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Harvard Negotiation Law Review
Spring 2003
Articles
DESIGNING INSTITUTIONS TO MANAGE CONFLICT: PRINCIPLES FOR THE PROBLEM SOLVING
ORGANIZATION
Khalil Z. Shariffd1
Copyright (c) 2003 Harvard Negotiation Law Review; Khalil Z. Shariff
Can institutions be purposefully designed to do a better job at managing conflict? The stakes are high in answering this
question since the need for institutions that allow peaceful, pluralist societies to flourish has never been clearer. In an era of
failed states, intractable ethnic conflict, and increasingly diverse societies, the design of public institutions that enable people
to solve problems collectively is an ever-present challenge. The challenge is equally salient in the context of the international
system: globalization demands a whole new set of approaches to international cooperation, where negotiated problem solving
is often the only viable option. This is indeed an age of institution building at all levels.
Imagine a society emerging from some sort of armed conflict. Though a peace agreement has been negotiated to halt the
violence, the more significant challenge is to design a set of institutions that will allow this society to manage peacefully the
ongoing conflicts about the shape of political, economic, and social life into the future. The commission charged with
designing this set of political institutions quickly realizes that although these institutions must achieve several goals, their
principal purpose is to create a permanent institutional capacity for collective problem solving. They turn to the dispute
resolution literature to seek advice on the details of institutional design: how should the institutions be structured, who should
the *134 members be, what processes should be centralized, how should decisions be made, how should issue areas be
disaggregated and assigned? Can they use the fruits of dispute resolution literature to “hardwire” the institution in ways that
will maximize its chances for peacefully resolving disputes?
A situation such as this was faced by the United Nations negotiators and parties to the December 2001 Bonn Conference that
sought to bring an end to years of civil war in Afghanistan. Though a cease-fire had been achieved, the political situation
remained fragile. The task of the participants was thus not only to negotiate a settlement to the conflict, but to create an
institutional set-up that would allow the various factions to work together in the future. The dispute resolution literature
would no doubt have been able to provide much advice to Ambassador Lakhdar Brahimi, who chaired the talks, on
negotiation strategies to arrive at a settlement acceptable to all parties, but what advice was available on how best to design
the institutions that the settlement created to maximize the chances for managing conflict in the future?
The purpose of this article is to elaborate an answer to this question. It rests on the premise that managing ongoing conflict
peacefully is a task of many social institutions, but that the prescriptions generated by the dispute resolution literature have
focused primarily on improving individual behavior. In Section I, I present the case for adding an explicitly institutional
focus to the prescriptive agenda of dispute resolution scholarship. Institutions, after all, are an integral part of modern life,
and frequently managing conflict is an institution’s principal purpose and raison d’etre. Public institutions, for example, exist
in large part to manage conflicts within political communities about the basic issues of political, economic, and social life.
These institutions are vehicles for collective decision-making and problem solving, where citizens or their representatives
with different interests, preferences, and ideals come together to agree on common solutions that allow them to live together
peacefully. In the modern, developed democracies, these institutions take many forms: legislatures, administrative agencies,
city councils, and courts are all examples of attempts to create institutional responses to ongoing social conflict. Other
institutions-- business firms, for instance--may not be created in response to such social conflict, but must nevertheless
manage the inevitable conflicts that emerge from the routine interactions between people carrying out their tasks within the
institutional setting. For these institutions too, gleaning advice from the dispute resolution literature about how best to design
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institutions *135 to engender conflict-managing tendencies is valuable. But the literature remains largely silent.
The silence is not surprising because translating the findings of dispute resolution and negotiation research into prescriptions
for institutional design is a challenging task. Section II confronts these challenges by first identifying five key dimensions
along which institutional design decisions are made, specifically membership, scope of jurisdiction, centralization of activity,
control over decision-making, and flexibility. The second part of Section II then derives a set of design principles along each
dimension based on certain findings from the literature. The principles are an attempt at contributing to a general theory of
institutional design and so provide broad guides to action rather than specific design solutions. 1 To demonstrate how these
general principles might affect design decisions in a concrete case, Section III applies the principles to the design of the
institutional settlement of post-Taliban Afghanistan as embedded in the Bonn Agreement of 2001.
Both in methodology and in result, the discussion is experimental and tentative: my goal is to demonstrate what conflict
management prescriptions aimed at institutions could look like in the hope that it will launch a conversation which in turn
will elaborate and refine the principles. To this end, the paper ends with a series of key questions that should guide further
work in this area.
I. Institutions Matter
A. The Institutionalist Posture
Scholars in several disciplines have increasingly turned their attention to the role of institutions in modern life. This “new
institutionalism” has attracted the attention of scholars in law,2 economics,3 *136 political science,4 international relations,5
management,6 and sociology,7 among others. The central theme of this work--although diverse in its specifics--has been, in
short, that institutions matter: aggregations of individuals and groups in formal and informal ways, bound by a set of
regulations, norms, and implicit understandings of the world, are a significant constituting social force, affecting and being
affected by individual behavior and the whole host of social interactions spawning from that behavior. Thus, in describing
social phenomena, institutionalists insist that “relatively enduring structures of human conduct have shaped the existing
arrays of resources, rules, and values instead of taking that array as given”8 and in advocating social change, they look to
factors such as “which actors are engaged, what kinds of problems are debated, how those problems are defined, and what
kind of solutions are considered appropriate.”9
In this way, the institutionalist perspective opens up a level of analysis between the individual and society at large. It focuses
on the way society is organized as a point of leverage in understanding and changing social behavior. For dispute resolution
and conflict management scholars the opportunity is clear: creating systematic approaches to the study of institutional
behavior in managing conflict in the same vein as the vast literature on individual behavior is a potentially powerful avenue
to transforming societal approaches to significant conflict.
Peter Senge’s analysis provides a lucid elaboration of the power of institutionalist thinking and the potential it holds for
improved conflict management. He draws three lessons from the effort to uncover the influence of broader systemic
structures in human interactions. The first lesson is summarized in the simple slogan that *137 “structure influences
behavior,”10 meaning that different people tend to behave remarkably similarly when embedded in the same structure of
institutional relationships. Second, Senge notes that “structure in human systems is subtle”11 so that it incorporates not only
explicit rules and organizing principles, but also implicit values, norms and practices, as well as deep cognitive structures that
color the way that individuals see and interpret the world. 12 Finally, Senge observes that leverage exists in learning to see and
understand how systemic structures affect the everyday behavior around us. 13 Senge’s three lessons are an apt summary of
the fundamental institutionalist posture that individual behavior is a result of more than simply initial skills and endowments,
and is shaped significantly by the institutional structures in which actors are embedded. If this is indeed the case, then
learning how best to shape those structures to invite behavior that promotes healthy conflict management presents a
remarkable opportunity for large-scale change toward more peaceful coexistence and collaboration.
B. Institutionalism and Dispute Resolution
The institutionalist project in dispute resolution is, of course, vast and of long pedigree. In the context of legal disputes,
alternate dispute resolution (“ADR”) has been focused on reforms to the structure of legal institutions that incorporate the
best understandings of legal conflicts to manage them productively. 14 For instance, the call for a “multi-door courthouse” is a
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now familiar vision of legal institutions structured to triage legal disputes and channel them to a form of resolution that is
most appropriate to their character.15 This is a classic example of robust institutional analysis and prescription. It *138 begins
with an insight from dispute resolution research--that conflicts vary in their character along certain dimensions that suggest
the best method of resolving them--and translates it into an institutional implication, namely, to restructure the court system
to accommodate this variety in a systematic and deliberate fashion. Since the institutionalist approach does not rely on
changing the behavior of individuals through personal training and education, it is able to have long-term, sustained, and
widespread impact in the way society organizes itself to manage conflicts. It thus moves the analytic and prescriptive effort
from personal development to institutional inno- vation.
The dispute systems’ design literature has a similar institutional focus. 16 In some senses, much of this literature extends the
ADR approach by applying it to organizations outside of the legal system. 17 For instance, Constantino and Merchant develop
a set of principles of design for an ADR system in an organization based on findings of dispute research. One of their
principles, by way of example, is to “allow disputants to maintain control over the choice of ADR method and the selection
of neutral”18 and is based on the now common understanding that participant control over the process of resolution is highly
correlated with satisfaction with the eventual outcome. Other dispute systems’ design efforts are based on intensive empirical
investigation of disputes in specific institutional contexts and suggest a series of measures that an organization can take to
resolve disputes more effectively.19
This article seeks to build on this existing literature by addressing a broader question of institutional design. Specifically, I
am concerned not with how institutions manage conflict per se, but rather with how they organize their work to maximize the
chances that actors will be able to work together productively to address problems. It is not, therefore, a question principally
of alternative dispute resolution mechanisms applied to organizational conflict, although these *139 methods will
undoubtedly be useful. Rather, it is a broader inquiry into the relationship between the substance of design decisions and
conflict management. The essence of institutional design is not about choosing from a portfolio of ADR mechanisms, but is
instead a process of identifying the purposes of the institutions and then deciding on such issues as membership, jurisdiction,
and decision making processes that are most likely to help achieve those purposes. The next section seeks to connect what we
know about dispute resolution to these essential questions.
II. Principles of Institutional Design to Improve Conflict Management
A. A Framework for Design Principles
It is useful to begin with a short consideration of the notion of design that is so central to the argument of this article. By
“design” I have in mind a process of shaping a given set of resources with a view to achieving specified objectives. Design is,
therefore, evaluated on the “goodness of fit” between the stated objectives and the results of the design. 20 On this
interpretation, design has certain characteristics worth chronicling. First, it is a deliberate and purposeful process: for
something to occur by design is for it to be a product of pragmatic calculation rather than serendipity or chance. Here, our
objective is managing social conflict and the resource at our disposal is the capacity to shape the key characteristics of an
institution. Therefore, although institutions often grow and are shaped in organic and unplanned ways as well as in a more
deliberate manner, such organic processes would not be considered design as understood here. Rather, design refers to the
deliberate manipulation of alternative arrangements along key institutional variables and differing combinations across those
variables to produce uniquely shaped institutions to manage conflict.
