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             Covid-19 Issue
                                                           May 2020

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            -Ken Cloke


I was privileged recently to give opening remarks at a meeting of mediators in the International Academy of Mediators. The remarks were a reflection on the times we as mediators are living in. I share an adapted version here.

"There is no us and them, only us".

These words were uttered here in Edinburgh in May 2010, almost exactly ten years ago, by our great friend and colleague, Ken Cloke. Ken was addressing the annual meeting of the Church of Scotland, just before it began a debate on same sex relationships among ministers.

"There is no us and them, only us". Never before has this phrase seemed more apt than today. If ever we were in it together, now is the time. I have been struck by the universality of the feelings we recognise, wherever we are. What we are going through is an extraordinary, common human experience.

And yet we are all different too. Our responses are different. How we respond individually is unique in its own way. How each of our countries responds is also different, strikingly so in some cases.
Indeed, it struck me when I woke very early one morning, as I often do these days, that some of us don't need other nations (allegedly) to undermine us with fake news. Some of our own leaders appear to be doing that for us, just fine.

But even those other nations are in this same boat. As Ken Cloke has said, it doesn't matter which end of the boat we are at, if the boat itself is sinking. Never before perhaps has our sheer interdependence been so clear. And the need for radical cooperation. To paraphrase Einstein, the old ways of doing things are unlikely to make us safe again.

So, here is a question for us mediators. Where are we on the boat? Are we going about business as usual, hoping that others are baling us out? Are we part of the baling out team? Or are we looking towards those whose hands are on the tiller? Are we making suggestions to those with their hands on the tiller, those who decide where we go?

You may well ask: what locus do we have, as mediators, to make suggestions?

Well, the danger may be that baling out works to some extent and the boat simply continues in the same direction with the same people in the same situations doing the same things. But where to? Back to hubris, back to business as usual? Is that really where we want to go? Or do we need seriously to consider not only the direction of travel, but how we are getting there?

After all, how we get there is what we mediators are all about. The destination is not so important to us, but how we travel on the journey is critical. So perhaps we do need to have the confidence and the humility to get alongside those with their hands on the tiller.

Recently on the BBC Horizon series there was a magical programme about the Hubble telescope, celebrating its launch from the Kennedy Space Center in Florida, on the space shuttle Discovery, almost exactly 30 years ago. I was there that day, watching at a distance!
What a technological achievement Hubble has turned out to be. On television, the wonderful sights of the universe as seen from Hubble put the coronavirus pandemic into a broader perspective.

It also reminded me of the Voyager spacecraft which apparently may re-enter our solar system 250 million years in the future. Wow, what a journey. Unimaginable really.

At a time like this, we need to remember that we are all on a journey, as individuals and as a species. A remarkable, complex, stimulating, uncertain, humbling, paradoxical journey, full of hope and also of lament. Being as well as doing. Death as well as life. Suffering as well as love.

We mediators are well qualified to help others navigate this unprecedented journey. Not just in our traditional role in conflict resolution, though that remains important, but in what we can contribute more widely to conversations about our collective future.

Read article on Kluwer

Global Toolkit: Force Majeure (COVID-19)

The Coronavirus outbreak is having a significant impact on contractual obligations and performance. Below is a useful resource to help you understand how force majeure is recognised across various jurisdictions and the steps businesses should take during the current crisis.

Our intuitive  GTDT cross-border comparison tool, along with the very best Lexology articles hand-picked by our experts, give you a truly global perspective and the answers you need.

Access complete Toolkit on Lexology

"Alice again enters a fantastical world, this time by climbing through a mirror into the world that she can see beyond it. There she finds that, just like a reflection, everything is reversed"...and "walking away from something brings you towards it" (Alice's Adventures in Wonderland, Lewis Carroll).

