Negotiation

Negotiation as a choice

UN Charter

CHAPTER VI: PACIFIC SETTLEMENT OF DISPUTES

Article 33

The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Definition of negotiation

«Negotiation is a process in which explicit proposals are put forward ostensibly for the purpose of reaching agreement or an exchange or the realization of common interest where conflicting interests are present» (Iklé)

Definition of negotiation

“A mechanism designed, through some joint decision, to regulate conflict and to limit or prevent escalation of its attitudinal or behavioral components, and, when possible, reach a political agreement that may set the stage for better interactions in the future” (Bercovitch & Jackson)

Advantages of negotiation

• It provides a useful and agree-upon outcome

for the parties

• It is efficient (parties explore any possible

outcome)

• It provides the basis for better interaction

between the parties

• It provides legitimate standards

• Negotiation used in more than 90% of all

international conflicts since 1945

Theories of negotiation

• Structural theories (realism, capabilities)

• Decisional analysis (strategic rationality)

• Communication-based approaches (needs, perceptions, lasting negotiated political solutions)

• New issues: agency and culture; justice (global commons)

World War I

Defending an ally US-Korean peninsula, 1950

Two Types of Negotiation

Distributive Negotiation • ‘Fixed-pie’ • Competitive • Sometimes adversarial • Short term gains • Little relationship

benefits

Integrative Negotiation • No ‘fixed pie’ • Cooperative • Create options • Longer term gains • High relationship

benefits

Negotiation Strategies

• Zero-sum

• Problem-solving

Negotiation stages (Zartman- Berman)

1. Diagnostic phase (bringing about negotiations)

2. Formula phase (defining solutions)

3. Detail phase (working out agreements)

Negotiation stages

G.R.Berridge scheme:

Prenegotiation

Around-the-table negotiation

Diplomatic momentum

Packaging agreements

Following up

Prenegotiation

Definition

2 contending views:

a) prenegotiation is an initial phase or stage in the process of negotiation (Zartman & Berman 1984)

b) prenegotiation is a separate process that structures the actual process of negotiation (Stein 1989).

Prenegotiation

Definition

Prenegotiations, despite their misleading

name, are the first stage of negotiations

(Berridge)

Prenegotiation Stages (Berridge)

1. Agreeing on the need to negotiate 2. Agreeing agenda 3. Agreeing procedure 4. Venue 5. Delegations 6. Timing

Prenegotiation 1. Agreeing the need to negotiate

• Negotiations are appropriate when they deal with a new outcome that can be created only jointly – Expected outcomes: the maximum that one party feels it

can realistically obtain from the other party – One party’s “security position”: one’s party estimate of

the costs and benefits it would encounter without an agreement

• Negotiations are also appropriate when they deal with an exchange of outcomes that can only be decided upon jointly

Prenegotiation 1. Agreeing the need to negotiate

• States sometimes engage in prenegotiations (and even substantive negotations) merely in order to buy time or obtain a good press for being considered accomodating) (“playing it long”)

• States equally convinced that a stalemate exists (each has a veto over the outcome preferred by the other) («hurting stalemate»)

• States equally agree that negotiation is the only way forward

• States equally prepared to acknowledge this • States equally able to devote the time and resources

needed to launch a negotiation

Prenegotiation 1. Agreeing the need to negotiate

Preparation •Review and be well briefed in the facts of the problem, •Look into precedents •Know the context •Try to list and understand the stakes and interests of each side •Be aware of the affective elements in both parties’ viewpoints of the situation •Think of alternate solutions •Start informal talks to hear the other party’s point of view

Prenegotation 2. Agreeing the agenda

Agenda «Boundaries setting» (agenda too large or too narrow)

Prenegotation

2. Agreeing the agenda

Agenda content (hidden dangers)

Not giving the impression that one party already conceded on a point

Not allowing a propaganda victory to one side

Not permitting a formal discussion on an issue that one party has already refused to deal with

Prenegotiation

2. Agreeing the agenda

Agenda order

Could imply early concessions from one side

Making early concessions conditional on receipt of later ones

Prenegotiation

3. Agreeing procedure

• Format

• Venue

• Delegations

• Timing

Around-the-table negotiation

«Turning point of Seriouseness»: the perception by each side that the other side is serious about finding a negotiated solution – that is, that the other is willing to «lose» a little to «win» a little rather than win or lose all in a non-negotiated approach

Around-the-table negotiation

The formula stage

Broad principles of settlements

Guidelines

Framework for agreement

Set of ideas

Examples: one country, two systems (Hong Kong); UN Security Council Resolution 242/1967: land for peace; high-level agreements on Cyprus 1977 and 1979: land for federation

Around-the-table negotiation

The formula stage

Recipe for a good formula:

Simplicity

Comprehensiveness

Balance

Flexibility

Types of formula:

Deductive approach or

Step-by-step approach

Around-the-table negotiation The formula stage

• Linkage: trading of concessions on unrelated or only remotely connected issues

• e.g. Angola-South Africa-US-Cuba on Namibia in early 1980s; Cuba Missile Crisis in 1962 (no nukes in Cuba and withdrawal, at a later stage, of US missiles from Turkey)

Around-the-table negotiation The formula stage

Around-the-table negotiation

The details stage

Some techniques •«Constructive ambiguity» refers to an agreement at some less specific level of principle or generality than the disputed item per se •«Functional equivalents»: the essential characteristics of the item under dispute becomes the focus rather than the item itself (apples for oranges) •«Set aside»: the parties can agree to leave out of their formula one single issue that simply does not fit into an otherwise acceptable solution.

