Humanitarian Mediation

 

 

Transformative Mediation Resources:

Contents:

  • Cultural Heritage Funds – Can an ESG Fund be a Charitable Trust?
  • Mediation of Art and Cultural Heritage disputes.
  • Afghanistan – Transforming a geo-political fiasco into a diplomatic opportunity.

CULTURAL HERITAGE FUNDS – Can an ESG Fund be a Charitable Trust?

This is a question that I put in a slightly different way to the panel at a joint UN – Islamic Finance Summit 28.09.2021 (Islamic Finance and the UN SDG’s 2021 Global Summit); IF-SDG-2021-Global-Summit-Agenda.pdf (ukifc.com) (UKIFC in partnership with UN and Islamic Development Bank organised a virtual global summit on Islamic finance and the SDGs to coincide with the UN General Assembly which I was invited to attend online. Please note that I am an English Trust Law practitioner and Commercial Mediator and do not practice in the field of Islamic Finance).

I do not see any legal impediment to the creation and administration of an ESG Charitable Trust under English law, provided the trustees exercise their duties and powers in accordance with English law, see: see: Islamic law principles applicable to the administration of trusts | Carl’s Wealth Planning Blog) and Chapters 3 (Powers of Trustees), and 4 (Duties of Trustees), of my book the ‘Contentious Trusts Handbook’ published by the Law Society in July 2020: Wildy & Sons Ltd — The World’s Legal Bookshop Search Results for isbn: ‘9781784461249’

To develop a business plan and strategy for such a trust the following issues would need to be thought through and agreed (and this is not an exhaustive list):

  1.    Objectives;
  2.    Size;
  3.    Investors;
  4.    ESG portfolio principles;
  5.    Asset classes;
  6.    Asset pool;
  7.    Governance structure;
  8.    Fund management;
  9.    Management structure;
  10.    Administrative powers;
  11.    Fund management duties (including fiduciary duties);
  12.    Investment policy;
  13.    Liquidity management;
  14.    Selection evaluation and monitoring of investments;
  15.    Risk assessment & due diligence;
  16.    Regulatory compliance (including MLC compliance);
  17.    Transaction management and record keeping;
  18.    Execution rules and protocols;
  19.    Auditing; and
  20.    Legal and Data Protection compliance.

In addition advice would need to be obtained about how to structure and manage the ESG fund for tax-efficiency.

Because most professional trustees have limited knowledge of funds and ESG investing, perhaps a trust specialist, a fund specialist and an ESG specialist could make up the board of a private trust company in the structure?

I am not sure if anybody has yet designed a structure that combines the idea of a charitable trust with an ESG fund for the ethical financing of social projects, e.g. a cultural heritage project (involving Islamic Finance). Therefore, because the idea of such a structure is innovative, it will probably need a sponsor to give it wings.

Meanwhile, I invite you to connect the dots between the following ‘boxes’:

  • Environmental protection.
  • Agriculture.
  • Irrigation, clean water and sanitation.
  • Environmentally friendly energy generation, e.g. solar power.
  • Politically stable and prosperous civil societies.
  • Free trade areas.
  • UN protected enclaves.
  • Micro social projects, which together create a larger matrix of projects that can create a functioning civil society.
  • Moving refugees out of camps into a healthy, and safe environment where they can apply themselves (and acquire new skills) to create a tolerant and functioning civil society, i.e. municipal services e.g. emergency services, hospitals, schools, and the planning and implementation of building and infrastructure (which requires architects, engineers, and trades e.g. electricians).
  • Development finance provided by states.
  • Technical know-how and co-operation provided by the private sector; and
  • Ethical investment by ESG (including Islamic Finance) funds – which already exist, see: ESG and Islamic Finance collaboration could be major revenue boost for sustainable investment: report (responsible-investor.com).

An idea for a specific micro-project which could form part of a larger matrix that occurs to me, is a Global Initiative to create ‘Islamic Gardens’ (i.e. as parks for planting trees, and with greenhouses for growing plants, fruit and vegetables), see for example Gardens of Paradise: past and present | Aga Khan Foundation UK (akf.org.uk). These Gardens or Parks appear to tick all of the above boxes.