Second, purposefulness of design suggests a certain quality of elegance and ingenuity: it is not simply that the resources have
been harnessed to meet an objective, but that they have been marshaled with an economy and creativity that render a solution
uniquely or particularly well-suited to the task at hand.21 The shaping of social *140 institutions requires both rationality and
imagination and the notion of design is meant to capture both the necessary analysis and artistry.
To develop a set of principles based on this notion of design requires a framework that identifies those key variables or
constituent elements of institutions that the designer can manipulate to shape an institution uniquely suited to managing
conflict. The literature in organizational sociology and management contains several such frameworks, but many are too
abstract to allow for obvious translations into the practical decisions of institutional design. Scott, for instance, develops a
framework that disaggregates institutional characteristics along three “pillars”: a regulatory pillar operating through the
coercive mechanisms of laws, rules, and regulations; a normative pillar, operating through persuasive mechanisms of
standards, professional obligations, and expertise; and a cognitive pillar, operating through the tacit symbols and cognitive
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structures through which we understand the world. 22 While Scott’s analysis is elegantly comprehensive, it remains at a level
of generality that is too conceptual for prescriptive design purposes. Nor do other more specific frameworks, such as
Mintzberg’s five elements of organization structure (strategic apex, technostructure, support staff, middle line, and operating
core)23 or McKinsey’s 7-S model (strategy, shared values, skills, structure, systems, style, and staff) 24 clearly lend
themselves to actionable and discrete changes in the contours of an institution’s design.
Although not as comprehensive as these other frameworks, Koremenos et al. identify five dimensions of institutional design
that are useful for the purposes of deriving principles of design because they are easily observable, lend themselves to
discrete design decisions, and have clear impacts on an institution’s behavior. 25 As such, the conflict management
implications of each of the Koremenos’ *141 dimensions can be interrogated separately, setting the stage for a series of
principles that cover many, although certainly not all, of the most important choices faced by institutional designers. The five
design variables are membership, scope, centralization, control, and flexibility.
Membership refers to the number and identity of the institution’s constituent parts. 26 All institutions are an aggregation of
individual elements-- sometimes those elements are individual people, as in a business firm or a non-profit organization;
sometimes they are smaller groups of people, as in a university with a number of schools and faculties; sometimes, they are
larger groups, as in an international organization whose membership consists of countries; and sometimes they are a mix of
individuals and groups as in the institution of the market economy. The choice of “who’s in and who’s out” is a significant
design feature and has important implications for an institution’s effectiveness and behavior.
Scope, like membership, is a boundary-defining institutional feature, answering the question of “what?” rather than “who?”27
Specifically, the element of scope refers to the jurisdiction or area of concern of the institution. Scope can be defined in two
dimensions: on the one hand, an institution will have jurisdiction over a set of substantive issues (“breadth”), and on the other
hand, it will be bounded by what it can do in relation to those activities (“depth”). The U.S. federal courts, for instance, have
jurisdiction over a very wide variety of issues, but can only act to decide “cases or controversies” in relation to them.
Similarly, a business may confine its activities to a certain area of commerce--high-technology or retail merchandising, for
example--but as a private business entity can only do certain types of things--buying and selling products, or manufacturing
goods for instance, but not issuing public regulations in that area or even unlawfully colluding with competitors. These
boundaries can be a result of preference, expedience, technical necessity, or cognitive association.28
*142 The third variable, centralization, refers to where activities take place in the institution. 29 Institutions that are relatively
centralized tend to coordinate activities by delegating them to a single subset within the institution, often prohibiting others
from engaging in them. In the International Monetary Fund (“IMF”), for instance, information collection and dissemination
about individual members’ balance of payments is centralized in the IMF secretariat so that individual members do not have
to duplicate efforts to gather this information from each other; similarly unions centralize the activity of bargaining with
employers in the hands of union leadership. Relatively decentralized institutions, on the other hand, allow activities to take
place by individual members. The market economy is a paradigmatic example of decentralized activity, where any individual
is permitted to engage in economic transactions.
The fourth design variable concerns where control over decision-making lies in the institution.30 It could rest in the hands of
one member, all members, a subset of members, or even a third-party representing the institution as a whole or another
institution altogether. The control variable is often embedded in the institution’s decision rules and voting procedures. In
business firms, control often formally rests with the CEO and the Board of Directors, but in practice may actually rest with a
smaller or larger group of executives and other managers. Control over decisions made by the United Nations Security
Council are heavily weighted in favor of the permanent members because of their veto; in the General Assembly, conversely,
all member states have equal votes.
Finally, flexibility as a variable points to the way in which the institution allows for change.31 Circumstances may change,
the preferences or needs of its members may change, or the purposes for which the institution was created may have been
achieved or become irrelevant. Two broad types of flexibility are possible: some maintain the existing institutional
framework and create exceptions for exigencies, such as escape clauses or opportunities to withdraw as a member, and others
create opportunities for the institutional structure itself to be re-conceived, such as sunset provisions and manda- tory
reviews.32
Taken together, these five variables provide a sufficiently broad picture of institutional variation to allow a preliminary
investigation *143 into how they might be specifically manipulated to manage conflict more productively in light of the
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results of dispute resolution research. The next section develops a series of principles to guide the process of design when
institutions have conflict management as their social objective, using the five variables of membership, scope, centralization,
control, and flexibility as the raw material for the effort.
B. Developing Design Principles
Along each of these five variables of institutional design, the dispute resolution literature suggests particular principles that
would enhance the problem solving and conflict management character of an institution. In this section, I suggest specific
principles for each of the five variables based on dispute resolution findings.
Membership. Perhaps the most important insight of dispute resolution literature, implicit in almost the entire corpus, is that
resolving conflict in a truly sustainable way requires talking to each other in a fashion that reveals our mutual interests and
allows us to find joint solutions to problems.33 The implication is that in order for disputes to be resolved, all parties must be
engaged in the process. The membership principle of design can thus be summarized in an intuitive but nonetheless important
way:
Principle 1: Institutions should strive for inclusiveness by incorporating into their structure all stakeholders likely to be
affected by the institution’s work.
All other things equal, for an institution to solve problems robustly, it must possess an institutional capacity for involving all
stakeholders in its structures. Several reasons for this principle emerge from the literature. First, one institutional implication
of the prescription to focus on interests rather than positions is that parties must be willing to exchange information for the
purposes of revealing and discovering each other’s interests. Though it is possible to attempt to divine other parties’ interests
in their absence, few mechanisms will be as effective or efficient as direct engagement.
Second, legitimacy of outcomes in any process of conflict management often turns on the involvement of all parties. Indeed,
sometimes, even when parties may be incompletely satisfied with a particular decision, the opportunity to be involved can be
a powerful *144 factor mitigating disenchantment.34 Moreover, to the extent that agreements require ongoing support and
collaboration from parties, involvement in processes of conflict resolution is often essential. Often, the very involvement of
parties in a process can moderate their stance toward an agreement to which they otherwise may be hostile.35
Finally, the principle of inclusiveness can combat some cognitive and psychological barriers to negotiation. Psychological
literature has demonstrated convincingly, for instance, the existence of significant egocentrism as a barrier to resolution of
conflict.36 An important expression of egocentrism as a cognitive bias in negotiations is that individuals tend to overvalue
interpretations of fairness that favor themselves. This self-serving interpretation is not motivated by crass self-interest; on the
contrary, what makes it an important barrier to resolving conflict is that it is motivated by a genuine desire to act and appear
fair. For instance, negotiators exhibit a tendency to recall facts that favor themselves while systematically de-emphasizing or
forgetting facts that favor opponents. This is a cognitive bias rather than a willful omission: all parties sincerely believe they
are being fair, even though each has unwittingly defined fairness in particularly self-serving ways. This posture, in addition to
reducing or eliminating any zone of possible agreement, breeds mistrust, ill will, and bad faith between the parties. The result
is exacerbated conflict rather than collaborative problem solving.37
Because the finding is one of a systematic cognitive bias of individuals, institutions can expect that individual actors
encompassed *145 within the institutional ambit will exhibit this characteristic. An institution designed for better problem
solving should attempt, through its design, to mitigate the effects of this egocentrism as it relates to resolving conflict. The
literature suggests that improving communication between parties such that gaps between notions of fairness held by
different parties are narrowed during the process of negotiation can powerfully mitigate egocentrism.38 Communication, of
course, requires the presence of parties, reinforcing the importance of an institutional design principle that emphasizes
inclusion.
A principle of inclusiveness such as this one raises two caveats which apply, with more or less force, to all the principles.
First, it underlines the nature of the relationship between the principles and actual design solutions in specific cases. The
principles, because they aim to be general, can only aim to provide a guide and general direction that express in institutional
terms certain ideas about how best to manage conflict. To say that all stakeholders must be included says nothing about how
they should be included, except that involvement must, of course, be meaningful. When stakeholders are multiple and have
varying degrees of interest, or when they are fluid and change over time and vary with issues and problems, institutional
designers will need to create mechanisms for appropriate involvement. The principle of inclusiveness, then, is not one of
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equal inclusiveness or continuous inclusiveness; rather, it is the institutional implication of the need to uncover parties’
underlying interests, confer legitimacy on outcomes, and combat cognitive biases. Thus, each principle is capacious: there is
plenty of room within each principle for a broad portfolio of specific solutions. The application of the principles in Section III
illustrates this point more concretely.