The current worldwide outbreak forced by Covid-19 has led the international dispute resolution community to consider other means of proceeding with their arbitrations. Opinions differ: some practitioners have already started utilising what technology has been offering for many years; others are still discussing whether virtual hearings may be an option; another group of people, reluctant to move online, considers that online hearings are not adapted to their arbitrations. Is everything reversed like Alice in Wonderland, or is the mirror showing us what we have neglected or refused to see? Walking away from the current reality will inevitably bring us towards it.

When we moved from snail mail to telex, and later to telefax and then to email, such changes did not create a buzz. This sudden viral outbreak may well be the triggering event that is generating popularity for virtual hearings. The unexpected noise has had many benefits including bringing to light issues that we have kept ignoring because the models we had adopted were comfortable. There was no reason to change unless we were compelled. The disruption caused by Covid-19 has justified us to think differently. This triggering event is a positive aspect, despite the very sad situation of contamination, death, confinement and the catastrophe of the worldwide economy, which is impacting every sector, firm and individual.
Virtual Hearings or ODR?

Virtual hearings have become the centre of discussion among the dispute resolution community. Webinars are being organised around the globe to examine to what extent virtual hearings may replace in person hearings in a physical location, and to consider procedural and technical issues.

I had the opportunity to speak on 16 April 2020 at a webinar organised by the American Bar Association on "Progressing Arbitrations in the New Global Reality", moderated by Ana Sambold. With my fellow panellists, Mohamed Abdel Wahab and Michael McIlwrath, we presented the spirit of the  ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic ("Guidance Note"), dated 9 April 2020, and the practical solutions being adopted by the ICC International Court of Arbitration ("ICC").
The panellists indicated that virtual hearings need not replicate online what is being done offline and that practitioners need to consider new methods. For example: are many witnesses necessary? Do hearings need to last weeks, as is often the case in common law countries? Or will fewer days, more often applied in civil law countries suffice? Does an ability to manage or overcome Covid-19 problems factor into thinking about which arbitrators to nominate at this moment?

It is worth clarifying that virtual hearings is not the same as online dispute resolution ("ODR"). The use of technology to hold hearings remotely is meant to connect people, affording an opportunity to replace the real world, offline space, which may not be available to them for some reason (such as difficulty to travel, illness), by an online space. The procedure, however, is not conducted online. ODR consists in using information and communication technology to negotiate, mediate, arbitrate, conduct proceedings, and settle disputes exclusively or primarily online. When platforms used make a significant contribution to resolving disputes, such online resolution equates to ODR. Using a platform for virtual hearings does not meet that purpose, unless other parts of the procedure are conducted online through a dedicated dispute resolution platform. The  UNCITRAL Technical Notes on Online Dispute Resolution issued in 2016 defined ODR as "a system for dispute resolution through an information technology-based platform and facilitated through the use of electronic communications and other information technology". Many mediation procedures are conducted exclusively online, such as on  SeeYouOutofCourt that Graham Ross uses for his mediations. We hope that in the future arbitrations may be entirely conducted online, without necessarily excluding face-to-face meetings or hearings where necessary.

My second remark concerns using technology in arbitration. Colin Rule, one of the two fathers of ODR with Ethan Katsh, posted a message on LinkedIn at the beginning of April, quoting Tom Clarke from the National Center for State Courts ( NCSC), who wrote that it is "immensely ironic that the coronavirus crisis will do more for virtual courts than decades of work by NCSC. I'm glad to see it come, even if this is not the way I would wish it to happen." This is so true! Probably few people are aware of the work we have been doing in the last twenty years with all fellows from the National Center for Technology in Dispute Resolution ( NCTDR), the International Council for Online Dispute Resolution ( ICODR) and NCSC. We have been strongly urging moving public and private justice online in order to benefit from the many advantages offered by resolving disputes that way (see " What does it take to bring justice online"). The three panellists of this webinar have been involved in technology in arbitration for twenty years and agree that ODR has been lagging behind.