There is also a relationship between the human environment, development and culture. The commentary to the preamble to the Draft International Covenant on Environment and Development (5th edition, IUCN Switzerland 2015) states:

‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’

Since the Declaration of the UN Conference on the Human Environment, Stockholm, June 1972 (the ‘1972 Stockholm Declaration’) stated that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled …’, and this ‘special responsibility’ includes a duty to restore and maintain the integrity of the environment, the existence of fiduciary duties (i.e. in public international law) in relation to cultural heritage, is linked to wider: environmental; strategic; legal; and policy issues, i.e. international law applying to activities on the high seas and on the continental shelf.

See further: Mediation of Art & Cultural Heritage Disputes – Carl Islam

Therefore, it would appear that an Islamic Charitable Trust could in principle be established as an ESG fund to finance Cultural Heritage projects throughout the Islamic world. However, this specific idea does not yet appear to be on the radar of either the Islamic Finance industry, academics, Governments, or UN institutions.

MEDIATION of Art and Cultural Heritage disputes

To the extent that geography is a military and political constraint, cultural heritage is a third dimension that is part of the equation in resolving a geo-political dispute. Critically, it allows for the application of fiduciary principles in the negotiation of a sustainable peace. These principles have a provenance that stretches back to antiquity.

In cultural heritage disputes there is a philosophical and legal nexus between the existence of ethical standards and norms of behaviour in relation to antiquities and cultural heritage (which includes landscape). Because formulating international ‘ethical’ duties of care and standards (i.e. framing and institutionalisation), that are capable of practical implementation, monitoring, and enforcement involves multi-lateral diplomacy, mediation  is an incubation tool in cultural heritage diplomacy.

Norms are linked to the existence of fiduciary duties. This is an evolving question that is linked to the concept of global fiduciary governance in the form of treaty-making and multi-lateral co-operation.

My theory is that when art [‘A’] is of cultural significance, i.e. is recognised as being cultural property [‘CP’], it forms part of a recognised heritage. If then in either a narrow or a broad sense, it becomes part of civilization and a record of human evolution (i.e. part of the consciousness and collective memory of mankind), public duties do or should attach to possession. In particular, the possessor [‘P’] who owns A under private law that is also CP, is also a custodian of the object [‘CPO’]. In which case, fiduciary duties attach to possession, e.g. a duty to preserve and protect the cultural property [‘DP’] (including an underwater site). If is a state, these duties extend to protecting the CP in the event of war. Therefore, DP is a quintessentially fiduciary duty.  The underlying premise is that every civilized society is a fiduciary of humanity, and so are their governments.

There is also a relationship between the human environment, development and culture. The commentary to the preamble to the Draft International Covenant on Environment  and Development (5th edition, IUCN Switzerland 2015) states:

‘All civilisations spring from and are shaped by the quality of their surrounding natural elements [and that] the histories of different peoples are inseparable from the natural conditions in which they have lived for millennia. … Art, literature and science cannot be understood, or even imagined, without acknowledging the influence of nature and its components. Thus, cultural diversity, like biological diversity, emerges from the various ecosystems.’

Since the Declaration of the UN Conference on the Human Environment, Stockholm, June 1972  (the ‘1972 Stockholm Declaration’) stated that ‘Man has a special responsibility to safeguard and wisely manage the heritage of wildlife and its habitat which are now gravely imperilled …’, and this ‘special responsibility’ includes a duty to restore and maintain the integrity of the environment, the existence of fiduciary duties in relation to cultural heritage is linked to wider: environmental; strategic; legal; and policy issues, i.e. international law applying to activities on the high seas and on the continental shelf.

The big question is ‘What ethical standards of behaviour do these duties give rise to?’   This is linked to:

(i)      international humanitarian law;

(ii)      the protection and preservation of cultural property; and

(iii)     illicit trafficking of art and antiquities.

The problem of illicit trafficking is further linked to:

(a)          organised crime;

(b)          money-laundering; and

(c)          terrorist financing.

