Interview with Columbia’s Jenik Radon, Lawyer, Negotiator, Professor and Scholar
Jenik Radon will be teaching both Energy, Corporate Responsibility and Human Rights and Oil Rights and Development in spring 2015 as well as two Capstones on the potential impact of the natural resource curse in Tanzania and Colombia/Peru. He has also been invited to address the upcoming annual General Meeting of the Southern African Forum against Corruption (SAFAC) in Tanzania. SAFAC is a Southern African Development Community (SADC) regional organization created for the purposes of mutual cooperation in combating corruption, economic crime and other related offenses.
How do you view conflict in your work?
Conflict is a concept that must be viewed and understood in all its guises or stages.
Internationally conflict, in the popular mind, has come to be associated with armed struggles. But such struggles are often the sad result of ignoring or silencing the voices that expressed grievances or merely different opinions. So armed conflicts are not the only forms of conflict. Moreover, once a struggle ends there is the post-conflict period, the peace building and the institution building period. And that period is often very trying and isolating as there is no generally accepted recognition or appreciation of the challenges involved.
Estonia, a nation with which I have been engaged for more than 25 years, peacefully struggled for nearly half a century to re-gain its independence, which it did in 1991, after having been forcefully annexed in the 1940s by the Soviet Union. You could, on the one hand, say Estonia was in a stable situation but, on the other hand, it was in a perpetual conflict situation, struggling every day to restore itself as an independent nation.
Or, if you look at Nepal, where I am proud to have been an author of its interim or peace constitution, it has been struggling for eight years, since 2006, to agree on a permanent constitution. This is after a 10-year civil war during which an estimated 15,000 had been killed (not even counting the number of those who have been permanently injured, etc.).
So, sadly, a conflict is an extended protracted state which demands years of dedication to resolve.
I have also worked extensively in the extractive industry, particularly in oil and gas, where I am conscious that doing this work well may, and hopefully, will prevent conflict. My goal is to prevent the resource curse from taking hold in states across the globe from Cambodia to Tanzania and Mozambique to Afghanistan by focusing on the laws, the institutions and the contracts. This means, among other things, ensuring that companies have the necessary legal rights for the development of extractives development, but that they also honor their commitments to the community in which they work. Extractive industry companies need to realize that they need to secure and maintain over the life of a 40-year project the social license from the communities in which they are to operate and where they effectively live. Without a social license, conflict inevitably ensues. This is conflict prevention and in business terms, mitigation of risk.
In my work, as I focus on laws and institutions, I seek to solve a challenge before it becomes a problem. And if a problem has become such, I try to find a way forward. Among other things this requires listening to all voices and engaging with all, as hard as that at times is.
What are the tools or mechanisms you use to address conflict?
I don’t want to say I use tools or mechanisms. I would like to describe my work differently. Although I am a trained lawyer, I focus on people, their concerns, and their emotions.
First there must be respect. When I say respect, I mean an acknowledgement that there are different viewpoints and not just one viewpoint. All voices, as I noted, must be heard. This means listening and engaging with all, even if at times difficult and trying, in fact very much so.
Second is understanding. In any situation we need to find out the real origin of a disagreement or conflict. What provoked it? In the case of Nepal, a question that needed answering was why the Maoists had popular support in many rural areas. So understanding invariably demands an answer to one question: Why? With Nepal many people felt that their concerns were not heard, not being addressed, and this frustration unfortunately led to a civil war.
So, it is respect and understanding. The third aspect is to discover and learn what people, even diverse or conflicting groups, have in common, namely finding common ground on which to build. What is the basis for a prospective agreement? You cannot build on disagreement or conflict so you have to give meaning to the term bridge-building.
For example, many countries or regions of the world share a river and water, as we all know, is life. The Indus River is an inspiring example of cooperation between Pakistan and India. Although there have been three wars between Pakistan and India, the Indians never terminated or redirected the flow of the river which provided irrigation also for Pakistan. The message is clear; you have to find what you have in common, what you can cooperate on. If you start with an issue on which you can have or can have a consensus, then you can build on this and over time resolve more difficult issues. It is one step at a time.