«Moment of truth»

The diplomatic momentum

Deadlines

Self-imposed deadline

External deadlines

Symbolic deadlines

Overlapping deadline

The diplomatic momentum

• Metaphors of movement

• Metaphor of the journey

• Metaphor of collaboration

Packaging Agreements

International history of the western world: •the Treaty of Westphalia (1648), which some credit with the foundations of the modern state system •The Treaty of Paris (1814), which defined the end of the Napoleonic era •The Versailles Treaty (1919), which informed generations of leaders how not to secure postwar peace. •General Agreement on Tariffs and Trade or the 1995 Marrakesh agreement that created the World Trade Organization •post–World War II security arrangements: 1949 North Atlantic Treaty or the 1955 Warsaw Pact. •Beginning in the 1960s, a series of human rights treaties have supported the “rights revolution” characteristic of the latter twentieth century.

International treaties are one of the oldest forms of communication among sovereigns, and some 3000 multilateral and 27,000 bilateral treaties are in

effect today.

Packaging Agreements

International Investment Agreements

(United Nations Conference on Trade and Development -

UNCTAD)

Treaty on the prohibition of

Nuclear Weapons – 7 July 2017

Nulcear arms control and the Non-Proliferation Treaty

Packaging Agreements

The Output of Negotiation: •Treaty •Final Act •Protocol •Exchange of notes (exchange of correspondence) •Agreement •Memorandum of understanding •Convention (multilateral agreements) •Declaration •Joint communiqué •Pact •Compact •Agreed minutes

Packaging Agreements

• What is a “Treaty”? • Vienna Convention on the Law of Treaties 1969: “treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”

Packaging agreements

Structure of a Treaty:

Descriptive title

Preamblule

Subtantive articles

Final clauses

Qualifications and powers of the negotiatiors

Place

Authentic language(s)

Date

Seal

Signatures

Packaging Agreements

What is the “premium” attached to a given agreement? •International legal obligation •Signalling importance •Convenience •Saving face

Following up

In matters of business take this as a

maxim, that it is not enough to give

things their beginning, direction, or

impulse ; we must also follow them

up, and never slacken our efforts

until they are brought to a

conclusion. (Francesco Guicciardini)

Following up Methods

1. Monitoring by experts

2. Role of Embassies

3. Review meetings

Following up

1. Experts

•Arms control agreements – UN Security Council on WMD

– Major powers (e.g. U.S State Department Bureau of Arms

Control, Verification and Compliance – AVC; collaboration with

the “intelligence community”)

•Multilateral agreements on human rights – Convention against torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Amnesty International,

Human Rights Watch, International Committee of the Red Cross)

Following up

2. Embassies •Immunities and relative freedom from pressures and threats,

BUT •National interests and need not to jeopardize both bilateral relations and access to local Authorities

E.g. US Embassies (Trafficking Victims Protection Act – annula Report; British Embassies for «No Torture» MOUs; Foreign Embassies monitoring «air quality» in Beijing)

Following up

3. Review meetings •Creation of a new international organization (e.g. CSCE OSCE for the implementation of the Helsinki Final Act) •«Conference of the parties», «joint commission» for bilateral agreements, «follow up conference»; «pledges and follow up») •«Implementation Committee» (e.g., UN enviromental regime) •Appointment of a «national coordinator» (for bilateral agreement) •«Intrusive» implementation: inspections (START)

Why do treaties work?

•Because they embody a norm, an aspiration, a settlement that is valued by all of the parties. The treaty has been well constructed to reflect these elements, the states that become party are happy with the outcome and there are no incentives to defect from the agreement. •Goals are simply expressed, or at least readily identifiable, and their achievements are measurable. •An effective monitoring and verification system

Why treaties don’t work

• “Formal” universality • “Side benefits” (e.g. NPT ‘inalienable right to the

peaceful uses of nuclear energy’). • Subscription under pressure form friends and allies • Treaty badly crafted • Absence or weakness of verification provisions • Absence of “exposed” noncompliance • Ad hoc rather than systematic reaction to non-

compliance

Ten Things You Can Do

1. Learn about landmines

2. Join a local campaign or start one

3. Sign a petition

4. Send a lobbying letter

5. Get the word out

6. Organise a public event

7. Stay informed and join in the discussion

8. Volunteer for the ICBL

9. Contribute to Landmine and Cluster Munition Monitor

10. Make a donation

Citizens’ Treaty Compliance

Monitoring by International Organizations

• International Organization «Special Rapporteur» • Thematic (general) or country mandate • e.g. UN Special Rapporteur on the Human Rights of

Migrants: o meetings with national and local Authorities, laywers,

NGOs, doctors, journalists, media experts o Publication of the «Final Report» on the mission

• Special Rapporteur on Freedom of Religion and Beliefs • Great legitimacy, weak compliance mechanism