Second, the principle of inclusiveness is, as all the principles will prove to be, inherently self-limiting. A tension exists
between the full application of the principle and the complexity that would be its consequence. If all possible constituents
were included in every institution, for example, it is quite possible that the resulting complexity of the conversations would
quickly overwhelm the capacity of individual members and the institution as a whole to solve problems productively. This
complexity limitation is a feature of all the principles and reinforces the idea of design as some combination of analysis and
artistry: a certain measure of ingenuity is required to translate the principle into a response to a specific context. In the case of
the membership principle, one can imagine a broad repertoire of alternative *146 forms of membership. At the United
Nations, for instance, different states have a different involvement in the work of the institution, even though all are
members. All states are members of the General Assembly, five states have permanent memberships on the Security Council
with veto power, and then other states have a temporary and rotating non-veto membership on the Security Council.39
Scope. The question of the jurisdiction of an institution, and of internal institutional components, implicates several dispute
resolution insights. With respect to the first dimension of an institution’s scope--the breadth of issue coverage--an
institutional design principle could be formulated as follows:
Principle 2: Institutions should seek broad coverage of many related issues of interest to the institutional membership rather
than being limited to a specific or narrow issue area.
The support for this principle rests on two dispute resolution findings. The first finding suggests that the simultaneous
presence of many issues on the table enlarges the zone of possible agreement by creating possibilities for value-creating
trades.40 The intuition behind the insight is simple to elaborate: when negotiations focus on a single issue, it is more likely
that impasse will occur because interests may be diametrically opposed on that issue. However, fulfilling parties’ interests on
other issues may induce them to accept a lower level of satisfaction on the initial issues. In other words, single-issue
negotiations create more possibilities for winners and losers than do multi-issue ones: “single-issue protocols may prove
non-negotiable unless they can be combined with agreements on other issues that offset the losses (or at least seem to
distribute them fairly). A package deal may offer the possibility of ‘trading’ across issues for joint gain--thus breaking
impasses resulting from treating issues separately.”41
*147 Moreover, the psychological literature on egocentrism suggests that another way of mitigating self-serving
interpretations of fairness is to reduce or eliminate the potential for asymmetrical payoffs in negotiated outcomes. 42 “When . .
. parties face identical payoffs, they tend to share common perceptions of fairness; when payoffs are varied among . . .
parties, perceptions of fairness are divergent.”43 One institutional implication of the benefits of avoiding asymmetric
outcomes is to create multiple opportunities for mutual benefit by expanding the scope of an institution’s mandate such that
there is continually room to compensate losers on one issue with gains on another issue. The knowledge that trades are
structurally available across a number of issues can reduce the asymmetry of outcomes of any particular negotiation, thus
decreasing actors’ susceptibility to self-serving interpretations of fairness.
Presumably, the same rationale holds for the second dimension of an institution’s scope, namely the depth or latitude to act
within a particular issue area. The parallel principle may be articulated as follows:
Principle 3: Institutions should seek depth of jurisdiction on individual issues areas such that they are empowered to take
many kinds of action on issues within their mandate.
Building on the same insights, actors within institutions of deep jurisdiction would be able to craft deals that took into
account satisfactorily more interests of more parties.
The complexity limitation is present here as with all the principles: as the scope of jurisdiction becomes broader, the
institution’s cognitive and procedural capacity to deal with the sheer number of possible value creating trades, and the
implications for each for different parties and interests, becomes severely strained. As a practical matter of institutional
management, therefore, the full application of the principle hinges on the ability to develop methods of dealing with broad
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grants of jurisdiction. Moreover, other limits are likely to present themselves, including the political sensitivities--associated
principally with public institutions--of charging any one political institution with too sweeping a role in social and economic
life.
Centralization. The issue of centralization of activity is more complicated because it only makes sense to speak of
centralization in *148 terms of particular functions that the institution performs. Accordingly, one can imagine that
appropriate design principles concerning centralization would vary depending upon exactly what function was being
considered. Again, while this discussion cannot be exhaustive in canvassing all functions, some discrete institutional
functions are of particular importance to the practice of dispute resolution and problem solving and can be considered.
An important element of any dispute resolution process is gathering relevant facts and information about the problems to be
discussed and debated. A design principle may be stated as follows:
Principle 4: Institutions should seek to build central sources of information gathering and dissemination.
The importance of developing a common basis of information and facts as a prerequisite to managing conflicts and solving
problems is widely accepted. In the first instance, a common basis of information avoids “needless arguments about basic
facts.”44 It is thus a common technique to form joint fact-finding groups in many complex disputes; joint fact-finding has the
characteristic of involving all parties to gather all relevant information in a centralized way as a mechanism of developing
this common fact base.45 The centralization of the information gathering function has more than an efficiency benefit by
reducing duplication; from a dispute resolution perspective, this technique holds benefits that include improving the
credibility of ultimate agreements based on this common fact-base, inspiring more creative agreements, strengthening the
durability of agreements, and improving commitment to reaching an agreement.46
Moreover, information asymmetry has been found to be a common barrier to resolving conflict between parties.47 Often
opposing parties in a negotiation will hold different assessments of the likely *149 costs and benefits of not reaching an
agreement based on different sets of information about alternatives. To the extent that these differences can be bridged with a
common set of information, agreement becomes more likely. Every negotiation occurs in the shadow of the consequences of
a failure to reach an agreement.48 When information about those consequences differs among the parties to a negotiation,
agreement is less likely because some parties will see a particular negotiated outcome as desirable given their information
about the consequences of not agreeing, and other parties will find it undesirable given their different information about those
consequences. Establishing a common understanding of consequences based on common information allows all parties to
assess the consequences of a failure to reach agreement in a similar way, thus promoting agreement.
Centralizing information collection and dissemination also allows for the development of specialized institutional capacity. A
great many barriers to resolving conflict entail the tension between revealing sufficient information to allow for creative,
value-enhancing arrangements while still guarding against exploitation by the other side. Generating creative techniques of
inviting the disclosure of appropriate information in mutually beneficial ways is a skill that can be developed over time and
through experience that can significantly enhance the prospects of efficient and effective dispute resolution. 49 In addition to
developing new techniques to generate better information flow between parties, central information functions could gather
and report information that parties themselves may not think of, but can nonetheless facilitate agreement. For instance, Raiffa
complains that parties often do not spend sufficient time collect- ing information about the uncertainties associated with the
deci- sion to negotiate itself, resulting in sub-optimal behavior.50 Moreover, developing pre-negotiation briefing reports or
conflict *150 assessments can likewise facilitate more efficient and effective nego- tiation.51
Finally, central information functions hold the prospect for alleviating some psychological barriers to conflict resolution,
specifically the phenomenon of reactive devaluation. Reactive devaluation describes the process by which a party evaluates
specific package deals and compromises less favorably as a consequence of the knowledge that they have actually been
offered, especially if the offers have been made by an adversarial party. 52 The dispute resolution problem is obvious: a
concession, even if genuinely made by an opposing party, is immediately discounted by the other party in the negotiation,
thus narrowing rather than enhancing any zone of possible agreement. Central information functions can serve to combat
reactive devaluation in two ways. First, to the extent that concessions can be “laundered” through a central information
function and disseminated to all parties, reactive devaluation can be lessened. Second, a strategy of grounding offers in
specific interests or preferences elicited from the other party prior to making the offer can also dampen the effect of reactive
devaluation.53
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Another activity that is amenable to the centralization variable is informal discussions and conversations among various
institutional members. A principle would be:
Principle 5: Institutions should decentralize and proliferate discussions and conversations among institutional members in
multiple forums and forms.
Whatever formal institutional mechanisms for arriving at decisions and agreements exist, the function of exploratory
conversations, discussions, and meetings should be left to institutional sub-units and members to engage in freely and
frequently. Having articulated it thus, it sounds almost obvious, but it is a common fact of institutional life that the only
forums for interaction among some members and units are formal and central.
*151 Proliferating discussions among members as a regular feature of institutional life has many important advantages that
create robust conditions for conflict management. First, regular communications across many forums build relationships
between members that are a resource for conflict management and dispute resolution. 54 Second, as a technique for resolving
disputes, informal discussion among participants outside of the context of formal negotiations has broad support and
application. It can be used to allow parties to gather information, generate creative options and approaches to agreement,
develop an understanding of what issues are most contentious, and build coalitions. 55 The focus on creating opportunities for
building coalitions is a frequent theme in the literature on designing multi-party negotiations.56 The theory is that allowing
coalitions to be formed early on facilitates conversations among smaller groups as more formal discussions commence.
Moreover, decentralizing conversations may also allow for new and “cross-cutting” coalitions to emerge, ones that transcend
typical coalition lines and foster broader support for agreement. 57
Decentralized discussion forums are also a reasonable institutional implication of insights from much ethnic conflict
management literature. Research indicates that it is a critical component of preventing violent conflict that the grievances and
issues of minority communities be raised and addressed as early as possible. 58 “Ethnic conflict usually begins with limited
protests and clashes that only gradually escalate into serious violence. Government responses in the early stages are critical in
whether and how escalation occurs.”59 Decentralized discussions over a broad range of issues and with diverse institutional
members as an ongoing feature of institutional life hold the prospect for many grievances and issues to be aired, even when
only in embryonic form.
*152 Moreover, especially when conflicts are widespread--such as in societies embroiled in ethnic conflict--broad societal
engagement in the ongoing processes of conflict management is an important ingredient for preventing violence and
successfully resolving disputes.60 This idea underlines that broad-based, decentralized conversations among institutional
members are significant institutional contributions to conflict management.
Control. In the same way that centralization is only pertinent in the context of particular functions, perhaps as well, control
over decision-making is only usefully discussed in the context of particular decisions. Nonetheless, as a matter of conflict
management, since ultimate decisions seem to be such an integral part of the overall process of dispute resolution, some
general institutional principles can be suggested for how best decision-making ought to be structured.
Principle 6: Institutions should vest control over decisions in those most interested and affected by them.
This principle rests on the common intuition that decisions imposed by those who will not be affected by them possess an
illegitimate quality that frequently makes them unacceptable as solutions to disputes. Though in any one circumstance
decisions of this nature may be acceptable, if they are a systematic fact of institutional life, conflicts cannot be sustainably
managed within the institution.