It is said that need is the mother of innovation. However, in this instance, innovation is rather about changing our traditional way of working as opposed to innovation in tools that already exist. Perhaps we needed this outbreak to discover that hearings may be conducted online, and hopefully to start considering going further in applying such technology. From every misfortune good things may derive. We are living in fascinating times!
ICC Tools to Ensure Effective Case Management

Virtual hearings may be a new subject generated by the pandemic. What is not new is the fact that ICC had already several tools available to assist parties, their representatives and arbitrators in effectively managing arbitrations. ICC was at the forefront ever since 2000 including its NetCase platform. The Guidance Note is now reiterating the practical insights that users need to remember.

The ICC Commission on Arbitration and ADR issued a few reports that provide users the means to conduct procedures in an effective and cost-efficient manner, some of which are useful for virtual hearings. The first one, published in 2004 and updated in 2017, concerns the " Use of Information Technology in International Arbitration" and provides helpful standards on issues to be considered, such as common technical ability, electronic exchange of documents, data integrity issues, and issues to be considered for videoconferencing including directions that the tribunal needs to give to the parties after consulting them. The second one, published in 2007 and re-issued in 2012, addressed " Techniques for Controlling Time and Costs in Arbitration". That report recommended already at that time, that telephone and videoconferencing may be considered, as well as whether witnesses may be heard by video link so as to avoid the need for them to travel to an evidentiary hearing.  Appendix IV of the ICC Arbitration Rules (Rules) clearly reminds us that one of the recommended case management techniques is precisely the use of telephone or videoconferencing for procedural and other hearings where attendance in person is not essential. Some of the techniques proposed in the report were included as Appendix IV to the 2012 Rules, which introduced, among others, an important provision related to an early case management conference. Another very helpful report, issued in 2015, provided further guidance for " Effective Management in Arbitration", such as early case management, maintaining realistic schedules, and raising awareness about potential settlement opportunities. " Techniques for Managing Electronic Document Production", published in 2011, is another useful report. Finally, the " Note to Parties and Arbitral Tribunals on the Conduct of Arbitration under ICC Rules of Arbitration" ("Note") reminds us of many techniques and also provides new solutions, such as the possibility of signing terms of reference and awards in counterparts, subject to any mandatory requirements of relevant applicable laws.

Some of the measures for effective management of which the Guidance Note reminds us include the possibility to dispose expeditiously of certain claims or defences, resolve issues in dispute in stages by rendering partial awards, identify whether some issues may be resolved on the basis of documents only, organise mid-stream procedural conferences to assess the most relevant issues and consider focusing on most efficient means to resolve them, identify issues that may be resolved without witness and/or expert evidence, use of audio or videoconferencing for hearings, and to consider whether parties would agree to opt in to the ICC Expedited Rules Provisions.
It is hoped that the Guidance Note, which reminds users of the many existing tools and measures available, will help parties and arbitrators consider all opportunities available to them to move arbitrations forward. Subject to any constraints of legal requirements, the uncertainty of the pandemic situation should be considered seriously to avoid adjournments and further disruptions.
ICC Guidance Note on the Organisation of Virtual Hearings

