Negotiating Political Conflicts

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Negotiating Political Conflicts Frank R. Pfetsch

Negotiating Political Conflicts

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Negotiating Political Conflicts Frank R. Pfetsch Professor of Political Science University of Heidelberg, Germany

© Frank R. Pfetsch 2007 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2007 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–0–230–52136–0 hardback ISBN-10: 0–230–52136–3 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Pfetsch, Frank R., 1936– Negotiating political conflicts / Frank R. Pfetsch. p. cm. Includes bibliographical references and index. ISBN-13: 978–0–230–52136–0 (cloth) ISBN-10: 0–230–52136–3 (cloth) 1. Diplomatic negotiations in international disputes. 2. Conflict management. 3. International relations. I. Title. JZ6045.P44 2007 327.1′7 – dc22 2006051747 10 9 8 16 15 14

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Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

Table of Contents List of Figures

x

List of Tables

xi

Introduction

xii

1

2

3

Negotiations and the Theory of Negotiation 1.1 What is negotiation? 1.2 What characterizes negotiations? 1.3 The specific characteristics of international negotiations 1.4 The three phases of the negotiation process Conflict as the Subject of Negotiations 2.1 Conflict and negotiation 2.2 What is a political conflict? 2.3 The dynamics of conflict evolution: A dynamic model of conflict 2.4 Negotiations in situations of crisis and war 2.5 The most intensive form of conflict: War 2.6 What kind of negotiable or non-negotiable conflicts do we face today in international politics? 2.6.1 Looking back: Changes in conflict behaviour 2.6.2 Looking ahead: Hypotheses about future conflict behaviour 2.7 Bringing negotiations and conflicts together 2.8 The KOSIMO Project 2.9 Conflict and conflict management: The life cycle of symmetry between means and ends Who Negotiates with What Means? 3.1 The negotiator 3.1.1 Confrontational versus integrative negotiation 3.1.2 The negotiation dilemma 3.2 Advice to practitioners v

1 4 5 8 10 16 16 16 17 19 20 21 21 26 30 31 32 35 35 36 37 39

vi Table of Contents

4

5

Culture and Multilateral Negotiation 4.1 Negotiation style and negotiation culture 4.1.1 Examples taken from cases demonstrating Japanese and German negotiating styles 4.2 Different national cultures and styles 4.2.1 Three discourses on nation-building 4.2.2 Language groups and intellectual style 4.2.3 Political mobilization and protest 4.2.4 The democratic deficit within the EU, as perceived by the United Kingdom, Germany and France 4.2.5 The case of the nomination of the President of the European Central Bank 4.2.6 Core terms in the European discourse The Instruments of Negotiation 5.1 Typologies of negotiation techniques and resources 5.2 Actor-related resources 5.2.1 Principled negotiation (Harvard Negotiation Project) 5.2.2 Shuttle diplomacy 5.2.3 Brainstorming 5.3 Issue-related resources 5.3.1 Extension or differentiation of the issues 5.3.2 Reconciliation of interests 5.3.3 Setting quotas and proportions 5.3.4 Exchange or package deals 5.3.5 The allocation of emission quotas 5.4 Process-related resources: strategies, tactics 5.4.1 Delay 5.4.2 Escape into generalization and ideology 5.4.3 Two-track setting 5.4.4 Reframing 5.4.5 Changes in perspective 5.4.6 The negotiation formula 5.4.7 The one- or two-text procedure 5.4.8 The shadow of the future 5.4.9 External conditions 5.4.9.1 Rules of decision-making 5.4.9.2 Binding and non-binding agreements 5.4.10 Linking instruments to power resources

42 42 50 57 57 59 59

60 62 63 67 68 69 70 71 72 72 72 73 76 77 77 77 77 78 78 79 79 81 82 83 83 83 85 86

Table of Contents vii

6

7

8

9

The Role of Power in Negotiations 6.1 The three dimensions of power 6.2 Symmetry and asymmetry 6.3 The five manifestations of symmetry and asymmetry 6.3.1 The first manifestation: symmetry/ asymmetry as power of possession 6.3.2 The second manifestations of symmetry/ asymmetry as a process variable in the pursuit of equality 6.3.3 The third manifestation: Relations between ends and means 6.3.4 The fourth manifestation: Symmetry/ asymmetry of mediation equidistance 6.3.5 The fifth manifestation of symmetry: Outcomes as a fair share The Power of Powerlessness, or How Weakness Can be Transformed into Strength 7.1 Resources of the weaker party 7.2 Increasing resources through amalgamation: Coalition-building 7.3 The limits to negotiations 7.3.1 Principled negotiation: The Harvard Project approach 7.3.2 The discourse model 7.3.3 Rational choice 7.3.4 Inadequate means: Means and ends relationship The Power of Institutions: Collective Negotiating in Groups 8.1 Effectiveness 8.2 Representativeness 8.3 Negotiating in regionally integrated institutions such as the European Union

89 91 94 97 100

101 106 109 111

115 115 117 119 120 121 121 123

125 128 132 134

The Power of Law: Negotiating Within the Framework of International Norms and Principles 136 9.1 The Petersberg (Germany) conference on Afghanistan 137 9.2 The US–EU trade dispute 138

viii Table of Contents

10

The Mediator, the Faciliator 10.1 Mediation strategies 10.2 Who mediates? 10.3 Third party instruments 10.4 The mediators, the conciliators 10.5 Mediation in civic affairs

141 142 145 150 153 156

11

Modalities of Conflict Termination 11.1 Typology of conflict termination and the role of negotiation 11.1.1 Some historic examples 11.2 The quality of negotiated agreements 11.2.1 Non-decisions 11.2.2 Partial decisions 11.2.3 Radical resolutions 11.2.4 Ambiguous decisions 11.2.5 Majority decisions and compromise 11.2.6 Stable and unstable decisions 11.2.7 Conservative or progressive decisions 11.2.8 Future-oriented agreements 11.3 Military, territorial and political results 11.3.1 Territorial results 11.3.2 Political results 11.4 Formal versus informal termination 11.5 Conflicts in the UN Security Council 11.6 Historical cases 11.7 Unfinished wars: Short-lived results

159

12 Resolution Through Negotiation 12.1 The theory of ‘unfinished’ peace agreements 12.1.1 Kantian peace in the Western world 12.2 The six components of a durable solution 12.3 Justice and fairness in negotiations 12.4 Peace agreements forced upon the parties risk new wars; peace agreements deriving of their name bring about peace 13

Hypotheses About the Nature, Environment, Rules of Conflict, Third Parties, and Outcomes/Solutions 13.1 Hypotheses concerning the nature of conflicts 13.2 Hypotheses concerning the environment

159 159 162 162 163 163 163 164 164 164 165 165 166 167 168 169 169 171 173 175 177 178 184

187

189 189 190

Table of Contents ix

13.3 13.4 13.5 13.6 13.7 14

Hypotheses concerning the issues in conflict Theses on conflict management The role of third parties, the mediators Hypotheses concerning the resolution of conflicts Hypotheses concerning outcomes

Conclusions

190 191 191 193 194 196

Notes

200

Bibliography

204

Index

212

List of Figures Figure Figure Figure Figure Figure Figure

1.1 1.2 1.3 2.1 2.2 2.3

Figure 3.1 Figure 3.2 Figure Figure Figure Figure Figure Figure Figure

3.3 4.1 4.2 4.3 4.4 6.1 6.2

Figure 6.3 Figure 6.4 Figure Figure Figure Figure Figure Figure

10.1 10.2 10.3 10.4 12.1 12.2

Negotiation in theory and practice Modalities of conflict management The negotiation cycle Constellation of interests in a conflict situation Dynamic model of conflict evolution Cycle of conflict development with confl ict management instruments Rules of ‘hard’ diplomatic negotiation according to François de Callières Rules of ‘soft’ diplomatic negotiation according to de Félice The five skills of an international negotiator Portrait of an American negotiator Portrait of an Italian negotiator Portrait of a German negotiator Different social systems Representation of power on the Bayeux Tapestry Negotiation strategies in different power relations Negotiation outcomes in relation to different power relations The five manifestations of symmetry and asymmetry during the negotiation process Analytic model of mediations Strategies of the mediator Attributes a mediator should possess Summary of elements for successful mediation Six conditions for durable political solutions Seven concepts of justice

x

2 6 15 17 18 33 37 38 38 44 44 45 58 90 98 100 113 142 143 147 156 179 187

List of Tables Table 4.1 Table 4.2 Table 5.1 Table 10.1 Table 10.2 Table 11.1 Table 11.2

Profiles of some professional cultures Comparison of assumed cultural characteristics: Japan, North America, and Latin America Modalities of conflict management linking instruments to resources Phases of conflict and mediation in the case of Bosnia UN mediations by region (1945–95) Victory and defeat in wars according to regimes Political treaties by regime type

xi

46 49 87 148 150 167 168

Introduction Les négociations sont les remèdes innocents qui ne font jamais de mal – Negotiations are innocent remedies that never do any harm. (Richelieu) Negotiations are a way of finding solutions to confl icts of antagonistic interests without the use of violence. In a democratic society, a nonviolent resolution is the appropriate form of dispute management. The significance of political negotiations has become increasingly apparent from processes and tendencies such as increasing interdependence in the exchange of goods, information, and persons in a world of globalization, the trend towards the expansion of democracy; the tendency of peaceful interaction between Western governments; and the decline of violence between them that characterized the second half of the last century. All these developments, together with longstanding practices within and between states, point to the growing importance of negotiation as a political and economic tool. Democratic culture and negotiation culture go hand in hand, determining the interactions within international and transnational regimes and organizations, as well as between the governments of the OECD area. The increasing density of communication between states and transnational groups has given rise to a complex, multi-stage and multi-actor systems within which political and economic issues are negotiated. Traditional bilateral diplomacy has not been replaced, but complemented by the collective negotiation procedures of the so-called ‘conference diplomacy’, practised in United Nations (UN) world conferences or within the framework of international and regional organizations (Kaufmann 1968). The European Union (EU), in particular, as a ‘negotiating democracy’ serves as an ample empirical field in which to study negotiation behaviour. In this book, therefore, I often draw on the EU for the purpose of illustrating various points. In the light of the growing significance of negotiations, I examine the whole range of different stages of the negotiation process, from the initial or preliminary phase to the actual deliberation phase, and beyond to the search for solutions. For practical purposes, a discussion of the instruments applicable during these various phases is of relevance. xii

Introduction xiii

Core questions This book attempts to contribute towards an understanding of the complex process of negotiation. This is approached by way of 12 core questions: • What are the basic concepts and terms in negotiation? Definitions are required for concepts such as negotiation, its structure and process, conflict, actors, mediators, instruments, symmetry and asymmetry, resolutions, etc. • How does negotiation differ from other forms of conflict management? • What is are the relationship between conflict and negotiation? • What role might a third party play in the resolution of a conflict? • Which instruments exist for the successful resolution of conflicts? • What is the role of power in negotiation and what forms can it assume? • How can a weaker party in an asymmetric relationship become stronger? • What role does law play in negotiation? • In what way do differences in culture influence the negotiation process? • Do institutions matter in negotiations? • What are the modalities of conflict termination? • What are the constitutive elements of a durable solution? This book is intended for theoreticians as well as practitioners. By including accounts of empirical cases, I attempt to make the text more accessible. Such cases are sourced from the whole spectrum of political and economical life, and serve to illustrate more general points. Tables, figures and graphs serve as visual aids; summaries are framed in boxes.

What is new? In five respects, this study offers new insights into the negotiation process: First, the negotiation process of economic and political conflicts is considered comprehensively, that is, within its entire context. Second, the interrelationship of conflict and negotiation provides new insights into the management of conflicts and raises questions about a new conflict culture.

xiv Introduction

Third, an attempt is made to consider conflict and negotiation as mutually dependent since they are by nature necessarily connected. Negotiation always presupposes conflict and, depending on the nature of the conflict, different methods are required for its management. Fourth, through a deeper understanding of negotiation, special attention is drawn to political power in its various manifestations. Fifth and finally, a new theory of war and peace is put forward, which I describe as the theory of unfinished peace. This theory not only explains conflict behaviour, especially in the context of war, but also directly relates negotiation to conflict. It is claimed that the conditions for durable and just treaties – and thus the conditions for peace – can therefore be identified. These five aspects constitute the guiding themes throughout this book. The topic of negotiation arises from the logical continuation of my studies in conflict analysis (most recent Pfetsch 2004). The importance of negotiation in conflict analysis is evident in three fields: first, negotiations are a constant companion in conflict management. Second, in the majority of conflict cases, the termination of a conflict has not resulted in its solution. Third, the only durable solution for a conflict has to be a political agreement achieved through negotiation. Hence my inquiries into conflicts began with an analysis of their causes, and now conclude with an analysis of their negotiated solution. This book has a long history. Some chapters were in part the subject of lectures and seminar exercises. Until now, the topic of negotiation has been treated for the most part in the realms of international diplomacy and in economic circles. This is documented in the relevant literature. Titles such as ‘how to negotiate successfully’, ‘the practical negotiator’ or ‘getting to yes’ reflect these interests. Most of the studies are practice–oriented, directed at diplomats and business people, and as such lack a conceptual and theory-oriented focus. But just as practice without theory leaves one blind, so theory without practice lacks the value inherent in application. To my mind, theory helps to provide guidance through the otherwise incomprehensible intricacies of such a complex field as negotiation. I would like to thank Kate Sullivan, Catarina Lack, Armin Agarwal and Till Bullmann for their help in the translation and formatting of the text, and for providing additional empirical material. Frank R. Pfetsch Heidelberg, 2007

1 Negotiation and the Theory of Negotiation

La politique est une science; la diplomatie est un art – Politics is a science; diplomacy is an art. (Metternich) Everyday life provides numerous examples of negotiations. In stores and at the market we haggle over the price of goods, in professional life we attempt to negotiate a higher income, employers and employees bargain over working conditions and wages, politicians strive or compete for power and influence. Negotiating, bargaining, haggling, etc. are all terms that describe a similar action, namely seeking to reach an agreement through communication, in order to achieve a desired goal. These actions therefore require at least two persons or parties who desire the same goal, even if they each place a different value on it. Until now, the topic of negotiation in politics and economics has mainly been a domain of diplomacy and diplomatic practice, and of merchants and businessmen. The history of diplomatic negotiation stretches far into the past in France (Richelieu, de Callières, de Félice). Early literature on this topic closely reflects practical experience (Kaufmann, Grewe, Iklé, Kissinger, etc.). In addition, several theoretical endeavours can be identified with various scientific disciplines such as psychology (Moscovici, Guetzkow, Irle, Graumann, Lagenheder), economics (Bernholz, Downs, Faber, Olson, etc.), political science (Lehmbruch, Loewenstein, Marin, Sartori, Tullock, Pfetsch, etc.), and sociology (Bühl, Crozier, Offe, etc.). All of these have dealt with the problem by way of the specific approach of their subject. More theoryoriented research is found in the realms of rational choice and game theory (Brams, Buchanan, Tullock, Allan, Olson, etc.), organization 1

2


theory (Olson, Thomas, Fink, Irle), small group research (Rubin, Swap), and power and leadership analysis (Zartman, Sjöstedt). Empirical research on negotiations has focused on United Nations organizations, United Nations conferences, or social groups, especially that conducted by Rothstein and Pfetsch. The question of mediation by third parties has been approached by Bercovitch and Zartman. The cultural dependence of a decision-making process forms part of the literature on political culture, as produced by Faure, Rubin, Jann, Berg-Schlosser, Greiffenhagen, or Pruitt, in the fields of sociology and political science. The approaches of communication and linguistic theory (Habermas, Luhmann, Chomsky) are also of relevance, as well as the works by Assmann and Hardt with respect to cultural memory research. Figure 1.1 organizes the literature, with theory and practice oriented studies aligned on the x axis and studies pertaining to cooperative and conflict relationships along the y axis. Negotiation theory is of varying importance for different paradigms in international relations. The view of negotiation in international relations ranges from their role in a state-centric so-called realist framework to their contribution to liberal interdependence. In the former case, negotiations are conducted by national governments and their national interests demand enforcement, if necessary, through direct confrontation with the interests of other nations (i.e., in a zero-sum game). In the latter case, negotiation is viewed as a cooperative process offering advantages to both sides (positive-sum game). Cooperation, integrative

Psychology, game theory Theory

Conflict management, diplomacy

x

Application

Economic theory

Business

y

Competition, distributive Figure 1.1: Negotiation in theory and practice Source: Starkey, Boyer and Wilkenfeld 1999: 2.

Negotiation and the Theory of Negotiation 3

In the realist paradigm, the classical form of bilateral diplomatic negotiation is most prevalent. This approach is dominated by thinking in terms of zero-sum games, that is, the conflicting nature of different national interests. Applicable here are mainly the rational choice approach, the interplay of coalitions, and the concept of power. An important premise of the rational approach is that the aim (e.g., the national interest) is defined prior to action and that it is expected to be achieved through strategic means. However, the liberal or neoinstitutional paradigm maintains that benefits can also be achieved through cooperation. Strategies of cooperation therefore form the main focus. The theory of social communication assumes that aims can be determined during the negotiation process, whereas rational choice regards the aims as given. The distinction between structure and action can also be used as a possible criterion for classification. Most structural theories describe the gap between the positions of the different actors. Action-centred theories focus on the perception of such discrepancies and on the way they are transformed into actions. Theories of interaction try to integrate structures and behaviour into the process. Theories can be established inductively by observing empirical cases and then generalizing them or they can be determined deductively from general hypotheses. In both cases, the reference field or empirical domain is of crucial importance and dependent on questions posed by the observer. Which are the questions a theory of negotiation pertaining to political or economic conflicts deals with? In other words, what do we want to know, if we are dealing with negotiations in the context of political or economic conflicts? In an empirical analysis, we want to focus on the negotiation process, understand the motivation behind certain behaviour, identify the forces at work, and, finally, come up with explanations for specific outcomes. The analysis can focus on a two-player game or include three or more actors. Negotiations can be observed through the eyes of a practitioner or those of a theorist. From a normative point of view we want to learn more about the conditions of successful negotiations, as well as the causes of their failure. When, where, under which circumstances, and with how much success have such negotiations been conducted? The theory of negotiation itself is still in its infancy. There exist systematizations, typologies, and hypotheses about selective correlations and their evaluation. But there is as of yet no integrated approach to a theory of negotiation encompassing the entire negotiation process,

4


which is on the one hand so general that all modalities of negotiations can be included, and, on the other hand, so specific as to provide explanations for the negotiation of political issues. The theory of negotiation has barely reached the status of a middle range theory with empirically tested hypotheses. This set of hypotheses then, can reveal elements of a general theory of negotiations.

1.1 What is negotiation? Negotiations are based on divergent interests and serve to satisfy them. These interests usually relate to one and the same issue and are in conflict with one another – if the interests were compatible there would be nothing to argue about. Opposing interests thus form both the structural element and the determinant in the process of negotiation. There are certainly other means of satisfying interests, such as the unilateral enforcement of interests though violence, coercion or threats. A legal decision might also settle a dispute. Yet negotiation is an instrument – and the only instrument – for the non-violent settlement of opposing interests, and strives for solutions parties can agree upon. The aim of negotiation is the mutual settlement of conflicting interests. The principle of consensus guides the negotiation process and the higher the level of basic understanding, the higher the chance of reaching an agreement. The different types of conflict resolution are not mutually exclusive. It can be assumed that every form of confl ict – even violent conflict – is accompanied by negotiations, either between the conflicting parties themselves or through some kind of arrangement by a third party. Negotiations therefore constitute a regular part of conflict settlement, whether in terms of personal meetings, talks in the presence of a third party, or dialogue against the backdrop of an international conference. Even if the main representatives do not meet face to face, the conflicting parties are still engaged in communication. Messages may be conveyed through the mass media and taken into account by the opponent. This form of communication is often general practice in wartime. Negotiation as a process of conflict resolution is characterized by several features. Although every case of negotiation is different, shared features exist which are accessible even through quantitative research. The negotiation process can thus be broken down into different phases in a similar way to the conflict process. Just as conflict can be divided into phases (initiation, development, resolution) with different intensities (latent conflict; manifest conflict that are predominantly nonviolent conflicts; crises; severe crises; and war that are accounted as


violent conflicts), so can the negotiation process viewed in terms of the pre-, main- and post-negotiation phases. These classifications are obviously analytical in nature: in real life a clear distinction is rarely possible. The relation between the phases of conflict and those of negotiation is complex and requires clarification. It is in all probability not possible to construct an explicit pattern in the relation between the two processes. However, it is possible to relate the phases of conflict intensity to particular means, given that the appropriate utilization of means is partly determined by the intensity of conflict. A latent conflict, for example, demands means such as prevention or early warning (diplomacy and other means mentioned in Chapter VI of the UN Charter). The appropriate use of policy instruments for predominantly non-violent conflict is conflict management according to Chapter VI. A violent conflict must be countered through war prevention, and the termination of war demands the peace enforcement measures mentioned in Chapter VII of the UN Charter. Finally, the postwar period is crucial: waiting for peace consolidation usually in the form of building democratic institutions, organizing general elections and the means to monitor them, and creating facilities for economic reconstruction, etc. The developments that arise out of different stages in the escalation process can be thought of in terms of a cycle: the cycle materializes wherever conflicts remain unresolved. It can frequently be observed how conflicts can break out over and over again, but also remain dormant for a while. This fluctuation is evident in the contexts of the Northern Irish, Basque and Kurdish conflicts. Figure 1.2 illustrates the different modalities of conflict management. These comprise, first, the unilateral pursuit of interests through threats or by force; second, undecided openness by way of coexistence, ceasefire, non-recognition, and perpetuation of the status quo; or third, the mutual coming to terms through tacit compromise or negotiation. Negotiation is, therefore, a way of non-violent interest accommodation.

1.2 What characterizes negotiations? Distinctions need to be made between negotiations on private and public goods and between political and commercial goods. Negotiation takes place between people who privately negotiate about a commercial commodity (e.g., the quantity, quality, conditions or the price of a product) and the way a political body negotiates (e.g., about

6

Negotiating Political Conflicts Conflicts of interest

unilateral pursuit of interest

undecided conflict mutual agreement, (coexistence; status quo; interest accommodation modus vivendi; armistice; non-recognition) negotiations

force threat coercion or use of force

(diplomatic, (fait accompli; economic and/or reprisals ; intervention; financial pressure; propaganda; blockade; war) ‘indirect pressure’)

authoritative decision (decision of international courts; UN resolutions; conventions; arbitration)

tacit compromise (politics of mutual example; ‘sign language’)

Figure 1.2: Modalities of conflict management Source: Grewe 1964: 11–14.

the affiliation of a territory). In the former case, the negotiators are unconstrained individual persons committed only to their personal interests and abilities. In the latter, the negotiators are bound to explicit or implicit instructions. A politician usually bears his clientele in mind (his constituency, party, government, etc.) and must show consideration for their interests. Private negotiations also take place under certain restrictions, but are dependent rather on personal endowments, for example the amount of money he has at his disposal in order to make a purchase. The political negotiator is thus more restricted and enjoys less freedom than a private person; he has to respect the interests of his clientele otherwise he will be unable to guarantee the negotiated obligations. There is a noteworthy difference between political and economic issues. International negotiations on economic issues refer mostly to conflicts of interest with regard to divisible economic goods, whereas negotiations on political issues often refer to conflicts of values (e.g., national identity). Economic negotiations are usually conducted with ‘soft power’, that is, with diplomatic or structural instruments or


instruments that lead to a consensus by way of bargaining whereas political issues can be tackled with hard power means, i.e., among others with coercive means. Empirical research proves that value-related issues, such as territorial integrity or sovereignty (borders, territorial affiliation, population, government) are more difficult to bargain over than disputes over economic goods (Pfetsch and Rohloff 2000a: 129). Value-loaded issues that are related to components of national identity (frontiers, territory, population, government) are, as a result of this, more difficult to deal with than economic issues. Issues of resources such as oil, water or minerals, can be divided and differentiated according to their quality and quantity, price and time of delivery, etc. Compromises can be reached through a multitude of bargaining techniques such as regrouping issues, establishing new links among formerly unrelated objectives – in short, by creating promising win–win constellations among the disputants instead of win–lose and zero-sum constellations. Complex political conflicts have, as a result, the tendency to lead to partial agreements, and those centring economic goods tend to lead to more comprehensive results and have the prospect of being more durable. The increasing interdependence between nations and among social groups has transformed negotiation about political or economic issues into a complex, multi-level, multi-person process. Bilateral diplomacy has therefore not been replaced, but supplemented by patterns of collective negotiation such as the conference diplomacy practised at UN World Conferences or within the framework of international or regional organizations such as the UN, OSCE, EU, GATT, etc. Despite the increasing significance of these new patterns of negotiation, the field has only recently been the subject of scientific enquiry. Analytical approaches can be found in different disciplines; however, an integrated picture and a comprehensive understanding of these processes are still lacking. The process of negotiation as a social and political activity is far too complex for one single theoretical approach to suffice. There is no one theory of negotiations but rather several theories that approach the process of negotiations from different angles and with different questions in mind. A meta-theoretical approach, applicable to the theory of negotiations, can, however, be identified. Theories that rely on rational choice theory are in line with the tradition of political realism, requiring that the benefit from negotiations can only be someone else’s loss and therefore constituting a zero-sum game. In contrast, the positive-sum game of the liberal tradition assumes that the outcome of negotiations can bring

8


benefits to every participant, even though the benefits are not necessarily equal. In terms of negotiation strategy, this means that according to realist theory the outcome has been forced or achieved under pressure. Following liberal theory the main focus is on free choice and the premise is that the outcome will reflect everybody’s interests.

1.3 The specific characteristics of international negotiations At least ten characteristics can be mentioned as to negotiations in international bodies: (1) Negotiating is a social process that takes place in representative bodies, above all in political arenas; decision making in such bodies meets the reality of numerous negotiating processes. (2) Negotiations usually take place within and between organized groups or bodies; thus coalition-building and other forms of collaboration are of great importance. (3) International negotiations within the framework of intergovernmental and supranational community structures (e.g., the EU) have an effect on organizational, national and regional interests; therefore, they can comprise actors from the national scene, the federal subunits or from civil society. Building consensus between these disparate actors is often accomplished through negotiation networks that centre on specific issues for a limited period. (4) Unlike national contexts, in the international arena no institutions exist that can make decisions binding and sanction the defaulting party. (5) As a rule, decisions in international assemblies are made by consensus. (6) The composition of international bodies reflects different cultures and display different styles of negotiation; these culture-specific styles of negotiation constitute an important determinant in the negotiation process. (7) International organizations or integrated communities provide the framework for the negotiation process. (8) Decisions are made in a changing environment; the continual extension of the European Union serves as a case study for the analysis of context determination of the negotiation process. (9) Negotiations in crisis situations follow different rules to negotiations in a calmer atmosphere; extreme situations are characterized by stress, time pressure or a lack of information.