Because cultural identity is considered to part of human dignity, it is linked to human rights, i.e. cultural heritage is of crucial importance to individuals and communities as part of their identity. Since cultural heritage requires memory, this applies to both tangible and intangible heritage, because material and physical heritage needs to be placed in both a historical and cultural context, in order to understand its value.

That is why mediation is a powerful tool in cultural heritage diplomacy, and at its centre are ‘norms’ of behaviour, which theoretically apply with equal vigour to private law claims, i.e. there  is a bridge between public international law claims, and private law claims when art becomes cultural heritage. That bridge is the fiduciary doctrine of Jus Cogens.

Therefore this theory is not only about mediation, it is also about the fundamental values humanity attaches to art and cultural heritage, because those values can translate into norms of behaviour that can be building blocks for reaching agreement in a mediation about art and cultural heritage between both private parties and states.

Afghanistan – Transforming a geo-political fiasco into a diplomatic opportunity

Applying the following conflict resolution principles to Afghanistan, and taking into account the points set out below about the transference of global economic power to Asia and the fast evolving new world economic order, can a diplomatic ‘safe zone’/ ‘breathing-space’ be created by organising an international conference about infrastructure development in Central Asia in e.g. Qatar or Turkey?

Paradoxically, could ‘Global Britain’ miss out entirely on potentially ‘the largest free trade deal in history’ because the UK is ‘going-it alone’, whereas geo-politically Central Asia as a region, is moving in the opposite direction of multi-lateral trade and development co-operation. In other words, does Afghanistan present the UK with a diplomatic opportunity for future investment in Central Asia? – see: https://www.adb.org/sites/default/files/publication/29927/central-asia-trade-policy.pdf, the extract from the ‘New Silk Roads’, and Afghanistan – Linking economic diplomacy to humanitarian relief, & evacuation’, below.

Conflict resolution principles:

  1. Transform conflict into an opportunity – ‘Every conflict takes place at a crossroads that, when recognised for what it reveals, offers each participant an opportunity to overcome what Sigmund Freud called “the narcissism of minor differences”, and thereby become better, more balanced, collaborative human beings. … At its deeper levels, conflict resolution is naturally and automatically a path of integrity and character, of heart and spirit, of learning and revolution, that begins here and now inside each of us. In the end, of course there are no paths. The way forward begins wherever we are, and opens whenever we are ready to open our eyes, drop our judgements and expectations, and act authentically. More fundamentally, we need to learn how to resolve our differences if we hope to ever end the use of warfare, reduce climate change and environmental degradation, and assuage racial, gender, national, religious, and cultural hatreds. This will require us not only to focus our energies on learning and teaching these more subtle and demanding arts and sciences in dispute resolution, but to recognise that we can only succeed in eliminating conflicts in others by discovering how to eliminate them within ourselves.’ ‘The Crossroads of Conflict – A Journey Into the Heart of Dispute Resolution’ by Kenneth Cloke (2019).
  2. Create an enabling environment for transformation and transcendence, i.e. a ‘breathing space’ / ‘safe zone’ to open up unimagined possibilities – ‘[Daniel Shapiro has] developed a practical method to bridge the toughest emotional divides. This method leverages the unique feature of conflict that has been consistently overlooked: the space between sides. We typically view conflict as a binary concept – me versus you, us versus them – and focus on satisfying our independent interests. But conflict literally exists between us – in our relationship – and in that space live complicated emotional dynamics that thwart cooperation. Learning how to transform an emotionally charged conflict into an opportunity for mutual benefit requires that you learn how to effectively navigate the space. My goal has been to decode the space between disputants and to design processes to help them work through intransigent emotions, divisive dynamics, and clashing beliefs. The result is the method that I call ‘relational identity theory’, which features practical steps that produce dynamic effects, much as the few simple actions necessary to light a pile of wood produce the dynamic effect of fire. The greatest barrier to conflict resolution is what I called the tribes effect, divisive mindset that cast you and the other side as inevitable adversaries. As long as you are trapped in this mindset, you will be trapped in conflict. The way out is to counteract the five hidden forces that draw you toward this outlook – the Lures of the tribal mind – and to cultivate positive relations via the process of integrated dynamics. In the course of doing so, you will confront unavoidable tensions – relational dialectics – that threaten to make your conflict feel like a no-win proposition. ….