The second practical aspect of the Guidance Note is the assistance provided to arbitrators and parties about issues they need to consider when organising a virtual hearing. The Guidance Note first reminds tribunals to take into account all circumstances, including those caused by the pandemic, the nature and length of the conference or hearing, the complexity of the case and number of participants, any need to proceed without delay, whether rescheduling the hearing would entail unwarranted or excessive delays, and the need for the parties properly to prepare for the hearing. Should a meeting be necessary in a single physical location, parties and arbitrators should make efforts to reschedule in a way that minimises delays, and should discuss the appropriate sanitary measures to ensure the safety of all participants. If it is decided to proceed with a virtual hearing, arbitrators and parties should discuss and plan for special features of proceeding in that manner.
If a tribunal decides to proceed with a virtual hearing without party agreement, or over party objection, it should carefully consider all relevant circumstances: assess whether the award will be enforceable at law, and provide reasons for that determination. After consulting the parties, arbitrators may take into account their broad procedural authority under Article 22(2) of the Rules, to "adopt such procedural measures as [the tribunal] considers appropriate, provided that they are not contrary to any agreement of the parties." The tribunal "shall proceed within as short a time as possible to establish the facts of the case by all appropriate means" (Article 25(1)) and "shall hear the parties together in person if any of them so requests" (Article 25(2)). The Guidance Note further indicates that Article 25(2) is structured to regulate whether the tribunal can decide the dispute based on written submissions and documents only or whether there must also be a live hearing. It does not preclude a hearing taking place "in person" by virtual means if the circumstances so warrant. The French version of Article 25(2) reflects this meaning in providing that: "Après examen des écritures des parties et de toutes pièces versées par elles aux débats, le tribunal arbitral entend contradictoirement les parties si l'une d'elles en fait la demande; à défaut, il peut décider d'office de leur audition." The Secretariat's Guide to ICC Arbitration also notes that "whether the arbitral tribunal construes Article 25(2) as requiring a face-to-face hearing, or whether the use of video or teleconferencing suffices, will depend on the circumstances of the case." Moreover, virtual hearings were progressively acknowledged as mentioned above, including in Article 24(4) of the Rules with respect to case management conferences, Article 3(5) of Appendix VI of the Rules with respect to Expedited Arbitration, and paragraph 77 of the Note with respect to dispositive issues.
The Guidance Note further provides that to ensure that parties are treated equally and given full opportunity to present their case during a virtual hearing, the tribunal should consider several issues, such as the different time zones in fixing the hearing dates, logistics of the location of participants, use of real-time transcript and interpreters, identification of all participants, use of demonstratives and electronic hearing bundles. Furthermore, parties and arbitrators need to agree on the selection of platforms for videoconferencing and document sharing.

Finally, the Guidance Note provides a checklist and a draft procedural order which will be hugely useful for the dispute resolution community. In addition to issues to consider during the pre-hearing plan, including scope and logistics provided in the checklist, the checklist and the procedural order deals with issues in four sections related to: technical issues, specifications, requirements and support staff; confidentiality, privacy and security; online etiquette and due process considerations; and presentation of evidence and examination of witnesses and experts.

To conclude, the game changer is positive and we need to build on it. The benefits of virtual hearings include saving time and costs of travelling, and saving the environment, seeing that climate change is at the centre of the world's preoccupation today. The way people now interact with technology has removed barriers which were difficult to remove before the outbreak. Virtual hearings will, in the near future, become the norm. The sooner we start practicing virtual hearings, the easier it will be to move procedures online. Many practitioners wish and hope that the arrangement during the pandemic will prove that we are capable of working differently. It is the ideal opportunity to revisit some of our current practices and streamline procedures.

COVID-19 Disputes: Zooming ahead - the challenges of virtual hearings
 in international arbitration

Global: April 27 2020

The Covid-19 epidemic has brought to a head an issue that has been debated for years: how practical are virtual hearings and what needs to be done to make them work?

The arbitration community has been talking for years about the benefits of virtual hearings. If we use FaceTime, Skype and Zoom to speak to friends and family in distant places, why not do so for work too? The costs savings are obvious and a great deal of time can be saved.

For some time, the Korean Commercial Arbitration Board (KCAB) has been considering how electronic hearings should be conducted, to ensure both that the process runs smoothly and that it is fair for all concerned. KCAB has recently published its new  Seoul Protocol on the subject, which provides rules on everything from making back up arrangements (e.g. a conference telephone call) to the use of electronic bundles.

Now Covid-19 is forcing lawyers and clients to think harder about this issue, not because there is a choice between holding a virtual or IRL (in real life) hearing, but because the alternative, for now, is no hearing at all. The ICC in particular has just produced a detailed  Guidance Note on virtual hearings, complete with annexes containing a checklist and suggested clauses for use in cyber-protocols and procedural orders.