(10) A third party plays an important role as an arbitrator or mediator in the majority of negotiations in crisis situations. The study of the conditions for the success or failure of negotiations accompanied by a third party has become a distinct subject of negotiation analysis. What are the relevant questions to be asked within a theory of negotiation concerned with political confl ict? In other words, what do we want to know, if we are dealing with negotiations in the political realm? The focus of empirical analysis consists of the negotiation process, the motives behind the conduct of respective actors, the dynamics of the process, and finally the explanation of specific results. Finally, practitioners expect advice on how to conduct successful negotiations. As the subject of normative-empirical analysis, we want to become acquainted with the conditions for successful negotiations and the reasons behind their failure. When, where, with what means, under which circumstances and with what degree of success negotiations have been conducted are the questions that need to be answered by conflict research. My definition then is as follows. Negotiation is a social process in which two or more parties interact in the search for an acceptable position with regard to their differences and concerning the same issue of conflict. This definition consists of four elements. First, negotiation is a process, that is, an interaction developing over time. Second, at least two, but generally more parties participate in the negotiation process. Third, the subject matter must be controversial between the parties and their different interests must overlap with respect to one and the same good. Fourth, the negotiators search for an acceptable position for their interests; such a position does not have to be the fi nal solution; in numerous negotiations only partial solutions that both sides regard as acceptable can be found. The following general characteristics are common to all political negotiations: • Negotiations have a beginning and an end; • The issues involved can relate to territory; borders; water; colonial property; national independence; ethnic, religious or regional autonomy; ideology; national power; international power; geostrategic or economic resources and more;

10


• There are individual or collective participants in negotiations; affected parties or externally intervening parties; • Parties have different positions in the international system (superpower, great power, intermediate power, regional power, small power, and others, such as political parties or movements and central governments); • Negotiations take place at a specific location (a neutral third location; shuttle diplomacy between different locations; the location of one conflict party; or several locations); and, • Especially in international negotiations, there is an interplay of different styles of negotiation (Anglo-Saxon, Japanese, Arab, Latin/ Roman, Slavic-Orthodox, ‘Teutonic’), of cultures (Western, EastSoutheast-Asian, Roman, Sub-Saharan-African, Arab-Islamic culture), or civilizations (Western, Chinese, Japanese, Islamic, Hindu, SlavicOrthodox, Latin American and African). Further distinctions concern the nature of the contentious goods, their divisibility or non-divisibility, conflicts of interests or values, and national or international issues.

1.4 The three phases of the negotiation process Since the negotiation process develops over time, negotiation theory can be divided into three stages, namely the pre-, main- and postnegotiation or implementation phase. Each of these three phases focuses on different negotiation matters, whether procedural or substantive, and recognizes different modes of conduct and strategies. The participating actors are also subject to change. Within the pre-negotiation phase, three central issues arise: first, the parties must decide whether or not to negotiate at all; second, technical and organizational questions must be raised; and third, the substantive issues of negotiation must undergo selection. An important task in the pre-negotiation phase is to fi nd out whether the will to negotiate exists, something which can be performed either by emissaries or third parties. The willingness to negotiate depends on the expectations and perceptions of the negotiating parties with regard to the expected benefits. Former German Chancellor Konrad Adenauer wrote in his memoirs: ‘I only entered into negotiations when I knew that the possibility of a positive outcome could be expected’.1 In 1958 and 1962, the Soviet Union wanted to negotiate with the Western


powers over Berlin. The Western powers opposed this, and consequently no negotiation took place. One way of expressing the intention not to negotiate is by making unacceptable demands. In 1967, for instance, the Soviet Prime Minister, Kosygin, demanded the retreat of Israel from the newly conquered territories before he would engage in talks with US President Johnson. After the decision to enter into negotiations has been reached, technical and organizational matters have to be raised. These matters are concerned with the selection of a meeting place, the starting date, the order of the agenda, the appointment of a chairman, the selection of the language and seating arrangements, the creation of a favourable atmosphere for negotiation, the admission of the public and press, in addition to the nomination of the participants and possibly a mediator. Checklist of organizational matters – – – – – – – – –

Selection of a meeting place Starting date Order of the agenda Appointment of a chairman Selection of the language Seating arrangements Creation of a favourable atmosphere for negotiation Admission (or not) of the public and press, in addition to Nomination of the participants and possibly a mediator. Checklist for the pre-negotiation period (Zartman and Berman 1982: 82–5)

(1) Review and be well briefed in the facts of the problem, its cause, its history, its changes and evolution. (2) Look into precedents and referents governing similar situations. (3) Know the contexts and perceptions that give meaning to the situation and its components. (4) Try to list and understand the stakes and interests of each side. (5) Be aware of the affective elements in both parties’ viewpoints of the situation, and of the emotional components of the other party. (6) Think of alternate solutions on these bases.

12 Negotiating Political Conflicts

(7) While such studies are going on at home and contacts are being made to persuade the other party about the negotiability of the problem, talks can also begin in order to hear the other party’s point of view. The instruments of negotiation become important in the main phase. They comprise bilateral or multilateral diplomacy, the use of information or propaganda, the selection of economic and military means, the use of secret services and informal contacts, questions of pacts or alliances, inclusion of regional or global organizations, and, finally, the use of domestic resources. Checklist of instruments – – – – – – – – – –

Bilateral or Multilateral diplomacy Use of information or propaganda Selection of economic means Selection of military means Use of secret services Informal contacts Questions of pacts or alliances Inclusion of regional or global organizations, and finally Use of domestic resources.

In this phase, the assessment of interests and underlining intentions is of particular importance, as are the identification of a general framework or formula and a detailed specification of issues. Assessing which interests are at stake (1) Beyond the obvious tangible interests that may be affected by issues to be discussed, consider subtler interests in reputation, precedent, relationship, strategy, fairness, and the like. (2) Distinguish underlying interests from issues under discussion and the position taken on them. (3) Distinguish between intrinsic and instrumental reasons for valuing interests, especially some of the subtler reasons. (4) In seeking to understand other’s interests, remember that interests depend on perceptions, that perceptions are subjective, and thus that to assess interests is to probe psyches. This process can be aided by clear communication, the advice of third parties, role playing,


and taking into account past behaviour, training, professional affiliation, organizational position, as well as those to whom the others defer. (5) Assessing trade-offs by identifying compatible interests, the importance attributed by the negotiating partners to specific issues, evaluation of side effects, specifying the worst and the best outcomes. (6) Keep in mind that interests and issues can change on purpose or accidentally as the parties learn, events occur, or certain tactics are employed. Checklist for a general framework for agreements (Zartman and Berman 1982: 144–6) (1) Keep a flexible and comprehensive mind-set, open to slightly or greatly different ways of encompassing the same things, or alternatively to including most items in the same package while isolating ‘the one that doesn’t belong’ for separate treatment or postponement. (2) Remember that the problem, not the opponent, is the ‘enemy’ to be overcome. (3) Do not be deterred by unfriendly behaviour. (4) Keep talking. (5) Think of detailed applications while thinking of the broader formulas. Checklist for the detailed phase (Zartman and Berman 1982: 201–2) (1) Do not lose the big picture in the little pictures. (2) Be clear from the beginning about objectives, and do not confuse means with ends. (3) Steadiness on the brink requires a clear understanding of increments and a sense of both side’s ability to do without an agreement. (4) Concessions are made to convey a message but they are justified by principle. The main-negotiation phase ends with specific results. In the case of political conflicts, negotiations usually lead to territorial, military or political outcomes; they can be formal or remain unwritten in any document. The outcome of the negotiations themselves can assume different forms, such as non-decision, partial decision, radical


resolution, ambiguous decision, majority decision, compromise or pretence of compromise, stable or unstable decision, decisions subject to change, or decisions that preserve the status quo. The post-negotiation or implementation phase of the negotiation process mainly concerns the execution of the agreed arrangement and affects the durability of the outcome. This might depend on the kind of results achieved, that is, whether or not the parties are satisfied with the outcome, thus, on the level of consensus with respect to the outcome. The formula of an outcome could be ‘the agreement is signed but the conflict goes on’. This means that not every signing of a contract attains a result that all parties can uphold. In fact, in the history of conflicts, the end of one dispute has in many cases led to another. Thus the way in which conflicts end should be taken into consideration at the start of new conflicts, for one conflict can result from another. With regard to the assessment of the negotiation outcome, the level of consensus is of utmost significance for the durability of an agreement. Five points are important: fi rst, the composition of the opposing parties (i.e., the inclusion of all or only some of them); second, the inclusion of the controversial issues dealt with (all or only some of them); third, the reserved or unreserved nature of the agreement; fourth, whether free deliberation is possible during negotiation; and finally, the environment in which the negotiations take place. In the ideal case scenario, the result is freely accepted by all participating parties, covers all subjects relevant to the conflict, and the acceptance is voluntarily and without reservations. If these conditions are met, we can speak of full consensus, which can be termed as a ‘solution’. In reality, such ideal solutions are rarely achieved. Either not all the parties involved in the conflict were included in the negotiation process, or agreement was only reached for some of the issues up for negotiation; eventually, the negotiating partners become aware that the contract was not signed in good faith, but merely in order to gain time (a common approach in the case of ceasefire agreements) or to achieve a revisal at a potentially better point in time. These factors of parties, issues, free will and reservations constitute in their combination eight possible levels of consensus. At the bottom end of the consensus level is an agreement concluded by only a few participants only on some of the issues under dispute, with some reservations, and under pressure. Whether the outcome relates to interests or values, or a mixed compromise has been found, is one of the decisive factors in the durability of negotiation outcomes, which are mostly or exclusively compromises.


Implementation Postnegotiations

Prenegotiations

Agendasetting

Agreements

Detailed negotiations

Figure 1.3:

Negotiation formula

The negotiation cycle

The pretence of a compromise can take the form of conflict arbitrating effects, of outcomes favouring third parties, or of non-enforceable compromises on the part of third parties. Negotiations can also be terminated inconclusively and therefore not lead to an agreement. Again, several reasons for this can be identified, for example, when an asymmetrical power constellation does not permit a settlement; the expected outcome lacks support from the relevant domestic parties or the population; the constellation of parties remains unclear; the negotiations are highly ideological in nature; autism on the part of the conflicting parties does not permit compromise; certain conflicting parties have been expelled or not even admitted into the negotiations; or finally, when military or non-military pressure obstructs or even prevents a negotiated outcome. Negotiation theory concentrates on the possibility of achieving favourable outcomes in the face of conflicting interests in politics. The focus lies on how to succeed in negotiations and how to achieve an acceptable position regarding opposing interests; in short, the focus lies on success. Some of the propositions for successful negotiations rely on ideal situations that rarely exist in political reality.

2 Conflict as the Subject of Negotiations

Conflict is the lifeblood of politics (Keens-Soper) The process of negotiation and the process of conflict development are closely related to each other. The modalities of this relationship are discussed in this chapter.

2.1 Conflict and negotiation Conflicts are the basic constellations from which negotiations start. Without conflicting interests there is no reason to negotiate. Conflict is not an event that begins and ends at a specific point in time, but a process that either develops through time either continuously or is subject to interruptions. The same is true of the negotiation process. In order to link the two processes, conflict evolution can be divided into different phases, each of which can be dealt with using different means of conflict management.

2.2 What is a political conflict? This analysis is based on the following assumptions2 : (a) Conflict results from the overlapping (clashing) positions hold by participants on certain interests or values (see Figure 2.1). (b) Such incompatibilities must be perceived by political actors and conveyed into the political arena. (c) Then, and only then, do divergent interests become a political issue. The more they are upheld and advocated by actors, the more recognizable they become as conflicts. Whether or not 16

Conflict as the Subject of Negotiations 17

Actor B

Actor A

b a

overlapping interests Actor A’s interests

Figure 2.1:

Actor B’s interests

Constellation of interests in a conflict situation

incompatible interests lead to a crisis or to more severe consequences depends on perceptions on both sides as well as the instruments of conflict channelling employed.

A conflict is a state of tension characterized by at least two parties holding divergent positions with respect to one and the same good, which they both desire. Political conflict concerns public goods, namely national interests or values, such as national territory and its borders (national independence), constitutional rights (selfdetermination), as well as the monopoly over decision-making.

The incompatibilities of interests can relate to the price of a good or its quantity or quality, the affiliation of a certain territory, the appointment of a political office, the rights held by a minority group etc.

2.3 The dynamics of conflict evolution: A dynamic model of conflict The assumption is made that there exists a recurring pattern of sequences of events throughout the process of conflict evolution and that different stages in the evolution process are identifiable. Figure 2.2 shows the basic model. The first phase in the evolution process (initiation phase) is determined by the factors that characterize government

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external threat or support Governments, internal groups

agreement severe crisis manifest (non- crisis latent war conflict conflict violent) (violent)

internal pressure or support

initiation

Figure 2.2:

development/escalation

pressure

agreement

war (cont.)

pressure (cont.) war (cont.)

resolution/outcome

Dynamic model of confl ict evolution

action (structural, behavioural, institutional factors, etc.) and come to the fore in the form of either internal or external support or resistance. The evolution process entails a five-stage model of escalation. The most important parameters for decision-making by a government during a conflict are: – internal pressure or threat, or else support; – external, that is, international, pressure or threat, or else support; – the perception of one’s own interests or of political opposition. Conflict evolution can analytically – if not empirically – be divided into five stages of escalation: from latent to manifest conflict, through to a predominantly non-violent crisis, on to a violent crisis, and resulting finally in war. The final phase can either lead to a consensual agreement, to a forced or unequal solution, or to further violence. The two latter outcomes – which do not constitute solutions – lead to further disputes until the subject of the conflict has been resolved or temporarily ended by voluntary retreat or passive settlement. It is therefore assumed in this model that a repeated pattern is identifiable in the evolution of conflicts, which passes through the five chronological stages of intensity mentioned. Not every confl ict passes through all of these intensity levels. A latent conflict, concerning, for example, the demarcation of a border or the reunification of divided countries, can remain non-violent for a certain period or be terminated by agreement before it escalates. The Cuban missile crisis, for instance, was terminated before the emergency stage of war was reached. Having mentioned the independent variables, that is, the conditions and instruments of the decision-making process, the dependent


variables refer to the outcome of the decision-making process, that is, the objectives attained or not attained, the performance in decisionmaking assemblies, and the quality of outcomes of negotiations. Outcome can take the form of non-decisions, partial decisions, radical decisions, ambiguous decisions, majority decisions, stable decisions, conservative or progressive decision, and future-oriented decisions. The analysis of decision-making processes reveals a multitude of dependencies between the independent variables ‘framework’ and ‘means’ on the one hand, and the dependent variables ‘value of decisions’ and ‘costs’ on the other hand. Different parts of the framework may influence one another, or, depending on the subject matter being decided upon, means and framework may be interchangeable. Dependent and independent variables may also have reversible relations. A middle range theory of decision-making cannot indicate the goals or, in general, the performances of assemblies in any material way, but can only specify their formal aspects. The assemblies which are analyzed here all have the common feature of approaching issues from different angles and wanting to produce a common policy; assemblies which are convened only to discuss or clarify certain points of view are not included. Structural conditions and the use of means can support or hamper the following assembly performances.

2.4 Negotiations in situations of crisis and war Negotiation in so-called ‘hard’ conflicts requires different means to those employed for ‘soft’ issues. The statement ‘he who negotiates does not shoot’ certainly contains an element of truth, but the reverse is also true: ‘he who shoots does not negotiate’. In modern warlike conflicts, such as those in Bosnia-Hercegovina and Kosovo, it can be observed that even during wartime, negotiations were nonetheless being conducted through third parties – something that would have been unthinkable during the Second World War. This certainly has a lot to do with the presence of international organizations and the interests of individual states in acting as mediators. The time factor also plays a role in negotiations. Decisions under conditions of stress and a shortage of time follow different rules to those where time is not a limiting factor and decisions can be reached by taking the whole range of possible circumstances and interests involved into account. The room for manoeuvre under such conditions is far greater. Negotiations in situations of crisis, stress and restricted information follow different rules to those under normal circumstances.

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Inquiries into such external circumstances must concentrate more on person-related aspects and organizational restraints.

2.5 The most intensive form of conflict: War Man muss gestehen: dass die größten Übel, welche gesittete Völker drücken, uns vom Kriege . . . zugezogen werden. . . . Auf der Stufe der Kultur also, worauf das menschliche Geschlecht noch steht, ist der Krieg ein unentbehrliches Mittel, diese noch weiter zu bringen. – We have to admit: that the greatest evils which oppress civilized nations are the result of war . . . Thus, so long as human culture remains at its present stage, war is therefore an indispensable means of advancing it further. (Kant 1786) Violent conflicts also involve negotiations, but these focus mainly on armistice. Because the general public usually perceives confl icts transmitted by the media as violent confrontations, confl ict research has initially and primarily placed its focus on the causes of wars and given little consideration to the evolution of conflicts and their termination. Before focusing on these points, the term ‘war’ needs first to be clarified before questions pertaining to its termination can be posed. The conclusions one draws about the ending of wars depend among other things, on the definition of the term ‘war’ (Carroll 1969: 297). For what is to follow, it is, therefore, important to defi ne the main explanandum here. War is a strategically organized mass conflict involving physical threat and force of some duration and intensity. The fighting parties must comprise organized governmental (or quasi-governmental) force on at least one side; in addition, both parties must show almost equal strength. This condition distinguishes a war from military actions among unequal opponents that usually end after a short period. Wars are violent conflicts of some duration, carried out with organized military force by opponents of approximately equal strength, and leading to a high number of casualties within a limited period. Based on this definition, we can distinguish between the various types of war which are relevant to our analysis, namely between just and unjust wars,3 single or multiple wars, international or civil wars


and wars which can be distinguished on the basis of their disputed issues.4 It has been stressed in the above that action taken in conflicts, or even in disputes carried out with violence, is usually accompanied by negotiations. Before explaining the relationship between conflict action and negotiation, it should be clarified what is understood by the term ‘negotiation’.

2.6 What kind of negotiable or non-negotiable conflicts do we face today in international politics? In order to define the field of negotiation that follows, it is necessary to specify the different kinds of conflict which are being dealt with. In the second half of the twentieth century the world system has undergone striking changes in comparison to the first half of the century. These changes determine conflict behaviour both within and between states or groups of states. Eleven far-reaching and variously interdependent changes at the global and national-state levels can be identified. 2.6.1 Looking back: Changes in conflict behaviour At a global level, the United States, as the victorious superpower of the Second World War and the cold war, has since 1945 been able to construct a system of free trade safeguarded by numerous organizations (e.g., GATT, World Bank, and IMF); this liberal world trade system, associated with Western notions of modernization, became the dominant economic model, and, despite setbacks (i.e., the breakdown of the Bretton Woods system in 1973), led to the era of globalization. It can be said that currently, more or less every state has been drawn under the influence of this neoliberal economic model. This economic system is mostly driven by bargaining as an instrument of interest accommodation. Second, as a dominant power, the United States has brought political universalism in the form of the United Nations into being. With the founding of the United Nations, Franklin D. Roosevelt’s idea prevailed against Winston Churchill’s concept of decentralized and regionally connected states. The new world organization became the arena for the representation of conflicts, and in some cases for the solution of conflicts. The UN is the institutional and personal forum for conflict management.

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Third, the world system has nonetheless, and partly as an answer to universalism and globalization, organized itself regionally with respect to politico-military and economic issues. Regional organizations such as NATO, the Organization of American States (OAS), the Organization of African Unity (OAU), the African Union (AU), the Arab League (AL), the Association of South-East-Asian Nations (ASEAN), the Islamic Conference (IC), OECD, EU, OSCE, etc., also assume the function of integrating the states of certain regions in order to safeguard peace and conciliate conflicts; these organizations strengthen centripetal forces and counteract the drifting apart of diverse nation states. In addition to the UN and regional organizations, alliances created in crisis situations, such as in the Central American Contadora Group and the South African Front-line states, deserve mentioning, as do the Contact Group to Namibia and the Gulf Cooperation Council to the Gulf region, the six party talks over North Korea or the Group of Five over the Iranian nuclear programme. In conflicts, these groups act as mediators or negotiation facilitators. Fourth, non-governmental transnational actors have also supported international regionalization, most notably in the form of multinational enterprises, which have created a network of economic and technical connections. This network has taken on new dimensions of density and economic power and is currently referred to under the heading ‘globalization’. Today, the development of regionalism is less based on political than economic considerations. All continents have witnessed the formation of free trade zones or tariff unions. These new and territorially independent transaction networks pose a new challenge to the territorially bound world system. The welfare-enhancing effect of this increased transnational density has been accompanied by the marginalization of, and unemployment in, certain sections of the population. Since these topics concern mostly transnational economic issues, the arsenal of economic policy instruments characterizes the relations among private but also state actors. Fifth, in the sphere of the nation-state, the bitter experiences of the two world wars have motivated a completely different conflict behaviour, at least in the (western) European states. Politics have no longer been determined by the accumulation of power by a single state at the expense of others (so-called zero-sum games), but by the expectation that national interests can be better served in combination with other states (so-called positive-sum games). This political shift from national power politics to multinational cooperation had been foreseen by the


Austrian Nobel Peace Prize winner Alfred A. Fried at the beginning of the last century when he wrote: ‘Given today’s deeply interdependent world economy, no state is completely independent. Because of the pressure of the circumstances, all states have to rely on each other and are in some ways limited in their actions. The organization (meaning international organization) will regulate this limitation of power in a highly advantageous way for the states by compensating the loss of power of all states by other states adopting duties’ (Fried 1907: 8). A positive-sum game always uses non-violence, that is negotiation instruments. Sixth, the post-1945 period is characterized by a tremendous increase in the number of nation-states – the UN has grown from 60 members in 1950 to 192 in 2005 – as well as in actors in the domestic or non-national sphere. For this reason, the conflicting and centrifugal forces in world politics are gaining in significance because each state represents interests that are not necessarily compatible with those of others. Additionally, most of these states show ethnic, religious and cultural diversity; it is estimated that only 9% of all states can be characterized as homogeneous and peaceful cooperation with one another is the exception rather than the rule. Seventh, the domestic character of the states has gradually changed. The ‘third wave of democratization’ (Huntingdon 1991), involving Portugal, Spain and Greece in Europe, can be viewed as the effect of the unionization of democratic states in Europe. Having reached the Europe of the then European Community, the wave of democratization continued in South America as well as in the states of eastern Europe. Given that today’s democracies behave peacefully among one another, this type of political regime per se is creating a new pattern of conflict. Over the past four years, a tendency towards a decrease in violence and an increase in peace can be observed and is, to a large extent, related to the regime change that has seized other continents beyond Europe. In the nineties, there were 75 out of 162 countries in the world that could be defined as democracies and as such they do not go to war against each other (see Pfetsch 2006: 816). Hence negotiation and bargaining are the principle instruments in confl ict management. Eighth, this wave of democratization has encouraged internal conflicts, such as ethnic-cultural-religious attempts at gaining increased

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autonomy, self-determination or even secession, that have so far been suppressed by authoritarian structures. Parallel to these autonomy movements, new, non-state actors have appeared on the scene, whose endeavours are driven by a partial or sub nationalism and challenge the ‘national’ nationalism. Depending on historical circumstances and internal governmental structures of states ethnic–cultural confl icts escalated or are being accommodated by the central state. However, experiences with measures towards accommodation (inclusion of the opposition, concessions of autonomy, federal structures, concessions as to constitutional rights, proportional representation, etc.) do not always fulfil the high expectations associated with them. Ninth, as a consequence of the political changes in the postwar era and the increase in governmental and non-governmental actors and democratization and autonomy, confl ict trends have demonstrated a gradual transition from international to national confl icts. As early as 1990, a greater number of domestic violent conflicts had begun to be registered as international violent conflicts. This was also partly the result of the end of a period of independence wars and the widespread termination of block formation between the East and West. Henceforth, the newly independent states faced internal conflicts about the nature of the new political system (so-called nation building), often expressed through power struggles of rival groups. These tendencies were reinforced by discussions over a new world order that began in the 1960s (new economic world order, new information world order) and were predominantly based on a socialist programme oriented towards the Soviet or Chinese model. These internal struggles often accompany the nation-building process and can lead to violent rivalries. Tenth, the end of the cold war, the implosion of the Soviet Union, the break-up of the Soviet Empire, and the unification of Germany have all restructured international activity at the global level. The domination of the East–West configuration in the North no longer exists and the socialist model is no longer sought after. This has led to changes whose basic structures can be defined in terms of an increase in Western alliance formation and unionization, the expansion of the liberal freetrade system, the disappearance of doctrines focusing on spheres of political influence and proxy wars, the near disappearance if interstate wars, and the formation of regional cooperative systems. This has strengthened the capacity, for instance, of international and regional organizations to conciliate and mediate. Finally, around the globe, a new (old) phenomenon appeared in this new century: terrorism as a non-conventional form of warfare. The


official wisdom, based on the concept of state sovereignty, holds that terrorists should not be negotiated with. Terrorists are the least likely negotiation partners since they are held to maintain positions outside of the realms of moral and legal norms. The use of force on one side, whether in the form of an assault or the seizing of hostages, results in the complete opposite of an ideal negotiation situation – human lives in jeopardy, both sides on the brink, fanatical belief in a higher goal, the anonymity of terrorists, intended public attention achieved by the highest possible damage and mistrust on both sides – all these features do not permit normal negotiations (Baldwin 1998; Hayes 1991). Nevertheless, in many cases cooperation through various channels, mostly via mediators, has taken place in order to free hostages, or more often, to buy their freedom. It has also been the case that former terrorists have been accepted as official negotiation partners, or made more reputable by being ‘promoted’ to the category of ‘freedom fighters’ such as the Palestinian Liberation Organization (PLO), the African National Congress (ANC) or the Algerian Front de Libération Nationale (FLN). The term ‘terrorism’ covers several different forms of unconventional conflict behaviour: in order to negotiate successfully, it is necessary to distinguish between various governmental and nongovernmental actors, groups of actors, and their different motivations. Terrorist attacks (see Faure 2005) can be executed by (1) single, fanatic or even disturbed individuals; (2) by groups who plan and then implement them; or (3) by governments (state terror). In accordance with the distinction between governmental and nongovernmental actors, there is a difference between terrorism ‘from the top’ and terrorism ‘from the bottom’. Depending on whether attacks are carried out by individuals or are a result of governmental action, one of two conflicting goals can come into play: either a government’s goal to consolidate or expand a regime through the proliferation of terror and fear (state terror), or the goal of eliminating a government through the use of threats and violence in order to create an uprising (revolutionary terror). Governmental terror comes from the top and is attempts to secure the obedience and discipline of the population (whether as ‘white’, ‘red’ or ‘brown’ terrorism), while terror from the bottom employs terrorist action because there exists no realistic chance of achieving the desired through open fighting or negotiations. This kind of terrorism can be described as an underground violent attack upon a political system. Between terrorism from the bottom and the terrorism from the top there also exists a mixed form, whereby terrorism is either disposed or covered up by the government.

