifically and that, in the opinion of this writer, is a crucial difference.

In absence of a public referendum, it simply relegated the Oslo Accords to a public blindsiding, a fait accompli with all facets of implementing the agreement beyond their control least of which was approving or rejecting it. It was very easy to criticize the accords, and this happened on both sides: Both Palestinians and Israelis believed that the compromise made the participants “sell-outs” and “traitors.” Being told to accept a deal where they had no input is certainly blindsiding: Having an option to accept or reject it creates ownership. Based on Mr. Said’s polling data, as well as the aforementioned “curfew interest” (above) watching of the White House signing, voter interest would have been very high.

Oslo negotiator Yair Hirschfield states the following about the Accords’ implementation without such a referendum: “[T]he secrecy of the negotiations does not permit the necessary creation of public legitimacy, and time and patience must be invested to achieve this legitimacy later on. … One of the reasons for the many setbacks that were experienced in the Oslo Process was the fact that sufficient work had not been done to create the necessary public legitimacy. On the contrary, the Oslo Agreement was oversold as a peace agreement, which it was not, and this created unrealistic expectations that helped its opponents undermine it.”[40]

However, a public referendum would have granted legitimacy had it passed. Had the Oslo Accords been rejected by a majority of voters, nothing but time was lost. That is the voters’ prerogative: Being the final arbiter of any system they must implement under the government. Had it passed, they likewise would have created public legitimacy for all players and people to abide by the conditions implementing the accord especially once difficulties arose. Consider had that happened and, despite Rabin’s tragic assassination, the impetus to make it work could have overcome it. Compare that with the post-referendum event of a tragic bombing in Omagh, Northern Ireland. (It should be noted here the difference between political votes and public referendums. At the Israeli Knesset and the Palestinian National Council, elected leaders held votes on acceptance of the OA. However, while still important, it is not the same as direct approval by voters.)

8.3 1998

Before the talks even began, participants of those talks were put in place by general elections. As a result of those elections, eight political parties were represented in the talks. Unlike the 1787 convention wherein delegates were chosen indirectly by the people through elections of the state assemblies, in 1997 the people had a direct say over the parties they wanted at the talks. They included three parties associated with paramilitary groups (the IRA, UVF, and UDA) and two unique cross-community parties, the Alliance and Northern Ireland Women’s Coalition.Y

After the acclaim and fanfare, the Good Friday Accords had one more vital component: Public referendums in both Northern Ireland and the Irish Republic. Gerry Adams states:  “The conclusion of the talks had ended one phase of struggle, but the one opening up [public approval] would present many new challenges.[41] We therefore decided to do a series of activist meetings and talk to the base – to the grassroots activists who run the Sinn Feín party. These meetings provided us with an opportunity to give an update on the talks, reiterate the republican goals and persuade people to look to the future.[42] After the Ard Fheis [party meeting] our delegates returned to their areas armed with reams of information and with instructions to hold strategic discussions at all levels of our party. We also decided to conduct a leadership-led nationwide series of meetings. It was a brutal schedule, but our leaders travelled around the country. Having negotiated with the other parties and the governments, we were now negotiating with our activists and our supporters [emphasis mine].”[43]

Adams also notes how the VIPs were important in the passage of the referendums: South African President Nelson Mandela sent a delegation of senior members who had created post-Apartheid structures and PM Tony Blair made several visits to NI campaigning on behalf of the accord.[44]

Irish Taoiseach Ahern campaigned vigorously in the Irish Republic: “We were confident that many in the South would be prepared to abandon the claim of sovereignty over Northern Ireland, but only in exchange for securing the full terms of any deal we might reach in the negotiations.”[45]

The public discourse – from everyday conversations to media to literature of the deal, to GFA participants to celebrity VIPs in both North and South – allowed the final step of approval and cement ownership. It should be noted that the referendums were held one month after the signing of the accords. A short time frame would seem to be the best. (Even in the case of the Oslo Accords, the first elections for Palestinians took place the following year, still a suitable time for approval for the accord had it been offered.)