The intuition plays out in other arenas of conflict management. The first is the experience of federalism and power-sharing
arrangements to provide robust institutional solutions to ethnic conflict. 61 Where strong institutional structures that devolve
control over key decisions to those that are most affected exist, conflict has been managed within the institutional structures,
rather than leading to violence.62 It bears repeating that the principle does not dictate a particular form of power sharing or
local control. Instead, the principle suggests a justification for a repertoire of different possible ways of sharing power that are
most suited to the institution’s work. Federalism, to take one example, can be manifested in a virtually infinite *153 variety
of different structures,63 and should be designed with an eye to the situation at hand.
Another example is apparent in the area of dispute systems’ design. Constantino and Merchant, for example, describe an
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analogous principle of design in constructing dispute systems within organizations, namely, that disputants maintain control
over the choice of ADR process and the selection of a neutral.64 In the field of public disputes as well, Susskind and others
have persuasively argued that public distributional conflicts should be removed from the normal institutions of representative
government and put directly in the hands of those who will be most affected and interested in the decision so that they can
come to consensus.65
In addition to these broadly recognized legitimacy benefits of sharing control over decision-making, two effects suggest that
significant technical benefits emerge from the principle as well. First, some research has shown that many problems are better
solved in the context of devolved control because of the possibility for experimentation within the institution, the results of
which can be shared and adopted by the institution as a whole. 66 Second, we would expect better solutions to emerge from
difficult conflicts where decisions could be taken by those most familiar with the interests and preferences of the parties
involved in the dispute. As a matter of institutional design, delegating decision-making power to interested parties seems to
harness the interest-based lessons of all modern negotiation theory in the service of creating environments more conducive to
problem solving.
To be sure, it may be the case that in some instances devolution of power exacerbates rather than alleviates conflict within an
institution. Greater conflict could emerge from one of two sources. First, it *154 could be that proliferating decision-making
units within an institution would create opposing and overlapping decisions that generated conflicts between units. Indeed,
one could make a similar argument that being inclusive of membership in the institution will increase conflict because more
members will be present. However, we are not interested simply in some raw measure of the quantity of conflicts, but are
concerned rather with the capacity to manage them sustainably over time. Excluding essential members or concentrating
decision-making control may create the appearance of less conflict, but over time, it simply moves conflict outside of
institutional barriers making sustained settlements less likely or suppressing conflict for the present, only to have it reappear
with increased intensity in the future.
Second, it could be the case that devolution creates a situation where individual decision-making units, in optimizing for their
own issues, compromise the performance of the institution as a whole, thus creating “vertical” conflicts. While this is an
important caution, the problem of coordinating institutional units can be addressed through the form of devolution and the
establishment of appropriate boundaries for decision-making given the interests and priorities of the institution as a whole.
Indeed, coordinating organic, highly devolved, and fluid institutional forms has been the subject of a great deal of
organizational theory and practice.67 Many of these vertical conflicts can thus be overcome by imaginative institutional forms
that alleviate the tensions between the conflict management aspirations suggested by the principles and the practical
imperatives of institutional management.
Flexibility. How institutions change and evolve over time is an important feature of their design, and suggests that design is
ongoing rather than definitively concluded at a point in time. A principle might be as follows:
Principle 7: Institutions should embed opportunities for regular review of principal design decisions in order to integrate
learning from experience.
Institutions are complex systems of interacting people, processes, and structures, and the outcome of those interactions is not
always *155 predictable and is frequently surprising. A process of design that casts in stone an institutional structure,
rendering it impervious to change based on experience, new information, and evolving understanding would run counter to
this fundamental fact. This principle of flexibility suggests an alternative posture, one that is based on creating a capacity for
learning and evolutionary change in institutional structures. 68
It is a common finding of the dispute resolution literature that openness to changing circumstances is an important part of
creative problem solving and conflict management. From one perspective, many dispute resolvers see the negotiation itself as
process of personal transformation and learning, where each side is educated about the other side’s interests and ideals
leading to collaboration to develop a joint solution. 69 Moreover, the field itself has recognized that in focusing on the actual
practice of dispute resolution in real human contexts, “an unending openness to both skepticism and new ideas” is essential to
continually improving both theory and practice.70
In addition, several dispute resolution techniques emphasize the benefits of creating opportunities for revision of settlements
after formal negotiations are concluded. Raiffa, for example, has pioneered the idea of the “post-settlement settlement” and
others have recognized the power of creating opportunities for revision into the future to create value and improve deals.71
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Resolving disputes with the knowledge that opportunities will exist to correct failures, respond to uncertainties, and
incorporate experience may also create a willingness among parties to try solutions that otherwise would be too risky. In this
sense, it is also an institutional implication of the imperative to create value from differences in predictions about the future
or confidence in the effectiveness of particular responses to problems. 72
*156 Finally, the principle of openness to changing fundamental design decisions in the face of new information and
experience also pays respect to fundamental commitments to the ideas of inclusiveness and party control articulated in
previous principles. In this sense, developing institutional frameworks that ensure their own revision and evolution through
clear opportunities for institutional members to be involved in continual redesign recognizes that design and re-design are
simply extensions of the same process.
***
Thus, the marriage of five variables with insights from the dispute resolution literature has yielded seven preliminary
principles for the design of institutions faced with managing conflict. Table 1, below, summarizes them in preparation for
their elaboration in the context of a particular case.
Table 1: Summary of Design Principles
Variable
Membership
Scope
Centralization
Control
Flexibility
Principle
Principle 1: Institutions should strive for inclusiveness by incorporating
into their structure all stakeholders likely to be affected by the
institution’s work.
Principle 2: Institutions should seek broad coverage of many related
issues of interest to the institutional membership rather than being
limited to a specific or narrow issue area. Principle 3: Institutions
should seek depth of jurisdiction on individual issues areas such that
they are empowered to take many kinds of action on issues within their
mandate.
Principle 4: Institutions should seek to build central sources of
information gathering and dissemination. Principle 5: Institutions
should decentralize and proliferate discussions and conversations
among institutional members in multiple forums and forms.
Principle 6: Institutions should vest control over decisions in those most
interested and affected by them.
Principle 7: Institutions should embed opportunities for regular review
of principal design decisions in order to integrate learning from
experience.
III. Institutional Design of the Interim Administration in Post-Taliban Afghanistan
Having described a set of principles of institutional design that would create an organizational arrangement structurally
biased toward managing conflict, in this section I turn to elaborating the principles in the context of a concrete situation. My
aim here is a precise one: I hope to fill in the content of the principles more fully by providing an example of what they may
look like when applied in the context of a specific moment of institutional design. I cannot claim to offer proof of their
efficacy; that is the task of detailed empirical analysis with clear methodologies for establishing causality, well beyond the
scope of this preliminary foray into developing principles. What the example can offer, however, is a fuller illustration of
what the above principles might mean in practice, what guidance they might offer to institutional designers, and how they
might change conventional or intuitive approaches.
Post-Taliban Afghanistan seems an appropriate case for several reasons. First, its salience as a conflict management
challenge is highlighted by its currency and the political attention which it is receiving internationally. Moreover, it presents
an instance of the design of a de novo institutional arrangement with the explicit aim of managing internal societal conflicts
with the hopes of bringing peace. This offers an ideal laboratory for the principles developed here. Finally, the actual design
is unusually accessible through the relatively *157 short text of the Bonn Agreement, negotiated by the Special
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Representative of the UN Secretary-General, Lakhdar Brahimi in December 2001.73
In applying the principles, two cautions are in order. First, as has been indicated earlier, the principles are not meant to take
the place of the detailed decisions of institutional design, but rather to guide them in particular directions. Each principle
lends itself to a wide repertory of institutional techniques, structures, and forms that must be developed so as to fit the unique
circumstances of each context. The principles cannot alleviate the need for imaginative design; *158 they can only inspire
and steward them in ways consistent with our collective wisdom about conflict management. The intent here is to illustrate
design principles rather than design solutions.
Second, conflict management is rarely the only purpose of an institution and even when it is the predominant goal, the design
project faces constraints posed by political practicality, time limits, and other substantive and policy goals. 74 One can
imagine very good reasons why, in a particular situation, a designer may trade-off adherence to one of these design principles
for other advantages. Design is always a matter of judgment. For the purposes of this example, however, since my interest is
in elaborating the principles, I assess the design in light of the principles as if none of these constraints existed. What would
the solution have looked like if we had been able to apply the principles unfettered?
A. The Design Solution: The Bonn Agreement and the Interim Administration
The Bonn Agreement was signed on December 5, 2001 after nine days of talks.75 One can understand its institutional
arrangement on two levels: it sets up both an Interim Administration to govern Afghanistan for six months as well as a
process for political developments over approximately the next 30 months, as follows:
• 22 Dec 2001: Interim Administration inaugurated. 76
• By 22 Jun 2002: Emergency Loya Jirga convened; must decide on a ‘Transitional Authority‘ to lead Afghanistan ‘until such
time as a fully representative government can be elected through free and fair elections.‘ The Interim Administration ceases
to exist once the Transitional Authority has been established. 77
• Within 2 months of establishment of Transitional Authority: Constitutional Commission convened to prepare for
Constitutional Loya Jirga.78
*159 • Within 18 months of establishment of Transitional Authority: Constitutional Loya Jirga convened to prepare new
constitution.79
• No later than 22 Jun 2004: elections for a national government. 80
The focus of this analysis will be on the initial Interim Administration (“IA”), as an attempt at confronting the detailed
decisions of institutional design in an environment of severe conflict. However, since the Interim Administration was
conceived and designed as part of a broader process (indeed, designed in the shadow of that process, as it were), this process
becomes an indispensable institutional feature of the Interim Administration itself.