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With regard to the different motives for terrorism, there is the need to distinguish between criminals, politically motivated hostage-takers, ideological or religious fighters, and mentally disturbed individuals. The goal of criminals or criminal organizations is to extort money. In terms of negotiation theory this is a typical case of the prisoner’s dilemma.5 Cooperation with hostage-takers is possible on the basis of financial transactions. The politically motivated actor, who is fighting for concrete goal, can also be identified. In many cases this goal is the release of imprisoned companions, in exchange for the release of hostages. In such cases there is the possibility of a negotiation solution being reached through exchange. Another group of hostage-takers are religiously motivated actors who fight for a more or less vague political goal and are willing to die in order to achieve it. The suicidal terrorist actions in the Muslim-Arabic world are performed by religious and fanatical individuals who cannot be negotiated with because they view the world in categorical terms of good and evil and are as a result unwilling to accept compromises. In some circumstances, punishment is simply the goal. In terms of negotiation theory one can talk in terms of the chicken game,6 where, apart from the complete either/or confrontation, there are three further options: the hostage-takers kill the hostages, the hostage-takers are killed or both actors are killed. Finally, mentally disturbed hostage-takers, psychopaths or mentally depressed actors can also be involved. In this case, the world is also viewed in terms of good and evil, with little likelihood of a compromise being found. Here, the chicken-game approach also – theoretically – forms the most probable explanatory approach. Self-destruction may be considered as the only deliverance and rated even higher than the death of hostages. In the case of mentally depressed actors, there is sometimes a possibility of negotiation since they may be open to communication and be persuaded to give themselves up. 2.6.2 Looking ahead: Hypotheses about future conflict behaviour As far as conflict issues are concerned, the East–West confrontation provides an example of an ideologically demarcated constellation of power rivalry. On a global scale, however, territories and borders have been the most common conflict issues, arising as a consequence of newly created or disintegrated states; followed by internal struggles for power, which were directed at the (new) political order as nation-


building process. Ideological issues (e.g., ideology as a system element of the East–West conflict and as a new principle of political order; religion) were the third most common. Other issues such as decolonization or wars of independence, ethno-religious regional conflicts or struggles over resources are equally distributed in frequency. In most cases, several issues have been involved and have had a direct or indirect effects; particularly ideological, ethnic, or nationalist issues have been instrumentalized in power politics; the same holds true for issues of resources or ecology. Depending on the region, different focal points are evident. In Europe, border and regime conflicts have been numerically dominant, as has been the case in the Middle East and North Africa/Maghreb, which also add interstate power conflicts to the picture. In Africa, internal power conflicts clearly prevail and in Asia, the spectrum includes territorial and regime/ideology conflicts, colonial and independence conflicts, as well as to internal power conflicts. The era following the end of the East–West conflict is less defined by international power conflicts but rather by transnational issues such as ecological damage, resource shortage, population explosion, migration, terrorism, and drug trafficking. It seems that on a global scale, mainly economic goods are set to determine the contours of cleavages in the future, with ethno-religious regional conflicts continuing to prevail as before. Resulting from the above-mentioned conflict issues rivalries emerge which, through the process of block formation or regionalization, display collective patterns of conflict and are therefore obvious to the public, have an impact over a large area, concern themselves with national or transnational values, and are of some duration and scope. In order to be able to speak of a conflict configuration, several states have to be in pursuit of common interests, and by doing so in opposition to another group of states. The rupture demonstrated by the end of the Soviet system justifies a twofold division in the description of cleavages or confl ict configurations. Which cleavages have been significant since the 1990s, given that the ideological East–West cleavage has become to a large extent obsolete, and what are the driving forces behind them? First, there remain those cleavages in the South engendering border, power and ethnic conflicts; second, there is the North–South relation with its economic, migration and ethnic conflicts; and third, there appear the Eastern regions with their conflicts of political transition. Some hypotheses

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about the future role of violent conflicts adopt these conflict constellations, others differ. According to Samuel Huntington, wars between nation states have become a thing of the past. In their place will follow the clash of civilizations. The near future will be determined by conflicts between the West and various Islamic or Confucian states, and as a result, a modified North–South constellation will emerge. In reaction to this theory, however, a large amount of counter-evidence has been put forward, although some empirical evidence has also been found to support it. Most notably, it is argued that a ‘civilization’ cannot be considered as a single group of actors and thus does not constitute a relevant unit of agency (Schwank 2004). A further hypothesis has been put forward by Hans Magnus Enzensberger, stating that acts of violence will be carried out spontaneously by unorganized gangs of youths in so-called ‘molecular civil wars’, mainly in the big metropolises of the world (mentioned are, among others, Lima, Johannesburg, Bombay, Rio de Jameiro, Paris, Berlin, Los Angeles, and Birmingham). These kinds of gang battles do not require any ideology or justifying idea. They are concerned more with the violent potential that accumulates within self-organized, autonomous groups in densely populated areas of underdevelopment and/or underemployment. Such confl icts cut across the cleavages between groups. This hypothesis can also be supported and refuted by evidence, but the theory does have some plausibility. A third hypothesis about the future of violent conflicts stems from Francis Fukuyama, who claims that the ‘the most intractable and dangerous’ conflicts will be the ones between the industrialized democracies and the extensive non-democratic world, mainly Russia and China. Some authoritarian Third World countries, such as Iran and North Korea, also pose a threat to the future. As a result, future developments will bring about ‘the end of history’ through the victory of capitalism and liberal democracy, yet, at the same time, will lead to intensified economic competition for the leading positions in the world economy. Thus, the classical politics of violence and economic competition will coexist in different regions and clash from time to time. Consequently, a North–North competition and a modified North–South conflict are predicted. The fact that wars over economic issues are an exception rather than the rule, contradicts Fukuyama’s thesis. It seems rather improbable that it should come to war between the Western modernized industrial countries and those countries with a lack of human capital. At most, the consequences of the gap between rich and poor


are likely to take the form of the movement of migrants and refugees, in addition to white-collar crime and terrorism. A fourth hypothesis, closely related to the third, and proposed by Robert Kaplan, claims that social institutions have collapsed all over the world and that their regulatory function is now lacking. The absence of state authority will not lead to the clash of traditional clans or tribes but to fighting between criminal gangs. These tendencies, referred to as the ‘theory of chaos’ and mainly observed in western Africa, will be evident everywhere in the future. The theory mainly applies to the South–South cleavage with partial spillover into the North–South conflict. Kalevi Holsti envisaged similar circumstances in the ‘theory of the weak state’, which describes a state unable to perform its regulating functions. Fifth, it can be assumed that the struggle for scarce resources will gain importance in the future. The region around the Aral Sea, parts of the Middle East, the Maghreb states and northern parts of the Sahel region have become susceptible to drought and could lead to competition for fertile land. It is also likely that access to the water of the Jordan, the Nile, the Ganges or Euphrates and the Tigris might provoke violent conflicts between neighboring countries. Furthermore, the access and ownership of industrially relevant goods (metals, oil, gas, etc.) will determine the conflict behaviour of states, the Caspian Sea being a region of concern. This approach does not really take into account the fact that struggles over economic goods has rarely led to violent conflict. On the one hand, this has to do with the high flexibility of negotiations instruments about economic goods, and on the other hand, with mutual interests that potentially exist between supply and demand. Sixth, it cannot be ruled out that the control of nuclear weapons may become more difficult in the future. This could lead to conflicts between nuclear powers and countries that wish to become nuclear. In such a conflict constellation, the countries striving to attain nuclear weapons would be opposed by the existing nuclear powers. Finally, a seventh hypothesis is based on the explosive force of subnationalism in its ethno-cultural definition, which can serve as an instrument of mobilization for numerous ethnic or religious minorities. The ethnic and national conflicts in eastern and southeastern Europe, as well as in Africa, have demonstrated that cleavages which were previously hidden or violently homogenized can resurface. According to the various theories, the new conflict issues, or new wars, as they are sometimes called, thus centre on power, economic or

30


ecological issues, nuclear weapons, privatized violence or ideologically empty impulsive action. The new actors are often private individuals or regional organizations, great civilizations and small civilizations (i.e., minorities). Governments are no longer – or not exclusively – the agencies responsible for conflict. Their place has rather been usurped by groups fighting for autonomy or secession, or simply gangs of youths. They often employ terrorist means, are active underground and therefore withdraw themselves from any kind of control. Even the dividing line between combating groups or clans dissolves and ideological differences disappear. In summary, the conflict panorama comprises nation-states, nongovernmental, regional and sub-regional actors. Conflicts between global configurations constitute only a part of the world’s conflict behaviour, particularly since the non-aligned movement has shown signs of dissolution. While internal micro confl icts are usually limited to national territory, macro conflict configurations crystallize around economic commodities (markets, trade, resources, ecological damage) as well as social and demographic issues (overpopulation, migration, narcotics, terrorism). In the absence of a contrasting model to that of economic liberalism, economic regionalism deserves mention as a new conflict configuration. Transnational economic conflicts do not, in most cases, carry the same potential as warlike struggles such as the East–West conflict, with its arsenal of nuclear weapons.

2.7 Bringing negotiations and conflicts together The negotiation of violent confl icts requires other means than those appropriate for the negotiation of ‘softer’ subjects. Decisions that are made under time pressure are guided by other rules than decisions that can take circumstances and interests into account without such pressure. In the latter case, the scope for the negotiations is greater. The examination of such restricted decision-making, which mainly applies to the UN Security Council, but also the Council of Europe and the OSCE, is a subject of analysis that focuses more on personal characteristics and the effects of stress, as well as psychological and socialpsychological issues. Negotiation in times of crisis and under conditions of stress and incomplete information thus demands different methods to those which would be appropriate in normal times. In international conflicts, negotiation provides an alternative to violence. This does not mean that negotiation is the only way of resolving conflicts. In the context of negotiations it is important to find out


which conditions favour negotiated solutions and which do not. In order to cope with conflicts, a wide range of methods is available, from unilateral enforcement through non-decisions to the mutual settlement of interests. Unilateral enforcement makes use of violence or pressure, whereas the mutual settlement of interests consists either of negotiation, binding decisions or silent compromises (see Chapter 1). International negotiations do not only depend on the individual skills and the personality of the negotiator. They are usually conducted by a great number of actors who negotiate about numerous issues at multiple levels.

2.8 The KOSIMO project International conflict and negotiation research have gradually responded to changing circumstances. Two different approaches can be identified: either individual cases have been investigated in order to describe specific characteristics, or numerous conflicts have been analyzed on a broad empirical basis to attain more general explanations. The project I introduced to the Department of Political Science at the University of Heidelberg at first followed both approaches. In five volumes on ‘conflicts since 1945’7 and an additional volume for the years 1990–95 with the title ‘global conflict panorama’,8 single conflicts were described in terms of their genesis and progression. This historical material was then utilized to establish a database detailing most, if not all, of the important conflicts of the second half of the twentieth century. The project aims to eliminate the shortcomings of older quantitative conflict research. These shortcomings comprise, fi rst, a focus on the origins of military conflicts, that is, an almost exclusive focus on wars to the exclusion of less violent conflicts; second, the treatment of mainly international conflicts rather than internal ones; and third, a focus on official governments to the exclusion of non-state actors. The Heidelberg Project has tackled these three issues and, during the 1980s, the quantitative KOSIMO (KOnflikt-SImulations-MOdell) project was brought into being. Subsequently, this research project has also promoted the analysis of non-violent, internal confl icts, and has taken into account non-state actors. Each of the 644 confl icts between 1945 and June 2005 was recorded and subdivided into 3,400 phases. The data bank KOSIMO-2.0 is compiled by taking into account some 30 characteristics such as duration, geographical location, intensity, direct and indirect participants, conflict issue, conflict measures,

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associated political regimes or ending of conflicts.9 From the start, emphasis was placed on the way conflicts have been dealt with and as such the role of negotiations was taken into consideration.

2.9 Conflict and conflict management: The life cycle of symmetry between means and ends So far, negotiation theory has concentrated on the possibility of achieving favourable outcomes for conflicting interests in politics. The focus was (and continues to be) on how to succeed in negotiations and how to achieve an acceptable position on opposing interests; in short, the focus has primarily been on the success of negotiations. In this regard the use of appropriate means to achieve a successful outcome is of utmost importance. Recent events, such as the conflicts in Somalia, Bosnia-Hercegovina, Kosovo and Afghanistan, have demonstrated the shortcomings of negotiations, which have contributed to an unfavorable picture of international organizations, especially the UN. An awareness of the causes of negotiation failures can contribute to a more realistic appreciation of such organizations. According to the intensity of a conflict, successful management depends on the fairly symmetrical use of instruments of conflict management. Low-intensity conflicts require the use of ‘soft’ diplomatic skills; high-intensity conflicts require ‘hard’ methods. An appropriate relationship between means and ends should prevail. As previously mentioned, the negotiation process can be divided into different phases, similar to the process of conflict development. Conflict can be separated into phases (initiation, development, resolution) with different intensities (latent and manifest conflicts, crises, severe crises, and wars) and the process of negotiation can be divided into the pre-, main- and post-negotiation phases. These classifications are obviously analytical in their nature; in real life a clear distinction is rarely possible. The relations between the conflict phases and the negotiation phases are complex and require clarification. However, it is possible to relate the phases of conflict to particular courses of action, given that the appropriate course of action is partly determined by the intensity of conflict – a latent conflict requires a course of action such as prevention or early warning. The appropriate course of action for a predominantly non-violent conflict is conflict management according to UN Charter Chapter VI, which states that the parties should ‘seek solutions by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other


peaceful means of their choice’. A violent conflict must be countered through war prevention, and the termination of war demands the peace enforcement measures mentioned in Chapter VII of the UN Charter. Finally, the postwar period requires peace consolidation measures, which means the building up of stable, preferably democratic institutions, the organization of elections and their observation, and the creation of facilities for economic reconstruction. As mentioned above, all the phases of conflict development can be accompanied by negotiations but enjoy varying degrees of success. The developments that arise out of different stages in the escalation process can be thought of in terms of a cycle: the cycle materializes wherever conflicts remain unresolved. It can frequently be observed how conflicts can break out over and over again, but also remain dormant for a while. This fluctuation is evident in the contexts of the Northern Irish, Basque and Kurdish conflicts. The cycle model (see Figure 2.3) permits the location of the different instruments of confl ict management as mentioned by Boutros Boutros-Ghali in his ‘Agenda for Peace’ and, in particular, the determination of the phase in which conflict negotiations has the best chance of success. Early warning measures may therefore prevent a latent conflict from escalating into a crisis. Management techniques may prevent a crisis from escalating

Early warning, preventative diplomacy

Manifestation of crisis

Conflict management Severe crisis

Latent conflict Peace consolidation

Deterrence

War

Peace

Peace enforcement

Peace-keeping Armistice

Figure 2.3: Cycle of confl ict development with conflict management instruments

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into a severe crisis; deterrence may hinder parties from going to war; peace enforcement may lead to an armistice agreement, and peace keeping to an effective state of peace. The conflict cycle ends with peace consolidating measures and the building up of a legitimate government. With respect to international conflicts, the formal conclusion can take the form of a peace agreement or treaty, a ceasefire agreement, a declaration of independence, a communiqué, the decision of an arbitration court or simple proclamations. As far as national confl icts are concerned, new or revised constitutions, armistices, peace agreements, rearrangements of government, decisions of an arbitration court, and proclamations or referenda are common. Some conflicts are left without a written document of conclusion, which means that demands are abandoned or resolved by way of a silent withdrawal from the confl ict. All these forms of outcomes require negotiations which eventually leading to an acceptable solution. The appropriateness of the instruments with which a conflict is dealt will form the basis for a second limitation to negotiation, that is, the use of ‘soft’ measures, such as diplomacy as mentioned in Article VI of the UN Charter is inadequate for the termination of a war. Only ‘hard’ methods or the threat of such methods can prevent or stop aggressive militant behaviour. One important lesson which both western European politicians and international organizations have had to learn is that in situations of war, and confronted with aggressive nationalistic power policy, only actors with symmetric instruments of power can hinder an aggressor. If one side is employing coercive means, the other side must also take recourse to the use of coercive means in order to prevent further damage. These limitations to negotiations also apply to democracies. If, on the contrary, conflicts remain latent or are on the brink of becoming manifest, negotiations may prevent further escalation (preventive diplomacy). It is always better to talk than to shoot, but the effectiveness of talking depends, among other things, very much on the nature of a conflict and the issues involved and above all on the actors.

3 Who Negotiates With What Means?

The global stage is familiar with numerous actors whose decisions are relevant for a larger collective. By definition, decisions made by great powers have larger-scale implications than the decisions of smaller states. In the period following the Second World War, the number of important state and private actors has risen. Both the processes of democratization in a number of countries, as well as the processes of globalization and regionalization have increased the significance of non-state actors, resulting in a dense network of politically relevant actors and more complex negotiations between them. Theories of negotiations have also been concerned with the individual characteristics of those who have appeared as the actors of negotiations. Who then, negotiates, and what characteristics does a negotiator possess?

3.1 The negotiator Le négociateur public . . . a besoin d’une connaissance profonde des affaires et des hommes; d’un talent singulier pour se servir des passions d’autrui et pour dominer les siennes – The political negotiator requires a profound knowledge of issues and persons; a special talent for making use of the passions of the other and for controlling his own. (de Félice 1778) In the postwar period, the centres of global decision-making were located in the newly emerged superpowers of the United States and USSR, both of which formed interacting constellations with their allies. The East–West cleavage was determined by ideology and power politics and became the dominant constellation. Since the end of the cold war, 35

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however, single states rarely determine a conflict cleavage, although power discrepancies give raise to predominant positions. It is well known that such a position is held by the United States. However, regional powers such as the European Union, China, Russia, India and Brazil can exert an influence over their surroundings as well. Economic integration pictures two confl icting forms of the liberal model. On the one hand, the World Trade Organization (the former GATT) is pressing for worldwide liberalization, and on the other hand, regional organizations are attempting to put the idea of free trade into practice on a regional basis in every continent. Universalism exists side by side with regionalism. The most important regional economic poles are the American or American–Pacific free trade organizations of NAFTA, FTAA and APEC, where the United States is the central economic power; the European Union, where Germany forms the strongest economy; and Japan, so far devoid of Asian integration but enjoying intercontinental integration (APEC). In addition, developing regional organizations such as Mercosur in South America, where Brazil and Argentina are important states; ASEAN, with Indonesia, Thailand, Malaysia, Philippines, Singapore, etc.; the South-Asian Association for Regional Cooperation (SAARC), with India, Pakistan and four others, or SADC in southern Africa, where South Africa plays a dominant role. The World Bank World Development Report 1997 cannot reach a final judgement about the pros and cons of regional economic integration. The risk of regional separation must be weighed up against interregional welfare gains. The poles of intensive trade and production with NAFTA, the EU and ASEAN+3 compete with one another and can result in economic conflicts, which, in general, remain below the threshold of violence. The change from national power politics to coordinated regional politics has, at the same time, generated new actors. Transnational and multinational enterprises and non-governmental organizations are becoming more important joining the ranks of actors. 3.1.1 Confrontational versus integrative negotiation A distinction can be made between ‘hard’ or confrontational negotiation and ‘soft’ or integrative negotiation. Hard negotiation aims to achieve unilateral advantage. The unilateral pursuit of interests can be observed in the tradition of classical cabinet politics. François Callières has specified the rules of such negotiations (see Figure 3.1). In addition to these rules of hard diplomacy, de Callières also mentions elements that could be regarded as soft rules: a good negotiator

Who Negotiates With What Means? 37 • • • • • • •

Hide your emotions Do not put all your cards on the table Conceal your interests Take advantage of the weakness of others Be self-confident and decisive Make use of the art of flattery Never demonstrate in public that you are a smart manipulator

Figure 3.1: Rules of ‘hard’ diplomatic negotiation according to François de Callières Source: de Callières 2002: 77.

should, for example, never base his success on false promises, deception or unfaithfulness. He should negotiate with discretion and perseverance and be able to control his emotions. He must be capable, know his trade and be of aristocratic decent: wealth makes a negotiator more independent. Not only reading but also travel introduces the negotiator to the customs of the other country; in this way he can acquire language skills and a better understanding of his opponent (de Callières, 2002: 77–107). Integrative negotiation ‘Soft’ negotiation aims at concessions and compromise, attempting to involve the negotiating partner and reach a solution with him and not against him. All the instruments used in negotiations which concern actors, issues, processes and circumstances (see Chapter 5) and aim to achieve a solution through mutual agreement, constitute soft negotiation techniques. De Félice has outlined the rules for ‘soft’ negotiation as shown in Figure 3.2. 3.1.2 The negotiation dilemma Whether ‘hard’ or ‘soft’ negotiation is employed, in both cases the negotiator can find himself confronted with a practically unsolvable dilemma – should he negotiate ‘hard’ and achieve favourable results but take the risk of not reaching an agreement at all, or should he negotiate ‘soft’ and increase the chances of achieving a settlement but miss the opportunity of gaining a favourable result? It seems this dilemma is difficult to solve. The choice of one strategy over the other depends on an assessment of the counterpart and his power relations. In an asymmetric relationship the more powerful party might opt to play his trump card and negotiate ‘hard’, while the less powerful initially has to choose a ‘softer’ strategy. In a symmetric relationship one

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• Be open and honest, practice moral oriented policy. • Be aware that interests are intermingled with passions; people do not always act according to their interests. • Control your passions (love, hate, friendship, revenge, jealousy, pleasure, avarice). • Try to look behind your opponent’s facade. • The art of speech and writing promotes success in negotiation. • The particular talent of a negotiator consists in knowledge of issues and persons. • Do not confuse negotiations with intrigue. • Consider the importance of emotions such as fear, doubt, courage and passion. • Develop friendly relations with your negotiation partner. • Be patient and wait for the favourable moment. • Without power negotiation is a blunt sword, without negotiations power is too hard an instrument. • Avoid confrontations. Act as if your opponent were on your side.

Figure 3.2: Rules of ‘soft’ diplomatic negotiation according to de Félice Source: de Félice Tome IX, 1778, 603–25).

The solution-oriented negotiator should be able to • • • • •

demonstrate empathy and see things as others perceive them, that is to understand the behavior of others in their system; describe the advantages of one’s own suggestion to the partner in a way that he is willing to change his position; bear stress and to manage difficult situations and unpredicted demands; express the ideas in a way that the partner can understand them as they are meant; possess the sensibility to understand the cultural context and to adjust one’s own suggestions to the constraints and limitations inherent in the given situation.

Figure 3.3:

The five skills of an international negotiator

party may play ‘hard’ if the other side also plays ‘hard’ and ‘soft’ if the other plays ‘soft’. In order to avoid the negotiation dilemma, William Zartman proposes a combined strategy of ‘soft’ and ‘hard’ depending on the issue – a party should play ‘hard’ in cases where vital interests are involved and when minor issues can be compensated with ‘soft’ means. An exchange of differently valued issues could be the solution to the dilemma, as could all other means which bring about positivesum games, such as establishing linkages between interdependent economic sectors or policy fields. Crucial to negotiation technique is that the negotiators communicate their interests. Without precise statements of their genuine interests, misunderstandings can occur and hinder the reaching of a solution. A well known, although somewhat contrived example, is that of a

Who Negotiates With What Means? 39

penniless young couple who wish to demonstrate their love by presenting each other with gifts. The girl has beautiful long hair so the boy decides to make her a gift of a comb. The boy has inherited a nice watch, but the chain is missing, thus the girl resolves to buy him a new chain as a present. Consequently, the girl cuts and sells her hair to buy the chain and the boy sells his watch to buy the comb. Yet a comb without hair and a chain without a watch are both worthless. Had the couple divulged their intentions, the misunderstanding could have been allayed. As a consequence of the developments in globalization and regionalization mentioned at the start of this chapter and the convergence of specialized training, researchers and practitioners have pointed out a global tendency towards converging negotiation styles, which have given rise to the initial stages of an international negotiation culture (Zartman 1993; Lang 1993). It is worth taking a look at the basic features of such an international negotiation culture. Lang (1993: 44–5) outlines five central characteristics: the negotiator should (1) have a distinct feel for accommodation (at least somewhat stronger than for confrontation), (2) be aware of the need for efficient and reliable communication, (3) value flexibility and creativity, (4) show willingness to go beyond the traditional constraints of a national character, (5) be prepared to give a higher priority to dispute prevention than to dispute settlement.

3.2 Advice to practitioners What can a practitioner glean from the above in the way of negotiation strategies? The former Minister of Foreign Affairs of the Netherlands and former representative of his country to the European Union, Bernard Bot (2004: xi–xiii), mentions ten rules for successful negotiations.10 In summary I propose the following seven rules for successful negotiations: (1) Try to find out the willingness of the other side to negotiate; where are the limits to the participation of parties in negotiations? (2) Identify the most important parties that are directly or indirectly involved in the conflict; try to understand the power structures or relations and concentrate on the most important of these.

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(3) Identify the issues involved and their importance; assess the priorities of both yourself and the other side. (4) Keep an eye out for compatible and non-compatible issues as well as possibilities for exchange (package deals, log rolling, etc.). (5) Assess the trustworthiness and reliability of your opponent and evaluate his limitations; make sure he can or will uphold his commitments. (6) Take into consideration the circumstances in time and space that may influence decisions, and evaluate their significance. (7) Develop strategies in case these rules cannot be observed. Trustworthiness and reliability form the basis of mutual understanding and cooperation. As a general rule one can say that: Trust is enhanced (Zartman and Bermann 1982: 32–7) • if a negotiator demonstrates the capacity to understand the problem of the other side and assist them in solving it, and introduces his own problems as well; • if a negotiator can demonstrate a genuine interest in trying to help the other side reach its objective while retaining his own objective and making the two appear compatible; • by not threatening or promising wildly; • by reaching agreements step-by-step with ‘accounting points’ along the way; • by ‘free offers’ of trust; • when a party would be taking the proffered action anyhow; • when a party can show or be shown that the planned action is not in its interest; • when there are no (other) preferred alternatives; • when a party agrees to punish violators; • when interdependence is increased; • when there is an early return on the agreement. The complexity of the issue or issues under negotiation increases the significance of experts in negotiations. Unlike career diplomats, these specialists are seldom evident in the field of a global negotiation culture. Therefore, the tendency toward specialization can be interpreted as a process which strengthens ‘group cultures’ and not necessarily national cultures (Lang 1993: 44–5).

Who Negotiates With What Means? 41

This need not necessarily entail a communication barrier. The individual negotiator has had a specific professional education, which influences his perception of the problem, his approach and the way he comes across to others. Professionalism and a shared or at least similar self-image mean that negotiations between members of a given professional group (e.g., lawyers, engineers, politicians, etc.) from different countries are more successful than those between compatriots who have different professional backgrounds (Hofstede 1989).

4 Culture and Multilateral Negotiation

La culture c’est ce qui demeure dans l’homme lorsqu’il a tout oublié – Culture is what remains when one has forgotten everything else. (Herriot, cited in Soulié 1962) In international assemblies and conferences, decision-makers belong to different national or regional cultures which can influence the path to decisions and contribute to the determination of the agenda. Despite international and/or professional training and influence, it does not seem probable that individuals can completely rise above their culture and always act in a ‘cosmopolitan’ way (Salacuse 1993: 208). It is thus important to shed some light on the cultural framework of negotiations. The culture and style of the negotiator can have a positive or negative effect on the outcome of the negotiation process. The role of culture in international negotiations is treated as controversial in the negotiation literature. On the one hand, there is the argument, that cultural factors have an important influence on the negotiation process and explain among other things the outcome of negotiations. On the other hand, there is the argument that national cultures do not matter very much at all, because there exists a professional international negotiation culture that dominates and makes differences between national cultures obsolete.

4.1 Negotiation style and negotiation culture Different cultural patterns can be identified under the broad headings of Anglo-Saxon, Japanese, Arab, Latin/Roman, Slavic, ChristianOrthodox, Teutonic, etc. In addition to this, Huntington’s well-known distinction between civilizations recognizes a Western, Confucian, 42

Culture and Multilateral Negotiation 43

Japanese, Islamic, Slavic-Orthodox, Latin American, African and a Hindu civilization. What is understood by term culture? The French writer and politician Edouard Herriot has defined culture as that which remains when everything else has been forgotten. The paradox inherent in this statement grasps an important characteristic of culture, namely the fact that it is not a material entity but rather a way of thinking and acting that stems from the unconscious. Culture can be defined as ‘a set of shared and enduring meanings, values, and beliefs that characterize national, ethnic, or other groups and orient their behavior’ (Faure and Rubin 1993). Intercultural negotiations are determined to a certain degree by the cultural context of the negotiating parties. In politics, mutual understanding or misunderstanding depends to a large extent on the knowledge about the ways of thinking and forms of expression of the opposing party – or, as Jönsson has claimed, ‘shared meaning, which is a prerequisite for effective communication, presupposes some common cultural code or at least sensitivity to cultural divergences’ (Jönsson 1990: 47). Language is one important medium of communication, a ‘system of signs’ (Hitz 1977: 41). The misunderstanding or misinterpretation of the intentions of the other party can have far-reaching consequences. The Vienna conference with Kennedy and Khrushchev in 1961 is an example of misinterpretation as a result of the different political cultures in each country, which led to incorrect conclusions about the intentions of both sides. The Anglo-Saxon understatement displayed by Kennedy was interpreted as weakness by the impulsive and direct Khrushchev and, finally, led the Soviet leader to embark on the Cuban adventure of 1962. Negotiators are, in behaviour and expression, captives of their culture and mentality. National stereotypes, such as those of an American or an Italian, can be identified. The term political culture refers mainly to the perception of the political system and the attitudes towards it on the part of its citizens and thus refers to the subjective dimensions of a political system’s social foundations. But political culture includes the behavior of political actors among themselves as well. For example, coalitions of political parties belong to the political culture of Germany and Italy, but are unknown in the United Kingdom. As a result, British politicians encounter more problems reaching agreements with their partners in the EU than German or Italian politicians. The history of political theory consistently points out the fact that the cohesion of a polity requires something other than simply

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The American negotiator • • • • • • • • • • • • • •

knows when he has to compromise; sets out his position at the start of the negotiations; refuses to make concessions right at the beginning; reveals his intentions little by little; accepts a compromise only if the negotiations have reached a dead-end; presents the overall strategy as well as single points; does not rule out any possible options right from the outset; respects his opponent; articulates his position clearly; recognizes the right moment to push an issue; knows his facts and all the issues relevant to the negotiation; knows the schedule and remains consistent; tries to obtain plain statements from his opponent and maintains his position until the very end; allows his opponent to make proposals in order to retain more control over the game.