Future Nobel Laureate UUP leader David Trimble, speaking to the Young Ulster Unionist Conference several months after the passage of the referendums, responds to critics saying: “Those issues are now over and, rightly or wrongly, we have an agreement. Rightly or wrongly, that Agreement has been endorsed by the people of Northern Ireland and, rightly or wrongly, that Agreement has been endorsed by the Ulster Unionist party.”[46]

As evidenced by Patrick Henry in 1787, the debate was over and decided rightly or wrongly, and it was time to make a full and best effort to implement it or return to the violent days of the Troubles.

Yet, the proof of the importance of public approval of any deal, made in secret or otherwise, is seen in the response by both countries after the horrible bombing in Omagh, County Antrim, Northern Ireland, mere months after the referendums passed. It is Irish Taoiseach Bertie Ahern who tells of the overall effect of this splinter IRA group.

U.S. President Bill Clinton also visited Northern Ireland, meeting with the victims and encouraging the people to push on despite the intentions of a splinter group who was clearly intent on derailing the process. Unlike the assassination of Rabin by an extreme right-wing settler, the public voice had clearly given voice to the will of the people and ceasefires were the ultimate result. The murders had not worked.

8.4 Summary and Conclusion

Public approval is the other side of the coin to private negotiation: There cannot be one without the other. Innovative problem-solving of complex problems requires privacy to create truly unique solutions which are the product of a multiplicity of views, done by antagonists who meet face-to-face to solve their problems. In the creation of any accord, participants must be allowed to evolve and change their minds. Nothing would be agreed until all is agreed, and a final accord would not be presented to the public until there is a final product. It would then be presented to the public for their up-or-down approval. The public campaign for passage then, from both those against and for the deal, creates the pivotal internal dialogue wherein the voters move from being passive recipients to full owners of the deal; it is their deal now.

As a side note, both the 1787 Constitutional Convention and the 1998 Good Friday Accords benefitted from public awareness of the negotiations yet voters were not privy to the negotiations themselves. In addition, in both situations, voters had a say in who represented them in those negotiations: In 1787, the delegates were nominated by elected State officials and in 1998 elections were held and proportional numbers were installed in the talks accordingly, resulting in eight different political parties. In short, the people had an in-direct (1787) and direct (1998) say in who would speak on their behalf. This is a weakness in the 1993 Oslo Accords as the too-secret meetings did not allow for even a potential mind-shift in the potential public as they had neither knowledge of the talks nor approval of the delegates, a blindside one-two punch. With voters having a say in their negotiations, the seed is planted for a possible change in the minds of the general electorate.

A separate example serves our purposes here. In 1989 Apartheid South Africa, President William de Clerk and Nelson Mandela were two VIPs who understood quite well the importance of preparing their respective constituents for large-scale social, legal, and political changes. De Clerk, in particular, through careful planning, first released Mandela from prison thereby creating an equal partner to negotiate with directly. Their bilateral negotiations would require dramatic compromises. They pursued multiparty congresses of elected parties that, in the end, did not reach agreement, but the public interplay prepared the populace for the large-scale changes that the two VIPs eventually negotiated on their own.[47]

By creating accords in this manner, complex accords based on compromise and approved by voters creates the most comprehensive system for implementing successful accords.

9. Negotiating with the “Enemy” – Turning “Them” into “Us”

Political purity tests and a no-compromise approach to negotiating makes dealing publicly with your antagonists impossible, especially if the conflict has escalated into violence. One person’s hero is another person’s terrorist. George Washington was certainly viewed as a traitor and a rebel in his command of the Continental Army fighting against the mother country England. Michael Collins, a rebel in the Easter Uprising of 1916, turned his fight for independence into the assassination of British officials. Even Nelson Mandela, head of the military wing of the African National Congress before renouncing violence upon his release from prison was placed on terrorist watch lists.

As noted by Yossi Beilin, at one time Israeli law held that direct contact with the Palestinian Liberation Organization (PLO) was illegal by Israeli law. The hatred of the IRA by Unionist parties required David Trimble of the Progressive Unionist Party not directly engage Gerry Adams while participating in the Good Friday Accords, an annoyance that soon frustrated the many diplomats in attendance including President Clinton (and Trimble would be awarded co-recipient of the Nobel Peace Prize, no less). For many United States citizens, many questioned the wisdom of working in concert with slaveholders despite the country’s founding principle of “all men are created equal.”