B. Assessing the Design in Light of the Principles
Membership. The first institutional feature to note would be membership. The IA is composed of 30 members, including a
chair and five vice-chairs.81 The Bonn Agreement states that the selection of the individuals was made “on the basis of
professional competence and personal integrity from lists submitted by the participants in the UN Talks, with due regard to
the ethnic, geographic, and religious composition of Afghanistan and to the importance of the participation of women.”82 Of
course, ultimately, the actual selection of the individuals was a process of political negotiation and bargaining. In the end, the
four groups represented at the Bonn Conference all found representation, in varying degrees, in the IA.
Inclusiveness was the design principle developed in the last section as it related to ensuring an institutional capacity for
conflict management. While the eventual IA was inclusive of all the parties participating in the Bonn Conference, significant
interests were excluded. First, many internal constituencies were not invited to the talks. 83 The most obvious omission were
the Taliban: no Taliban *160 representatives were invited to the conference, and no Taliban representatives were included in
the IA. Although this decision was likely driven by a set of political imperatives, it raises significant questions from the
perspective of conflict management. The Taliban, after all, were a powerful force in the country and continue to command
support among some sectors of the population. 84 Evidence that they are regrouping to challenge the current political
settlement itself may vindicate the principle that incorporating them into the institutional framework for political negotiation
is an important ingredient for programming the institution for dispute resolution.85 Incorporating politically distasteful but
powerful factions in peace agreements to assure the stability of future institutional arrangements is not a novel suggestion; the
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Khmer Rouge in Cambodia, for example, despite their horrific human rights record were incorporated into the UN-sponsored
Paris Peace Accords out of a recognition that excluding them, while politically expedient, would not allow for an institutional
arrangement that would be able to manage Cambodian political conflicts into the future. 86 Nor are the Taliban alone as an
excluded faction: other internal constituencies that have been allegedly excluded include the generation of Afghans who
fought against the Soviet invasion87 and some ethnic groups in the country.88
*161 A second category of stakeholders with no institutional role, yet critical to the future of peace in Afghanistan, is other
countries, especially neighbors. The history of Afghanistan is replete with intervention by foreign powers, seeking to conquer
the territory to vindicate certain geostrategic ambitions. 89 Even in the last two decades, the involvement of other countries in
Afghanistan has served to fuel conflict, whether it is the Soviet Union; the USA through the CIA; or neighbors such as
Pakistan, Iran, and Uzbekistan.90 Plenty of evidence exists that leaving these countries outside of the institutional settlement
could destabilize the prospects for peace.91
There are practical objections that can be raised against the notion that all these various stakeholders ought to have been
included in some kind of institutional arrangement. A cabinet of 30 members may seem unwieldy enough that the prospect of
adding further representation may appear more like a recipe for gridlock and more conflict rather than less. Setting aside any
number of political objectives that may be achieved through exclusion of one group or another, from the perspective of
creating an institution effective at managing conflict, this objection seems spurious. A large cabinet may well lead to more
conflict, but the difference is that the conflict would be contained within the institutional setting, rather than being waged
outside of it, where violence or other less productive mechanisms *162 would be deployed. Moreover, it is not the case that
greater inclusiveness necessarily means a larger cabinet. How best to include members in an appropriate way is an arena for
imaginative responses, not dictated by the principle itself. Indeed, alternative representation mechanisms had been suggested
for some groups.92 One can imagine a whole repertoire of alternatives that could provide some form of inclusive
representation without unduly encumbering the practical operations of the IA.
Another way to understand the membership issue is to place the IA in the context of the broader political process of which it
is a part. While the IA itself may not be inclusive of all these actors, perhaps the aspiration for the Loya Jirga and the future
Transitional Administration was to be more inclusive. Understanding the “institution” in this broader way in fact is an
example of different tiers of institutional membership: some groups’ membership within the IA itself, others through the
Loya Jirga process, and still others through the Transitional Administration.
Scope. The second and third principles spoke to an institution’s jurisdictional scope, and enunciated a principle of breadth in
order to accommodate many deal making possibilities. The Bonn Agreement stipulates that the IA “shall be entrusted with
the day-to-day conduct of the affairs of state, and shall have the right to issue decrees for the peace, order, and good
government of Afghanistan.”93 In this sense, the IA seems to have adhered to the principle of breadth of jurisdiction.
Presumably, all issues of Afghan governance are on the table and negotiable by the IA membership.
However, it is insufficient to simply look at the scope of the IA as a whole. To understand the capacity for conflict
management, it is important to look at how the IA is internally organized. The IA has been divided up into 29 separate
ministries, each with its own minister. Since the ministers appear to be in control of much of the country’s resources, many
decisions are made at the level of ministries rather than at the level of the IA cabinet. 94 Powerful ministers will invariably
seek to advance the causes of their own narrowly defined ministries and are therefore bound to come into conflict with
opposed *163 parties in the country. However, they will be unable to seek concessions from opponents in exchange for other
issues because their power is so substantively delimited. An example may clarify this abstract idea.
One of the ministries the Bonn Agreement creates is a Ministry of Women’s Affairs. 95 Politically, this was an important
imperative, both because of the tragedies against Afghan women during the war, as well as because much of the Western
liberation rhetoric used to justify the Afghan intervention was couched in terms of combating the oppression of women. 96
Women’s issues, however, continue to be deeply controversial in Afghanistan. Cultural and traditional practices continue to
sit uncomfortably, not only with international norms, but more importantly with the aspirations of many Afghan women
themselves.97 Creating a ministry solely concerned with an issue of such controversy in the country seems to contravene the
principle of breadth, because it creates a situation where the Minister of Women’s Affairs will have to advance ostensibly
controversial measures for women’s development to remain faithful to her mandate, while simultaneously robbing her of the
power to negotiate concessions with opponents in exchange for their gain on other issues. Perhaps a particular community
will be more open to the establishment of co-educational or girls’ schools if the IA simultaneously upgrades the community’s
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irrigation or power systems. Isolating controversial issues such as this, however, creates the opportunity for conflict to be
concentrated in win-lose, distributive bargaining, without creating natural opportunities for broad package deals that could
satisfy many parties simultaneously.
Another example with slightly different dimensions would be security. Recent conversations with Afghan civil society
leaders in the region suggest that the problems of physical insecurity (that is, threats to person and property) are the result of
much deeper economic, social, and environmental vulnerabilities.98 In essence, many *164 of the warlords and factional
interests perpetuating armed violence are preying on the economic vulnerabilities of local populations. The IA creates a
Department of the Interior99 to deal with internal security issues. But the Minister, Muhammad Qanooni, will be left with
fighting security with security forces, rather than having the natural opportunity to make broader deals with warlords and
others that put economic, development, and reconstruction incentives on the table.
Again, practical and political imperatives may require that governance areas be disaggregated in some way to make their
administration manageable. However, in deciding how to divide up substantive duties at the highest levels, such as the
cabinet where ministers will be powerful decision makers, the principle of broad scope can be applied to ensure that highly
controversial and disputed issues are placed within jurisdictions that give them wide latitude to make deals with opponents.
From a dispute resolution perspective, perhaps a Ministry of Women’s Affairs could be part of a larger department looking at
social development more broadly. Another model would do away with functional ministries altogether and divide
responsibilities by region instead: the result would be multi-functional teams for regions or communities that could bring to
bear the entire scope of governance issues to manage policy development and administration for a particular sub-population.
Centralization. The first design principle in this area was to centralize the information collection and dissemination function.
The Bonn Agreement, unsurprisingly, is silent on this, just as it is largely silent on the functioning of the IA more generally.
Nonetheless, a quick glance ahead at the substantive agenda that the IA faced in its first few months suggests the central role
that information will play in generating agreement among various parties. For instance, the disbursement of development aid
across the country will likely be deeply contentious;100 common information about needs and current resources will not only
be essential to high quality decisions, but also to facilitating agreement. Moreover, the significant issues of constitutional
design and Loya Jirga composition and election will similarly depend on accurate, unbiased information about the
demographic make up of the country among other details.
*165 Information ends up being an important element in these discussions because in the absence of a centralized
information collection function, individual parties and factions collect and use their own facts. In this context, several classes
of institutional forms were possible. The Bonn Agreement could have delegated the information function officially to the UN
administration until such time as an adequate national institution had been established. Alternatively, a separate, independent,
non-political function could have been created within the Agreement for such a function.101
The other design principle on centralization concerns the need to decentralize conversations among institutional members in
multiple forums to proliferate discussions on all types of issues. The Bonn Agreement stipulates only the composition of the
IA and some general decision making rules, but is silent on the issue of meetings or other forums for discussion and
conversation. The only provision is that the “Chairman . . . or in his/her absence one of the Vice Chairmen, shall call and
chair meetings and propose the agenda for these meetings.”102 This represents a centralization of the convening function in
the hands of the Chair.
Centralizing the convening function in this way seems counter to the design principle. To be sure, the Bonn Agreement does
not stipulate that formal meetings of the IA are the only ones to take place. However, especially in the context of a cabinet
made up of individuals who have a history of hostile and conflictual relations,103 this design principle suggests that the IA
could have been designed to encourage many more decentralized conversations among members of the IA. For instance, the
Agreement could have mandated subgroups of relevant ministers--drawn from the different factional interests represented--to
meet in preparation for full IA meetings, without granting any formal power to decide. Indeed, given the significant regional
tensions that continue to exist in the country, encouraging regional groupings to come together to discuss issues on the IA’s
agenda could also have been fruitful.
*166 More ambitiously, the Bonn Agreement could have created an institutional apparatus to begin to involve either those
not represented in the IA104 or to engage more broadly the populations who are directly represented by members of the IA.
For instance, one could imagine a tier of consultative councils, with broad memberships to create space for conversations on
the important work of reconstruction. Indeed, conversations with community leaders in the region suggest that a critical
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component of the overall process of social reconstruction and peace building is to engage local communities in traditional
and new mechanisms of conversation and decision-making.105
Control. The principle articulated in the last section focused on ensuring that control over decisions rested with those most
affected by their outcome. As noted above, the full sovereign power of Afghanistan is vested in the IA and no subsidiary
bodies have been created. Three issues arise with respect to the implementation of the design principle on the control
variable.