Figure 4.1: Portrait of an American negotiator

The Italian negotiator is someone who • • • • • • • • • • • • • • •

has a preference for theatrical performances; does not hide his emotions, whether authentic or faked; understands facial expressions and gestures; takes history into account; trusts nobody; invests a great deal in his looks and is very conscious of outward appearances; believes in individual rather than in collective action; knows how to be a good companion and pleasant at all times; is very vivacious; never commits himself to any position; is able to suddenly change his negotiating style in order to paralyse his opponent; plays power games with tact and sensitivity; loves intrigue; knows how make good use of flattery; can manoeuvre the other negotiators into impossible situations.

Figure 4.2: Portrait of an Italian negotiator

constitutional values and political institutions, something that constitutes its immaterial and spiritual core. Aristotle hinted at the social virtues of citizens. The idea of virtues was subsequently picked up by the Romans and also by Niccolo Machiavelli. The latter identifies religion as an additional factor for stability and cohesion. With his concept of ‘religion civile’, Jean-Jacques Rousseau had something similar in mind, as did others with their ideas of ‘moral sentiments’ or ‘moral systems’ (Robert Owen). These different concepts express that which

Culture and Multilateral Negotiation 45 A German negotiator is someone who • • • • • • • • • • •

employs a deductive negotiation style; prefers systematic and structured dealings; attempts to convince his opponent through argument; attempts to see opposing positions rather as compatible than incompatible; orients his efforts towards compromise and keeps the whole context and the goal in mind; employs a clear-headed style without much emotion; is often considered as pedantic and a know-it-all; focuses on trust and reliability; tries to make use of economic negotiating power; orients his behaviour towards alliances and coalitions; rejects military options as far as possible.

Figure 4.3: Portrait of a German negotiator Source: According to Smyser 2003.

comprises culture, namely, ideas and symbols and a way of interacting and communicating. In many areas of social or political life, ‘subcultures’ do exist. Such hyphen cultures are, for example, the corporate culture, the judicial culture, the negotiation culture, the administration culture, the language culture, etc., each possessing their own interpretations, codes of conduct and symbols (cf. Chapter 4.1, Table 4.1: Profi les of some professional cultures). These pertain to the different way of doing things. An example can be taken from the corporate or administration culture: three groups from Germany, France and the UK were confronted with the same problem. They were each asked to solve a confl ict between two departments within one company. The French passed the decision to the top of the hierarchy, the Germans suggested specifying the competences of each department in a document, and the Briton saw the solution in improved communication between the two heads of departments. The three methods are characteristic of the national administrative cultures: hierarchy, horizontal separation and process. The most important form of cultural expression is language. Language is, on the one hand, a means of communication and, on the other hand, the expression of a mode of thinking, feeling and behaving. These two functions of language have to be kept separate. English, as a communication and conference language, cannot replace other languages as a way of thinking and expressing culture. There exist at least two notions of national culture: one that can be labelled traditional, is non-transferable, and expresses the being and the belonging; and the other which can be described as posttraditional, is transferable, and expresses the being and the becoming.

Table 4.1: Profiles of some professional cultures Lawyers

Economists

Politicians

Cultural values Believe in:

The laws of physics

Statutory laws

The law of survival

Technology, computations, materials, designs

Authority, precedent, the ‘sanctity of contract’, rules in general

The laws of economics Theories and statistical data

Builders and problem solvers

Defenders of justice, partisan advocates

Planners and policy advisers

Defenders of public interest, mediators, ultimate decision makers

Numbers and works

Technical words and documents Parties’ good intentions and pledges

Money

Approval and directives

Socio-political variables

Rival bureaucrats and ambitious subordinates

Leader, spokesperson, technical adviser, or excluded Parties’ rights and duties

Leader or fi nancial adviser Costs, prices, payments

Leader

Conflict resolutions precise and logical, but perhaps argumentative

Cash-flow risks Technical and conservative

Project completion Cautious and selfprotective

Have respect for:

Cultural perspective See themselves as:

Express themselves through: Suspicious of:

Negotiating style Team role(s):

Negotiating focus: Future concerns: Communication style:

Source: Lang 1993: 42.

Timely project implementation and worker performance Leader or technical specialist Technical specifications

Project implementation precise and quantitative

Patrons, parties, and partisan loyalty

Satisfying superiors, avoiding criticism


Engineers

46

Indices


The former is based on the notion of a relatively homogenous cultural entity; the latter can be characterized by antagonistic and inconsistent cultural patterns. The concept of objective and subjective culture, respectively, is another way of expressing the same issue. Culture is objective because it is constituted by objectively observable criteria such as language, religion, ethnicity, etc. and culture is subjective because it rests upon political will. Both sides are important for the provision of identity by nation-states. It should be noted, however, that the question of which community (e.g., civilization according to Huntington, transnational region, nation, sub/national unit, etc.) is a reasonable referent for ‘culture’ has not been easy to answer (Zartman 1993: 19). In fact, research has so far concentrated on national negotiation styles (cf. the case studies in Faure and Rubin 1993; Schecter 1998; Berton, Kimura and Zartman 1999; Solomon 1999; Blaker, Giarra and Vogel 2002; Smyser 2003). However, subcultures below the national level are important. These comprise ethnic minorities as well as the already mentioned organization-bound professional or corporate cultures (Lang 1993; Faure 1999). Finally, negotiators are bound by certain directives that are closely connected with national political and economic interests. The governmental system of a country, the influence of interest groups, the ‘political season’ (e.g., election campaigns) and the importance accorded to public opinion all come to bear on this aspect. Whereas the extent to which some leeway or room to manoeuvre is left to the negotiators and exploited by them is related to cultural and personal factors, the negotiation process as a whole, as well as the strategy of the parties, remains under the influence of political interest and those opportunities for action which have been availed of. This is why Lang (1993: 43) warns against interpreting any behavior from the opposite side that does not make sense at first glance simply as ‘culturally determined’. In summary, culture is of significance at four levels: (1) Etiquette: whereas in the eighteenth and nineteenth centuries, French diplomacy, together with French manners and the French language, set the standard (Kremenyuk 1991: 50), today a global negotiation culture competes with national and regional traits as well as with functionally differentiated subcultures. Etiquette as a perhaps epiphenomenal (Zartman 1993) component serves, first, to create a pleasant working atmosphere and the avoidance of misunderstandings. During the process, it enables undisrupted concentration on the actual contents of the negotiations. Although embracing

48


and cheek-kissing by no means go beyond the bounds of the polite in Latin America and southern Europe, these practices seem strange and even impertinent to East Asians, who prefer bowing as a means of polite introduction. Another frequent cause of confusion is the fact that Japanese signal attention by nodding, and politely reply to questions that they wish to answer negatively with nodding and ‘yes’ – unless they use ‘Western’ manners (Berton 1999: 107–8). Therefore, negotiators should heed the recommendation of informing themselves about differences in etiquette and then respecting them. Furthermore, it is helpful to acquire at least a basic knowledge of the other party’s culture (i.e., its language, history, and civilization). During successful meetings, negotiation partners should feel disparaged neither by arrogance nor by ignorance. (2) Perceptions: the perception of the problem and the assessment of available options are also influenced by a negotiator’s culture (Faure 1999: 19). Here, it does not so much matter whether perceptions can be inter-subjectively proven (if they are ‘true to reality’) or not. Even the question of which kind of outcome is desirable, tolerable or unacceptable depends not only on interests, but also on the cultural backdrop. The perception of one’s own and the other side’s position is, for instance, linked with image, reputation, stereotypes and historical experiences: e.g., the way that China has projected its experiences with Britain in the nineteenth century, which were perceived as humiliating, onto the United States as the hegemonic power of the late twentieth and the beginning of the twenty-first century, is a factor in China’s negotiating behaviour toward the United States (Berton 1999: 95–6). Table 4.2 lists some assumed qualities and peculiarities of Japanese, North American and Latin American negotiators. One should note, however, that the points mentioned are not intended as empirically valid statements on ‘national characters’. Rather, they give some indication of the images which guide our views of others to some degree. (3) Communication: by interpreters or by way of a common official language – does not remove all barriers between negotiators. The participants’ value orientations and the specific manners which typify their official functions have a bearing on their communication behavior to a certain extent. In this context, a distinction has been proposed between the rather ‘explicit’ low-context communication, emphasizing the superficial level of meaning (e.g., among Germans, Scandinavians, North Americans, French and British) and the rather ‘implicit’ high context-communication tending toward

Table 4.2:

Comparison of assumed cultural characteristics: Japan, North America, and Latin America

Civilization Assumption

Japanese

North American

Latin American

(1) Emotions

• Strong reference to values, which have to remain hidden

• Abundant values • Values present in explosive negotiations

(2) Power relations

• Subtle power games • Search for reconciliation

(3) Decision-making

• Decisions are made collectively • Face has to be saved • Decisions are made merely to avoid someone’s embarrassment

• Weak reference to values • They should be ‘left outside’ upon entering the negotiation room • Permanent use of power relations. One looks rather for confl ict than for reconciliation – it is ones duty to be strong • Groups prepare the work of the decision-maker • Decisions are made on the basis of assumed advantages/ costs • Face-saving is not the most important thing • Whether right or wrong, always demonstrative; • No personal commitment • Perpetual clinging to concrete issues

(5) Beliefs

• Not very demonstrative, remains calm if in the right • Keen on respect and patience • Modesty and restraint are very important

• Decisions are made by delegated individuals • One has to save face at any price; honour and dignity depend upon it

• Passionately impulsive; • Easily carried away; • Loves excited discussions


(4) Social behaviour

• Continuous use of power relations; • Attempt to be considerably stronger than the others

50


the use of timing, rhetoric and symbolic gestures (e.g., among southern Europeans, Arabs, Chinese and Japanese) (Hall, 1976). Communication channels such as the use of eye contact and body language, but also the connotations of personal space, are employed differently throughout the world. Furthermore, the importance given to non-verbal communication varies, too (Berton, 1999: 106–10). It is useful to observe these differences, especially if it is expected that the tendency towards international standardization is not particularly marked among the respective negotiation partners. (4) Identity: Guy Olivier Faure (1999: 27) refers to identity as ‘the untouchable core of negotiations’. The negotiation process can be seriously hampered if the construction of identity is brought into the process, particularly if this is to be accomplished by one party disassociating itself the other or attempting to win a symbolic ‘victory’. This entails mutual depreciation, which provokes misunderstandings, stirs up resentments and leads in the worst case to the breakdown of the whole process and/or to the aggravation of the confl ict. Such constellations can develop in highly ideologized negotiations, for instance over the issue of ‘territorial integrity’ or ‘national independence’ (as in the case of France’s negotiations with the Algerian liberation movement FLN in Melun in 1960, or in the negotiations between the northern and southern Sudanese about the Jonglei Canal and the distribution of Nile water in the 1970s). Problems also arise if the issue to be negotiated is understood as an inseparable component of identity-constituting symbols. Examples for this are mainly to be found in political negotiations (e.g., the question of Jerusalem), but also now and then in the economic field (e.g., the protection of Japanese rice). However, given that identity is a dynamic concept which can undergo change, the actors’ behaviour is of great importance. In practice, an approach which deliberately employs culture defensively as a ‘fortress’ or offensively as a ‘weapon’ should be avoided. Rather, the attempt of creating synergy by referring to common values and interests can help raise the blockade and mitigate exclusivist concepts of identity (Salacuse 1993: 202–6; Faure 1999: 28). 4.1.1 Examples taken from cases demonstrating Japanese and German negotiating styles Japan Since the end of the Second World War and because of Japan’s economic importance, Japanese negotiating behaviour has become a topic


of research (cf. Blaker, Giarra and Vogel 2002). The dividing line between actually observed characteristics and free interpretations and projections is not easy to draw. On the part of the Japanese, many results put forward by negotiation research are met with scepticism or even indignation, as they are perceived as clichés. However, there are also Japanese scientists who insist on fundamental differences between Japanese and US-American or simply ‘Western’ culture (Blaker 1999: 33–7; Berton 1999: 105). In the opinion of some researchers, Japanese culture is characterized by a dynamic tension between harmonious cooperation and a classical ‘warrior ethic’ (cf. Faure 1999: 15–16). Consequently, a static concept of Japanese culture soon reaches its limits. Ruth Benedict (1946) first classified Japan as a so-called ‘shame culture’ as opposed to Western ‘guilt culture’. Other pillars of Japanese culture are, according to Berton, ‘Japanism’ (nihonkyo) and the emphasis on group orientation rather than individualism. This also entails a marked degree of social hierarchy, which can be traced, for instance, in the Japanese language and the appreciation of accommodation. The expressions wa (harmony), tatemae (civil formality), amae (the readiness to rely and presume on those people’s benevolence one depends on) and the ethics of awase (the ideal of adapting to the environment) are frequently cited in analyses of Japanese society (Cohen 1993: 28; Berton 1999: 99–100). The consequences for negotiation style, following from these norms, are as follows (Berton 1999: 100; Blaker 1999: 34; Faure 1999: 20): (a) A holistic understanding of the agenda (b) The thorough fathoming of the situation (c) The avoidance of direct unambiguous utterances; negligible openness (d) A generally great need for time for the elaboration of offers and decision-making (e) The preference for a defensive, adaptable strategy. In the eyes of many Japanese, Japan is a vulnerable country suffering from a scarcity of resources, geographical isolation and a dependency on the United States as regards to security policy. Diplomacy and negotiations (especially with the United States) are of twofold quality – on the one hand, inevitable and desirable, on the other hand, full of risks and burdened with negative historical experiences (Blaker 2002: 66–7). The study of Japanese behaviour in the face of US demands for the liberalization of the Japanese market for American rice in the Uruguay

52


Round in 1993 offers the opportunity to test the cultural thesis. Rice as a highly commutated national symbol was considered a nonnegotiable taboo both among politicians and the majority of the Japanese public. Michael Blaker (1999; 2002) concludes that the Japanese negotiation strategy was determined by the following characteristics: • ‘Opening of the game’ and main agenda-setting left to the American side; • Adoption of a defensive approach by Japan, adapting to the other side’s initiatives; • Time-consuming elaboration of counter proposals; • Delaying and stalling technique; • Issue avoidance; • Issue minimization; • Concessions resulting from sensitivity towards economic pressure and the fear of international isolation. Blaker sees the causes for these strategies as arising, to a large extent, from the Japanese political system. In a ‘consensus democracy’, the accommodation of different interests presented by political parties and pressure groups from the economic sector is of great importance. The slow pace and low levels of flexibility in the Japanese delegation can be explained by the constant checking, feedback and fine-tuning processes that take place between the delegates and the relevant actors at home. Moreover, the cabinet members and government officials in the above example attempted to make the ‘circumstances’ responsible for the concessions that were made. On the whole, the Japanese behaviour mirrored the public’s fi xation on the rice topic, especially as it was represented in the media. The central importance of this natural product is intertwined with Japanese culture. But the adaptation to national peculiarities appears less to be the consequence of a specific worldview than to be the pursuit of elected representatives’ political interests. Nobody wanted to risk his or her re-election. In fact, it seems that culture influenced mainly the issue substance during the negotiations and did not so much predetermine the style of negotiation (cf. also Salacuse 1993: 200). The style can be understood if placed in the context of the political framework of Japan.11 Blaker’s analysis shows that cultural factors subtly interact with hard politics. Therefore, knowing the other party, in the sense of possessing cultural competence, is very useful. However, the sensitivity


for culture should not preclude a comprehensive understanding of the political process which is going on in the background of every round of negotiations. Germany William Richard Smyser has studied German negotiation behaviour, taking into account historical experiences, intellectual traditions and the peculiarities of the political system in West Germany and unified Germany, respectively. History has left Germany with an ambiguous legacy. Smyser (2003: 31–55) lists the following characteristics: (1) A historically derived preference for the horizontal and vertical division of competences (hence federalism). (2) A marked appreciation of diplomatic relations (the basis of modern multilateralism) as a consequence of the coexistence of petty states and principalities within the Holy Roman Empire (until 1806). (3) The clear rejection of the military option in the pursuit of national interests, the discarding of any form of unilateralism and a deep belief in alliances, as a result of the experiences under Kaiser Wilhelm II and, above all, the Nazi reign of terror. Three goals or guidelines of West German/German negotiation behaviour can be discerned for the period from the Second World War until the early 1990s: (1) Rehabilitation and an honourable place for Germany. (2) Security and stability. (3) Reliable associations and a sense of community. Since reunification and Germany’s deepened (and also military) integration into international multilateral projects, the question of rehabilitation has lost ground in favour of the problem of so-called ‘normalcy’ (Normalität). Germany no longer wishes to be associated with past crimes, but to be measured instead according to current political performance (Smyser 2003: 192). With regard to intellectual factors, Smyser emphasizes the influence of German philosophy, especially German idealism: logical deduction prevails over inductive proceeding; furthermore, a Hegelian dialectic is reflected in the readiness of German negotiators to interpret opposing positions as complementary and not as irreconcilable. The peculiarities of the German political system exert a marked influence, as well. In international negotiations, the negotiators are

54


accountable to the Foreign Ministry and other relevant federal ministries. Because of the Chancellor’s right to determine general policy guidelines (Richtlinienkompetenz), the Chancellor’s department, the Kanzleramt, plays a leading role in foreign policy, and may even operate without notifying the Foreign Ministry. The principle of federalism makes this structure of competing competences even more complicated. If the concerns of federal states are impinged upon by international negotiations, they also gain the right to participate. For instance, the combined representations of the German federal states to the EU in Brussels command a larger staff than the German central government. German delegations are often very big. This is because all the relevant actors demand direct participation or procure, at least, a good observation position. The result is the mutual ‘observation’ of the individual participants. American negotiators recognize a tendency of elaborate, even tiresome, presentations. These obviously serve the aim of giving the actors the opportunity to distinguish themselves in front of their clientele (Smyser 2003: 84). However, the coordination of such large delegations is enabled by way of a clear-cut distribution of functions. The way in which Germany prepares for the negotiation process is connected to Germany’s role in the international community. In particular, the attention paid to assessing world politics and the interests of other states distinguishes the German proceedings from US – American negotiation behaviour. The latter is highly characterized by confidence in the capacity of other states’ to adapt. In contrast, the thorough analysis of the attitudes other governments have expressed, performed by the German ministerial bureaucracy, often appears surprising to the negotiation partners: ‘They [the Germans] knew the facts of our situation and what we might want better than we did ourselves’. Thus answer many diplomats interviewed by Smyser. He describes German negotiating behavior as follows (Smyser 2003: 58–85): (1) Conceptual logic: German claims are presented within the framework of a comprehensive concept, known as the Gesamtkonzept, which is shaped by the main interests and is often structured with a general formula or point lists. Each issue on the agenda logically refers to the Gesamtkonzept. Details and fi xed expressions are of high importance, which is something that often seems pedantic and provokes bewilderment on the part of the negotiation partners. The attempt to push one’s interests is likely to be based on claim that the whole argument is reasonable and consistent. American


negotiators tend to perceive this as a propensity toward ‘schoolmasterly lecturing’. German negotiations often appear to Americans as overwhelmingly structured. (2) Insistence and tenacity: usually, German delegations do not negotiate in order to reach any agreement or to win time. Rather, talks are held within a precise time plan and remain closely connected to the Gesamtkonzept. Smyser views the negotiators as demonstrating a goal-oriented mode of presentation and a preference for concise, unambiguous wording. (3) Compromises in the framework of logical drafts: the readiness to make compromises also characterizes German negotiators. The extensive consideration of the interests of others opens up space for concessions. This reflects the German interest in international cooperation. The unilateral imposition of interests is viewed as neither practicable, nor desirable. However, concessions are rarely made in isolation from the overall concept. Aside from this, the close contact between the negotiators and the politicians on whose behalf they act, as well as the federal net of institutions, results in a high demand for time, especially when positions are to be modified. While the German proceedings guarantee a reliable implementation of results, it demonstrates clear disadvantages when spontaneity and flexibility are required (Smyser 2003: 81–97). (4) The use of economic resources and advantages: whereas Germany cannot possibly reinforce diplomatic claims with recourse to military means, the country has a powerful economy at its disposal, which can be turned into an effective foreign policy instrument. The Hallstein doctrine, for instance, which aimed at avoiding the international recognition of the GDR, was strengthened in Third World countries, by granting or withholding German economic aid. The negotiations with the USSR, undertaken in the context of Chancellor Willy Brandt’s policies of détente, were accompanied by loans and the supply of important manufactured goods to the Soviet Union. Germany’s participation in the founding of the G-5 (today G-8) made it possible for the country to expand its political importance significantly (Smyser 2003: 179–81). With regard to etiquette, Germans, unlike Americans, are believed to be rather uptight and formal: ‘Germans are formal even when they are informal’. American observers note, for instance, that the use of emotions tends to be judged negatively and interpreted as weakness by Germans. Signalling closeness by banter and backslapping, which is


common in the United States, also appears strange and inappropriate to Germans (Smyser 2003: 202–9). Smyser can be criticized for overemphasizing intellectual factors. It might be asked whether professional profiles do not have greater influence than he mentions. Today, the dominance of career diplomats, the majority of whom are trained lawyers, is probably of more significance than German idealism. By contrast, in the United States, a much higher proportion of State Department staff are replaced with each change of government. The new officials perceive themselves as political actors, even though many of them have a law degree, too. But through their activities they become more accustomed to the principles of political acting than the comparatively ‘technocratic’ career diplomats (cf. Table 4.1). An indication of the dynamic processes within German culture is given by the analysis of business negotiations. Smyser has found a change in the negotiating style. Upholding to the principles of the comprehensive concept and thorough planning, considerably increased flexibility is also evident. German business negotiators employing this new style take higher risks and present a tough and direct agenda to express their interests. The old preference for the logical-argumentative exposition of clear-cut positions cedes to a more tactical bargaining method in which demands and concessions are more freely exchanged. Moreover, manners become more casual, especially in the software sector. These developments in the economic sphere are not particularly surprising: here, the close link to a complex structure of institutions with its feedback and consultation processes is lacking. Apart from that, the business negotiators come from a different professional background than the Foreign Ministry staff. As Smyser further explains, today’s managers, unlike actors in the ‘classical’ German corporate culture, are more and more interested in ready sales, quick access to top wages and international significance. On the whole, however, Smyser forecasts the continuity of the old style. Although the numerous changes in international institutions (e.g., NATO, EU) promote the increased flexibility of German negotiating behavior, various crises in the new economy have put a dampener on the new style. A broader expansion into the other political fields therefore seems rather improbable (Smyser 2003: 145–95). In any case, German negotiating behavior will be influenced by the country’s international position (relations with the United States, standing in the EU, economic development). It is safe to say that the interest in multilateralism and stability will persevere for the time to


come. But it is conceivable that the cautious and considerate style that characterized, for example, the proceedings during reunification, will be viewed as less and less necessary by the future negotiators and shapers of foreign policy. The impact of cultural patterns, historical learning processes, political institutions and interests, as well as professional peculiarities, gives rise to tense relations which make any prognosis difficult.

4.2 Different national cultures and styles Europe is shaped by national cultures. The multicultural ensemble affects the European cultural landscape. In the context of negotiations, the intercultural comparison of the different European countries and their negotiation partners therefore plays an important role. Such differences are demonstrated below in examples dealing with various topics. 4.2.1 Three discourses on nation-building The area of politics and society that emerged during the process of European nation- building displays different characteristics depending on the varying influence of rationality, will and justice. These terms affected the philosophical and political discourse at the time of the Enlightenment and led to economic modernization and national movements within the European states at the beginning of the nineteenth century. Rationality as a leitmotif of the Enlightenment should free a human being from the ‘immaturity of one’s own making’ (Kant). During the French revolution, the masses entered history as a new actor with a political will and became the central actor in national movements. This link of an enlightened bourgeoisie to a new political consciousness and will led to economic mobilization within the nation states. The third dimension of justice gave modernization certain legitimacy. Equal opportunities became the slogan of the American founding fathers. Rationality modernizes, will mobilizes and justice equalizes. According to the combination and weight of the three corners of a triangle made up of these three elements, one can distinguish three different social systems. The combination of modernizing rationality and mobilizing will determined the process of modernization on the Continent and influenced the action of state elites within the framework of the nation state. This type of society can be labelled statecentric and was constituted in France.