I am also guided by certain principles. I keep reminding myself of that manta that if you don’t know history, then you are doomed to repeat it. But I have added: if you live history, you don’t move on. So if you live in the past, you cannot go on, you cannot proceed.
We at times have to do the seemingly impossible — find commonalities even with adversaries so that we can look forward to a future. Again in the case of Nepal where thousands of people were killed, there was no choice but to try to look forward and establish peace, yet being fully cognizant that major injustices had been committed and that people had a right to justice.
The post conflict period is challenged by a need to create institutions that respect and share decision making with all parties, especially former adversaries. But this means looking forward and believing that tomorrow can be better, which, as noted, requires a focus on institution building. Unfortunately there are no simple or immediate solutions. As with all things, you have to work at it.
Conflicts are complex. Can you tell me more about how you deal with complexity in your work/ scholarship / practice?
Life, as well as any job, is not siloed but requires living in an environment. So, my job is to try and identify as many factors, and as many interest groups, as possible, and then seeing, for lack of a better word, what the bottom line is, what can bring them together. What are the underlying or fundamental driving forces?
Again in the case of Nepal, many said the underlying driving force is that there were many groups who were disconnected, were ignored, and were therefore not in the mainstream. Moreover, many of these people lived in isolated areas and did not speak Nepali, the lingua franca. Therefore, these groups naturally felt neglected that they were not being listened to, let alone heard.
But, as in Switzerland, where people speak several languages, namely German, French and Italian as well as Romansch, making sure that all laws are translated into all languages is a cost, if you will, that Switzerland needs to bear if it is to remain one nation. All people in a country have a right to be heard, to express themselves and to information, especially laws. So the cost of translation is for nations where a number of languages are spoken a necessary cost of statehood and accordingly conflict prevention.
Language is too often forgotten the key to communication. We need to be able to speak to each other and to listen each other. From my own experience, a grievance world-wide among people is a feeling that they are not being listened to, or worse being ignored.
So communication and engagement is key. And in that regard I keep my mother’s words in mind: It’s not what you say; it’s how you say it. It’s not what you do; it’s how you do it. And it is said differently in different languages, which makes global communications a challenge.
Engagement for me, whether in Nepal, Georgia, or Mozambique, or any other country, is working directly with the citizens of a country. At the end of the day, you cannot just announce a solution, especially as an outsider advisor. Any solution must become a nation’s solution. And its citizens must have ownership of the solution. This requires intense and long engagement and support.
Accordingly, in my work, I need to understand the concerns of all the people, whether the receptionist at the hotel, the taxi driver, the politician, or the academic. But as an outsider you sometimes have an advantage as many people feel that they can talk to you because you are perceived to have no historical bias.
In addition to teaching on Energy, Corporate Responsibility and Human Rights at SIPA and directing the Eesti and Eurasian Public Service Fellowship at the Harriman Institute, you also have your own well-established practice, Radon Law Offices. What is the relationship between your academic and professional practices?
In my legal practice I work extensively on behalf of states, governments, SOEs [state owned enterprises] and civil society. My practice is my research facility if you will. I gain inside or a practitioner’s knowledge on issues, especially in the area of extractives. I can also teach about constitution making because I have worked on drafting one. My personal challenge is to take my practical research and knowledge and present it academically, conceptually.
I started teaching because a former professor of mine and a good friend, John Barton of Stanford Law School, advised me, after my wife died, that I should teach. I remember telling him I didn’t know what I would should teach. But John, knowing my work and knowing me, said that I should teach human rights. He was able to describe my work better than I myself could. The challenge for me was putting my experience, my work, into context. It is one thing to do, but quite another to explain, elaborate and put my work into context so that my students could understand it and learn from it.
So my lab is first of all my experience. And I use my experience and insider’s knowledge as the foundation for research, especially in the area of natural resources and access to medicine, which is another area that I focus on.
One of your lasting influences is in the peace process in Nepal with the constitution you drafted in 2006, which brought an end to a decade long civil war. Please explain to me the tenets of the approach you took to achieve this foundational law.