Naturally, everyone wants their hearings to work, so that disputes are put behind them and the parties, the lawyers and the arbitrators can move onto their next priority. Justice cannot be put on hold indefinitely, and in an economic downturn, disputes are likely to increase in number rather than the reverse. Claimants too will be even less inclined, other things being equal, to wait for the compensation they claim. But, is it really practical to continue as normal, simply doing everything remotely in the same way that it was previously done face to face? The answer is probably no, but workarounds are available and can make virtual hearings more efficient than would otherwise be the case.

The obvious difficulty with virtual hearings is that the technology that is available is not always adequate to the task and not all jurisdictions and parties are equally served. Some countries have the relative advantage in having more reliable power and being more 'connected' than others, and organisations in those countries are likely to have the best technology on the market. Major new arbitration centres like the International Arbitration Centre in London and Maxwell Chambers in Singapore are well equipped. Expectations should not be raised too high, though. Even the best technology nowadays has difficulty replicating an IRL hearing, where several people are in a room together and everyone is trying to gauge the reactions of others - an arbitrator's raised eyebrow, perhaps, or a witness's nervous behaviour.

The simple task of joining together many video links may also be troublesome. Ordinarily, participants would meet and participate in groups from suitable locations. However, Covid-19 makes this impossible where people are practising social distancing or where a strict lockdown is in force. This can result in ten, twenty or even more video links being required, especially if interpreters are involved or the dispute involves several parties. The technology that has been developed in recent years works best when it is bringing just one or two witnesses into a traditional style hearing by video link. Even when it works well, witnesses may use it as an excuse, claiming they cannot hear questions that they are reluctant to answer.

There is also a real and significant imbalance in the technology available to parties operating in and out of certain jurisdictions. Parties participating in virtual hearings from locations with reliable power and good connectivity are likely to find the process relatively seamless. Those without such access are likely to find effective participation more difficult. Given that one of the major benefits of international arbitration is that it offers a consistently high standard of dispute resolution throughout the world, it is important that the interests of parties based in developing countries are not left behind in the rush to adopt technologies that are not universally accessible or reliable. Access to justice should not be dependent on access to high quality technology.

It is important not to forget that in this period of epidemic induced multi-jurisdictional lockdowns and the technological dependency by which it has been accompanied, technology deficits affect not only hearings, but also the preparation of a case. Communications with clients, witnesses and colleagues are disrupted as is access to paper records and documents. Witnesses may be based in countries or regions where telephone lines work badly and where the internet is not strong enough to support a video link. In fact, there may be no internet at all. Witnesses, who are also in lockdown, may not have access to the case record and communications about documents, whether by phone or video link, is very difficult. So lawyers will sometimes find it easy to prepare a case remotely, and sometimes they will not. Everything depends on the context in which they are working.


Another challenge posed by video hearings is that they limit the ability of lawyers to work closely together as a team. In a normal hearing, collaboration is the key to success. Everyone from the lead advocate to the trainee who created the bundles needs to be alert and working in harmony. Lead advocates ask members of the team to answer questions or find documents. Lawyers listen carefully to witness testimony and sometimes recognise that an answer does not accord with a document they have seen. In a virtual world the opportunity to pass a key document to the lead advocate for use in cross examination may simply not exist. Winning is ultimately a team effort.

That said, there are ways of communicating outside the main video links that have been set up. Team members can send private messages to each other or even use the virtual break out rooms that are available from some providers. There is inevitably a loss of flexibility in these arrangements, which can never replicate real time communication between team members in a hearing, while concerns regarding confidentiality and reliability have not yet been conclusively resolved.

Making it work

In a way, none of this matters. Some hearings can be postponed indefinitely or abandoned in favour of written submissions, but where the parties agree that time is paramount, hearings will go ahead regardless. Lawyers therefore have no choice but to be flexible and adopt new ways of working, whether they consider them to be satisfactory or not.