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The combination of mobilizing will and equalizing justice, however, led to the concept of a people’s community (Volksgemeinschaft) and corresponded to the idea of a people’s nation (Volksnation) with the masses as a new actor, as was the case in Germany. Finally, the combination of modernizing rationality and equalizing justice led to a civil society with intermediate actors as new and impelling actors, its centre being in the United Kingdom. Thus, in each of these three countries, a different political culture emerged with state-centrism in France, community-orientation in Germany and civil society in England. As a fourth variation, one can characterize the Italian social system as being settled close to the roots of society and similar to the German ‘public community’, but without the same understanding of nation. The Italian nation is, according to Ernesto Galli (1998): ‘molto politica e poco stato, molta ideologia e poca cultura dello Stato’ (a lot of politics and little in the way of state, a lot of ideology and little in the way of state culture) – an observation that Goethe had already made during his stay in Italy. The Italians have ‘den sonderbarsten Provinzial- und Stadteifer, können sich nicht leiden, die Stände sind in ewigem Streit und das alles mit immer lebhafterer gegenwärtiger Leidenschaft’ (. . . the most peculiar enthusiasm for provinces and cities, cannot stand each other, estates are constantly quarrelling, and all this with a lively passion).

modernization

rationality

civil society

state society nation

will

people, community

mobilization Figure 4.4: Different social systems Source: Adapted from Lapeyronnie, 1998: 229.

justice

equality


4.2.2 Language groups and intellectual style In today’s European Union, there exist at least three dominant cultural groups, and in future there will be at least four: the English speaking, the Latin or Roman, the German speaking and in future the Slavic language group. These language groups have their own distinctive intellectual styles: according to Johan Galtung (1983), the ‘AngloSaxon’ style tends towards debate and is rich in facts but sparse in theory; it is rich in formal language but poor in elegance; but maintains humour and intimate gestures. This style holds on to clarity and facts. The ‘Gallic’ style is characterized by elegance and the use of bon mots, ambiguities and allusions. In comparison, the ‘Teutonic’ style is characterized by deductive theory formation, beginning with premises and certain causative relationships, and ending with numerous conclusions. This style is known to be dry, pedantic and humourless. Theory formation takes the form of a pyramid with assumptions at the top followed by numerous deductions below (Galtung, 1983, 203). More national styles can be added to these, such as the Homeric style of the Greek, and the performance style of the Spaniards or Italians with its many gestures. Naturally, these distinctions are typecasts and are probably oversimplified; but nonetheless, they still express character elements. In the day-to-day negotiations of the European Union theses characteristics are somewhat overshadowed by the professional style that developed in course of time within European bodies. 4.2.3 Political mobilization and protest Besides the attitude of citizens towards politics, the research on political culture examines participation in politics as well as protest behaviour. The political participation of individuals can be measured by membership and voluntary engagement in political organizations such as parties, Third World initiatives, human rights or environment organizations, peace movements, animal protection groups or unions, in addition to other work-related associations such as labour unions. Protest behaviour can be assessed by participation in protest movements (new social movements, labour movements, strikes, boycotts, demonstrations, or sit-ins). On the basis of an empirical examination in 14 European countries, three groups of countries can be distinguished: (1) the Northern or Scandinavian countries such as Sweden, Iceland, Denmark, Norway and, to a lesser degree, the Netherlands, with very high participation rates; (2) southern Spain, Portugal, Italy and to a lesser degree in France,

60


with lower rates; and (3) a third group of countries comprising Germany, Belgium, the United Kingdom, Austria and Ireland, displaying average participation rates. The political culture in these countries shows different forms of protest. While new social movements have high participation rates in Germany and the Netherlands, strikes are dominant in the United Kingdom, France and Spain. Violent action is more usual in France and in Spain than in the Netherlands, Germany and the United Kingdom. The results can, to some extent, be interpreted in the context of abovementioned social systems: the high participation rates in the northern European countries confirm their closeness to the concept of civil society, the low participation in southern European countries portends their (former) state-centric orientation, and the average participation rate in Germany can be seen as an indication of the development from a (former) state-centric, conjoint country to a civil society (Westernization), with high participation rates in social movements. With its low participation in social movements but greater involvement in demonstrations and strikes, France is a special variant of the statecentric system, where social demands often approach the bureaucracy through clientelistic channels. 4.2.4 The democratic deficit within the EU, as perceived by the United Kingdom, Germany and France Different understandings and perceptions of what is meant by democracy also determines the European discourse and by way of negotiating reforms of the political system they influence political decisions about constitutional matters. It is commonly held that the EU is lacking in a sufficient degree of legitimacy. There are in fact elections to the European Parliament, but voter turnout is low and national issues dominate the election campaigns. There is a widespread feeling that there is no such thing as a European citizen who expresses his will in the European context. Europe is (so far) not a nation where citizens make decisions about their destiny: the EU Parliament has only limited competences, representatives in the Council of Ministers have only national legitimacy, and only representatives of interests or parties participate in decision-making networks. As far as the deficit of legitimacy is concerned, three different positions can be identified, each of them related to the different traditions and cultures of France, Germany, and England. British criticism concerns itself with the absence of a system of representation in which representatives are accountable to their


constituency, and with the lack of responsibility in important European institutions, among others, the Commission. From the British point of view, no democracy can exist without responsibility and democratic accountability. The Commission and, to a lesser degree, the Council of Ministers and the European Parliament, are either not elected or not accountable to their constituencies. German constitutional lawyers refer to the absence of the basic element of the state, namely a Volk, or ‘people’. This points to the lack of coherence between a real existent democracy and a real existent European people. According to this view, so long as there is no European demos, a European state cannot exist. This means that any political community has to be based on a common or homogenous culture or that at least the will to live together must be evident. Others note that the existence of demos is not a precondition but may result as a consequence of nation or state building processes. Finally, French criticism of the democratic deficit is aimed at the nation-state itself. Europeanization means, for some, the vanishing of the political nation. It is exactly this danger that dominates the French debate since – for the French people – it is related to the ‘holy’ term of sovereignty. Sovereignty means the internal integration of the people and the external acknowledgment of its national existence. Two different positions on the limitation of sovereignty are evident: one opposes any transfer of competences to the Union so long as the Union is not clearly defined in political terms, and the other favours a gradual transfer of sovereignty at different levels until a clear power distribution has taken place. With regard to these three political cultures, a further distinction can be made between a Continental and an Atlantic variant. On the European continent, the political cultures of nation-states have placed an emphasis on institutions and plebiscite elements and have been more open to utopian, idealistic and visionary ideas in politics, whereas the Anglo-Saxon transatlantic style of politics is oriented towards process and pragmatic action. In these latter cultures, representative instead of plebiscite-oriented concepts prevailed. In this respect, Giovanni Sartori has distinguished between ‘rational’ and ‘empirical’ concepts of democracy. While the former is shaped more by abstraction and rational consistency, the latter is rather anti-dogmatic and formed by a ‘wait-and-see’ attitude. Popper’s ‘trial-and-error’ approach is an elaborated conception of the empirical approach, whereas the deductive consistency of Marxist theory is an expression of the rational approach. Sartori leaves no doubt that he prefers the flexibility of

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Anglo-Saxon thinking to the fragility of rationalist, often dogmatic thinking in politics. 4.2.5 The case of the nomination of the President of the European Central Bank The discussion over the nomination of the President of the European Central Bank (ECB) provides clear evidence of the different cultural patterns outlined above. The debate not only took the form of a personal duel between the German Chancellor and the French President, but also demonstrated the deeply rooted differences in the political cultures of the two countries. The choice of President was between Helmut Kohl’s candidate, the Dutch banker Wim Duisenberg, and Jacques Chirac’s favourite, the Frenchman Jean-Claude Trichet. The result, according to the official announcements that followed the consultations on 5 May 1998, is the following: Duisenberg was more or less forced to announce that he intended not to remain in office for the full term, but to leave office earlier for health reasons. He would be replaced by Trichet, who would then remain in office for the full term of eight years. How can this ‘compromise’ be explained? One answer can be traced back to the different political cultures of Germany and France. Both countries clung to their understanding of political culture, and to their obsessions and priorities. As already mentioned, the nation and its political elites – and therefore personal representation – are very important to France. The nation, ‘une et indivisible’, stands in the tradition of monarchic and/or republican sovereignty and is a symbol of self-identity. A French candidate would emphasize the importance of the French nation. However, as a consequence of historical experience, Germany focuses on currency stability, which it attempts to achieve with the help of clearly defined competences, rules and procedures for the European Central Bank. For this, autonomy and independence are indispensable prerequisites. Besides these different appraisals of institutions and persons, there also exist differences in priorities. While in French politics people have priority over institutions, the German political culture gives a higher priority to institutional arrangements. Institutions stay, people change – as one could summarize the German concept. In French politics, even constitutions can be adapted to the personal style of a politician. De Gaulle shaped the Fifth Republic to fit with his personal ambitions and also later, at other points in time, the constitution was changed if politics demanded it.


Additionally, both countries pursue different aims in their economic policies. While the Germans act on the assumption that the ECB, like the Bundesbank in Frankfurt, should be autonomous and independent, the French consider monetary policy to be an integral part of a comprehensive economic policy. For this reason they made the suggestion of supplementing the ECB with an economic cabinet. This suggestion, which also enjoyed support from other countries, came close to the reality of the Bundesbank, which, in the past, had also had to adopt its policy with respect to governmental policies (such as unification and revaluation). Thus, in practice, both the French and German positions converged at the end. This case therefore demonstrates that differences in political culture – with, for example, respect to different appraisals and priorities of institutions and persons – can explain a recruiting decision like the one of the ECB president. 4.2.6 Core terms in the European discourse Problems of communication between European politicians also arise from the fact that central terms and concepts used in the three main language groups have different meanings. In order to demonstrate this fact, I have consulted not the technical literature but instead encyclopedias.12 Process of politics: federalism, subsidiarity, democracy, and government The meaning of federalism13 differs according to the Anglo-Saxon and German conceptions. Countries with federal structures define their system as a differentiated multi-level system with separate competences between the different levels of local, state, regional or central governments. In doing so, ‘the superior power has no more governmental competences than is necessary for the interest of the whole’. In the English or Romanic languages, the word ‘federal’ or ‘fédéral’ means, in a domestic sense, the transfer of certain powers to a central government, and, in a foreign policy sense, an ‘unité internationale distincte’ which is superior to the single state. The related term of subsidiarity14 also differs in meaning. It is defined in Article 5 of the Treaty of the European Communities: ‘In areas that do not fall within its exclusive competence, the Community shall take action, in accordance to the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can


therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.’ This definition corresponds to the tradition of Catholic social ethics as ‘assistance insofar as the strength to save one’s existence and to fulfi ll one’s duties does not suffice’. It is significant that neither the English nor the French encyclopedia offers a definition of subsidiarity. There exist many meanings and forms of democracy,15 but all have ‘the people’ as their starting point. The English meaning differs from the continental one. On the Continent, the concept is dominated by ‘a form of sovereignty where the power is with the people’ or where ‘le peuple exerce la souveraineté’, which is distinct from the ‘government by the people, usually through elected representatives’ in the United Kingdom and the United States. The idea of a direct, ideal or radical democracy has its roots on the continent, whereas the idea of elected and responsible representatives comes close to the English understanding of democracy. Even the word ‘government’16 has different meanings on both sides of the English Channel and the Atlantic Ocean. The English term ‘government’ means an ‘established system of administering state affairs’ or ‘persons entrusted with the affairs of the state’. On the Continent, government refers mainly to the executive state organs or to ‘ceux qui gouvernent un État’. Thus, within the English language the word has a much wider meaning. Culture, civilization The dividing line with respect to the term culture17 does not lie between continents or overseas but rather between the English and Roman language groups on the one hand and the Germanic language group on the other hand. An often cited but somewhat outdated definition of culture was provided by Thomas Mann in 1914 in his Betrachtungen eines Unpolitischen, in which he wrote: ‘Der Unterschied von Geist und Politik enthält den von Kultur und Zivilisation, von Seele und Gesellschaft, von Freiheit und Stimmrecht, von Kunst und Literatur; und Deutschland das ist Kultur, Seele, Freiheit, Kunst und nicht Zivilisation, Gesellschaft, Stimmrecht, Literatur.’ For Mann, German culture is thus closely related to the spirit, the soul, to freedom and to art, as compared to civilization, which is associated with politics, society, the right to vote, and with literature. According to the German conception, culture is an inward-looking and creative activity ‘zur Entwicklung, Bereicherung und Veredelung des geistigen Lebens’ (‘for the development, enrichment and refinement of intellectual life’), whereas


civilization,18 especially under the influence of Oswald Spengler, is judged in pejorative terms. The Anglo-Saxon and Roman regions do not differentiate between culture and civilization; civilization includes both ‘highly developed technology and culture’. The narrower understanding of culture in German does not make sense in other languages. At the beginning of the twentieth century, the term civilization was used by German critics in a derogatory way to refer exclusively to the technical world of engineers, in contrast to the intellectual world. This distinction goes hand in hand with the two-cultures debate with its differentiation between the culture of humanities and that of the natural and engineering sciences. Nowadays, the terms culture and civilization are increasingly used as synonyms in German as well. Does or can a European culture of negotiation exists? Elements of a European cultural community, despite all the possible comprehension problems outlined above? European culture differs from the cultures of European nations or of American in certain respects. Europe’s history is one of political and cultural differences. Each country has its own national history and, as a result, different cultural, economic and political orientations. This diversity distinguishes Europe from the United States of America. So far, I have emphasized diversity and difference as a historical heritage and a particular characteristic of the European people. This raises the question of how the peoples of Europe can peacefully coexist or be brought into a situation where they are able to live in mutual harmony without compromising the particular characteristics of their different cultures. The examples of different cultures outlined above – which can be supplemented by further European examples – demonstrate how political cultures in different European countries can determine politics. Can there be a common European understanding of culture at all while such striking differences exist that do not ease communication? Five elements which play a key role in the fostering of a European political culture and identity can be mentioned, and include institutional as well as cultural factors: (1) the European heritage of common values, (2) national cultures which complement one another, (3) common institutions, (4) a common foreign und security policy, and finally, (5) a federal political system that combines diversity with unity (see Pfetsch 2001b). Herein lie the elements of an emergent European culture and identity as an important background for negotiation among Europeans. In order to support the development of these identity-creating elements, a

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European consciousness on the part of citizens is essential. Developing a sense of common understanding, engaging in common activities, acquiring the consciousness of a common history, and getting to know and understand one another’s cultures amounts to a mainly pedagogical task in which central importance needs to be given to language teaching. The national cultures of Europe can only be brought into resonance by providing opportunities for more encounters and greater contact – so that the cultural realm may inspire European politics with a European ‘soul’ (Delors).

5 The Instruments of Negotiation

One cannot use a hammer to teach a child how to play the piano. (K.W. Deutsch 1963) Negotiation techniques refer to the methods a negotiator has at his disposal or acquires during the negotiation process. Negotiation strategies or negotiation tactics refer to the structure of the process and the social relationships between the negotiating parties. What makes negotiating so flexible is the existence of a wide range of negotiation techniques. The term technique is used in a general sense and is not limited to instruments but rather includes strategies and tactics as well, that is, all of the methods which, when employed, affect the social relationship between negotiators. It is above all practitioners who have invented a wide range of such techniques, which serve to strengthen their own position and to weaken the other’s position. Admittedly, such strategies have not always, but in fact rarely led to success. The old Realpolitik did indeed hold that one’s own advantage could only be obtained at the expense of others. Yet today, in the times of cooperative politics, it is clear that this style of negotiation is unsuitable and that gains on both sides can be achieved. The mutual consideration shown by actors is an imperative of their own quest for advantage. The inventory of negotiation methods can, in the fi rst instance, be linked to elements of the negotiation process such as actors, issues, social relations, procedures and contexts; and can be utilized separately or in combination. Second, other typologies distinguish between distributive and integrative tactics or between confrontational and accommodative techniques. Third, other criteria refer to different power resources, for instance those included within the rubrics of coercive, structural and consensual power (Pfetsch 1995: 85). 67

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5.1 Typologies of negotiation techniques and resources The use of material and immaterial resources is of strategic importance for the purpose and the pursuit of interests. These resources cannot be separated from the above-mentioned structural conditions. Instruments of decision-making and techniques with which decisions can be influenced are: – – – – – – –

Use of power, influence and leadership capacity, Increase of consensual potential through coalitions, Setting of quotas and proportions, Enlargement or differentiation of subject matters, Exchange or linkage, Delay through submission to committees or ratification, Escape into generalizations or ideologization.

Power and influence based on resources can determine the outcome of negotiations in favour of their user. Unequal distributions of power result in rivalry between the different groups and are energy consuming. The power and influence of individuals or groups in an assembly are based on internal and external sources. Members of representative political assemblies rely on their power-base, that is, the voters, who determine the extent of their representation. The clientele of an assembly member is a limiting factor to his political ‘weight’, since not only the backing of his voters but also economic, ideological resources and reputation are important. Among the four sources of power identified by Crozier and Friedberg which are at the disposal of organizations, two can be described as external sources: control of the environment and control of information and communication channels. Internal sources comprise competence and the management of organizational rules (Crozier and Friedberg 1979: 50). A specific office and the person occupying it are the wielders of power from internal sources. Power resources may consist of pressure (in the form of threats, promises, blackmailing, or deception) from an external power or from a decisionmaker with an extremely strong power base that is brought to bear on a weaker partner or adversary. Such pressure can either force the finding of a solution or impede decision-making. The German-Italian sociologist Robert Michels (1989: 46) was among the first who attempted to identify the sources of leadership in organizations. He differentiated between technical-administrative, psycho-

Instruments of Negotiation 69

logical and intellectual sources. In its extreme form the system of elites and masses can lead to the ‘iron law of oligarchy’. The factors identified by the sociologist also play a role with regard to the presidents of the European Union. Every government which holds the presidency invests a great deal into the half-year term for the purpose of enhancing its own prestige and initiating and implementing political interests and visions. A skilful and strong President of the European Commission can also exert considerable influence over the development of the Union. Strong figures such as Hallstein and Delors have left their mark, whereas others have confi ned their actions to within the Council. Hence, the role of individual politicians with their skill, knowledge, visions, endurance, health conditions, etc. can certainly be of significance for the decision-making process. According to rational choice approaches, an actor is considered as a rational maximizer of his or her utility. The reality of decision-making in EU bodies with their multiplicity of actors and solutions does not correspond to this preconceived notion of rational utility. ‘Preferences are unstable and uncertain and the decision that something needs to be done often creates the preferences rather than vice versa’ (Peters 1994: 20). As already mentioned, negotiation instruments can be related to the different elements of the process, such as actors, issues or goods, and social and contextual determinants.

5.2 Actor-related resources19 Social-psychological experiments have shown that a group is not necessarily more decisive than an individual. On the contrary, the courage for venture has to be taken by a ‘born leader’ to activate a group (cf. Irle 1971). On conferences and meetings the leader of the negotiation (leader of discussion, president of parliament or conference, etc.) has an authority by office which should not be underestimated. He can influence the outcome by formal or informal diplomatic negotiations, meetings in the run-up of a conference, the deliverance of an opening speech, setting the agenda, calling for a meeting, termination of a session, setting the order of speakers, influencing the media, drafting the final documents and utilizing the code of practice (cf. Raven 1965: 371–82; Kaufmann 1968: 50, 76–9, 83–101). The aim of leading a conference to a successful ending implies diplomatic skills in the handling of the group members.

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An example of the possibility of exerting influence on the outcome of a conference by using the role of the host is Cuba, which organized the sixth Summit of the ‘Non-Aligned Movement’ in 1979. Despite vehement opposition, Fidel Castro managed to present the Soviet Union in the beginning as the ‘natural ally’ of the Third World, but failed to do so in the final statement. The catalogue of negotiation skills for a chairperson includes: • • • • • • • • •

• •

flexibility; interpersonal sensitivity (empathy); creativity in finding solutions; patience, perseverance, ‘drilling through thick boards’ (M. Weber); making offers and searching for mutual gains; having access to information not available to the negotiation partner; having the edge in terms of information can be advantageous; drawing attention to rules, laws, procedures, that is, making a shift from politics to law; insisting on demands upon which the other can never agree; delaying the negotiation in the expectation of a better negotiation position; leaving questions open, deferring or suspending negotiations; use pressure and/or threats through military, economic or political means; mediation.

5.2.1 Principled negotiation (Harvard Negotiation Project) With the well known ‘getting to yes’ model of principled negotiation, a new conceptual approach in the person-to-person relationship has been presented by Roger Fisher, William Ury and Bruce Patton. Five golden rules of behaviour determine successful negotiations in the private as well as in the public sphere: fi rst, personal and positional bargaining should be separated; otherwise arguing over positions produces unwise agreements, endangers an ongoing relationship, and is inefficient; second, negotiations should focus on interests and not on positions such as rigid ideologies or fi xed values; third, all parties should benefit from the options chosen and should receive mutual gains; fourth, objective criteria, that is, market value, scientific and/or professional judgements, fair standards and procedures should be introduced, and fifth, in the event that negotiation is not possible, the best alternative should be developed.


Golden rules of principled negotiation20 (1) Separate the people from the problem keep the personal separate from the objective. (2) Focus on interests and not on positions. (3) Invent options for mutual gain. (4) Insist on using objective criteria. (5) Develop your ‘best alternative to a negotiated agreement’ (BATNA). This concept is immediately clear and has been tried out in many experiments. I see its limits in its somewhat idealistic approach, which does not necessarily permit its application in every political context (see Chapter 7). If the decision-making process runs the risk of ending up in deadlock or of not attaining the desired outcome, or if the climate of the negotiations is charged, a suspension or a delay, an adjournment or a out source into committees could take place as a way of gaining time, providing and processing more information, cooling down the atmosphere, etc. One way of offsetting inconsistent interests can be by making reference to a more detailed law which is quite often the case in constitutional negotiations. Reporting the details as being regulated by law in some cases expresses a lack of ability or will to make decisions. 5.2.2 Shuttle diplomacy In international negotiations, particularly in those with a global dimension, the entire context has to be considered and analyzed. An example is offered by the shuttle diplomacy employed by the American national security adviser Henry Kissinger after the Yom Kippur war between Israel and Egypt in 1973. He permanently shuttled between Aswan and Jerusalem and explained the respective position of each side to the opposing side. Thus he tried to bring the standpoints closer to one another in a successive process. The keeping out of the second superpower, the USSR, was a strategic goal in itself. The war finally was settled by ceasefire and the disengagement of troops. According to Henry Kissinger, he concentrated on the following negotiation techniques: – Division of conflict issues into negotiable and non-negotiable topics; – Each party had to informed about the interests of the other; – Each party should submit its proposals;

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– Threat and pressure; – Pressing for concessions; – Offering economic and military aid. This kind of shuttle diplomacy was also practised on other occasions (Vietnam, the USSR, and China; see Starkey et al. 1999: 57). The choice of means was largely influenced by the political interests of the mediators – the other superpower should be kept out, as should the Palestinians, whose interests were non-negotiable. Kissinger was able to play on the dominant role of the United States, adjust the negotiations to suit his own personality and therefore demand concessions from both sides. The shuttle diplomacy was successful, the removal of troops was achieved, and the foundation was laid for later negotiations between Israel and Egypt (Camp David, 1979). The USSR remained without influence on the conflict solution and the United States, as mediator, remained proactive. 5.2.3 Brainstorming Bertram Spector calls a process, which supports new or different attitudes and views ‘creative heuristics’. This includes thinking in analogies, whereby new views of the problem emerge; role reversal, which allows the perception of the other’s interests; and brainstorming, which makes the discovery of new or other ideas possible. It is mainly the thinking and drawing of conclusions in analogies that permit creativity in different forms – direct analogy transfers and analyses the problem in a totally different context; imagined analogy projects the problem onto an ideal situation; personal analogy makes use of personal identification with a certain problem; symbolic analogy combines the problem with an image. Furthermore, there exists the process of casebased reasoning, which compares a conflict with all other known cases in order to get ideas for the handling of the new case. This process is executed by a computer-based mathematical algorithm, which recognizes the greatest possible similarities between the cases.21

5.3 Issue-related resources With regard to issues, negotiation techniques refer to a single issue as well as to the connection of issues. 5.3.1 Extension or differentiation of the issues Solutions can be attained by extension or differentiation of issues in such a way that consensus may be reached by addition or change – or


single parts are separated from the package to be agreed upon or to be discarded separately. The references to ‘vital interests’ in the Luxembourg compromise of the EC or to ‘essentials’ in the American Berlin policy serve as examples. Common means of differentiation consist of splitting an undefined issue, such as oil or wages, into its components (oil: quantity, quality, kind) or adding further components (wages, additional wage costs) so as to reach a solution, for example, fixing prices or improvements in wages. The politics performed by OPEC demonstrate how an organization can preserve its unity through the differentiation of quantities and prices of crude oil over many years. The reaction of the organization to increasing internal frictions has been the definition of target prices instead of fi xed prices, which leaves the single members with a certain scope for negotiation. Following problems with target prices, the cartel tried to fi x prices with temporal scaling and by differentiating between prices and quantities with respect to quality. When these provisions could not be met by all members, an impartial control commission was supposed to monitor compliance with price agreements and extraction quotas. These and similar means of differentiation make it possible to maintain the principle of unanimity. As frictions became too strong, the organization switched de facto over to the majority principle; however, such decisions are not binding, which means that single members were under no obligation to comply. This was the only way to demonstrate unity. 5.3.2 Reconciliation of interests An important insight in successful negotiations stresses the necessity to make interests explicit so that different interests can be observed and negotiators can act accordingly. Many negotiations fail because one negotiator does not know the others’ interests or because he assumes that the other knows his interests. The identification and clarification of issues and interests belong, among other strategies of communication, formulation and manipulation, to the instruments that may lead to the successful conclusion of a negotiation process. By making interests explicit might help identify compatible and not exclusive wishes. In many cases, ostensibly opposing interests do not rule out each other. Important is the insight that overlapping interests with respect to one issue can be met without impinging on the desires of the negotiators. Placing the emphasis on compatible interests is an important way of coming to a solution. A well-known example that of the orange. Two sisters are fighting over an orange. There is only one orange and both

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of them want it. During the argument it becomes clear that one girl wants to make an orange cake and only needs the peel. The other girl wants to make orange juice and only needs the flesh. Both wishes can be fulfilled without either side giving up anything. The demands are compatible. Another way of leading negotiations to success is by breaking down complex matters and aiming at partial solutions. This has been the approach which has been applied to deal with the most complex conflict of today: the Middle East conflict, which consists of numerous single conflicts. This complex of conflicts has been divided into individual relations between Israel and its neighbours, that is, the relationships with Egypt and Jordan, Israel and Syria and the Palestinians. For the time being, the former two have been regulated, but not normalized. Relations with Syria, Lebanon and the Palestinians remain tense. Further means by which acceptable settlements of opposing interests can be promoted are exchange and linkage. In the United States, logrolling, as a type of exchange, is a technique of grouping together specific singular interests that would otherwise not be acceptable to a majority (see Breyer 1981). An older strategy of conflict regulation is the coupling of two issues and/or offices; this was a tradition in the multiethnic Habsburg empire; in today’s Republic of Austria it was possible to exchange the foreign ministry post for an increase in milk prices. In the Federal Republic of Germany, the NATO double-track resolution can be seen as a rather peculiar variant of an assumed coupling. Linkage techniques are rather common in EU negotiations. Weber and Wiesmeth (1991) show how issue linkage can enhance cooperation, and give examples from the European Community, the Common Agricultural Policy, and the European Monetary System. The agreement of one particular country to a proposal from others can be linked to compensations in other fields. Especially peripheral countries such as Ireland, Portugal and Greece link their pro-European engagements to their share of the structural or cohesion funds. Another example is the negotiation of the single market, where vertical measures for particular products were linked to horizontal measures such as the right of establishment (see Wallace and Young in Wallace and Wallace, 2000: 150). A greater number of goods or conflicting issues facilitates compromises and the settlement of controversial issues. Multi-issues facilitate compromises. In general, economic goods are amenable to division, diversification and differentiation. Quantity and quality, price-cost relations, the time


factor and space, numbers, liabilities, etc., are opportunities for giveand-take, package deals, and substitutive and/or compensatory deals. Even in the case of indivisible goods, that is, a good ‘that cannot be split physically into parts and concerns that cannot be compromised on’ (Albin 1991: 47); there exist a number of compensatory and functional strategies with which a deadlock in negotiations can be overcome. Additional issues can be supplemented, and resource expansion can facilitate solutions. An example is the deal among the 12 member states over the site of the Central Bank for the European Union. When the decision was made about the Central Bank (which is now in Frankfurt), other European institutions, such as the European Environmental Agency (Copenhagen), Europol (The Hague), European Drugs Agency (London), etc., were included, and as a result, other countries got their share. Dealing with divisible goods facilitates a compromise. This is the case because, among other reasons, such goods are amenable to give-andtake and are not highly value charged. But even in the case of indivisibility and non-negotiable interests, that is, value-charged goods with symbolic meaning, there are ways of compromising through exchange and functional strategies. Cecilia Albin has shown that even in the case of the most sensitive issue, like, for example, the city of Jerusalem, there are political functions which can be taken on by Jews and Muslims through power sharing (Albin 1991: 45–76). Since most economic issues are multi-issue by nature, compromises can be reached even in fields such as agriculture. Jacques Delors presented the Single European Act ‘in large bunches’. Other new items had appeared on the agenda during the biannual meetings of the heads of the executives, since the host of each of these meetings wanted to have major initiatives adopted by his colleagues. It has been stated that one of the unique features of the EU is its openness towards a variety of issues and competing policies, a variety which seems surpass that found in national agendas (Peters 1994: 11–12). This diversity of issues is promoted by, among other things, the various commissioners in the Commission. Each of these has his own personal ambitions. Commissioners can use activism for reviving their political careers either on the national or on the European stage (Peters 1994: 14). The fragmentation of the Commission allows such room for manoeuvre since the borders of the Directorates-General (DGs) are not always clearly defined. Thus environmental policy falls within the competences of DG XI and the ‘Euro-Quango’ of the European Environmental Agency. But other DGs also have their say in this policy

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field, such as the DG XVI for regional affairs. The absence of adequate coordination mechanisms known in national governments, such as party alignments or inter-ministerial bodies leads on the one hand to more openness for policy initiatives; on the other hand, it makes the formation of a coherent governmental policy difficult. This lack of an ‘adolescent bureaucracy’ (Mazey and Richardson 1993), allows an advocate of an attractive issue not only to have the issue considered but also to have it considered in a particular format by a receptive DG. It is not only the differentiation of issues that facilitates negotiations, but also a particular characteristic of the EU. With the increase in numbers of participants in EU bodies, the number of issues increases as well. There are more issues to be negotiated than in national constituencies, hence there is an increase in negotiable issues at hand. 5.3.3 Setting quotas and proportions At least theoretically, institutionalized and informal forms of representation allow a proportional participation of the most important political and social forces (Lehmbruch 1967: 7; Nordlinger 1972: 22–4). The amount of votes in the European Council secures some sort of proportional representation of the member countries. In some cases, the setting of quotas and proportions can lead to stable decisions, although with limited success, either due to the tensions between heterogeneous groups or because the quota did not include all groups, or favored some. The idea of proportional representation finds its expression in a variety of forms in all EU institutions. The representation of all member states is reflected in the number of seats in the European Parliament, and these are approximately proportional to the size of the population; all member states are represented in the Commission (the larger countries have two seats) and the weighting of votes is introduced in the European Council in cases of qualified majority voting. In addition, all countries have one representative in the European Court of Justice. Further, the interest groups of the member countries are represented in the Social and Economic Committee. The Committee of Regions consists of representatives of states (Länder), regions, provinces or municipalities proportional to the size of the member countries. These modes of participation with proportional representation protect possible minority positions but nevertheless demonstrate a bias in favour of the smaller countries and – by way of a veto in cases of unanimity voting or of fi xed proportions – a quota for individual countries. Another form of quotas consists in fi xing a certain quantity or quality to commercial goods in the foreign trade. The agreement reached in


mid-1996 by the EU Ministers of Culture on a system of quotas on television productions is an example of that. The non-binding character and the exemption of new services of the accord reflect a compromise between the French-led supporters of tougher quotas and quota opponents led by the United Kingdom and Germany. 5.3.4 Exchange or package deals Further means to reach a settlement for conflicting interests are trading deals or the formation of package deals. Deals in the form of log-rolling are known in the United States as techniques of ‘alliances on selective individual interests that can not find a majority in another way’ (Lehmbruch 1967: 28). The combination of matters and/or offices is an old conflict resolution strategy, which especially has a tradition in the multi-ethnic Habsburg state. In today’s Republic of Austria, this can amount to exchanging the office of a minister in turn for an increase in milk prices (cf. Marin 1982: 79). In Germany, the 1982 NATO twintrack decision was a particularly limited alternative to the intended combination deal. 5.3.5 The allocation of emission quotas During the UN climate conference, the US delegation proposed an innovative method of allocation that consisted of dividing the subject of negotiation (emissions) between buyers and suppliers. Emissions quotas can be credited to countries that emit less than the norm and be sold to countries that produce above the norm. Such a trade of emissions by differentiation faced considerable resistance, as therefore the main producer, the United States, could buy off its obligations instead of reducing emissions. The majority of conference participants preferred the reduction of emissions in all countries.