In all these situations, the compromise required to achieve successful accords necessitated direct negotiation with violent enemies (slave-owning is a violent enterprise by its very nature). At the time of this writing, Hamas and the state of Israel are engaged in a brutal war initiated by Hamas’s surprise attack and slaughter of Israeli citizens with a corresponding invasion of Gaza by Israel with devastating consequences on Gazan civilians. Nearly 4,000 people and many more injured were caused by violent paramilitary groups on both sides in Northern Ireland. Even competing groups within the same general side see dealing with each other as treasonous (i.e., John Hume of the non-violent SDLP and Gerry Adams’ association with the IRA … both fighting for republicanism on the island of Ireland).

9.1 1787

For the convention delegates, dealing with slavery was an ongoing conflict. It was not lost on all of the delegates the inherent conflict in the Declaration of Independence regarding the equal treatment (or lack thereof) of African slaves brought to American shores and a violent system for the many born into it. Tension between many delegates – those advocating the abolition of slavery against those who owned slaves – seemed strange bedfellows as they attempted to create a new country of the United States. Washington, Madison, and Jefferson – important men to the founding of this country and to liberal democracy the world over – each owned slaves. For these three future presidents, they knew full well the hypocrisy of owning slaves. Washington willed that, upon his wife’s death, they be emancipated.[48] An oft-unknown part of Jefferson’s original draft of the Declaration of Independence is a very long harangue and criticism of slavery in the colonies blaming the Christian King George III for sanctioning it.[49] Madison, considered the father of the Constitution, spent the last years of his life in involved in the American Colonization Society attempting to liberate and return slaves to Africa.[50]

Among the many tempests that threatened to upend the convention with delegate walkouts among the fiercest were different views over slavery. The Journal shows the many heated debates yet, despite this, the convention produced the Constitution at the hands of both slave- and non-slave owners. It would be, of course, the U.S. Civil War that finally completed the War of Independence and Lincoln’s “new birth of government” that would live up to its founding document, the Declaration of Independence. However, without the coordinated efforts of both slave and non-slave states, the United States Constitution would not have been created. Despite the hypocrisy of the many slave-owning delegates at the convention and the abolitionist delegates who tolerated it, they fashioned a larger constitution that is, arguably, the hallmark of democratic republicanism. The issue of slavery, of course, would result in a Civil War, and the federal government would not only abolish slavery but keep the union together. It is difficult to imagine how the abolishment of slavery would have occurred in the North and South American continents had there been no United States.

9.2 1993

As noted above, meetings between PLO members and Israelis were forbidden by both sides.Y At the time, there was no legitimate representative of the Palestinians that was, in Israel’s view, not a terrorist organization. The PLO had stated in their founding charter that Israel did not have a right to exist, therefore, what would the point be of seeking peace from an Israeli perspective. Achieving peace in these circumstances was nearly impossible given the pressure from groups to resist compromise with an enemy. Public meetings had continually been stalled due to grandstanding visuals meant to appease outside interests.

Public pressure, a.k.a. transparency, had always been difficult for both Israelis and Palestinians seeking peace measures and a final agreement for a two-state solution. Earlier attempts at meetings resulted in failure, most notably the Madrid conference of 1991 wherein the Palestinians negotiated as part of the Jordanian delegation while (everyone knew) being directed by the PLO in Tunis.

This lack of a clear and legitimate negotiating partner is what led to the fateful attempt at a back-channel meeting, completely secret, under the auspices of Norway. Whatever the faults of the “publicizing” of the deal to the general Israeli and Palestinian public, its success came from the simple reason that the PLO and Israelis were able to sit down and negotiate over several meetings.

These are significant achievements accomplished by the secret talks. The failure of implementation does not lie in the negotiations themselves, but in a blindsided public discovering enemies – who were not supposed to be talking to each other – doing just that: talking to each other.