The guidance provided by the Seoul Protocol and ICC's new Guidance Note on Covid matters will help, as will parties and arbitrators who are willing to embrace new technology. In addition, certain pre-hearing reviews to establish readiness for the hearing can be geared towards technological preparedness and ensuring equality between the parties.

However, it is equally important to manage expectations carefully. Virtual meetings and hearings are bound to be less efficient than traditional ones, whatever the advantages of new technology and procedures. The challenge is to make the most of the latter, while limiting the downside of remote working. What will be interesting to see is whether new ways of doing things will remain in place in the longer term, after the pandemic is over. The next few months may establish a new normal; the question of whether this happens will depend on whether the technology delivers.


Contractual Performance and COVID-19 - An In-depth Comparative Law Analysis

USA April 24 2019

WilmerHale and Wolters Kluwer are delighted to launch   Contractual Performance and COVID-19, a new and in-depth comparative law analysis on the impact of the pandemic on contractual performance. 

The global outbreak of the novel coronavirus COVID-19 has had, and continues to have, a devastating impact on human health and life around the globe.  It has had an equally far-reaching impact on contractual relations worldwide.  The outbreak of COVID-19 has forced governments and companies alike to take unprecedented measures to slow down the spread of the pandemic and to protect health and safety.  

All of this may impact the ability of parties to reasonably exercise their contractual rights or perform their contractual obligations.

This site:
-   provides an in-depth comparative legal analysis of key civil and common law jurisdictions;
-   examines whether and under what circumstances COVID-19-related impediments may excuse contractual performance or lead to modification or termination;
-   addresses a wide variety of legal concepts, such as impossibility, impracticability, frustration of purpose,  force majeure, hardship or  imprévision, and  clausula rebus sic stantibus;
-   will be continuously updated with additional developments and key civil and common law jurisdictions.

As COVID-19 Slows Human Mobility, Can the Global Compact for Migration Meet the Test for a Changed Era
By  Lena Kainz

APRIL 2020

Just as most of the world's nations were preparing to implement the first-ever comprehensive global agreement on migration, the COVID-19 outbreak fundamentally shifted the way human mobility is managed. Most countries have resorted to migration management tools such as  border closures or travel bans to contain the spread of the pandemic, and public-health considerations are now at the heart of policy decisions on mobility. These developments come as a test for the Global Compact for Safe, Orderly, and Regular Migration and international cooperation on migration more broadly: how flexibly can the pact formally approved by 152 governments at the UN General Assembly in late 2018 adjust to these new circumstances?

This year is supposed to be about bringing the compact from paper to reality. For the first time, states will come together in regional review fora in the second half of 2020 to present and share progress on national action plans. These meetings offer a chance to demonstrate the relevance of the compact at a time when the pandemic presents a common challenge to states across the migration continuum. However, governments may have a difficult time bringing attention to the meetings or moving to implementation of tangible compact deliverables at a time they face more pressing domestic concerns. Overhanging all this is the knowledge that the political price to enact the compact was extremely steep for some states and may now have been for naught if the agreement fails to deliver on its ambitions.

How Will COVID-19 Reshape Compact Implementation?

As the conversation on the compact's implementation resumes under a new reality, the ripple effects of the pandemic may be felt at two levels in particular. First, the coronavirus outbreak risks lowering states' level of ambition precisely at a time when the momentum of the regional review meetings could be used to make the pact's value more tangible-both for states and for migrants themselves. Following up on national action plans might move lower on the political agenda in light of public health or economic worries. And in a world reshaped by responses to the virus, some countries now face unanticipated constraints in implementing their priority objectives or providing technical assistance and capacity building to partners. Meeting one of the compact's objectives, the facilitation of safe and dignified return for migrants and asylum seekers ineligible to remain in a country, has become even more difficult in the wake of African bans on the landing of many flights coming from Europe, for example.