In the sunny resort town of Sharm el-Sheikh, Egypt, I facilitated a workshop called “building peace, breaking taboos”. Its purpose was to help regional leadership wrestle with political taboos constraining progress in the Israeli Palestinian negotiations. Co-led by Tony Blair, former Prime Minister of the United Kingdom and the United Nations Middle East quartet special envoy at the time, the session included participants ranging from high-level negotiators and government leaders to royalty and religious figures. To create a safe zone, I established the rules of our workshop [i.e. mediation], including confidentiality and mutual respect. In the tense context of the conflict, I knew that productive conversation would be possible only if participants felt safe enough to voice their honest opinions. I also emphasise that our workshop was exploratory, providing everyone a clear chance to think outside the constraints of the conflict [i.e. to think outside the box]. No one will be asked to commit to any action discussed in the workshop. This freed the participants to engage in energised conversation. Mr Blair took the floor to discuss his involvement in negotiating the Good Friday peace agreement that helped to resolve the Northern Ireland conflict. He explained that effective negotiations could not have taken place within an environment of violence and counter-attack. Both sides needed “breathing space” – [i.e. a] safe zone that, once established, opened up possibilities that Blair said he had “never imagined possible”.’ ‘Negotiating the Non-Negotiable – How To Resolve Your Most Emotionally Charged Conflicts’ by Daniel Shapiro (2017).

A new economic world order?

‘By 2050 the per capita income in Asia could rise sixfold in purchasing power parity (‘PPP’) terms, making 3 billion additional Asians affluent by current standards. By nearly doubling its share of global GDP to 52%, as one recent report put it, “Asia would regain the dominant economic position it held some 300 years ago, before the industrial revolution.” The transference of global economic power to Asia “may occur somewhat more quickly or slowly”, agreed another report, “but the general direction of change and the historic nature of this shift is clear” – concluding similarly that we are living through a reversion to how the world looked before the rise of the West. The acute awareness of the New World being knitted together has helped prompt plans for the future that will capitalise on and accelerate the changing patterns of economic and political power. Chief amongst these is the Belt and Road initiative, President Xi’s signature economic and foreign policy, which uses the ancient silk Roads – and their success – as a matrix for Chinese long-term plans for the future. Since the project was announced in 2013, nearly $1 trillion has been promised to infrastructure investments, mainly in the form of loans, to around 1000 projects. Some believe that the amount of money that will be ploughed into China’s neighbours in countries that are part of the Belt and Road over sea and land will eventually multiply several times over, to create and interlinked world of train lines, highways, deep-water ports, and airports that will enable trade links to grow even stronger and faster … Today, there is a series of Great Games taking place, over competition for influence, energy and natural resources, for food, water and clean air, the strategic position, even for data. … The number of passengers travelling by plane will nearly double to 7.8 billion a year by 2036, with the growing and increasingly affluent populations of Asia, with China, India, Turkey and Thailand driving this increase. … Pakistan is now the World’s fastest growing retail market, partly thanks to the fact that disposable income has doubled since 2020. … There are fortunes to be made by being in the right place at the right time – and consequences for failing to adapt or respond in the right way. … Tastes, trends and appetites will be made in the East and not in the West. Changing aspirations, appetites and tastes will drive demand – as they always have done. … Corporate fortunes and failures will be made in the East – and not in the West. … The age of the West is at a crossroads. … The themes of isolation and fragmentation in the West are in sharp contrast to what has been happening along the Silk Road since 2015. The story across large parts of the region linking the Pacific through to the Mediterranean has been about consolidation and trying to find ways to collaborate more effectively; the trend has been about defusing tensions and building alliances; the discussions have been about solutions that are mutually beneficial and provide the platform for long-term co-operation and collaboration. These have been facilitated by multiple institutions that both enable dialogue and take practical steps to deepen ties between states – multilateral financial institutions such as the Asian Development Bank and the New Asian infrastructure Development Bank, but also groups like the Shanghai Cooperation Organisation, the Eurasian Economic Union, the BRICS summits, the Transpacific Partnership (albeit without US participation) and the Regional Comprehensive Economic Partnership – the last of which includes countries from South East Asia along with China, India, South Korea, Japan, Australia and New Zealand. Together, these have a combined GDP of almost – 30 trillion or 30% of global GDP – and represent 3.5 billion people. Negotiations to create a modern comprehensive high quality and mutually beneficial economic partnership agreement have intensified, raising the prospect that one economist has called the largest free trade deal in history. .. The world is spinning in two different directions: decoupling and going it alone in one, and deepening ties and trying to work together in another. … A typical example of the way in which the heart of the world is being knitted together comes from a conference held in Samarkand in November 2017 when senior officials from the Central Asian republics as well as from Afghanistan, Russia, China, Turkey, Iran, India and Pakistan, met to discuss ways of working together to deal with terrorism, religious extremism, transnational organised crime and drug trafficking under the theme “Central Asia: one past and a common future, cooperation for sustainable development and mutual prosperity.” … If Kazakhstan and Iran build transit networks, Kazakhstan may be linked to the southern waters through Iran, and Iran can be connected to China via Kazakhstan … The development of a new international north-south transport corridor that connects Southeast Asia and northern Europe has also made progress and seen government bodies in Azerbaijan, Russia and Iran working closely with each other.’’ The New Silk Roads – The Present and Future of the World, by Peter Frankopan(2018).