First, when an institution is designed to vest control in those most affected by a decision, the control could be vested in the
individuals themselves or in their representatives. Thus, an important question to ask in assessing the IA’s fidelity to this
design principle is whether the people most affected by the IA’s decisions feel adequately represented by the IA. This is an
empirical question whose answer can only really be known by asking affected parties. Nonetheless, some indicators suggest
that several groups feel excluded from the IA, and given the historical cleavage between Kabul and the country’s rural
areas,106 it is likely that many Afghans do not feel that any administration in Kabul would adequately represent them. If this
is the case, then the Bonn Agreement has done a poor job of adhering to this design principle of delegating control over
decisions to those affected by them.
Second, the unique context of the IA as an interim body seems implicated in the question of control. The design principle
suggests that power sharing will be an important part of any sustainable approach to conflict management. Thus, as the
constitutional design process proceeds, the standard repertoire of institutional approaches *167 (federalism, separation of
powers, etc.) will no doubt be considered. In this sense, perhaps control has been delegated more widely than is at first
apparent. The Loya Jirga will be the body that is charged with constitutional design, and it will have members drawn from all
parts of the country through a process of election in each administrative unit. 107 In this sense, through its broader
membership, control over the important issues of design of ongoing governance institutions has been shared with a group
much broader than the IA.
Finally, it is nonetheless true that the IA will be making a host of decisions that will have a deep impact on people across the
country who do not feel represented. Perhaps most obviously, but certainly not exclusively, is the disbursement of the $4.5
billion in aid pledged to Afghanistan by international donors. 108 In this context, simply relying on the Loya Jirga as the
mechanism for power sharing seems disingenuous. In the absence of more local control over the use of the funds, for
instance, one can imagine a set of serious conflicts emerging outside of the institutional structure of the IA, with many
disgruntled local actors speaking out. As it is, the IA does not appear able to impose its will on warlords and powerful leaders
across the country,109 and so it remains important to involve them in the institutional process of decision-making.
Flexibility. Embedding opportunities to change and develop the institutional structure seems to be a major feature of the IA,
given its predominant character as an interim administration. The Bonn Agreement’s major mechanism for review is the
Loya Jirga, which meets within six months of the agreement’s signing to decide on a “Transitional Administration” that will
serve for up to two years.110 Presumably, the processes of deliberation within the Loya Jirga will allow for a review of the
functioning of the IA with a view to incorporating major lessons learned into the design and structure of the Transitional
Administration.
The real challenge, therefore, will rest in the design of the Transitional Administration--will it incorporate similar
opportunities for review that allow for evolution of the basic governing framework at *168 the level of fundamental design
decisions without disrupting the necessary formation of a dependable and predictable set of routines? One can imagine
mandating a process of review once every five years, for instance, where all such elements of the framework are explicitly
reviewed with a view to recommending changes. Another alternative would be to create an ongoing process of review that
looks at different variables over time. It could be imagined as either an internal process, whereby its exclusive interlocutors
are institutional members themselves, or a more external process through which individuals and perspectives from other
countries are invited to infuse the review process with ideas and experiences gleaned from elsewhere. This latter approach
would see the entire global repertoire of institutional variation as the pertinent realm of experimentation and learning. Instead
of looking outward and beyond the frontiers of Afghanistan, another design would look inward to propose the unleashing of
many decentralized experiments with local institutional structures, whose experiences and lessons were then shared,
aggregated, and fed into a process of experimentation and learning at the national level.111 All these options suggest the
potential of an embedded flexibility in the institutional structure of governance in post-Taliban Afghanistan.
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***
Thus, along each of the five variables, an entire portfolio of institutional design options that adhere to the principles present
themselves once situated in the context of a particular design challenge such as post-Taliban Afghanistan. Introducing a
particular context can raise at least as many questions as it addresses about the principles and how they can be further
elaborated. In recognition of some of these open questions, the concluding section turns to the implications for future
research and inquiry on this path.
IV. Conflict Management as Institutional Design: Next Steps?
The case study of the Afghan Interim Administration suggests how institutional design principles derived from the dispute
resolution literature might guide actual efforts at constructing institutional responses to managing conflicts. In conflicts such
as the one in Afghanistan, institutional responses are an essential element for achieving a sustained peace. If the institutions
break down because they are unable to manage the underlying social conflicts to which *169 they were a response, it is at
least partly a failure of the field of dispute resolution to think carefully about how best those institutions can be designed so
that conflict can be productively addressed through joint problem solving and collaboration within the actual workings of the
institution.
This article has been a first attempt at articulating general principles that may provide support and inspire institutional
designers. It has been largely conjectural, representing an effort to demonstrate a particular approach rather than a finely
tuned prescription. As an early step, then, it is only proper to end by acknowledging and previewing some steps that may lie
ahead. With this purpose, I conclude with a few questions that continue to puzzle me and that would benefit from further
study in order to elaborate and sophisticate this effort:
• What is the connection between the principles at this level of generality and actual design decisions in specific contexts? Is
it possible to provide either more specific guidance or to elaborate a more systematic methodology to arrive at a specific
institutional intervention from a given principle?
• What further data and evidence from dispute resolution literature can be brought to bear on the formulation of the
principles? What is the evidence that runs counter to the principles formulated here, and how can they be reconciled to
develop modified, and perhaps, more precise principles?
• What are the other dimensions of design that bear on an institution’s conflict management capacities beyond the five
variables explored here? How can variables such as an institution’s culture, symbols, rituals, leadership, group process,
knowledge management, etc. be the subject of design principles? What is the overarching institutional or organizational
theory that can provide the basis for a more systematic approach to institutional variables?
• How can the existing variables be explored further? For instance, what other functions can be analyzed for the centralization
variable? What other types of decisions can be considered under the control variable?
• What is the empirical basis for the application for these design principles? Can we demonstrate the effectiveness of these
principles through a series of empirical experiments or cases?
We live in an era when institutional responses to widespread social conflict are being understood to be indispensable partners
to responses grounded more in changing and enhancing individual behavior in the face of conflict. We must not “pretend not
to know *170 what we know”112 about dispute resolution and conflict management when we engage in the crucial project of
designing institutions that will allow us to live together peacefully and to solve our joint problems together. Rather, the
challenge is to translate what we do know into prescriptions for creating the institutional arrangements that will unleash our
individual and collective capacities for energetic, creative, and peaceful collaboration. Our destiny is intimately connected
with our capacity for imagining institutions that can be the repositories and vehicles for these aspirations and ideals. Perhaps
these design principles can inspire us to just such a richer institutional imagination.
Footnotes
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d1
Associate, McKinsey & Company; J.D., 2002, Harvard Law School; B.A., 1997, University of British Columbia. The research
and writing of this paper was funded by a Hewlett Fellowship, provided by the Harvard Negotiation Research Project at Harvard
Law School. I would like to thank Robert Bordone, John Kelleher, Naz Modirzadeh, Michael Moffit, Robert Mnookin, Guhan
Subramanian and the other Harvard Law School Hewlett Fellows (2001/2002) for their helpful comments on earlier drafts of this
article, as well as the Hewlett Foundation forits generous support. I would also like to thank the Harvard Program on
Humanitarian Policy and Conflict Research and its Director, Claude Bruderlein, for sponsoring a mission to Afghanistan that
provided important perspectives for this paper.
1
I do not mean to deny that there are differences between kinds of institutions and their contexts that would be pertinent to the
purpose of this article. Even in the face of these differences, however, I am seeking here the first elements of a general theory,
because I believe that it can be powerful and inspire efforts that are more specifically contextual. See Roger Fisher, Beyond YES,
in Negotiation Theory and Practice 123, 125 (J. William Breslin & Jeffrey Z. Rubin eds., 1991) [hereinafter Negotiation Theory
and Practice] for an analogous position on the role of general theory in the prescriptive literature on individual negotiation
behavior.
2
See, e.g., Roberto Mangabeira Unger, Legal Analysis as Institutional Imagination, 59 Mod. L. Rev. 1 (1996); Michael C. Dorf &
Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267 (1998).
3
See, e.g., Oliver E. Williamson, The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (1985); Eirik G.
Furubotn, The New Institutional Economics and the Theory of the Firm, 45 J. Econ. Behav. & Org. 133 (2001); Malcolm
Rutherford, Institutional Economics: Then and Now, 15 J. Econ. Persp. 173 (2001).
4
See, e.g., James G. March & Johan P. Olsen, The New Institutionalism: Organizational Factors in Political Life, 78 Am. Pol. Sci.
Rev. 734 (1984); R. M. Smith, Political Jurisprudence, the New Institutionalism, and the Future of Public Law, 82 Am. Pol. Sci.
Rev. 89 (1988).
5
See, e.g., Barbara Koremenos et al., The Rational Design of International Institutions, 55 Int’l Org. 761 (2001).
6
See, e.g., Peter M. Senge, The Fifth Discipline: The Art & Practice of the Learning Organization (1990).
7
See, e.g., W. Richard Scott, Institutions and Organizations (1995); Mark Granovetter, Economic Action and Social Structure: the
Problem of Embeddedness, 91 Am. J. Soc. 481 (1985).
8
Smith, Political Jurisprudence, supra note 4, at 98.
9
Andrew J. Hoffman & Marc J. Ventresca, The Institutionalist Framing of Policy Debates: Economics Versus the Environment, 42
Am. Behav. Scientist 1368, 1368 (1999).
10
Senge, supra note 6, at 40.
11
Id.
12
See Scott, supra note 7, at 34-45 (discussing the three pillars of institutional analysis, including the regulative, involving the
coercive mechanisms of law, rules, and sanctions; the normative, involving non-binding standards, professional accreditations,
and expert opinions; and the cognitive, involving tacit symbols and cognitive structures largely taken for granted but determining
in large measure the way information and events are interpreted).
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13
Id.