Mona Juul who, along with her husband Terje Rød-Larsen, was instrumental in creating the back-channel conditions and arrangements for the accords, notes the importance of talking to all sides: “There is a need to talk to all sides. … I still think that any kind of measures, to boycott or to exclude someone, will actually not solve the problem.”[51]

Towards the end of his life, Shimon Peres, one of the founding generation of Israelis and Foreign Minister during the Oslo Accords, was asked how he brought himself “to talk about peace with someone you thought was a terrorist.” He responded:  “[Y]ou don’t elect the leader of the other camp. You have to find a way that you and him can meet and discuss. Arafat was a very special character. I sat with him hours and hours and hours, my god. He is not a fool, very far from it. … I think whoever you try to negotiate with is not a partner. You start from animosity, not from peace. The purpose of negotiation is to convert somebody who is not a partner to somebody who will be a partner. And you have to look for ways and means to achieve it.”[52]

9.3 1998

U.S. President Bill Clinton sums up the nature of political negotiations in our modern world: “These deals require sacrifice and compromise, it’s never easy and it’s not free.”[53]

Among the most contentious issues surrounding negotiating the agreement was the inclusion of parties with links to paramilitary organizations on both sides. Gerry Adams, leader of Sinn Feín the political wing of the IRA, a paramilitary organization labeled a terrorist group by unionist parties, was snubbed by the John Major government. When President Bill Clinton granted a visa to Adams to visit the US, drumming up support for the peace process by meeting with the powerful and vocal Irish-American contingency, it was a bold move, done over the objections of the British government and the US State Department.[54]

It was a gamble that paid off as it granted authority to Adams as a legitimate party to be included in future talks.

Seeing our antagonists in a new light requires that we negotiate face-to-face, seeing them as legitimate partners in our enterprise to achieve peace. If one cannot see a partner as equal or legitimate, ultimately the confidence required to compromise and implement a deal is unsustainable, hence the criticism from outside spoilers. Take this humorous account by Irish civil servant David Donoghue who was engaged in peace talks: “We all had to make adjustments. At my first meeting with David Ervine, a former Ulster Volunteer Force member who had served a prison sentence for bomb-making offences, Ervine cheerfully informed me that I had been on the UVF’s list of targets a few years earlier. This did not prevent us from going on to have an excellent working relationship.”[55]

9.4 Summary and Conclusion

This reality – dealing directly with the source of the violence – is, like compromise, a reality in solving complex issues. Compromising with our antagonists (competitors within the same group) or our mortal enemies (committers of violent atrocities against our side) is seen as “giving in,” “moral weakness,” “selling out,” or “rewarding terrorism.” Dealing directly with the source and making compromises with them is a very hard thing to do in any peace-making accord, especially in light of possibly sharing power with them.

For the abolitionist delegates in 1787, making a constitution with slave owners that did not directly address slavery despite their moral views about the institution was, without a doubt, a moral compromise, leaving the question of slavery to be resolved by a costly civil war. Yet the union survived said civil war because the foundation was solid for change (abolishing slavery). For Israelis and Palestinians, meeting face-to-face was required to make deals that move the process forward (the accords themselves are still a masterful achievement). For both republicans and unionists in Northern Ireland who, together, had created a violent, war-torn three decades that impacted several generations, meeting with enemies was the price required to humanize the opponent and complete a successful accord. As one fellow patron told this writer in a pub in Dublin, Ireland: “They still hate each other. Now they’re just not killing each other.”

Ultimately, like our own relatives, one rarely chooses with whom one deals. South African Archbishop Desmond Tutu said: “Let your negotiations be as inclusive as possible. Don’t let any feel they’ve been excluded. Let them be represented by those they regard as their authentic spokespersons. Otherwise talks, as we have discovered at home, become an exercise in futility.”[56]

10. Implications for the Intergovernmental Action

We have however done our best and it must now take its chance.

           ~ Benjamin Franklin

This article’s conclusions and recommendations begin with a reminder of the current flaw in the primary mode of international relations since two destructive world wars and the creation of an international body politic – the United Nations – built on the ashes of another (the League of Nations): A foundational premise of International Relations theory, most notably Liberalism, that transparency in negotiations creates better and lasting deals.

Liberalism’s idealistic foundation is undergirded by the unsteady foundation that says: If states commit to higher-level Liberalism, then justice, equality, and law and order will outweigh individual state concerns (Realism). President Wilson’s Point I that all “open contracts, openly arrived at” forces states to push for idealistic and progressive outcomes because “everybody is watching” is a false paradigm. Realism retains its flaws by giving lip service to such idealism yet the large versus small state dynamic remains the principle method of operation with regards to world order regardless of the idealist “politi-speak” found in UN keynote and virtue-signaling speeches. Liberalism envisions that all states – regardless of size – do what is best for all over what is good for them when transparency is utilized.