Diplomatic opportunity?

The UK elected to ‘go it alone’. The US President has pinned his colours to a policy of isolationism. China is the emerging global leader in Central Asia. Could the UK miss out entirely on ‘the largest free trade deal in history’ because of a lack of coherent thinking, imagination and diplomatic leadership, or does regime change in Afghanistan represent a time-limited opportunity?

AFGHANISTAN – Linking economic diplomacy to humanitarian relief, & evacuation

An idea cannot be killed by military action, however its appeal can be weakened by creating a stable and thriving economy that rewards application, in other words entrepreneurship and wealth creation are weapons that can silently defeat an ideology over time by making it irrelevant to people’s  needs, expectations, and aspirations. That is why communism was doomed to fail from the start, i.e. because it removed the incentive to work, which runs counter to human nature as most rational people want to improve not only their own lives but also to create opportunities for their children. Wealth creation should therefore be part of a coherent and cohesive diplomatic strategy for managing the risk of terrorism fuelled by a culture of crime in a hostile oligarchy or failed state. Educated Afghan refugees can help build the economies of Central Asian states and create wealth and social flourishing in the region, which in the long term may increase stability in Central Asia. Is there a time-limited opportunity for the US, EU, UK, Turkey, Canada and Australia, to jointly develop a coherent diplomatic strategy linking trade deals to an agreement by Central Asian States to provide a home for refugees from Afghanistan?

Regional preferential trade agreements have the potential to contribute to Central Asia’s economic diversification. Their usefulness is positively correlated with their capacity to facilitate trade among participants and negatively correlated with the extent of trade diversion caused by the agreement. From that perspective, the Commonwealth of Independent States free trade area is useful and fairly harmless because it reinforces the already existing regime of Central Asia’s trade with traditional partners based on a set of rules consistent with the WTO’ – Connecting Central Asia with Economic Centres: Final Report (adb.org)

A potential Win/Win strategy?

  • Fly in aid to Afghanistan.
  • Fly out evacuees for settlement in Central Asian States.
  • US, EU, UK, Turkey, Canada and Australia to provide: (i) humanitarian relief to Afghanistan; and (ii) trade and development support to Central Asian States.

The problem

After the last flight has left Kabul there will be no airports under neutral control to fly in and out of, and no force on the ground to create and protect a humanitarian land corridor, and to escort evacuees to safety.

Can Pakistan and the UAE provide troops wearing ‘blue’ helmets and air cover with the agreement of the Taliban and local war lords, to operate and protect strategic airports and to ensure safe passage?

Otherwise, how are people, including UK and US citizens i.e. passport holders, left behind (who apparently number more than 2000), to get out of Afghanistan?

They are trapped.