5.4 Process-related resources: strategies, tactics 5.4.1 Delay During the process of decision-making, there is always the danger of missing the target, reaching a dead end, or encountering a tensionloaded atmosphere. In such cases, an adjournment or a transferal to committees is often necessary to cool down tempers, gain time, or update information. Another means of breaking a deadlock is through reference to subsequent regulating and executing laws. This often happens during negotiations over constitutional drafts or sets of rules that require further specifications in the future. This strategy could

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mean a way out of a deadlock where an unwillingness to decide prevails. Delays in the Community are often the result of a non-existent consensus over a particular policy field, for example, when Jacques Delors took office as President of the European Commission, he visited all of the capitals of the member states in order to discover possible fields of future action. As a result, he postponed foreign and security policies and concentrated on the Economic and Monetary Union as well as on financial issues (Delors plans I and II). The scheduling of a timetable is another form of delaying political programmes. A time schedule is on the one hand semi-binding on the actors and, on the other hand, provides opportunities to revise and modify policy plans according to changing conditions. Thus the schedule for the Currency Union, with its requirements and conditions for the transition phases, provides open delays or non-compliance. A similar pattern can be observed in the 1970s, when the Werner plan, which foresaw the realization of a monetary union for the 1970s and the 1980s, was not put into practice. 5.4.2 Escape into generalization and ideology The escape into non-binding generalizations or radical ideology is one way of avoiding a decision on a specific and concrete item. The issue to be decided upon can be packaged ideologically (sometimes called political or ‘blue-sky’ propositions). Seen from the actor’s perspective, the advantage of ideological catchwords is that they do not rule out anything concrete and therefore offer something to everyone in the wider ideological framework. In this way, problematic redistributions are avoided and a heterogeneous assembly can continue to operate and demonstrate its unity to the outside. The Non-Aligned Movement was to a large extent held together by the ideological slogans of antiimperialism, anti-colonialism, or anti-capitalism, etc. 5.4.3 Two-track setting ‘Two-track setting’ is a procedure during the course of negotiations which was applied in the nineties during the negotiations between Israelis and Palestinians. Negotiations were initiated by a third party – the Foreign Minister of Norway. He was able, on an unofficial level, to bring the conflicting parties into a common position on the Oslo Accords, which finally made the Wye River Agreement possible. This method therefore consists of the preparation of negotiations by nonparticipating parties and the seeking of solutions at the technical level of negotiation.


5.4.4 Reframing Whereas strategies and techniques of negotiations mainly focus on the means a negotiator has at his disposal, a solution can also be achieved by redefining the general conditions. Especially in cases of harsh contrast, the creation of new contexts can be a successful method. Confl ict issues which concern the holy principle of sovereignty and are therefore laden with values and emotionally charged, will be stubbornly defended, for example, the dispute over the possession of a city such as Danzig in the 1920s or Jerusalem today, or even territories such as Gibraltar’s Ape’s Den. Claims over sovereignty are not easily divisible and cannot be differentiated according to the negotiation techniques for economic goods. Two solutions seem possible: fi rst, the conflict issue can be taken away from conflicting parties and handed over to a third party, as was the case with Danzig after the First World War, when it became a territory administrated by the League of Nations. The second solution consists of deconstructing the conflict issue according to its functions and dividing it between the conflicting parties. Such suggestions have been made for the case of Jerusalem. Both Palestinians and Israelis claim rights over that city, as both groups live there and consider it as an important religious place. As a solution, it has been suggested that the city be evaluated on the basis of its functions and that different functions be handed over to different parties. Hence tasks of self-government might be managed by elected Israelian or Palestinian representatives or – if the occasion arises – even by both parties together (Albin 1997). Through the changing of position, reformulation, and varying attribution of importance, for example by introducing new goals, incorporating additional goods, or reformulating the problem, the perception of a negotiation issue can be changed. Reframing can facilitate the quest for a solution, as it moves away from the categories of right and wrong, just and unjust or gain and loss. This process has particularly good prospects in the case of a dispute over issues with high emotional significance and indivisibility, such as sovereignty-related issues in the cases of Danzig, Berlin or Jerusalem. 5.4.5 Changes in perspective A change in perspective means that negotiators go beyond their limited point of view and seek an alternative standpoint. Thus they can assume positions, which wouldn’t have been possible without a change in perspective. The final deliverance is not always found in negotiations. Could it be possible to achieve a better result without negotiation? The

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decision not to negotiate can be a better strategy with which to maintain or strengthen a position. Even warfare or the threat of reprisal can be a better alternative to negotiation. The ‘Best Alternative to Negotiated Agreement’ (BATNA) is a frequently cited example (Fisher, Ury and Patton 1997: 143). The question of whether negotiations should take place under all circumstances can be asked in the case of Rogue States. Should one negotiate with tyrannical rulers such as Hitler, Stalin, Saddam Hussein or Miloševic´? The authors of Getting to Yes answer this question in the affirmative. Former Israeli Foreign Minister Abba Eban proclaimed that national leaders have an obligation towards their political clientele to negotiate with the most abominable rogues as early and directly as possible, in order to achieve pragmatic compromises (Washington Post: 9 September 1994). There is, however, also opposition to this point of view. In the literature on negotiation theory, factors such as turning points (Druckman 1986), ripeness (Zartman 1989; 1991) or creativity (Spector 1993) can cause parties to initiate negotiations. Experiences in international negotiations provide arguments to support both points of view. The Munich Agreement was negotiated with Hitler, yet not with future enemy states before and during the Second World War. Several agreements were negotiated with Milošovic´. President George W. Bush refused to negotiate with Saddam Hussein after he had been built up to be a tyrannical leader or ‘evil empire’. George Bush Sr did not want to risk a Munich-like appeasement policy that would make him appear weak to dictators. Numerous attempts at mediation were undertaken before the recapturing of Kuwait. Americans bargained with Kim Il Sung through a mediator, but directly after the Lockerbie attack not with Gaddafi. The United States also negotiated with the military government in Haiti about the return of the elected and overthrown president Aristide and the resignation of the military from power. The opinion on whether negotiations should take place or not, can change over time. Radical movements such as the Irish Republican Army (IRA), the Palestinian Liberation Organization (PLO), the Basque underground movement Euzkadi ta Azkatasuna (ETA) and the African National Congress (ANC) were initially (and are in some cases still today) referred to as terrorist organizations. At fi rst, no one was willing to enter into negotiations with them. This attitude finally changed over time. Such reconsideration represents a great challenge to the relevant government. It has to attempt to explain such a shift to its people and thereby takes a great risk. Negotiating with former enemies or adversaries considered as evil has cost some politicians their lives. The Egyptian


President Anwar al Sadat and the Israelian Prime Minister Rabin were murdered by opponents of their policies of settlement. 5.4.6 The negotiation formula A further solution-oriented concept is the so-called ‘formula’, which should first create a broader framework or a platform for subsequent negotiations (see also Chapter 1.4). Formulas are the best common denominator upon which conflicting parties can reach agreement before they concretize details in further negotiation rounds. Elaborating and agreeing upon such formulas already represents an important result in itself, as it demonstrates the willingness of confl icting parties to negotiate further. ‘Land for security’ or ‘land for peace’ are formulas, which were applied in the Israeli–Palestinian conflict and were meant to serve as a basis for negotiations between Israel and its Arabian neighbours. ‘No independence before African majority government’ was a slogan circulated before the unilateral independence declaration of Rhodesia in order obstruct the quest for compromises. Often, however, it is only formulation upon which negotiators can agree. The concept of reciprocity, for example, played an important role in the negotiations on the Helsinki process. By reciprocity, the Western countries understood ‘equivalent advantages and obligations’. The Eastern countries perceived that term as discrimination. Then the United States proposed ‘mutually acceptable balance’ as a compromise formula. The EC favoured the formulation ‘equal balance’ and Switzerland ‘reciprocal advantages and obligations’. Finally, none of these formulas were accepted. The ‘two plus four’ formula concerning the German reunification process set the frame for the negotiations on the ‘treaty on the fi nal agreement concerning Germany’ (Two plus Four Treaty). These negotiations are a symbol of the modern art of negotiation in an atmosphere of detent international relations. It is well known that these negotiations led to an agreement that took into consideration the interests of every important participant and concerned party. Negotiations were carried out in different bodies and at various levels, both bilaterally and multilaterally, which shows that in an iterative process, a settlement of different interests could be achieved. The ‘Ten-Point Plan’ for a confederation of the two German states, drawn up by Chancellor Helmut Kohl, soon became obsolete and even outmoded by events taking place in the German Democratic Republic (GDR). The agreement on the ‘two plus four formula’ itself represents an important and creative negotiation result. Prior to that, proposals ranged from

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negotiations carried out by the four victorious powers without German participation to a conference involving each of the more than 50 countries involved in the Second World War. Finally the proposition of Dennis Ross, head of the political planning staff in the US State Department, prevailed against the resistance of the European section in the State Department and the National Security Council (Pond 1992). The initial resistance of Mikhail Gorbachev against the membership of a unified Germany within NATO and the insistence by, above all, the United States and the United Kingdom on Germany remaining part of the western alliance and integrative system of NATO and the European Community, finally led, after offers of return favours, to Gorbachev’s acceptance. Thus several particularities can be identified in this case of creative negotiations: acting at the right moment by releasing the ‘Ten-Point Plan’ just before the summit of the super powers in Malta, that is, taking advantage of the opportunity (Machiavelli’s ‘occasione’) at which the ‘cloak of fate’ (‘Mantel des Schicksals’: Bismarck) can be seized; a feel for constantly changing political circumstances on all sides and a flexible reaction to them; the quest for consensus in all important bodies and personal contact among the persons involved.22 5.4.7 The one- or two-text procedure The One-text procedure represents an approved method in negotiations, incorporating the help of a third party. This method has to be applied by a third party, which tries to commit confl icting parties to just one document. As opposed to the two-text procedure, it has the advantage that conflicting parties do not cling to their respective positions – as would be the case with the two-text procedure – but from the beginning are obliged to reconcile different positions in an iterative process. There is a danger of conflicting parties becoming prisoners of their own positions, and thereby blocking creative solutions. The one-text procedure tackles the problem by allowing a third party to take up the respective interests and seek to harmonize them step by step. The Camp David Agreement between Israel and Egypt, which was arranged by President Carter, represents the best known example of this method. At the President’s county home, within the time span of only 13 days, 23 draft treaties were worked out by American facilitators. Israelis and Egyptians corrected one draft after another until no further improvement was possible. Further issues-related negotiation techniques include the expansion of the issues under dispute, differentiation, log-rolling, linkage, etc.


5.4.8 The shadow of the future Last, but not least, the solution of a decision-making process can refer to a future matter or a current topic. Negotiations among coalition partners over future government participation or electoral campaigns require the will to compromise. Instead of short-term gains, negotiators may prefer a long-term benefit. Gains in the long run may incur shortterm costs. Many decisions within EU bodies can be viewed from this perspective. It could be that an actor agrees with a party because he wants the other’s consent in future negotiations. It could also be that the vision of a future Europe directs the actions of its members. In the case of the EU, it has been shown that the institutionalization and stabilization of communication channels and decision-making rules increases the efficiency of negotiations (improved information flow, reduction of transaction costs, higher predictability of negotiations, community spirit). The question of whether negotiated decisions can be sanctioned can be answered in the affi rmative in the case of the EU. The principles and regulations concerning deviation guarantee at least a minimum implementation of the results. In addition, it has become clear that the voting modus has a decisive influence on negotiating behaviour. Whereas the supranational institutions of the EU which apply qualified majority voting act more dynamically, develop a stronger European community spirit and find more creative solutions, those institutions insisting on the principle of consensus tend to preserve their assets and the status quo (Pfetsch 1999: 304–5). 5.4.9 External conditions 5.4.9.1 Rules of decision-making Negotiation and decision-making are closely linked to each other. The negotiation process usually starts well before the situation is ripe for a decision can be taken. Nevertheless the decision-making rules can influence the negotiation process. In an institutional setting negotiators take into consideration the rules for decision-making. Decisions by open consensus put less pressure on the negotiators than decisions taken by majority or unanimity voting. Thus, the rules of decisionmaking influence the negotiation behavior in such a way that negotiations that have to lead to a decision are less free in their deliberations. In the case of voting, the numeric voting power does not always dominate in a system of majority voting. Alongside pure voting power, other considerations in the political environment may determine


voting behaviour as well, such as future expectations (obligations towards an external/foreign power, future coalitions, maneuverability of future governments, estimates on future voting behaviour, etc.). Future expectations play an important role in EU decision-making. The securing of support for future actions has often been a consideration for compromise in present action. The prospect of preventing military quarrels among European countries in the future was an important unifier and has so far determined the will of European, especially French and German, politicians to develop interdependent structures. Also, the vision of the future can guide negotiators in their actions. A driving force for the development of the European Community has always been the will to achieve an integrated ensemble of states. In addition, the often quoted ‘shadow of the future’ (Axelrod 1984) is a way acquainting negotiators with each other, and thus, by forming an esprit de corps, decisions are made through customary arrangements. In assemblies of high basic consensus, majority-rule in decision-making is a common practice. In highly heterogeneous assemblies, unanimous decisionmaking is preferred. The necessity of deciding unanimously (even unwillingly) increases with the heterogeneity of the assembly. Unanimity as a rule of decision-making gives each member of an assembly a veto position and in this way preserves the member’s interests. On the contrary, majority voting gives an assembly the right to reach decisions against members. Therefore, if an assembly accepts majority voting, this is a sign of greater consensus and a basic common denominator. In the EC discussions in the 1960s, the six members were not yet prepared to accept qualified majority voting in the Council of Ministers; the Luxembourg Compromise (1966) indicated a lack of basic understanding. The same unwillingness can be observed in the Security Council in the UN. The consensus minus one formula that was later introduced can be seen as a step towards enabling decision-making in cases against the member’s own interests. The importance of this hypothesis is shown in the discussion over whether to proceed from unanimity to majority voting in the EU Council. The reluctance of some of the member states to introduce majority voting on issues of high politics shows that these countries are not yet prepared to give up their veto position; this is at the same time a cause and a sign of heterogeneity in the EU. The internal costs of the negotiation process rise when decision-making rules approach unanimity; the external costs will decrease.


The rule of unanimity demands more time and effort to produce outcomes than majority voting. The longstanding negotiations in the different GATT rounds or the SALT negotiations show the difficulties in reaching agreements under conditions of unanimity. The GATT agreements lasted for the agreed-upon period; the SALT I and II agreements were finalized only after revisions and modifications. Countries that favour majority voting do so – among other reasons – in order to secure effectiveness and efficiency. In some instances, a quick reaction is necessary especially in crisis situations. The rule of unanimity supports outcomes that are oriented towards the status quo, because a redistribution of the (unchanged) decision issue would disadvantage at least one party. The difficulties in reaching consensus by all participants often reduce the field of alternatives to the smallest possible common denominator. The risk of change is usually higher than it is for maintaining the status quo and therefore parties can either avoid decisions or propose blue-sky formulas (Bacharach and Baratz 1963; Fraenkel 1968: 66). Therefore, the tendency to produce conservative decisions prevails if everybody has to agree and nobody loses against his own will. In the same way, the UN Security Council rarely made decisions against a member state when it was involved in a given crisis. Usually, in the fields of high politics, the status quo is preserved, and as a result, vital interests are guaranteed and disadvantages to one of the member states avoided. 5.4.9.2 Binding and non-binding agreements Binding decisions affect the content (substance) and rules of the decision-process. The more binding decisions are, the more they tend to be pragmatic and bundled together; non-binding decisions are more radical and emphasize extreme positions. The non-binding nature of decisions leaves the decision-maker with less responsibility for the implementation of the decisions taken. Therefore, radical positions can serve as a means of integrating parties on a common platform vis-à-vis an adversary (Rothstein 1979). Binding decisions force the parties to search for positions which permit their implementation at a later stage. Decisions taken by the Council of Ministers in Brussels can serve as examples of the latter, the voting in the General Assembly of the UN as examples of the former. The binding nature of decisions is the distinguishing feature of the EU compared to other international

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organizations. Since EU ‘regulations’ are binding in their totality, ‘directives’ in their goals, and ‘decisions’ in individual cases, pragmatism prevails and radical positions do not stand a chance. Only if a member government wants to avoid a decision, might it use a radical proposal and then veto it. Three forms of exercising power can be discerned. Negotiators may apply coercive means, means of structural power or consensual power. 5.4.10 Linking instruments to power resources Table 5.1 lists various instruments and strategies of conflict management according to the three power resources of coercive, structural, and consensual power. The adequacy of instruments must be determined by the degree of severity of the conflict under consideration. The negotiation cycle (see Figure 1.3) indicates which instruments can be used in order to achieve the goal of escalation or de-escalation of conflict development. What is the understanding of the three forms of power? Coercive power stems from physical or material strength, which can be calculated in terms of the abovementioned indicators of a country’s potential. An unequal distribution of these indicators clearly determines an asymmetric relationship. Coercive power takes advantage of existing and/or perceived unequal distributions of potential, and manifests itself in the form of threat, pressure, sanctions or the exertion of force. In his attempt to classify the complex reality of power, Boulding (1990: 25–7) distinguishes between the power to command or enforce, that is, ‘hard’ power, and the power to induce cooperation, to legitimize, to inspire or to persuade, that is, ‘soft’ power. He refers to the former as a ‘threat power’, which originates when A says to B ‘You do something I want or I will do something you do not want’. Threat entails different responses from B: submission when B does what A demands; defiance when B says to A ‘I will not do what you want’; counter threat when B does something nasty to A if A does something nasty to B; or fight. Threat power gives rise to the capacity to destroy a relationship. More promising for Boulding is the exchange power associated with bargaining, with the compromising approach, and with integrative power associated with transformative long-term problemsolving (Miall, Ramsbotham and Woodhouse 2000: 10). Structural power stems from the distribution of economic potential between collectivities and/or persons. Both symmetric and asymmetric relations are possible, depending on the equal or unequal distribution of economic resources and capacities. The instruments used range from

Instruments of Negotiation 87 Table 5.1: resources

Modalities of conflict management linking instruments to

Resources Coercive power

Instruments/strategies Force

Pressure

Structural power

Non-decision

Authoritative decision Consensual power

Actor resources

Joint resources

Procedural resources

Issue related resources

Fait accompli, repression, intervention, threat (actual), provocation, force, blockade, sanctions, war Diplomatic, economic, fi nancial, propaganda, threat (announced), offering sticks without carrots, suspension coexistence, status quo, modus vivendi, non-intervention, undecided, armistice, ceasefi re Authoritative decision of international courts, UN resolutions, conventions, decision, arbitration Skills, knowledge of issues and procedures, intuition, leadership, offering carrots and sticks, information, public statements, public mobilization, increase in number of demands, offer of fake solutions, mediation, perseverance, robust health, eloquence, mastery of language, tactics, assessment of future gains, use of media, analytical abilities, knowledge of persons and cultures, persuasion, credibility, ambition, intelligence, energy, persistence, gambling Coalition-building, formation of alliances, joint actions, dividing of opponents, seeking options to advantages of all, face-saving, concessions, compensation Rules, regulations, agenda-setting, reference to international norms, playing on time and space, establishing quotas, proportional representation, leading by example, keeping people and problems apart, creating new rules (depersonalization) Package deal, linkage, differentiation, extension, switching to ideology or catch-all formulas, gratification, shifting positions or techniques, compromise, increase in number of demands, development of alternatives

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those employed by monopoles or oligopoles in the market, who have the power to dictate prices up to those of individual buyers and sellers in a competitive market situation. Structural power is, so to speak, embedded in the economic potential put on the table by the negotiating parties. Consensual power, ideally describes more or less symmetric relationships between negotiating partners since they are based on voluntary agreements and consensus between the negotiators. The means of achieving such a power base are deliberations, persuasion, discourse, charisma, authority, but also populism, appeal or demagogy, etc. These three power resources can be subdivided into further categories: coercive power can take the use of force or pressure; structural power is inherent in authoritative decisions as well as in non-decisions; consensual power results from various forms of resources such as actor and issue related, or joint or procedural resources. The three dimensions of power and their related instruments require further discussion. The possessive and structural approaches appear all too easy, since their values possess the seductive characteristic of being able to be measured quantitatively, notwithstanding problems related to information and calculation. The potential approach of concentrating on material achievements also neglects achievements in other domains such as culture, sports, science, etc. The reputation of a nation results as much from such values as it does from economic or military resources. The so-called North–South dialogue, for example, is, on the part of the South, primarily determined by political and ideological factors including charismatic leadership. On the part of the North, economic factors are the determining resources (Pfetsch and Kaiser 1981).

6 The Role of Power in Negotiations

Sans les forces, la négociation est à l’ordinaire un outil sans tranchant, qui ne fait point d’effet; sans la négociation, la force est un instrument trop éffilé et trop dur, qui se casse entre les mains de celui qui l’employe – Without power, negotiation remains a blunt and ineffective tool; without negotiation, power is too hard an instrument that shatters in the hands of those who use it. (de Félice 1778) There are two characteristics that distinguish political negotiations from non-political negotiations: on the one hand the aspect of public discourse, which includes a broad range of interests, and on the other the aspect of power. Power and influence are categories that can integrate different interests. Crozier and Friedberg distinguish between four types of power resources in organizations: the power to control the environment and the control of information and communication, which are external power resources; and personal competencies and knowledge of administrative procedures, which are internal resources (Crozier and Friedberg 1979: 50). Given that in modern times international economic and political negotiations take place in organizations and assemblies with a multitude of participants, the distinction between external and internal resources makes sense. Such organizational capabilities play a role within the framework of the European Union, for example. The half-yearly rotation of the president gives the respective country the chance, with help of power resources, to influence the agenda and the negotiation procedures. The president of the EU Commission also has the opportunity – especially when coming from a strong country, as has been the case with Hallstein or Delors – to influence integration policy in line with his own views. Personal 89

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capabilities such as knowledge, intelligence, vision, endurance, health, etc., may help as well. In politics, the non-verbal representation of power should not be neglected. Dictators – or great figures in history – have always understood the necessity of demonstrating power to the outside world at all times. One historical example is that of the illustrations in the Bayeux Tapestry, dated to the eleventh century (see Figure 6.1). A scene is shown depicting William, the Count of Normandy, and Harold, a relative of the King of England. Harold was supposed to inform William, that Edward the Confessor, the King of England, had appointed him as his successor. Due to adverse wind conditions, Harold’s delegation disembarked not in Normandy, but on the territory of Count Guy de Ponthieu, who captured Harold. William was informed of the incident and forced his release. Now negotiations could begin between William and Harold, for William needed Harold to fight against the Duke of Brittany, who had declared war against William. The negotiations resulted in William giving Harold his daughter’s hand in marriage. After the victorious battle, William knighted Harold. When Harold returned to England, King Edward was dead and Harold crowned himself the King of England. William was informed of this by a spy and ordered the invasion of the island. In the battle of Hastings, Harold was defeated and William became the King of England. The illustration on the carpet shows the Duke of Normandy negotiating with Harold. The Duke is sitting on something like a throne, assisted by a counsellor, and Harold is shown with his fighters in the background. This scene illustrates the power relationship between political sovereignty and military force.