Second, financing will be a heightened concern as new competition to fund other priorities could have spinoff effects on the  Multi-Partner Trust Fund, a start-up fund intended to help state and nonstate actors implement objectives under the pact. The current fundraising strategy focuses on kickstarting the pact's implementation quickly to increase the fund's visibility to potential donors. Yet with palpable progress on the ground likely to materialize more slowly than anticipated, this strategy might not play out as intended. Before the coronavirus outbreak, countries such as Denmark, Germany, and the United Kingdom had slowly started to pledge contributions to the fund. Given ongoing sensitivities around the compact in Europe, some other EU Member States have so far not made financial commitments to the fund, and the European Union opted to directly support UN Migration Network activities instead. Now, as major donor countries find themselves at the epicenter of the pandemic, governments may be less inclined to free up resources for the trust fund. And while the looming global recession makes it even more important to use the 9.7 million euros pledged so far wisely, including on coronavirus-related projects such as facilitating migrants' access to health care, it also creates greater uncertainty whether the fund will meet its initial 23 million euro target for 2020 and where the threshold of future funding ambitions should lie.

Does the Global Compact on Migration Matter in this New Era?

The global pandemic is causing many states to look inward and reconsider their interconnectedness and dependency on other countries. At a time when countries are under severe economic strain and the tendency to put national interests first is even more pronounced than usual, international cooperation on an already sensitive topic such as migration will only become more difficult. But the pandemic also offers a chance to make the case for the necessity of the compact by showing how enhanced multilateral engagement helps governments address issues at home. From a public-health perspective, the virus does not distinguish between nationals or migrants, and having a two-tiered system in place to access essential medical service during this health crisis serves no one's interest. Although travel has become severely restricted, some migration remains critical. For example, securing supply chains and preventing shortages of essential migrant workers-from  seasonal agricultural workers to health-care professionals working abroad-is a vital concern in many countries. The safety and working conditions of these workers must be safeguarded. Here, the compact's objective on fair recruitment and safeguarding decent work, in which states commit themselves to identify best practices in labor mobility at all skills levels, could provide an umbrella framework for guiding governments' responses within and across regional dialogues.

How exceptional the current circumstances are and how sweeping the changes will be for human mobility going forward depend on how long the pandemic's repercussions will be felt. Even now, it is clear the guiding principle that set the Global Compact for Safe, Orderly, and Regular Migration in motion in the first place still holds: states need to work together beyond bilateral and regional cooperation to find more effective ways to address migration. The COVID-19 pandemic has sharply underscored the futility of states trying to manage transnational challenges on their own. At the same time, multilateral engagement on migration remains fragile and will continue to come under attack-especially if agreements such as the compact appear toothless in practice in the face of common concerns. The upcoming regional review meetings and the compact process writ large will now need to prove their usefulness in offering a framework to guide conversations and joint responses, and perhaps even become a center of gravity for thinking through what managing human mobility looks like in a post-COVID-19 era. The coming months will be critical to show the compact is up to the challenge.

                                                                    Quote for the Day

"You got to look at the bright side. Even if there ain't one. "

- Dashiell Hammett

Image Courtesy of Brad Heckman 

See other images from Brad Heckman

Can We Make Peace with the Coronavirus?

'Environmental peacebuilding' offers an approach to mobilizing conflicting parties against COVID.

As humanity struggles to confront the coronavirus pandemic, we face no greater obstacle than the violent conflicts worldwide that prevent many communities and nations from the necessary task of working in unison. Is it conceivable to have Israelis and Palestinians working cooperatively to contain the virus, or the opposing sides in bitter conflicts from Afghanistan to Yemen? It is not only conceivable, a practical model for achieving this cooperation is available in the work of environmental peacebuilders-visionary groups that have been working across the lines of conflict to confront the universal threat of climate change.
Separatist fighters in Aceh patrolled shortly before their leaders signed a 2005 peace accord with Indonesia's government. The accord built was built on the two sides' cooperation in response to the 2004 Indian Ocean tsunami. (Tyler Hicks/New York Times)
The  field of environmental peacebuilding understands the degradation of our planet's environment as a common human foe against which groups divided by conflict can be mobilized. "Nature knows no political borders," notes the  Arava Institute for Environmental Studies, which brings together Israelis and Palestinians to address water scarcity in their shared ecosystem. USIP has supported Arava's work with youth from the two sides through a grant.