I started with the 1990 constitution, as the Nepali had lived with this constitution. They could explain what worked and what did not. I listened to the complaints and the concerns they had. For example, some wanted ethnic states. However, I knew this would, among other things, not be practical and, moreover, it would be very divisive and even cause conflicts. The people of Nepal had moved everywhere throughout the country and had intermingled as people normally and naturally do when they are free to move.
Second, I took the UN Human Rights principles as enshrined in international covenants and applied them to the specific situation of Nepal. One issue that was of concern was that many of the people of Indian heritage, people living in the Terai region, were viewed as immigrants, notwithstanding that most had lived in Nepal for years, many for over 100 years. So I introduced a concept that was, I am pleased to say, accepted: everyone born in Nepal (before 1990) should be granted citizenship. I also introduced the principle that all people had a right in a court of law to be heard, defend themselves, in their native language.
I also focused on accepted democratic principles, that governance requires a system of institutional checks and balances. Institutions are necessary to ensure that a society can move forward; and checks and balances are necessary to ensure that no institution, no group, has a monopoly on power. Checks and balances provides for a give and take, as challenging as that may be. It also requires people to put themselves in the shoes of the others, only then can one come to understand the views of another person or group.
And as I noted, understanding is the key and, hopefully, the beginnings of a resolution. I do, of course, know that understanding in itself is not necessarily enough as there can be fundamental differences that cannot easily be bridged, if at all, but that is a topic for another day.
How has your experience as a child to two immigrant parents, a person who did research in Brazil as a student, and lectured in about 60 countries influenced your interest in and approach to intercultural communication?
As I was quoted in a Stanford Law School article, when you speak more than one language you know that there are different ways of looking at things. ‘Neither is right, neither is wrong. They’re just different.’
One of the things about being an immigrant is that it’s part of your core. My parents and I were born in Europe. Growing up I spoke one language at home, German, and another in school, English. I realized that a language was not just words. It is a cultural approach and a way of looking at things. I would go to school and learn something new. I was challenged to explain my new knowledge, especially the concepts, to my parents in German. I learned that concepts were not easily translatable as they had to be put into context, especially a cultural context.
However, I discovered that being brought up bi-culturally and bilingually gives you an advantage as you learn that there are at least two different ways of thinking about the same issue. And once you realize there are two ways, you realize that there are three ways. If there are three ways, you know that there can be four or more ways. It makes you open to engaging with others.
So, coming back to the word respect, it is accepting that there are different ways of thinking and looking at an issue. Sure, we have certain core principles like thou shalt not kill, but core issues, I have found, are often universal principles and transcend cultures.
Understanding that there are differences broadens and makes you appreciate the richness of our many cultures and, as mentioned, that there are different ways to think about issues. However, that awareness presents an invariable challenge. There is the difficulty in fully and clearly expressing yourself in ways so that people that do not share your background can understand. Cross-cultural engagement is in the first instance a matter of expression which means finding the right words.
A favorite example of mine is that the fact that there are well of 50 words in Inuit language for ice. So how you express yourself and how you communicate cross-culturally is a lifetime challenge, but for me an enjoyable one. Moreover it is generational as well; each new generation naturally needs to express itself.
As you can see, I am very aware of the fact that words matter. Words, no matter how inadequate, are the only way we really have to express concepts, to communicate. Words are an articulation of one’s thoughts which makes inter-cultural engagement so rich.
If you wanted to give a message to your community about your scholarly interests, teaching philosophy or (fill in the blank), what would it be?
Two if I may….
One: go forward with respect. Respect everyone and try to understand. If you treat people with respect, you get a much better response, you build rapport and, best of all, friendship, and, of course, gain better understanding. Respect is an easy word, but it requires daily commitment to put it into practice.
Two: try to do the hardest thing that there is in life – put yourself into the shoes of another party, person, which admittedly is almost impossible. It is almost impossible because you do not know anyone’s history or experiences, so there is inherent inadequacy. Still in order to work in conflict resolution, you have to try as best as possible to put yourself into the shoes of the other party, but knowing you could never do it fully.
Ok, a third point of advice: from my mother as I already noted: it’s not what you say, it’s how you say it; it’s not what you do, it’s how you do it.
And if you can do all of that, you can enjoy life — tremendously, enjoy and appreciate another person’s cultural differences, and, in the context of the interview, prevent conflict too.