Likewise, how is humanitarian aid going to get into Afghanistan and be distributed where it is needed?

That is where a coalition of the US, EU, UK, Turkey, Canada and Australia appear to have some diplomatic leverage, unless of course China advances into the political vacuum and eventually controls the ungoverned space. If it does, geopolitically who is going to end up being the largest investor in Central Asia – the US, EU, UK, Turkey, Canada and Australia or China?

The United States has a vested interest in promoting regional economic integration, which could catalyze political reform and reinforce efforts to stop illicit traffic and militant activity at Afghanistan’s borders. As cited in a World Bank report, landlocked countries can face average growth rates that are about 1.5 percentage points lower because of transaction costs and other inefficiencies such as unpredictability in transportation time.  In July 2011, Secretary of State Hillary Clinton announced the New Silk Road (NSR) initiative, a long-term economic vision to transform Afghanistan into a hub of transport and trade, connecting markets in India, Pakistan, Afghanistan, and Central Asia. Some of the proposed NSR projects include completing the Afghan Ring Road; establishing rail links between Afghanistan and Pakistan; completing the Turkmenistan-Afghanistan-Pakistan-India (TAPI) pipeline; and creating a regional electricity market by establishing a transmission line between Central Asia and South Asia (CASA-1000).   NSR requires U.S. leadership, not necessarily an infusion of new U.S. funds. It will instead involve cooperation from multilateral development banks, foreign donors, regional governments, and the private sectorNSR has been enthusiastically welcomed by governments in Afghanistan and Central Asia who want to connect to markets in Europe and Asia and appreciate American attention to their economic challenges.   However, connecting Central to South Asia via Afghanistan will be challenging in light of the barriers to continental transport and trade, including the lack of regional cooperation. NSR will not be a panacea for Afghanistan’s economic woes, but it does offer a vision for the broader region that could foster private sector investment if projects are prioritized and steps are taken to create an enabling environment. The United States can play a vital role by supporting political and economic reform and leveraging its resources.’

CENTRAL ASIA AND THE TRANSITION IN AFGHANISTAN (govinfo.gov)

See also:

Why did the UK become involved? – https://rusi.org/explore-our-research/publications/commentary/afghanistan-and-uks-illusion-strategy

What can the US do now? – Biden can still salvage his legacy and US credibility. It won’t be easy. – Atlantic Council

Scale – Half a million Afghans could flee across borders – UNHCR | Reuters

Can Central Asian States provide a refuge? –Afghanistan: Where will refugees go after Taliban takeover? – BBC News

Concerted humanitarian strategy? – David Miliband calls for ‘unified’ international engagement with the Taliban (alaraby.co.uk)

EU diplomatic support? – Top EU diplomat Borrell calls for dialogue with the Taliban in Afghanistan – POLITICO

UK logistical support? – https://www.independent.co.uk/voices/afghanistan-uk-troops-refugees-support-b1910646.html

Regional consequences? – Afghanistan: What Taliban takeover means for the region | Asia | An in-depth look at news from across the continent | DW | 19.08.2021

Could Turkey be a diplomatic mediator? – https://rusi.org/explore-our-research/publications/commentary/turkeys-return-central-asia

China – The influence of Chinese economic growth on Central Asian countries.(Business Reference Services, Library of Congress) (loc.gov)

Russia – Sino-Russian Economic Cooperation in Central Asia is Not What It Seems to Be – The Diplomat

India – Taliban takeover a ‘body blow’ to Indian interests in Afghanistan | Taliban News | Al Jazeera

https://www.futuredirections.org.au/publication/the-geopolitical-shift-in-afghanistan-security-implications-for-india/

Pakistan – Pakistan’s problematic victory in Afghanistan (brookings.edu)

Australia – Australia and Kazakhstan: a Steppe Forward for Bilateral Ties – Australian Institute of International Affairs – Australian Institute of International Affairs

Canada – https://www.canadainternational.gc.ca/kazakhstan/bilateral_relations_bilaterales/canada_kazakhstan.aspx?lang=eng

Islamic Finance – Gulftimes : Central Asia pushes Islamic finance in preparation of post-Covid era (gulf-times.com)