Climate change has been the most global, but not the only, challenge that opens paths for communication and cooperation among groups in conflict. Natural disasters have done so. The 2005 earthquake in Pakistan's Kashmir region prompted violent extremist groups there to halt attacks on neighboring India and  instead support relief work in parallel with Pakistani government and U.S. military efforts. The 2004 Indian Ocean tsunami helped lead Indonesia's government and separatist guerrillas  to halt and resolve the insurgency in the region of Aceh.

Where disasters are more likely to trigger violence  is in societies that exhibit widespread ethnic exclusion from political power and that have overall lower levels of human development. This represents a sobering challenge as COVID-19 rapidly spreads into fragile states across the developing world.

Environmental, and Public Health, Peacebuilding

The tenets of environmental peacebuilding can be used against COVID in conflict zones, facilitated by what public health institutions call " global health diplomacy." In the face of pandemics, global health diplomacy  promotes human security more holistically, for example by negotiating a halt to hostilities when disease is spreading. Appeals in this direction have been made, notably U.N. Secretary General António Guterres' call for a global cease-fire.

At local levels, the urgency of the COVID threat might help boost public support for peacebuilding efforts that begin  with public health needs of communities, and that might later be extended to work on longer-term, environmental approaches. In regions of water scarcity- especially in vulnerable locales such as refugee camps or settlements of displaced people-peacebuilders  might seek détente from conflicting parties to improve "water, sanitation and hygiene" (or  WASH) infrastructure that urgently is needed to confront the pandemic.

The COVID pandemic and climate change together demand a response in vulnerable states burdened by both crises. Recent cycles of drought in Burkina Faso are expected to  triple the population there facing food insecurity-to 2.1 million people. That  insecurity is now deepened as COVID's effects slow food exports from India and France. Climate-induced food insecurity becomes a driver of conflict particularly when it is combined-as in Burkina Faso and across the Sahel-with the violence of extremist groups that exploit the weak governance of fragile states.

Practical Obstacles

While the COVID pandemic offers an opportunity to gather conflicting sides against a common foe, the pandemic raises the same kinds of immediate, practical obstacles for peacebuilding as for every domain of life. With social distancing the immediate "go-to" response for tackling COVID-19, how effectively can online relationships build peace based on environmental issues?  Colombia and  sub-Saharan Africa struggle with access to cellular data and reliable internet in rural areas. Other areas, including even remote regions of Afghanistan have better telecommunications infrastructures that can be used to  enhance community resilience.
USIP, its partners in disparate conflict zones and other peacebuilding groups are grappling with ways to work around the sudden new obstacles. European-based nongovernment organizations this month consulted hundreds of local peacebuilders worldwide  and found that in some cases COVID's impact is exacerbating conflict or violence. Local peacebuilders worry that international leaders and funders will not be able to sustain their recent levels of engagement, despite the obvious need for more cross-sectoral peacebuilding initiatives that benefit both the environment and public health.

Amid the search for concrete solutions to the new, everyday problems, environmental peacebuilders also find COVID reinforcing their message. On the seam of the Israeli-Palestinian conflict, where Arava and its allies work, the Israeli director of EcoPeace Middle East, Gidon Bromberg,  noted the joint message of COVID and climate change: "The science of ecology and biology is there to remind us that we can never disengage from a shared environment."

Erica L. Sheeran is a research assistant for USIP's Grants & Fellows program.


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Thomas Valenti
Thomas P. Valenti, P.C.

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© April 2017 Thomas P. Valenti