What has happened, in point of fact, is quite the opposite. Open contracts, openly arrived at, have, in this day of saturating media pressure, been weakened by the extremes of political ideology who have discovered the power that the few, the loud, and the vocal have to sabotage the many, from the left to the right, the bottom to the top, to the politically marginalized to the radical zealots before any deal can be made. In the transparency that Wilson’s idealism envisioned – amplified one-hundred fold by the omnipresence of a 24/7 media news cycle, social media, and the internet – unaccountable and oppressive pressure from multiple sources have created a nearly-impossible ability to debate (much less) converse in a decent and transparent manner, failing to address complex issues and achieve compromise.

Transparency is the enemy of compromise. Transparency makes complex compromise anathema. The essence of all diplomacy – secret, private, transparent, or otherwise – is to seek compromise, to have our arguments changed by the process of engagement, testing, adapting, evolving, and brainstorming. That compromise has become a dirty word is no secret to any student of political affairs.[57]

In our omnipresent 24/7 media cycle, Liberalism’s place has been upgraded to a neo-Marxist thought: The anti-thesis to compromise as Marxist thought divides all structures into winners and losers, oppressors and oppressed, before negotiations even start … the ultimate zero-sum game. Winning versus losing is the enemy to compromise. There can be no compromise with players in power who retain the power by corrupt systems. In this neo-Marxism, it does not matter whether negotiations occur in private or in the open only that the pre-determined losers must take down the winner’s domination ipso facto, affording all gains to the losers and none to the winners, reclaiming what was lost in a historical, revisionist balancing of scales for past exploitive (a.k.a. capitalist, colonial) crimes. In such a stark, black-and-white paradigm, all negotiations occurring in the full light of public “day” make significant compromise very difficult to achieve in such a winner-takes-all, supporters-are-keeping-score dynamic.

The only place where equality can be met – and the effective complex compromises that occur – only happens in private, when antagonists are forced to leave grandstanding behind, talk directly to each other, and come to see each other as human beings with legitimate views, even those members with whom we disagree.

Privacy allows for humanization whereas transparency must have a narrative of heroes, villains, winners, and losers at every step of the process as every word is not meant for negotiation but for supporters not involved in the talks. The current ability to live in ideological silos has only been exacerbated by the media, not caused by it. Immediate feedback within one’s echo chambers due to 24/7 ubiquitous media makes focusing on the deal nearly impossible.

What the IR order needs now is to set aside all three major components to focus on the difficult process of complex compromise in private. In privacy, away from the transparent pressures of social media, telecommunications, and all text journalism, Realism’s power dynamics may not be removed but are certainly lessened if followed by public referendum; Liberalism’s idealism is brought to earth by nuts-and-bolts creative innovation as even large states sometimes get it right and small states sometimes get it wrong; and Marxist’s oppressor/oppressed class warfare is eradicated by dialogue with humanized antagonists seeking win-win deals. Transparency looks for power plays, winner-loser dynamics, and ideological purity tests.

In contrast, with no audience, privacy serves the purpose of trust-building, allowing players to reach accords through consensus and compromise. Compromise takes time. It was evident in all three case studies.

In modern liberal democracies, compromise in complex accords is the only outcome presented to the populace who must implement the terms. Their “yes” or “no” is the final voice. George Mitchell describes such painful compromise: “There is no course that is risk free.”[58]

11. Conflict of Interest

The author states that there is no conflict of interest.

12. Acknowledgment

The author wishes to acknowledge the excellent education he received at Euclid University, specifically acknowledging the great tutelage of Professors Rodriguez and Cleenewerck.

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Y Perhaps updating Churchill’s quote for today might be: “A lie gets zapped around the world seven times before the truth even hears the text message ‘ping.’”

[1] Max Farrand, The Records of the Federal Convention of 1787. Vol. III (New Haven: Yale University Press, 1911): p 76.

[2] Woodrow Wilson, “President Woodrow Wilson’s 14 Points (1918),” National Archives, https://www.archives.gov/milestone-documents/president-woodrow-wilsons-14-points.

[3] Wilson, “Fourteen Points.”

[4] Omi Chowdhury, “The Challenge of Change in the Israeli-Palestinian Conflict,” Israel Affairs (June 2017): p. 454.