14
See, e.g., Stephen B. Goldberg et al., Dispute Resolution: Negotiation, Mediation, and Other Processes (1999); Carrie
Menkel-Meadow, Introduction: What Will We Do When Adjudication Ends? A Brief Intellectual History of ADR, 44 UCLA L.
Rev. 1613 (1997).
15
See Frank E. A. Sander, Varieties of Dispute Processing, 70 F.R.D. 111, 130-31 (1976); see also Kessler & Finklestein, The
Evolution of a Multi-Door Courthouse, 37 Cath. U.L. Rev. 577 (1988).
16
See, e.g., Cathy A. Constantino & Christina Sickles Merchant, Designing Conflict Management Systems: A Guide to Creating
Productive and Healthy Organizations (1996); William L. Ury et al., Getting Disputes Resolved: Designing Systems to Cut the
Costs of Conflict (1988).
17
See Deborah M. Kolb & Susan S. Silbey, Enhancing the Capacity of Organizations to Deal with Disputes, in Negotiation Theory
& Practice 315 (“Dispute systems design is an extension of such alternative dispute resolution processes as mediation and other
forms of assisted negotiation into the instructional and programmatic realm.”).
18
Constantino & Merchant, supra note 16, at 121.
19
See, e.g., Patrick Field et al., Using Mediation in Canadian Environmental Tribunals: Opportunities and Best Practices, 22
Dalhousie L.J. 51 (1999).
20
See Robert E. Goodin, Institutions and Their Design, in The Theory of Institutional Design 1, 33-34 (1996) for a similar
approach.
21
Design, after all, has deep aesthetic connotations. The vision of the architect, merging form and function with effortless ease
comes to mind. For a good example of elegant physical design meeting important social purposes, see Curtis Sittenfeld, No Place
Like Home, Fast Company, May 2002, at 38, at http://www.fastcompany.com/online/58/architect.html (reporting the work of
“two New York architects [who] are using design to address pressing social challenges--for the homeless, for war refugees, even
for public-school kids”).
22
Scott, supra note 7, at 34-45.
23
Henry Mintzberg, The Structuring of Organizations: A Synthesis of the Research 18-34 (1979).
24
Peggy D. Brewer et al., Strategic Planning for Continuous Improvement in a College of Business, 36 Mid-Atlantic J. Bus. 123,
126-28 (2000).
25
See Koremenos et al., supra note 5, at 763, 770-73. They utilize this set of variables to organize their own empirical research to
explain the observed variation in the design of international institutions.
26
Id. at 770.
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27
Id.
28
Id. at 770-71 on technical necessity or cognitive association (“In the Law of the Sea negotiations ... [t]echnological interactions
required that [jurisdiction over ocean territories and coastal environmental and fishing rights issues] be dealt with together in a
comprehensive settlement. But other Law of the Sea issues seemed to have little in common. Here linkage was more cognitive--a
result of how issues were framed ....”).
29
Koremenos, et al., supra note 5, at 771-72.
30
Id. at 772.
31
See id. at 773.
32
See id.
33
See, e.g., Roger Fisher et al., Getting to Yes: Negotiating Agreement Without Giving In (2d ed. 1991).
34
Cf. Chris Carlson, Convening, in The Consensus Building Handbook 169, 185 (Lawrence Susskind et al. eds., 1999) (“The
legitimacy of consensus building processes ... depends on whether they are viewed by stakeholders and the public at large as
representative of all interests and points of view. A bedrock principle of consensus-based processes, therefore, is that everyone
with a stake in the decision should be represented at the table. This principle helps to ensure that any consensus agreement
reached will be seen as legitimate by all relevant parties ....”).
35
See, e.g., David Malone, Decision Making in the United Nations Security Council: The Case of Haiti, 1990-1997 176 (1998)
(“Membership in the UNSC [United Nations Security Council] influences the national position of its members. Had it not been a
member of the Council, Brazil would probably have denounced the terms of [Security Council Resolution] 940 as virulently as
did Mexico and Colombia. However, its collegial ties to other members and its acknowledgement that some of its concerns were
addressed ... led it to adopt a more nuanced public position.”).
36
See Max Bazerman et al., Death and Rebirth of the Social Psychology of Negotiation, in Blackwell Handbook of Social
Psychology: Interpersonal Processes 196, 205-09 (G. Fletcher & M. Clark. Malden eds., 2000).
37
See id.
38
See id. at 207.
39
See U.N. Charter chapters 4, 5.
40
See James K. Sebenius, Designing Negotiations Toward a New Regime: The Case of Global Warming, 15 Int’l Security 110,
124-25 (Spring 1991) (“it is easy to imagine that separate protocols calling on different groups to undertake painful and costly
measures will ... be rejected unless they can be packaged in ways that offer sufficient joint gains to key players.”); see also
Lawrence Susskind & Gerard McMahon, The Theory and Practice of Negotiated Rulemaking, 3 Yale J. on Reg. 133, 139-40
(1985) (noting that as a precondition for success of negotiated rulemakings that “there must be two or more issues ‘on the table’
so that parties can maximize their overall interests by trading or bundling issues”).
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41
Sebenius, Designing Negotiations, supra note 40, at 124.
42
See Bazerman, supra note 36, at 207.
43
Id.
44
Robert H. Mnookin, A New Direction: Transforming Labor Relations in the San Francisco Symphony 20 (unpublished
manuscript on file with author).
45
See id. at 20 for an example of this technique applied in a labor dispute.
46
See John R. Ehrmann and Barbara L. Stinson, Joint Fact-Finding and the Use of Technical Experts, in The Consensus Building
Handbook, supra note 34, at 375, 377-80; see also John T. Dunlop, The Creation of New Processes for Conflict Resolution in
Labor Disputes, in Barriers to Conflict Resolution 273, 286 (Kenneth J. Arrow et al. eds., 1995) (“Mutual respect for a set of data
is often an important step in the process of dispute resolution that saves time.”); Sebenius, supra note 40, at 142 (describing the
central role of a joint computer model prepared by MIT in facilitating negotiations during the Law of the Sea conference).
47
See, e.g., Robert B. Wilson, Strategic and Informational Barriers to Negotiation, in Barriers to Conflict Resolution, supra note 46,
at 109, 119 (“[D]ifferences in information can prevent settlements. Or such differences can require costly delays as each party
tries to exploit his or her private information or to communicate it credibly via the offers he or she makes”).
48
Cf. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950
(1979).
49
See, e.g., Howard Raiffa, The Art and Science of Negotiation: How to Resolve Conflicts and Get the Best Out of Bargaining
58-65 (1982) (discussing theoretical approaches for inducing mutually beneficial truth disclosure, some of which still need the
development of practical techniques for their realization).
50
See Howard Raiffa, Analytical Barriers, in Barriers to Conflict Resolution, supra note 46, at 133, 137.
51
See id. at 145 (elaborating the technique of pre-negotiation briefing reports); see also Lawrence Susskind and Jennifer
Thomas-Larmer, Conducting a Conflict Assessment, The Consensus Building Handbook supra note 34, at 99, 99.
52
See Lee Ross and Andrew Ward, Naïve Realism in Everyday Life: Implications for Social Conflict and Misunderstanding, in
Values and Knowledge 103, 126 (Terrance Brown et al. eds., 1997).
53
See Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution, in Barriers to Conflict Resolution, supra note 46, at
27, 39.
54
See generally Roger Fisher & Scott Brown, Getting Together: Building Relationships as We Negotiate (1989).
55
See, e.g., Lawrence Susskind, Environmental Diplomacy: Negotiating More Effective Global Agreements 124-26 (1994)
(discussing the recommendation of the Salzburg Initiative to “build decentralized alliances” as mechanism for improving the
functioning of global environmental treaty negotiations).
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56
See id.; see also Sebenius, supra note 40, at 143.
57
See Sebenius, supra note 40, at 143.
58
See Ted Robert Gurr, Why Do Minorities Rebel? The Worldwide Geography of Ethnopolitical Conflicts and Their Challenge to
Global Security, in Federalism Against Ethnicity? Institutional, Legal, and Democratic Instruments to Prevent Violent Minority
Conflicts 3, 11, 13 (Gunther Bachler ed., 1997).
59
Id. at 11.
60
See Randa M. Slim & Harold Saunders, Managing Conflict in Divided Societies: Lessons from Tajikistan, 12 Negot. J. 31, 43-44
(Jan. 1996).
61
See Gurr, supra note 58, at 13 (“[B]e prepared to devolve some state powers to people who are regionally concentrated .... [B]e
prepared to negotiate power sharing arrangements at the center with politically organized communal groups.”).
62
See id. at 11 (noting how the “advanced industrial democracies are the only group of countries to register a decline in
ethnopolitical conflict” and was a result of reforms including “limited empowerment” and “provisions for greater autonomy for
regional nationalists”).
63
See, e.g., Monty G. Marshall, Social Disintegration and Arrested Development: A Systemic View, in Federalism Against
Ethnicity?, supra note 58, at 15, 68 (discussing different forms of conventional and complex federalism, including asymmetric,
regional, aggregated, and municipal).
64
Constantino & Merchant, supra note 16, at 121.
65
See Lawrence Susskind and Jeffrey Cruikshank, Breaking the Impasse: Consensual Approaches to Resolving Public Disputes
76-77 (1987) (arguing that “[w]e have put effective tools, including our three branches of government, to inappropriate tasks” and
proposing a process for resolving disputes that is, inter alia, ad hoc and focused on the particular parties interested in the dispute
rather than on typical public institutions); see also Carlson, Convening, supra note 34; Lawrence Susskind, A Negotiation Credo
for Controversial Siting Disputes, 6 Negotiation J. 309, 310-11 (Oct. 1990).
66
See Ken Kollman et al., Decentralization and the Search for Policy Solutions, 16 J.L. Econ. & Org. 102 (2000) (demonstrating the
benefits of decentralized experimentalism for solving some classes of problems).