Figure 6.1: Representation of power on the Bayeux Tapestry

Role of Power Negotiations 91

6.1 The three dimensions of power Power is present in all political negotiations. Power determines the relationship between the negotiating parties, which can be described as symmetric or asymmetric. But how are we to understand symmetry and asymmetry in negotiation relationships? What is the particular meaning and function of such relations and how do they change in content during the different phases of the negotiation process? In what way do such relations influence the result of negotiations? What constitutes power and what are the foundations upon which power is based? What are the important aspects of power? There are at least three dimensions of power, which can be expressed in the following statements: power is a possession, power is a relationship and power is relational (see Friedrich 1963: 159–70). Let us discuss one after the other. The power as a possession approach stems from Thomas Hobbes, the power as a relationship approach from John Locke and the power as a relational quantity approach from Karl W. Deutsch. Thus power has three dimensions: one that results from resources, the other from social and political relations and the third from the relative position a negotiator occupies compared to the others. All three dimensions exist on the basis of the perceptions of politicians and interpretations by scholars. The Hobbesian school of thought bases its understanding of power on resources, possessions, or potential, three notions that can be used interchangeably (Hobbes 1962: Ch.10). In international political and economic relations, power as a possessive value is distributed unequally, there is and always has been a stronger party and a hierarchy of power, be it bipolar, as during the cold war, or polycentric, as after the end of the East–West conflict. Power is mostly measured in terms of economic resources and military capacity (Pfetsch 1995: 82). Some authors, such as Morgenthau, add population, national character, national moral, diplomatic skills and the quality of the governmental machinery (Morgenthau 1993: 124–79). Others add climate, topography, schooling or demographic factors. In economics, indicators such as gross national product (GNP), per capita income, the size of the market and its purchasing power, the share of world trade, the contribution to international organizations, natural resources, human capital (skilled labour), infrastructure, etc. constitute the most important potential upon which negotiators can rely. In military conflicts, the contenders evaluate relative strength in terms of military expenditures, military personnel,


armaments, and the will to use such capabilities. Political and social indicators include the type and the efficiency of government, elite–mass relations, income distribution and social welfare. Finally, psychological factors refer to the mindset of nations, that is, to the motivation, will and energy to become involved. These factors – and perhaps others – run through the minds of negotiators when they enter into negotiations with their counterparts from other countries. Depending on their relative capacities, they can play on these power resources and transform them into positive outcomes for their country. The Locke school of thinking understands power as being primarily determined by the relations between political actors. Power can be defined as the capacity of politicians, groups or states to cause others to act in accordance with the will of the powerful. Without this intervention, the other party would not have acted. Power is a relation, not an agent (Locke 1954). Power exists only in relation to another person. If there is no other person upon whom power can be exerted, power simply does not exist. Robert Dahl’s conception of power expresses relations between two individuals ‘A’ and ‘a’ with the specification that ‘A’ gets ‘a’ to do something he would not otherwise have done (Dahl 1957: 204), or, in more operational terms: the power of individual ‘A’ over individual ‘a’ (as the respondent) with respect to action x by using the measure M is equal to the probability by which ‘a’ undertakes x if ‘A’ uses the measure M minus the probability by which ‘a’ undertakes x if ‘A’ does not use the measure M. (Dahl 1957: 203–9). In other words power is the result of a comparison of the actions of two actors with or without the intervention of one specific actor. In negotiations, a lot depends on how the negotiators view each other’s power relations, based upon the potential both actors can draw upon. It is not so much the absolute power that counts, but the power in relation to the negotiating party. During times of nuclear threat, one bomb would have been sufficient to cause incalculable damage. But the spiral of nuclear armament was driven by the perceived discrepancy of power arsenals existing between adversaries. The Deutsch school of thought adds the relativity of power to the possession-related and relational characteristics of power. The amount of power one party possesses depends on the amount of power another party has. It is not the absolute power that counts but the power one party has relative to the other. As Deutsch has argued and shown, high power capacities do not always result in pay-offs in politics; only comparatively more power (as perceived by others) and the adequate use of power resources pays off (Deutsch 1963). The use of a hammer


is certainly not an adequate way of teaching somebody to play the piano. The excess capacity of destructive material held by both superpowers during the East–West conflict had detrimental effects upon one of the combatants: the ever-increasing gap between economy and military finally led to the implosion of the Soviet Union. The competition between the two superpowers could have taken place at a much lower level. An adequate dose of power is what counts; the adequacy of power instruments provides the necessary effect. The same holds true for negotiation relations. The satisfaction of interests, which guide the negotiation process, is largely influenced by perception of the opponent’s satisfaction. Since interests are, most of the time, not totally fi xed at the beginning of the negotiation process, a modus vivendi depends to a large extent on the satisfaction of the negotiating partner. Only in relation of one party to the other can satisfaction be determined. The example of Algeria illustrates the connection between structures and perceptions. During the Algerian War of Independence (1954–62), the Charles de Gaulle Government negotiated with the liberation movement, Front de Libération Nationale (FNL) about the disassociation of Algeria from the French Republic. The issues of ceasefire treaties and the future economic and political relations between the ex-colony and the former colonial motherland were on the agenda during the negotiations of Les Rousses (January/February 1962) and Evian (March 1962). (Albertini 1966; Buron 1965; Münchhausen 1977; Pickles 1963). In terms of positions of power, measured according to the dimension of possession or relation, France was certainly in a more powerful position than the FLN. On one side, there was a state that was recognized internationally and had an effective industrial economy, a modern army, and a democratic system with a professional corps of politicians and diplomats. On the other side, there was a movement representing a peasant population that was not able to rely on an effective national infrastructure. The movement possessed a weak military apparatus and political leaders who either had no experience in negotiations, or were put into French prisons (for instance, Mohammed Ben Bella). Hence, the fact that the Algerian party achieved its goal and asserted its position in the face of the French opponent seems astonishing. If, however, one considers power in its relational dimension, which is linked to interests, mutual perceptions and the political context, the relationship between the conflicting parties appears both more complex and more balanced.


The French Government came to the conclusion that the independence of the colony was preferable as long as both sides would benefit. The French interest in gaining influence over the newly independent African nations strengthened their stance of holding on to flexible diplomacy and cooperation instead of the enforcement of interests (cf. Schütze 1966). Also, the question of the oil-rich Saharan provinces was considered as a crucial issue that would be better dealt with on the basis of economic agreements than unilateral political action. The FLN gained relative strength as a result of its recognition by the UN General Assembly. France, for its part, could no longer ignore the opinion of the international community. Besides this, the existing European minority in Algeria (mainly of French descent) increased the FLN’s pressure potential. All in all, France was not in a position to deploy its material superiority. Figure 6.4 illustrates these relations. Nevertheless, it makes sense to use the concept of power as a resource or performance activity, in order to locate a nation’s position in the international system. However, the potential approach, as William Habeeb emphasizes, is not an adequate approach for the analysis of power in international negotiations. Different forms of power are required depending on the issues being negotiated. The different power resources are not simply transferable and are not mutually exchangeable. Economic power may be important for certain negotiation issues, but inadequate for others. It is more important to consider resources and power as relational phenomena (Baldwin 1998: 139). According to Habeeb (1988: 13), it makes more sense to consider both the structural elements of power and the dynamic and behavioural dimensions of actors at the same time. With regard to the latter element, Habeeb means the parts of the negotiation process in which the actors deploy their skills and resources.

6.2 Symmetry and asymmetry We can begin with an apparent paradox. States are profoundly unequal with regard to the power they wield and their influence in world affairs, but they are equal before the law and in terms of their rights and obligations. Particularly the principle of one country-one vote supposedly equalizes all the members in international organizations. How can this unequal equality be explained and how can it be substantiated in international relations? One approach to the understanding of this paradox commences with a differentiation: in the political arena, the whole negotiation process


can be subdivided into five aspects. There is the perceived structural relationship between the negotiators on each side, evaluated as strong or weak, rich or poor etc. There is, second, the process of negotiation itself that shows the behaviour of the negotiators in their dealings with one another. A third category relates means and ends and asks about the adequacy of instruments used in order to achieve a desired end. A fourth aspect can be identified when a third party intervenes. Fifth, there is the outcome of the negotiation process. The perspective of symmetry or asymmetry can be found in different forms and at all stages of negotiation development. I examine two main hypotheses. First, that symmetry and asymmetry assume different forms during the negotiation process and second, that the result of the negotiation depends on the type of relationships that exist between the negotiation parties. I assume that symmetric relationships tend to be more stable than asymmetric ones (Deutsch 1973; Rubin and Brown 1975). However, the relation is not directly proportional. It is not correct to say that symmetric relationships are ‘better’ and asymmetric relationships are ‘worse’. The crucial question is whether the parties are satisfied with the negotiated outcome. This theoretical approach is based on the psychoanalytical concept of satisfaction. How do the negotiators feel about the arrangements reached? Are they subjectively satisfied or uncomfortable with the result? In one case or the other, the result will last for either a long or a short period, according to the external and internal framework within which the agreement was reached. To underline the interrelationship once again: solutions, which are based on voluntary agreement, have a good chance of enduring. It is highly advantageous if a symmetric relationship exists at the end of the negotiation process. The way in which the parties judge the negotiated outcome is crucial. Do they – subjectively – consider the negotiated results to be satisfactory, or not? The notion of symmetry and asymmetry has a different significance within different scientific disciplines. In the mathematical sense, symmetry means that participating parties enter into reversible relations. This means that changes relating to actor A provoke reactions in actor B and vice versa. In contrast, asymmetrical relationships describe a one-way connection, which means that changes relating to actor A cause reactions in actor B, but not the opposite way around. Actor B depends on actor A, but actor A does not depend on actor B. In the social sciences, this concept has to be considered in terms of resource configuration and from the perspective of benefit. Symmetric


relationships are characterized by a balanced mutual relationship, based on similar allocations of power resources. In this context, symmetric conflicts may be spoken of when the dispute takes place between coequal enemies. Symmetry is also relevant to integration projects. ‘Symmetry or economic equality of the units’ is for Joseph S. Nye the precondition for successful integration (Nye 1973: 204). In asymmetric relationships, actor A wins at the expense of actor B (zero sum). The unequal allocation of power resources can lead to a point where the most powerful party makes threats and exerts pressure. These kinds of relations can be found in imperial or imperialistic structures. Dependency characterizes the relationship between center and periphery. Asymmetry is a structure one can find among most social and political relations and in relations between unequal parties. Asymmetry is a relationship between the small and the great, the weak and the strong, and the rich and the poor. In international relations, the dependencia approach describes the clash between the North and the South as asymmetrical. In this regard, the constellation of centre and periphery describes the relations between the economically developed North and the economically underdeveloped South. The New International Economic Order (NIEO) begins with these assumptions. To describe these unequal and equal relations respectively, the basic category of power acts as intervening variable. This basic factor can be broken down into three dimensions. What is at stake when we talk about symmetry and asymmetry within negotiation relations? Why is it important to talk about such relationships? What is the specific meaning and function of such relations and how do they change in content during the different stages of the negotiation process? In what way do such relations influence the outcome of negotiations? These are the questions we want to address in this chapter. We want to inquire into the meaning and role of symmetry and asymmetry, their components, their constituent factors and the different forms they assume during the negotiation process. We ask questions about the relation between these structural and procedural factors and the form outcomes take. Are those results reached by symmetric relations more stable and those reached by asymmetric relations a consequence of revisions? According to common understanding, the terms symmetry and asymmetry possess value connotations and have value implications: stated in oversimplified but clear terms: symmetry is associated with harmony and harmony is positive. Asymmetry means discord and


discord is negative. Asymmetric relations are unjust and symmetric relations just. Does this common understanding withstand the test against reality as it can be observed in international negotiation relations?

6.3 The five manifestations23 of symmetry and asymmetry I aim to demonstrate how the underlying power relations change in form during the negotiation process. Whereas at the start of international negotiations, symmetry/asymmetry relates to the national potential each negotiating partner can count upon, during the negotiations symmetry/asymmetry is transformed into a process variable and at the final stage the terms refer to outcomes as comparative utility. In case a third party intervenes as a mediator a fourth form relates to equidistance between the third party and the confl icting parties. It can be assumed that the more relations become symmetric during the negotiation process the more they have the tendency to lead to stable outcome. The analytical model: Differentiating structure, instruments, processes, intervention and outcome In terms of the power structure, the actual existence and/or perception of symmetry or asymmetry prevails between the negotiation parties. In the international system, countries differ in size, resources, weight, wealth, status and power. Some are major trading powers endowed with economic resources, favourable geographic and geopolitical positions, skilled labour, etc. There exist ‘strong’ and ‘weak’ countries, measured mostly in terms of economic or military potential. Two opposite arguments are put forward regarding the effect of such asymmetric constellations on negotiations. On the one hand, it can be argued that the stronger party attempts to dominate the exchange and to reach favourable outcomes at the expense of the weaker. On the other hand, it can be argued that the weaker party is not at the mercy of the stronger, since an overarching goal is shared by both parties. In the following we find examples of both positions. In terms of instruments, symmetry and asymmetry relates to the ends– means relationship. The adequate use of means is demonstrated by the conflict-negations cycle where at each stage of conflict development the appropriate instruments of conflict management have to be chosen. Otherwise the goal of de-escalation or solution finding cn not be achieved.

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In terms of the process, symmetric and/or asymmetric relations are a perspective which prevails on both sides of the negotiating parties. The stronger party attempts to play out its strength to the benefit of its interests and the weaker party attempts to reach equal terms with the stronger party during the course of negotiations. There is a tendency during the negotiation process for the weaker party to reach functional equality in its negotiations with the stronger party. The weaker side attempts to compensate for its weakness through the ‘borrowing of power’ (Zartman 1997: 238), and the stronger party attempts to impose its will upon the weaker by using a take-it-or-leave-it or even a take-itor-suffer strategy. While the stronger party wants to play out its strength and, by doing so, play on the asymmetric relationship, the weaker wants to equalize its weakness, and thus negotiate on the basis of symmetry (see Figure 5.2). In terms of third-party intervention, in a majority of conflict resolution processes, a mediator or facilitator intervenes in order to help the negotiating parties out of a potential possible deadlock. In order to be accepted for such a role, the third party must be equally welcome to both negotiating parties, which means that he must assume a position of equidistance. Symmetric relationships between a mediator and the conflicting parties are a precondition for meditation and for the eventual successful management of a confl ict. In terms of the outcome, the weaker party wants to obtain his fair share at the end of negotiations, hence aims for and outcome of symmetric utility. Many authors have argued that power symmetry is a condition for negotiations to be mutually beneficial (Rubin and Brown 1975: 199; Pruitt and Lewis 1977: 185). This reasoning is based on the observation that economic goods in particular can easily be handled using a multitude of techniques which result in mutual gains (Jönnsson 1990: 38); often interests are compatible rather than exclusive. But what does mutual benefit, or equal or fair share in terms of utility actually mean?

Negotiation strategies

Asymmetric power relations

By the stronger

By the weaker

Take-it-or-leave-it Take-it-or-suffer

Borrowing-of-power strategy

Figure 6.2: Negotiation strategies in different power relations


The term has a great deal to do with the perception of what is right and wrong, fair and unfair, or satisfactory and unsatisfactory. It is a subjective evaluation measured according to the expectations of both parties. ‘Good’ negotiations between a strong and a weak negotiator are characterized by the bringing about of satisfactory wins to both parties; hence symmetric outcomes are measured in terms of utility. If the parties cannot not see a win perspective, negotiations will either not begin at all or will be prematurely terminated. If in asymmetric relations, the expected outcome is regarded as unfair by either party, then the disfavoured party refuses to agree, breaks off the negations and, if subject to force, will attempt further negotiation. It can be that an outcome is considered satisfactory under conditions of asymmetry. Figure 5.2 provides examples of the different combinations. The negotiations between the Soviet Union and the United States on arms reduction (SALT I and II; and Intermediate-Range Nuclear Forces Treaty (INF)) in the 1970s and the 1980s are examples of category A negotiations, namely those based on symmetric power relationships and equal (i.e., symmetric outcomes) that reinforce the status quo without any loss on either side. As far as category B negotiations are concerned, it is rather difficult to find examples of negotiations based on symmetric power relations which result in unequal outcomes. This proves to a certain extent the theory that symmetry goes hand-in-hand with equal outcomes. The case of rice negotiations may provide one exceptional example. In the negotiations during the Uruguay Round, Japan had to make concessions to the united front of the United States and the EU and open its rice market. The negotiations over the admission of smaller countries to the European Union or the negotiations between the German Government and the Soviet Union at the beginning of the 1970s with the ‘new Ostpolitik’ of Willy Brandt are examples of category C negotiations, that is, those based on asymmetric power structures and resulting in pay-offs for each party. Asymmetric power relations in terms of structural potentials are transformed into symmetric outcomes in terms of utility. Examples of category D negotiations, that is, those with unequal outcome shares and asymmetric power structures, are the negotiations between the North–South on environmental issues (UNCED) or the Munich Diktat of 1938 between the four powers Germany, Italy, France and the United Kingdom on the territorial division of Czechoslovakia, without the participation of the country concerned. The analytical model consists of the independent variable ‘power relations’ that determines the perception of the absolute or relative

100 Negotiating Political Conflicts Negotiation outcome Equal outcome shares

Unequal outcome shares

Power relations

Symmetric power structure

Asymmetric power structure

USA–USSR (SALT, INF), USA–EU (Blair House) A Small countries joining EU (Ireland, Portugal, Austria), German Ostpolitik agreements with USSR C

Japan–USA/EU (rice market in Uruguay Round) B

North–South negotiations on environment (UNCED) Munich 1938 (Germany – Czechoslovakia) D

Figure 6.3: Negotiation outcomes in relation to different power relations

power potential of each of the negotiators; these structures can be symmetrical or asymmetrical. In the case of asymmetrical relations, the weaker party attempts to compensate its weakness through the borrowing of power in course of the negotiation process, in order to keep up with the stronger party and, in doing so, achieve his fair share in the outcome. Power structures (whether real or perceived) form the underlying basic elements of the negotiating process and, to a certain extent, determine the final outcome. Depending on the agent–structure relations and the environmental conditions, the result of the negotiations is either satisfactory to the negotiating parties and has the prospect of stability, or the outcome allocates an unequal share to one of the parties and as a result may not prove durable. In the former case, the outcome can be referred to as the ‘solution’ and the latter as ‘preliminary results’ (see Chapter 12). 6.3.1 The first manifestation: symmetry/asymmetry as power of possession In political science, symmetry and asymmetry is, at first sight, closely related to material power relations. Symmetric relations are based on equal possessions and asymmetric relations on the unequal distribution of material power; the question of symmetry and asymmetry then comes down to the question of power and what constitutes equal or unequal power relations. Since power is the capacity to cause somebody to move in a direction he would not have chosen without the interference of somebody else (Dahl 1957: Habeeb 1988: 15; Pfetsch 1995: 85;


Zartman 1997: 230), power relations are by definition asymmetric since they express hierarchical relationships which can be found within every polity and between all states. Examples such as the international negotiations between the United States and Japan, the United States and Taiwan, the European Union and Turkey, the Soviet Union and Cuba or the economically developed North and the developing South, demonstrate asymmetry because of the discrepancy of resources and capabilities. However, negotiations between the United States and the USSR in the era of the cold war, between France and the UK and between Finland and Sweden are symmetric since on both sides the partners are almost equal when measured in terms of economic, military, social or psychological factors. 6.3.2 The second manifestations of symmetry/asymmetry as a process variable in the pursuit of equality The negotiation process develops over time and space. In international forums, especially in world conferences organized by the UN, the negotiation process is an evolutionary process of deliberations aimed at achieving consensus within the world community. Prior to the conclusion of the final conference, a multitude of preparatory conferences take place in various regional settings across the world (Pfetsch and Kaiser 1981). The bottom-up approach that characterizes such world conferences ensures the participation of a maximum of parties. The idea is also in line with the decentralization and regionalization of the UN system. The negotiation process goes through different stages and levels before it reaches the culminating point of a ‘resolution’ or the adoption of a ‘programme of action’. Many such consensus-driven arrangements require further follow-up conferences. The CSCE/OSCE case provides one example. Since 1975, when the Helsinki Act was signed, at least forty subsequent conferences have followed which have substantiated, specified or enlarged the agenda of the three so-called baskets agreed upon in Helsinki. During these negotiation processes, another form of symmetry/asymmetry becomes manifest: notwithstanding existing power discrepancies, the weaker party attempts to get on equal terms with the stronger party. In these negotiations, resources other than material ones play a role, such as actor-related resources, joint resources, procedural resources, and issue-related techniques. Actor-related resources involve noteworthy leadership skills, knowledge of negotiation techniques, perseverance, eloquence, mastering of language and tactics, intelligence, energy, credibility, etc. Under joint resources fall capacities such as

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coalition-building, joint actions by different actors, dissociating actors, the seeking of options which are beneficial to all, face-saving techniques, concessions, and compensation. Procedural resources are related to rules, regulations, agenda-setting, reference to international norms, playing on time and space, establishing quotas, serving as good examples, and creating new rules. Issue-related resources consist of package deals, linkages, differentiations, enlargement, switching to ideology or catch-all formulae, gratification, compromise, and the development of alternatives (see Chapter 5). With the help of these negotiation instruments, the weaker party attempts to find ways of challenging their stronger negotiating partners. One purposive action consists of reducing the vulnerability to a powerful parties’ veto. This approach is exemplified by the Uruguay Round of negotiations (Landau 1996). The United States had taken the initiative of starting the Uruguay Round of negotiations as it had done before. It certainly had the will and the power to steer the negotiations towards new issues which had not been covered by the GATT. The United States placed a great emphasis on trade in goods (agriculture, textiles) and on new issues (services, intellectual property or investment). They insisted that progress in those fields would ensure that the systemic concerns (greyarea and non-tariff measures) were addressed and would strengthen the GATT system. Indeed, the United States tried to dictate the agenda and impose solutions upon the group. It gained the support of the European Community and Japan, at first opposed to negotiations on services. On the opposite side, the developing countries were unequal in their needs (Zartman 1991a: 69). The developing countries were mostly preoccupied by the functioning of the GATT system. They insisted on a more stringent rules-based multilateral system. They were more concerned with consolidating the existing framework and feared that negotiating on new issues in the Uruguay Round would divert the negotiators from dealing with the unfinished business of the Tokyo Round in the areas of agriculture, textiles, and tariff escalation and safeguards. They shared some of the concerns of the industrialized countries over textiles and agriculture, but wanted the new issues to be addressed elsewhere. Thus they reduced the other party’s expectation that they would be able to monopolize the agenda and developed potential trade-offs. The weaker party, under the leadership of India and Brazil who represented the prevailing orthodoxy of the developing countries, put up substantial resistance, thereby obstructing the


launching of the negotiations. The main contenders contested what the game itself was about and strenuously resisted the inclusion of services in the negotiations. Nevertheless, power in terms of resources or capabilities is useful in providing an overall picture of a country’s position in the international system, but, as pointed out by Habeeb (1988: 18), less so in analyzing the role of power in international negotiations. Different power resources may be needed to deal with different issues. Power resources cannot be easily transferred. Economic capabilities may be relevant to one area and but not to another. More important is the treating of resources and power as relational phenomena (Baldwin 1998: 139). A useful way of conceptualizing power is, according to Habeeb (1988: 13), to include both the structural component of power as well as the dynamic or behavioural dimension of actors. By the latter Habeeb means the process by which actors manoeuvre and use their resources. Thus the shortcomings of these approaches are all too obvious: economic strength is not necessarily equal to political or military strength and the approach neglects immaterial resources that can not be easily measured. Postmodernist theories speak of the ‘evaporation’ of power, meaning that there are multiple centres of power in a multitude of institutions which form a network of relations. Also, the possession approach does not take into consideration past events and future perspectives. It is a fact that in international relations, past encounters between states and nations determine their relations at present. The memory of historic experiences influences the mutual perceptions of actors and, as a result, determines the policies of the present. Hence, power is not simply a structural condition or a quantifiable measure but actor related as well. It comes in many shapes and sizes. Firmness of belief or personality factors could compensate the lack of material resources. Ability and skill, which cannot be measured, are also sources of power (Zartman 1997: 228). They can cause the other side to move in a desired direction during negotiations (Albin 1999: 259). More promising is the tactical approach of power, which emphasizes the ‘active, manipulative quality of power relationships’ and stresses the tactical use of power (Bacharach and Lawler 1981: 46). It is not a static view of power, but a process of change. The focus is on the use and effectiveness of specific tactics, on the moves of the actors, who strive to maximize their interests in economic negotiations through bargaining behavior. Lockart (in Waelchli and Shah 1994: 137) speaks of ‘resourcefulness’ and ‘creative ingenuity’ as methods by which the weaker party can

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overcome their power deficit. Zartman (1997: 238) noted that in the UNCED negotiations: ‘weaker states vetoed temporarily (by walking out) or longer (by at least threatening withdrawal) and generally made a nuisance of themselves over issues that mattered much more to them than to the distracted strong partner, busy with other problems. In this way, they increased their power far more than initial asymmetry would have predicted’. Demonstration cases: The Uruguay Round and The Seattle meeting – Searching for equality The Uruguay Round of negotiations and the Seattle meeting provide evidence of the search for equality pursued by weaker parties in view of a better bargaining position. At the mid-term review in Montreal in December 1988 and in Brussels in December 1990, the Uruguay negotiations came to a halt. The United States and the EC had incompatible positions on agriculture. The former insisted on the full liberalization of agricultural trade, the latter envisioned a limited and gradual reduction in support to suit its Common Agricultural Policy. Most of the parties agreed to leave the agriculture issue aside and approve the results achieved on other issues of the negotiations; Brazil, Argentina, Chile, Colombia and Uruguay – five members of the Cairns Group – rejected any compromise and threatened to walk out of the negotiations. They would accept no agreement at all unless there was an agreement on agriculture. This move constituted a turning point in the negotiations (Druckman 1986: 333). The weaker states signalled that they would break off the talks rather than bend to the will of the stronger ones. Some lessons can be drawn from this episode. The smaller participants brought about a sense of crisis and set out limits to the negotiations. They vetoed attractive agreements on some important issues such as services or tropical products, unless progress was made on agriculture and an agreement was hammered out between the two major powers. Their action was persuasive. This ‘upturn’ represented progress in the negotiation by pointing out that the round of negotiations was likely to differ from previous negotiations: the agriculture dispute between the two major protagonists had to be settled once for all. Both in the Kennedy and the Tokyo Rounds, the United States had preferred to downplay agriculture to ensure outcomes on tariffs or other issues.


The weaker states infused moral principles into the negotiations and demonstrated the firmness of their positions. The weaker parties borrowed strength from the rules of multilateralism and firmly stood by these rules. They aimed at influencing the negotiations by deploying a vast array of instruments, which involved persuasion, warning and threats. They used the whole range of tactics (e.g., hiding their need for an agreement, dividing the stronger parties) to improve their situation and increase their power (Zartman 1985: 122). The attitude of the five countries is related to the concept of social learning, which is often portrayed as a greater understanding about means–ends relationships, rules and processes in negotiations. The developing countries passed through a process of social learning during their participation in the GATT negotiations and their confrontation with developed countries. The Ministerial Meeting in Seattle in December 1999, which was due to launch the Millennium Round of negotiations, provides a perfect example of the methods employed by weaker parties in order to overcome their power deficit by striving for more rules and injecting moral principles into negotiations, namely, those of fairness or justice. From the start of the meeting, the developing countries were sidelined from the ‘Green House Discussions’, a caucus of 30 key players and the working groups which had convened to reach a consensus in the areas of contention. Besides these procedural concerns, the United States infuriated developing countries by calling for the establishment of a WTO system that would sanction countries that violate central core labour rights as a means of keeping production costs down. The developing countries successfully approached some developed countries to plead their case and address the issue of their unequal participation in the WTO decision-making process. The Seattle meeting also provides evidence of the social learning process in negotiations. The African countries were quite marginalized in the Uruguay Round. Their main concern was the effect of the liberalization on the preferences granted by the EU. At the Seattle meeting, they came onto the stage. They took a fi rm stance against the efforts to put labor on the agenda, arguing alongside many developing countries that this was simply a cover for protectionism and that it would undermine their comparative advantage. The Latin American countries and English-speaking Caribbean countries joined the Organization of African Unity in threatening to walk out from the negotiations and warning that they would reject an agreement reached without their input.