[5] Megan Donaldson, “The Survival of the Secret Treaty: Publicity, Secrecy, and Legality in the International Order” (University of Cambridge Faculty of Law, 2016) pp. 5, 9-10.

[6] Ibid.

[7] New Oxford American Dictionary (Oxford University Press, Inc., 2010), accessed October 12, 2023.

[8] New Oxford American Dictionary (Oxford University Press, Inc., 2010), accessed October 12, 2023.

[9] Farrand, The Records of the Federal Convention, pp. 15, 17.

[10] Farrand, The Records of the Federal Convention, pp. 15, 17, 27, 38, 42, 45, 51-52, 64.

[11] Farrand, The Records of the Federal Convention, pp. 69, 73-74, 75.

[12] Wilson, “Fourteen Points.”

[13] New Oxford American Dictionary (Oxford University Press, Inc., 2010), accessed October 12, 2023.

[14] New Oxford American Dictionary (Oxford University Press, Inc., 2010), accessed October 12, 2023.

Y Roman numerals for 54, the number of holes in an LIV tournament as opposed to the PGA’s standard 72.

[15] Alan Blinder, “PGA Tour and LIV Golf Agree to Alliance, Ending Golf’s Bitter Fight,” The New York Times, June 7, 2023, sec. Sports. https://www.nytimes.com/2023/06/06/sports/golf/pga-tour-liv-merger-saudi-arabia.html.

[16] Victor Mather, “What Tour Leaders and Players Are Saying About the Merger,” The New York Times, June 6, 2023, sec. Sports. https://www.nytimes.com/2023/06/06/sports/golf/pga-liv-merger-reaction-phil-mickelson.html.

[17] Wade Harrell, “Open-Meeting-Requirements-of-the-Colorado-Sunshine-Law,” n.d.

Y This particular item of the law prompted legislators to use an email system “encrypted messaging service Signal to discuss public business outside of public view, with the messages set for automatic deletion.” A law was enacted as of this writing –  passed the General Assembly and approved by the governor – makeing an exception for emails, thereby classifying them as documents available upon request under the Public Records Act.

[18] Harrell, p. 1.

[19] Hannah Metzger and Marianne Goodland, “First-Term Democrats Challenge Decades of Illegal Meetings,” www.coloradopolitics.com, July 14, 2023. https://www.coloradopolitics.com/legislature/it-took-courage-first-term-democrats-challenge-decades-of-illegal-meetings-at-colorados-legislature-cover/article_4922cb94-20f1-11ee-9abc-574272b6e0ac.html.

Y Current practice is for the Cardinals to be sequestered at the Domus Sanctae Marthae (dormitory) for the conclave with votes being taken in the Sistine Chapel. Still, they are sequestered among themselves.

Y Unless the balloting goes to 33 rounds at which point majority rule – half plus one – goes into effect

[20] John Paul II, “Universi Dominici Gregis, On The Vacancy Of The Apostolic See And The Election Of The Roman Pontiff.” Apostolic Constitution (Vatican City: Vatican City Publishing House, February 22, 1996).

Y It is certainly not lost on this writer that “routine” matters attract grandstanding, making compromise very difficult at most government levels even to the point of paralysis. Further, there is a difference with public comment on a bill already written that is being put forth as potential law and requires public comment.

[21] Linda Dale Bloomberg and Marie Volpe, Completing Your Qualitative Dissertation: A Road Map from Beginning to End (Los Angeles: Columbia University, 2019): p. 159.

[22]Sumit Bisarya and Thibaut Noel, “Constitutional Negotiations: Dynamics, Deadlocks and Solutions,” Institute for Democracy and Electoral Assistance (April 2021): p. 2.

[23] Bisarya and Noel, p. 2.

[24] Ibid., 2.

[25] Berkin, A Brilliant Solution, p. 7.

[26] Farrand, The Record of the Federal Convention of 1787, 11.

[27] Ibid., pp. 51-52.

[28] Kaminski, “Secrecy and the Constitutional Convention,” p. 12.

[29] Beilin, Touching Peace: From the Oslo Accord to a Final Agreement, p. 42.

[30] Beilin, Touching Peace: From the Oslo Accord to a Final Agreement, p.  63.

[31] Ibid., pp. 60, 95.