67
See, e.g., Mintzberg, supra note 23, at 431-67 (describing adhocracy as a viable organizational form and outlining strategies for
coordination); see also Ron Ashkenas et al., The Boundaryless Organization: Breaking the Chains of Organizational Structure
(1995); Robert H. Waterman, Jr., Adhocracy: The Power to Change (1992).
68
On learning organizations, see generally, Chris Argyris, On Organizational Learning (2d ed. 1999); David A. Garvin, Building a
Learning Organization, 71 Harv. Bus. Rev. 78 (Jul.-Aug. 1993); Senge, supra note 6.
69
See Fisher, supra note 33 (providing a good example of the application of this underlying theoretical posture).
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70
Fisher, supra note 1.
71
See Howard Raiffa, Post-Settlement Settlements, in Negotiation Theory and Practice, supra note 1, at 315; see also Max H.
Bazerman et al., Post-Settlement Settlements in Two-Party Negotiations, in Negotiation Theory and Practice, supra note 1, at 331
(noting that “the success of the ongoing two-party ... relationship often depends largely on the propensity and ability of the
negotiators to handle the PSS [post-settlement settlement] process”).
72
See Robert H. Mnookin et al., Beyond Winning: Negotiating to Create Value in Deals and Disputes 14 (2000) (identifying
“different forecasts” as a source of value creation between parties).
73
UN Talks in Bonn Culminate in Accord on Interim Afghan Government, UN News Center (Dec. 5, 2001), at
http://www.un.org/apps/news/storyAr.asp? NewsID=2337&Cr=afghan&Cr1=brahimi.
74
See Terry Moe, Politics and the Theory of Organization, 7 J.L. Econ. & Org. 106 (1991) (an analysis of the different
considerations taken into account in the design of political institutions).
75
See Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government
Institutions, Dec. 5, 2001 [hereinafter Bonn Agreement], at http:// www.uno.de/frieden/afghanistan/talks/agreement.htm.
76
Id. at § I (1).
77
Id. at § I (4).
78
Id. at § I (6).
79
Bonn Agreement, supra note 78, at § I (6).
80
Id. at § I (4). The provision actually requires elections to be held no later than two years from the date of the convening of the
Loya Jirga.
81
Id. at § III (A)(1).
82
Id. at § III (A)(3).
83
See generally Bonn Talks: Who is Being Heard?, BBC News On-Line (Nov. 28, 2001) (“Despite hopes of a breakthrough at the
conference, there are fears that the meeting is too selective in admitting some groups, and not listening to the voices of others.”),
at http:// news.bbc.co.uk/hi/english/world/south_asia/newsid_1681000/1681329.stm; see also Peter Baker, Afghan Factions
Criticize Accord; Some Leaders Vow To Boycott Regime, Wash. Post, Dec. 7, 2001, at A32 (“With copies of the 10-page
document still churning out of fax machines, several key figures, including a powerful northern warlord and the current de facto
finance minister, complained that the U.N.-brokered pact did not include all the factions in Afghan society. Without broad
support, they warned, the agreement could be doomed to failure.”).
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84
See Artie McConnel, Ex-Taliban Officials Form New Political Group, Eurasia Insight (Dec. 27, 2001), at http://
www.eurasianet.org/departments/insight/articles/eav122701.shtml.
85
See id.
86
See Steven R. Ratner, The Cambodian Settlement Agreements, 86 AJIL 1, 5 (1993). The situation of Cambodia during the peace
negotiations and Afghanistan today have several similarities. Professor Ratner’s description of the context of the Paris Accords
could have just as easily been written after the conclusion of the Bonn Agreement:
The long, sad history of the Cambodian conflict required any comprehensive settlement to address numerous elements: a civil war
among four factions, each of which had taken a turn at governing the country since its independence from France; invasion by a
neighboring state seeking regional hegemony; external assistance to the factions; support of the belligerents by the major powers;
a history of gross violations of human rights; a vast refugee problem; and a devastated economy requiring massive reconstruction.
The settlement agreements confront these problems through reliance on, and reaffirmation of, existing norms of international law
and through the creation of new regimes and institutions that could form important precedents for future conflicts. Id. at 1.
87
See Charles Recknagel, Afghanistan: Rabbani Says UN Forced Cabinet Choices, Eurasia Insight (Dec. 13, 2001) (“[T]he Bonn
accord sidestepped this older generation of Afghan leaders--many of whom have fought each other in factional wars--in favor of a
younger generation of cabinet leaders.”), at http://www.eurasianet.org/departments/insight/articles/pp121301.shtml.
88
See Charles Recknagel, Afghanistan: Ethnic Turkmen Seek Peace-Building Role, Eurasia Insight (Jan. 4, 2002) (“With no
warlords or power brokers to represent them on the national scene, the ethnic Turkmen had no voice in the Bonn peace deal in
early December.”), at http:// www.eurasianet.org/departments/insight/articles/pp010602.shtml.
89
See Karl E. Meyer & Shareen Blair Brysac, Tournament of Shadows: The Great Game and the Race for Empire in Central Asia
(1999).
90
See Ahmed Rashid, Back with a Vengeance: Proxy War in Afghanistan, 52 World Today 60 (Mar. 1996) (stating that “regional
countries are pumping in unprecedented amounts of arms and ammunition to their various proxies, undermining United Nations
attempts to broker a peace settlement”).
91
See, e.g., Tajik Special Forces Commander Cautious on Afghan Peace Prospects: Q&A with General Sukhrob Kasymov,
EurasiaNet Q&A (Jan. 3, 2001) (“I am not that optimistic [about peace]. It’s been 20 years, and the war still goes on there. In my
opinion,
the
war
will
assume
a
partisan
form
and
will
last
for
very long.”),
at
http://
www.eurasianet.org/departments/qanda/articles/eav010302.shtml; see also Sergei Blagov, Russia Strives to Maintain Political
Clout
in
Afghanistan,
Eurasia
Insight
(Feb.
12,
2002),
at
http://
www.eurasianet.org/departments/insight/articles/eav021202a.shtml; Todd Diamond, Suspicions of Iranian Meddling Becloud Bid
for
Afghan
Peacekeepers,
Eurasia
Insight
(Jan.
30,
2002)
at
http://
www.eurasianet.org/departments/insight/articles/eav013002a.shtml; Artie McConnell, Iranian Conservatives Seek to Influence
Developments
in
Afghanistan,
Eurasia
Insight
(Feb.
14,
2002)
at
http://
www.eurasianet.org/departments/insight/articles/eav021402.shtml.
92
See, e.g., Recknagel, supra note 87 (noting suggestion of a Supreme Council of ten to twenty members to represent past fighters).
93
Bonn Agreement, supra note 75, at § C(1).
94
See Philip Smucker, Split Grows in Afghan Government, Dawn Internet Edition (Feb. 21, 2002) (reporting on power struggles
within the IA), at http://www.dawn.com/2002/02/21/int15.htm.
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95
Bonn Agreement, supra note 75, at Annex IV.
96
See, e.g., Elizabeth Bumiller, White House Letter: The Politics of Plight and the Gender Gap, N.Y. Times, Nov. 19, 2001, at B2
(“The Bush administration, in a worldwide offensive ... was not only publicizing the brutality toward women under the Taliban ...
but promising that the United States would insist that women have power in a post-Taliban Afghanistan.”).
97
See Ilene R. Prusher, For Woman Minister, Rebuilding Afghanistan is a Personal Quest, Christian Science Monitor (Feb. 7, 2002)
available at 7, http://www.csmonitor.com/2002/0207/p07s02-wosc.html.
98
See Securing Communities for Reconstruction in Afghanistan: A Summary of Discussions with Community and NGO Leaders,
Harv. Program on Humanitarian Pol’y and Conflict Res. Pol’y Brief 2 (Apr. 16, 2002), at http://
www.preventconflict.org/portal/centralasia/Brief5vol1.pdf.
99
See Bonn Agreement, supra note 75, at Annex IV.
100 See
National
Development
Framework:
Draft--For
http://lnweb18.worldbank.org/sar/sa.nsf/Attachments/frame/ $File/ndf.pdf.
consultation
(April
2002),
at
101 See Bonn Agreement, supra note 75, at § I(2). The IA is formally only one of three entities that together make up the Interim
Authority. The other two entities are the Loya Jirga Commission and the Supreme Court. One could, therefore, imagine another
entity to perform information gathering.
102 Id. at § B(1).
103 See Afghan Cabinet Begins Work, BBC News (Dec. 23, 2001) (reporting that “some ministers turned up to the first meeting [of
the cabinet] with their own militia men”), at http://news.bbc.co.uk/hi/english/world/south_asia/newsid_ 1725000/1725871.stm.
104 See supra text accompanying notes 83, 89, 90, 92, and 93.
105 See Securing Communities for Reconstruction in Afghanistan, supra note 98, at 2.
106 See The Role of Islam in Shaping the Future of Afghanistan, Harv. Program on Humanitarian Pol’y and Conflict Res. Pol’y Brief
2 (Oct. 15, 2001) at http://www.preventconflict.org/portal/centralasia/brief2_final1106.pdf.
107 Procedures
for the Election of the Members of the Emergency
http://www.un.org.pk/latest-dev/key-doc-loyerjirga.htm (last visited Apr. 28, 2002).
Loya
Jirga,
at
arts.
4-6,
at
108 Howard W. French, More Nations Join Afghan Aid Effort, N.Y. Times, Jan. 22, 2002, at A1.
109 See Wali Jan, Central Authority Breaking Down?, Institute for War and Peace Reporting (Apr. 11, 2002), at
http://www.iwpr.net/index.pl? archive/rca/rca_200204_114_3_eng.txt.
110 Bonn Agreement, supra note 75, at § I (4).
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111 See Dorf & Sabel, supra note 2, for a proposal that is similar, in spirit if not in details, but directed toward the American
constitutional process.
112 Carl Glickman, Pretending Not to Know What We Know, 48 Educ. Leadership 4 (May 1991) (lamenting the fact that so much of
what is known about teaching and learning is not translated into practice on schools).
End of Document
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