[32] Associated Press (AP), Yitzhak Rabin, “Yitzhak Rabin’s Final Speech.” Accessed October 31, 2023. https://www.myjewishlearning.com/israel/History/1980-2000/Yitzhak_Rabin/Final_Speech.shtml.

Y Taioseach, pronounced “tea-shook;” (Irish); Prime Minister of the Irish Republic; literal translation is “chieftain.”

[33] Donoghue, One Good Day: My Journey to The Good Friday Agreement, p. 173.

[34] Bono, Surrender: 40 Songs, One Story (New York: Alfred A. Knopf, 2022): pp. 173-174.

[35] “The Good Friday Agreement: 20 Years of Peace and Progress in Northern Ireland,” Edward M. Kennedy Institute for the United States Senate, (2018): 1:20:52. https://www.youtube.com/watch?v=vhKXkwBiXMU.

[36] Jon Elster, “Arguing and Bargaining in Two Constituent Assemblies” Journal of Constitutional Law (March 2000): p. 262.

[37] Berkin, A Brilliant Solution, pp. 9, 165.

[38] Labunski, p. 115.

[39] Frida Skatvik, “20 Years After the Oslo Accords: From Hope to Despondency” (September 25, 2013) https://www.eurozine.com/from-hope-to-despondency/.

[40] Hirschfeld, Track-Two Diplomacy Toward an Israeli-Palestinian Solution, 1978-2014, p. 132.

Y Women and women’s groups are an often overlooked and underutilized group in international negotiations. The GFA was unique in using the important view of women, the many who bore the duty of burying fathers, husbands, and sons who died in conflicts, not to mention the women killed or maimed in bombings (in NI) or suicide bombings (Israel).

[41] Adams, Hope and History: Making Peace in Ireland, p. 408.

[42] Adams, p. 358.

[43] Ibid., p. 411.

[44] Ibid., pp. 412, 415.

[45] Ahern and Aldous, Bertie Ahern: The Autobiography, location 3821.

[46] Trimble, To Raise up a New Northern Ireland: Speeches and Articles 1998 -2000, pp. 48-49.

[47] Sapir Handelman and Jyoti Chowdhury. “The Limits of Political-Elite Diplomacy: Leaders, People and Social Conflicts,” Israel Affairs (June 2017): pp. 481-483.

[48] Jay A. Parry, Andrew M. Allison, and George Washington, eds. The Real George Washington (Washington, DC: National Center for Constitutional Studies, 1991): pp. 607-608.

[49] Thomas Jefferson, “Jefferson’s ‘Original Rough Draught’ of the Declaration of Independence,” Library of Congress, July 4, 1995. https://www.loc.gov/exhibits/declara/ruffdrft.html.

[50] Berkin, A Brilliant Solution, p. 244.

Y For accuracy’s sake, it should be noted that right before the first meeting in Oslo, Israeli law changed on this matter. However, for our purposes here, for most of the planning stages regarding these proposed secret Norwegian meetings, it was law that contact with the PLO was illegal (Beilin) and therefore planning secret meetings with the PLO was politically and personally very risky for participants.

[51] Ibtisam Azem, “Interview with Mona Juul: Norwegian Ambassador to the UN,” The New Arab (January 7, 2022) https://www.newarab.com/analysis/interview-mona-juul-norwegian-ambassador-un.

[52] Yardena Schwartz, “Exclusive: Shimon Peres on Peace, War and Israel’s Future” Time (February 16, 2016) https://time.com/4224947/exclusive-shimon-peres-on-peace-war-and-israels-future/.

[53] Bill Clinton, “Good Friday Agreement 20th Anniversary: President Clinton Address,” UCD Clinton Institute, University College Dublin, 2018, 17:41-46. https://www.youtube.com/watch?v=MUAVmeDi_7k.

[54] Mitchell, Making Peace, p. 110.

[55] Donoghue, p. 70

[56] Adams, p. 129.

[57] Larry Kramer, “Negotiation and Compromise as Core Constitutional Values,” Presented at the Owen J. Roberts Memorial Lecture in Constitutional Law Series, University of Pennsylvania Law School, 2015.

[58] George Mitchell, “Senator George Mitchell on Building Peace and Hope – Lessons from Troubled Regions,” 2012, 18:52-19:34 https://www.youtube.com/watch?v=HANuT7f6JPg.