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In a similar way as in the Uruguay Round, the weaker parties infused some moral principles into the negotiation by criticizing the lack of transparency of the WTO and the effects of the round of negotiations on trade, which was being suborned to pure economic interests (The Observer, 5 December 1999). Indeed, weaker parties do have a card to play at the WTO. Developing countries outnumber developed countries. They comprise more than 100 out of a total of 136 states who participate in negotiations. Actors in negotiations are mutually dependent on one another for the achievement of their objectives and preferences. Developed countries have no other option than to accommodate developing countries. Negotiations entail dependence on each other (Kelman 1996: 99). All participants, be they powerful or weak, have some potential gains in negotiations. It is these gains that create the dependency (Baldwin 1998: 143). Each actor is dependent on the other for the achievement of its preferred outcomes (Habeeb 1988: 19). Negotiations entail a two-way flow of benefit in the relationship (Bacharach and Lawler 1981: 168). In some cases, it can be shown that it might even be agreeable to be weak rather than strong. During the cold war, for instance, the hegemonic power, the Soviet Union, had to support the satellite states in order to keep the socialist system alive and united. It was in the interest of the Eastern superpower to show the world that the system could work and maintain its superior position. The breakdown of part of the clientele system would otherwise have been detrimental to the hegemon. Therefore, the dominant party had, for its own international power position, an interest in investing resources in order to assist the weaker socialist countries. In former Czechoslovakia, the solder Shveik became a popular figure by expressing the underdog attitude. This, as a consequence, led among other factors, to the fall of the communist system. The discrepancy between the military and economic capacities had become unbearable. In conclusion, approaches based on material power resources do not account for the capabilities necessary to transform material capacity into political action. The political will, the energy, the dedication to a political programme, etc., are of equal importance and determine the relations between governments in their negotiations. 6.3.3 The third manifestation: Relations between ends and means According to Wilhelm Grewe (1964: 11–14), the management of conflicting interests can have three modalities, namely unilateral


enforcement of interests, undecided conflicts and mutual accommodation of interests (see Figure 1.1). Negotiation results which are achieved under pressure, threat, or use of force are forced upon the negotiators and are not based on free will. Economic or diplomatic instruments are used in situations where structural power dominates; consensual power is the most important means of achieving mutually acceptable agreements. Results which are achieved with the help of third parties or through court decisions or compromise, show rather more symmetrical relations between the negotiating parties. All other modalities of terminating conflicts are based on asymmetrical structures. During the process of negotiation, the weaker party attempts – as described – to gain strength and attain the same level as the stronger party in order to attain a bargaining advantage. In such negotiations, besides the material resources, other means of negotiation play a role. These can typologically be differentiated according to power resources (means of coercion, structural or consensual means) or with respect to negotiation techniques or concepts. It is also possible to distinguish those means that are related to the actors, the issues, and to strength or performance in the negotiation process. Non-material power sources refer to the negotiation skills of the negotiator: the ability to cooperate, to recognize the right moment for a solution, to possess knowledge about the issue and the administrative rules, etc. Consequently, power is not only based on structural preconditions and measurable units, but results from the actions of actors and their perceptions. In doing so, negotiation power appears in various forms and extensions. In addition to personal qualities, which characterize the strength of the negotiator, there are other qualities that distinguish the negotiator, such as leadership, knowledge of negotiations techniques (persistence, eloquence, language knowledge and tactics, intelligence, energy, credibility, etc.). These and other personal factors compensate for a lack of available material resources. Intelligence and skills, which are not measurable, are also sources of power (Zartman 1997: 228). They can contribute towards the leading of the other side in the preferred direction (Albin 1999: 259). According to Samuel Bacharach and Edward Lawler (1981: 46), a more fruitful tactical power approach is one which emphasizes the ‘active, manipulative quality of power relations’ and accentuates the dynamic character of the changes. Here, the focus is on utilities or benefits and the efficiency of specific tactics and steps that try to maximize economic interests in negotiations. Lockart (Waelchli and Shah 1994: 137) refers to this method as the ‘imagination’ and ‘creative brilliancy’ to


balance the lack of power of the weaker party. Zartman argues that during the UNCED negotiations ‘the weaker nations [used] on short term their veto power by leaving the negotiation room or on longer terms the threat to leave the negotiation all together. . . . By this, they were able to strengthen their negotiation powers more than their original asymmetry would have expected’ (Zartman 1997: 238). Regarding social competences, one may mention the skills of cooperation and coalition-building, cooperation with very different actors, and also the ability to distance oneself from specific actors. In terms of strategic competences, we may consider the ability to search for solutions which guarantee mutual advantages; the ability to negotiate in such a manner as to allow the other party to save face, the offer of concessions or compensations, etc. In course of the negotiation process, resource knowledge about negotiation procedures and judicial rules, the organization of the agenda, the choice and the ranking of the agenda items are important. In addition, some reference to international norms, such as international law, can empower the negotiating position. Also, there are means which can lead opponents in the desired direction, such as adjourning the negotiations, making use of the site, fi xing specific goals, providing good examples, creating new rules, etc. (Grewe 1981: 414–57). Resources, resulting from the issue of the negotiation, can take the form of package deals, connections, differentiations, enlargements, refuge in ideology or general ideas, but also gratifications, compromises, and the development of alternatives, etc. (Pfetsch 1999: 207–13). The means of coercion are based on physical or material power, which can be measured by indicators in use. Coercive power rests on real or perceived unequal allocations of potential. According to Boulding, threat power is destructive; more promising is the use of the power of communication, which is linked to a disposition to negotiate and accept compromises. This so called integrative power indicates power within a constructive problem-solving framework, which is designed to be applied on a long-term basis (Miall et al. 2000: 10). The use of negotiation instruments requires careful selection in order to achieve the desired outcome. Success depends on the right deployment of the means of power, that is to say, that which can create the desired effects. Neither an overdose nor the use of too little power will result in the goal. The adequate use of means has to make reference to the symmetry between ends and means, which depends on the level of the conflict. In low-intensity conflicts, so-called soft means are more


appropriate, whereas in high-intensity conflicts, so-called hard means are adequate in order to counterweight an aggressor. There is a relationship between a specific level of conflict and the appropriate means adequate for its solution, as demonstrated in the conflict cycle (Pfetsch and Rohloff 2000: 15 et seq.). Means such as diplomacy or economic policies seem to be more adequate for the tackling of conflicts at a lower level of intensity. Military counter-force must be used in order to stop an aggressor. This is one lesson that has been learnt from the wars in Bosnia and Kosovo. In the end, it was the superpower, the United States, and the employment of military means by NATO, which brought an end to the killings. The selection of means and strategies also depends on the strengths and interests of the negotiation parties. A stronger party can afford to wait and to postpone negotiations; a weaker party must keep an eye open for allies. A coalition made up of the European Community and nations from the southern hemisphere, for example, would have more effectively challenged the US position in the negotiations on climate change. However, the US negotiators were able to effectively practice their strategy of divide et impera because of the lack of a common position held by the opponents. The United States was able to make use of its potential in an asymmetrical situation. In terms of negotiation techniques, the differentiation of the disputed issues was effectively employed. This meant differentiation of the issue according to various harmful substances and their implications on the environment. The temporal prolongation and the choice of the years of reference also increased the chance of negotiating. In addition, trade and the introduction of certificates, the choice to stabilize and/or to reduce the status quo, as well as the question of finance were of importance. In short, the differentiation between harmful substances and their relation to different national interests increased the scope for opportunities in the negotiation process. 6.3.4 The fourth manifestation: Symmetry/asymmetry of mediation equidistance Symmetry can assume another form in negotiations when a third party enters as a mediator or facilitator, who attempts to achieve an acceptable outcome for both the parties. Such interference is important when the negotiation partners find themselves in a deadlock and, as a consequence, ask for external help. The call for such help on the part of the negotiating sides and the selection of an acceptable third party is geared towards an independent partner who remains equidistant to the partners in conflict.

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The concept of the equidistance of a third party constitutes the fourth form of symmetry/asymmetry in negotiations. It means that the mediator possesses positive and equal relations with the main negotiators, which is not the same as taking a neutral stance. Neutrality indicates too much distance and does not take into account the fact that the third party is itself an interested party in the whole process of negotiation. As Bercovitch (1984) claims, with the intervention of a third party the dual relationship becomes trilateral; the original dyad is turned into a triadic interaction. The mediator is not a disinterested party but pursues its own interests. It expects some reward for its services and good office. Equidistance by a third party consists of equal engagement with each of the other parties, otherwise it will not be accepted. If the third party were too close to one of the parties, it would not be accepted as a fair third partner. The Beagle Channel dispute between Argentina and Chile provides an exemplary case. The United Kingdom was at first considered as a potential mediator. But then Chile expressed an objection because of the closer ties between the colonial power and the former colony. The Vatican was considered a more adequate third party for the catholic countries. Thus a symmetric relationship is a precondition for a third party to be accepted as a facilitator, arbiter or mediator in a negotiation process. In addition to equidistance and other qualifications, the third party must also possess recognizable bargaining power in order to be successful. Here the symmetry of instruments comes to the fore. If a conflict has entered the stage of war, diplomatic negotiations fail if the mediator does not possess equal and adequate power resources. The Yugoslavian wars provide ample examples of this. The interventions by international organizations such as the UN, the EU or the OSCE did not result in a cessation of the war since these organizations do not possess and implement the same resources that the United States and NATO could provide. Hence, in order to successfully accomplish a mediating mission, the mediator requires adequate instruments. In low-level conflicts, diplomatic or economic tools may suffice. But in war-prone situations, a mediator can only be successful if he has military means available and the will to use them. Other actor-related resources include face-saving strategies, skills, knowledge of the issue and the interests involved a sense of timing, and a feel for the propitious moment. A country or a group of countries can also assume the role of a mediating third party in international economic negotiations. At a specific point in time during the Uruguay Round negotiations, the Cairns Group played that role and provided a perfect example of the use of all


the resources mentioned. It brought together a set of heterogeneous developing and developed countries (Australia, New Zealand, and Canada) located in Latin America (Brazil, Chile, Colombia, Uruguay and Argentina) and Asia (Malaysia, Thailand, Philippines, and Fiji). All of these countries shared the same interests in their capacity as agricultural-product export countries. They were driven by the same goal of dismantling protectionism and the need to incorporate farm trade into a general multilateral framework. Endowed with technical knowhow and creative flair, the Cairns Group advanced from a position of weakness vis-à-vis the two main contenders in the agricultural dossier, the United States and the European Union, to imposing itself as a third force (Landau 1996: 156). Australia was particularly active. It took on the role of an entrepreneurial negotiator who infused information into the negotiations. The group selected the proper forum in which they could assert their legitimate and moral concerns. The Cairns Group had called for multilateral discipline, a credo that has always been supported by the GATT, which has shown more consideration for the position and the interests of the developing countries than for that of the international financial institutions, where power is concentrated in a few hands. The political existence of the Cairns Group outlasted the Uruguay Round of negotiations. The Cairns Group was a key actor at the Seattle Ministerial meeting. It demonstrates ‘resourcefulness’ and ‘creative ingenuity’ as methods for weaker parties to overcome their power deficit. In order to upgrade the group’s impact on the negotiations, three Mercosur members participating in the Cairns Group, that is, Brazil, Argentina and Uruguay, coordinated their position and called for the elimination of export subsidies for agricultural products. 6.3.5 The fifth manifestation of symmetry: Outcomes as a fair share Within the framework of international negotiations, the different forms of power, whether potential or procedural, form the underlying conditions for the different outcomes. The concept of a ‘satisfactory solution’ and the conditions under which the outcome was achieved requires further explication. Are the negotiated outcomes on the issues of concern acceptable to every important party within a given time and space frame, and are they based on free will rather than imposed? It is our belief, and can be demonstrated with examples, that results which are achieved freely and unconditionally by all parties and on all issues have the prospect of

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being stable and durable at least under the current conditions of a given time frame, that is, ceteris paribus. If these five conditions together with accepted principles of justice (see chapters 12.2 and 12.3.) are fulfilled then and only then the results can be termed ‘solutions’; all other end products of the negotiation process may, long-term, not enjoy the same life span. In negotiations, parties are engaged in a continuing relationship. Iklé (1999: 340) argues that diplomats who participate in prolonged conferences develop a certain attachment to the ongoing process of negotiation. Even diplomats who have opposing views, such as those from developing and industrialized countries, begin to feel a sense personal bonding and collegiality with their colleagues. Working together on a long-term basis entails mutual trust. This sense of jointly accomplishing a common enterprise is important in complex trade negotiations. The lengthy process of the Uruguay Round, which lasted seven years, is a case in point. Diplomats fiercely opposed to each others’ views, developed mutual bonds and were less likely to employ escalation tactics. Summing up our reasoning, symmetry is a necessary but not sufficient condition for successful negotiations. If the parties do not see any gains in negotiations they simply do not enter into negotiations. If, however, the parties do engage themselves in the negotiation process, the weaker party is not always at the mercy of the stronger. Different dimensions of power determine the relations: the possession of material resources might help to achieve intended negotiation goals but does not necessarily give rise to satisfactory results. The power relationship and the relational characteristics of power are also important components for the determination of symmetry and asymmetry in negotiation relations. Our analysis has shown that symmetry and asymmetry in negotiation relations do not correspond to the common understanding of the terms. It is not necessarily a disadvantage to be weak. The terms simply describe the specific foundations of the relations. During the negotiation process, these relations can manifest themselves in five different ways. Symmetry/asymmetry first of all describes relations perceived as the material potential of each country. The stronger party usually plays on its strength and the weaker party attempts to equalize its position. As a result, symmetry/asymmetry assumes a second form as a procedural variable. The adequate use of instruments leads to the idea of symmetry of means and ends in view of a conflict management goal. A third party


Power as a resource, bargaining power, military power

Degree of perceived gains

5. Outcome

4. Mediation

Degree of equidistance

1. Potential

Negotiation techniques: coalitions, veto, wait-and-see, etc.

2. Processvariable

3. Means

Choice of adequate instruments

Figure 6.4: The five manifestations of symmetry and asymmetry during the negotiation process

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can help to reduce the power discrepancy and find an acceptable outcome for the negotiating parties. Here the concept of equidistance is introduced as a manifestation of symmetry between the mediator and the negotiating parties. Finally, the outcome of a negotiation process can be measured in terms of both utility and perceptions of fairness. We assume that symmetric outcomes tend to give rise to more stable results than asymmetric relations.

7 The Power of Powerlessness, or How Weakness Can be Transformed into Strength

As described previously, power has multiple dimensions and its use must be seen in the context of the various phases of the conflict and negotiation process. As mentioned before power is a possession but also a relation and a relational value. During the process of negotiation, social and political relations are even more important than the possession of material power reserves. In the course of negotiations, an asymmetric relationship can be transformed into a symmetric relationship and as a result provide the weaker party with an opportunity to become stronger. Besides these symmetry-oriented strategies there exist other instruments of empowerment.

7.1 Resources of the weaker party Being weak can imply strength, when: • the stronger depends on the weaker. When the weaker negotiation partner holds a decisive position, he can transform it into strength. An illustrative example from German domestic policy is provided by the Free Democratic Party (FDP), which was the smaller coalition partner of the Christian Democratic Union and the Social Democratic Party (SPD). Its influence in each of the respective governments always extensively outweighed its polling ratio and the number of seats it held in Parliament. An example from foreign policy is that of the Soviet Union. As the dominant power in the Eastern hemisphere, it relied on its satellite states for the maintenance of the socialist system. A weakening or even ‘apostasy’ of a satellite state would have meant the loss of supremacy. Thus the cynical attitude could be spread among Czechs, for example, that 115


•

•

•

•

•

•

their own economy need not be taken seriously, since the USSR would step in and fill any gaps; the stronger fraction is divided and not capable of finding a common position. The weakening of the party presumed to be stronger implies, at the same time, the strengthening of the party presumed to be weaker; the minority uses the weapon of veto and thus blocks negotiations. Even the threat of exercising the power of veto alters the position of a negotiator. This weapon is particularly effective when unanimity on decisions is required. In the reality of decision-making in international and domestic organizations, this situation frequently occurs. In the 1960s, the process of European integration was blocked by France vetoing agricultural policy; the Luxembourg compromise lifted the blockade by limiting the use of veto in cases where the vital interests of a country are affected. Modifying the mode of decision-making to majority voting minus one represents another way of overcoming a deadlock caused by a veto. Thus the veto player remains excluded; political influence increases parallel to the process of economic convergence and the negotiating position of the former weaker party improves. Well known examples are the historical rise of Germany in the nineteenth century and the United States in the twentieth century, the ‘tiger states’ in East Asia, and China, the rising great power of today; a stronger power is overburdened by its responsibilities and can no longer react adequately to challenges. A great power can delegate tasks to dependent territories and thus extend their competences. An example from chess illustrates this argument: a chess master plays simultaneously against a group of amateurs. Whereas the master has to divide his concentration between several chessboards, the amateurs can concentrate on their own games. This could result in an amateur winning against a chess master. Divided concentration on one side and undivided, focused concentration on the other, could give the weaker party a chance; 24 in addition, there exist many non-material negotiation resources which can improve the weaker position and are connected with the attributes of the leading negotiator or a chairperson’s capabilities; other methods are given by compensation through exchange of differently valued goods; compromise, whereby each party gives something up, but makes overall gains; concessions: each party gives

The Power of Powerlessness 117

something up for the benefit of another party; search for options that are advantageous to the negotiation partner, something which can also be achieved by persuading the coalition partner that an issue is in its favour or by not losing face: the negotiation partner must have the opportunity of not being perceived as a loser in public; • finally, the weaker party can find support from a third party, which decreases the extent of imbalance through its use of negotiating skills. Coalition or alliance formation is one of the most important methods of improving a negotiation position.

7.2 Increasing resources through amalgamation: Coalition-building Research on coalitions has so far been limited to parliamentary coalitions, yet regional integration models like the EU have made coalitions among national governments necessary. At this decision-making level, efficiency, representation and stability are of importance. What kind of coalition produces what kind of decision? What leads to coalitionbuilding: negotiation issues, ideology, personal relationships, or something else? In Western parliamentary democracies, coalition-building plays an important role in decision-making. This is also true for multilateral conference diplomacy, since the bigger the body, the more important coalitions are. The same argument also applies to the enlarging European Union. The bargaining power of minorities can among others be strengthened through alliance formation on the part of weaker parties. By uniting in coalitions or alliances, they can reach majority decisions or consensus in a decision-making body; when they represent the majority in a committee or body, they can alter any decision to their advantage: thus by uniting their resources (i.e., votes), a counter power to the party that is stronger in material terms, can be formed. In this context, it should be asked why the formation of a counter power or, in the case of balance, symmetry plays such an important role in the relationship between parties? The notion of equilibrium is closely related to that of symmetry, but the two are not identical. Not every symmetrical relationship results in equilibrium, but situations of equilibrium are based on the symmetry of equal members in a system of equilibrium. The weaker party attempts to outweigh its weakness through coalition-building and to find the way back to equilibrium.

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Thus, the purpose of coalition-building becomes apparent in the following: Coalitions are built in order to provide a pay-off to each of the participants. Each participant expects a share of the benefits at least proportional to the amount of resources it has contributed to a coalition (Gamson 1961: 376). The greater the benefits, the better. In the case of the EU, the proportionality of gains and costs is not calculated. There are net payers and net beneficiaries. The community spirit attempts to equalize differences in wealth. For a certain period of time, agreements among coalition partners can stabilize majority decisions. Such institutionalized coalition governments are common in many parliamentary democracies. Specific agreements on certain matters, such as exchange deals or personal questions, are reached through linkages. In the case of the EU, again, there is – with very few exceptions – no such thing as a stable coalition pattern. Nevertheless, Helen Wallace (1995) has shown that in the preparation of the Single Act, the French–German tandem played a decisive role in the promotion of the Act. On various occasions, the relatively stable France–Germany coalition has contrasted with relatively short-lived coalitions between France and Belgium. On the whole, the interesting thing about coalition-building is the observation that there is not one decisive criterion for such an association. Neither ideological alignments among Social Democrats or Christian Democrats, cultural affinities such those between Anglo-Saxons or among Latin countries, nor common historical experiences (such as former war alliances) alone determine the formation of coalitions in the EU. There are instead ad hoc alliances such as those among the free traders – the United Kingdom, Benelux, Denmark and Germany – as compared to the protectionists France, Italy and Greece – or among the environmental leaders, Germany, the Netherlands and Denmark (together with the three new EU states) – in contrast to the environmental laggards Greece, Italy, Spain, Portugal, Ireland and Belgium (Sbragia 1996: 238). Other, more permanent coalitions arise from the global view of Europe’s inevitability. There are, on the one hand, countries who favour a closer European Union with a more federal outlook, such as the Benelux states, Germany, Spain, Austria and to a lesser degree Italy, and on the other hand, countries who favour looser intergovernmental approaches, such as the United Kingdom, Denmark and to a lesser degree France and Greece. A third category can be added, consisting of


countries with a supranational outlook, such as Finland, Greece, Sweden, Ireland, and Portugal and to a lesser degree France, Spain, Italy and Denmark. These differences determine, to a large extent, their respective proposals for institutional reform in the EU.

7.3 The limits to negotiations Experiences from politics and economic policy have shown that many cases of failed negotiations have existed, such as attempts to contain war in Somalia, Bosnia, Kosovo and Afghanistan. All these cases have clearly exposed the limits to negotiation and, in addition, have put international organizations, particularly the UNs reputation in their settlement attempts at mediation, in a poor light. From today’s perspective, these failures can be explained. Negotiation theory or negotiation strategies in general, focus on bargaining for advantageous results. The central issue aims at success, measured in terms of interests and expectations. Advice is not always realizable in practice, as ideal situations and conditions are often assumed which do not exist in political or economic reality. Negotiations are not always the best method of achieving a desired political goal. Parties may refuse to engage in negotiations because, right from the outset, they do not see any advantage for their position and expect a no-win solution. A better option may then be not to negotiate and instead to pursue interests by employing other means. In other cases negotiations are broken off because confl icting interests cannot be accommodated. It can also be the case that one party enters negotiations merely to demonstrate willingness, knowing that the outcome will not have any real impact on further policy. Hence, there are several reasons for considering negotiations not to be the best way of achieving a desired goal. All in all, the limits (and possibilities) of negotiations are determined by the factors which influence a conflict constellation, that is, the external environment, the willingness to negotiate on the part of the negotiators, the restraints placed upon negotiators by their constituencies, a lack of power or a lack of skills and qualifications, the appropriate use of means, etc. Conceptionally, four theoretical approaches give guidance for locating the limits (but also the possibilities25) of negotiations: idealistic approaches such as the Harvard Project by Fisher et al. and the ‘discourse model’ of the German philosopher Habermas, which focus on


ideal situations; the rational actor approach from game theory, which involves calculations of gains and losses; and the life cycle approach viewing together conflict development and conflict management in terms of symmetry of means and ends.

7.3.1 Principled negotiation: the Harvard Project approach The ‘principled negotiation’ approach is widely discussed in academic and application oriented circles. The ‘getting-to-yes’ model of Roger Fisher, William Ury and Bruce Patton (1981), as mentioned (see Chapter 5), focuses on six ‘golden rules’ for successful negotiation: don’t bargain over positions, separate the people from the problem, focus on interests, not positions, invent options for mutual gain, insist on using objective criteria and develop your BATNA. 26 As a guideline for ‘negotiating an agreement without giving in’ this negotiation approach has certainly great merits but in its application in the real world of politics and economics the limits become apparent: Depending on the negotiation culture, emotions are always present, objectivity is not in line with subjective interests, and the private opinion can not always be separated from the objective. Above all, politics is not a person-to-person game but has to take into account the interests of the public, the constituency on which politicians rely in democratic societies. The frameworks in which decisions are made are constraints to politicians, who have to play a role comparable to an actor in a play. It is the essence of politics that it is a public affair and that politicians are bound by responsibilities toward some collective entity, be it a party, a cabinet, an electorate or even a nation. Negotiators do not act as free and autonomous persons but rather are bound by numerous conditions of power or restraints. These could be party and governmental instructions, or requirements by organizations. In international arenas, the institutional norms and rules have to be observed and the particular environment needs to be taken into consideration. Thus, in democratic bodies, the particular clientele has to be served and the coalition partner respected. To my mind, principled negotiation is biased in favour of private person-to-person games. Yet the authors of the Harvard concept are not naive in the sense that they do not see the limits to their model. What should be done if the others don’t agree to play? What should be done if they play dirty? Nevertheless, the purely political constraints have to be considered more thoroughly.


7.3.2 The discourse model The so-called discourse model of the social philosopher Jürgen Habermas also proposes an ideal constellation according to the following five principles: (1) Negotiations are based on arguments, that is, the exchange of information between the parties involved. (2) Deliberations are open and take place in the public sphere; all interested parties have access and nobody should be excluded. (3) Deliberations are free from external pressure. Participants are only bound to the rules of free deliberations. (4) Deliberations are also free from internal pressure in order to secure the equality of all members. (5) Deliberations are rational in character; the process of argumentation can be pursued at any time until consent is achieved. Only in political debates can the majority rule be applied in order to end deliberations at some point.27 Hence, by a process of consecutive argumentation including all possible options, the ‘right’ solution can be found. Such an ideal situation, free of interests, does not exist in the reality of political life. Interests are always involved and power is always present. The abovementioned limits of principled negotiation apply equally to the discourse approach by Habermas. In its ideal form, this model is reminiscent of a social arrangement that exists, for example, in a seminar room at universities. The students are in a position to discuss the issue at hand freely and without external restraints. Notwithstanding adverse realities, these idealistic approaches can serve as an orientation for finding solutions, especially in conflict constellations which have a low profile. In short, the idealistic approaches: the ‘getting to yes’ and the Habermas’ discourse models underestimate the facts of political life, such as the power constellations and the constraints by the institutional environment (governments, parties, pressure groups, constituencies, etc.) that, to a great extent, determine the decision-making process and its outcome. 7.3.3 Rational choice The German ambassador Wilhelm Grewe28 emphasises that the decision for or against negotiations is determined by the expectation of a win-win situation, which also depends on the perception of one’s


own and one’s opponents’ power. As a general rule it can be said that politicians do not normally negotiate if they are weak, under pressure of time, if they have no or only little negotiation power, if they are under pressure from the public, and if – most importantly – they do not expect any benefit from negotiations or, on the contrary, they expect their own interests to be disadvantaged. Also other methods may lead to better results. This approach is in line with the traditions of political realism, requiring that someone’s gain entails someone else’s loss and therefore results in a zero-sum game. In contrast, the positive-sum game, emerging from the liberal tradition, assumes that the outcome of negotiations can bring benefits to each participant, even though the benefits are not necessarily equal. Following liberal theory, the main focus is on freedom of choice and the main premise is that the outcome will reflect all interests. The limitation to a rational calculation of gains and losses becomes apparent when one of the parties refuses to negotiate due to either an expectation of failure at the present time or an expectation of success in the future. Negotiations will be postponed if a no-win solution is expected, or if there is a prospect of more favourable circumstances in the future (e.g., the consultations of the four powers about German unification in the 1950s). Another possibility is the socially and politically compatible negotiation behavior which takes the form of fake solutions (e.g., the signing of some 30 armistice agreements by Miloševic´). If, on the contrary, politicians see the possible gains which can be achieved by negotiating, they certainly will choose that path. Within the framework of the European Union there is in any case no other option available, and democracies tend on the whole to find solutions through a process of bargaining and compromise. In the case of the EU, it has been claimed that negotiations cannot be understood in the light of rational choice approaches (Allan 1984; Keck 1995; Schneider 1997). Neither do fi xed preferences nor rational cost-benefit calculations form the basis of the establishment of EU procedures and institutions. Instead, a more holistic approach, such as social communication theory, seems appropriate as a way of understanding and explaining negotiation processes within the EU and between the EU and the outside world (see Habermas 1992; Müller 1994). In short, the rational choice approach neglects non-rational behaviour and other options of negotiating.


7.3.4 Inadequate means: Means and ends relationship Finally, the fourth concept which indicates limits to successful negotiations is given when means and ends are not in the appropriate relationship. The conflict or negotiation cycle, which articulates the appropriateness of goals and means, probably provides the most important explanation. Only the symmetry of both goals and means permits the solution hoped for. In violent conflicts, negotiations on their own do not represent adequate means. In such situations, negotiations which do not incorporate the potential of violence or threat are destined to fail. None of the international organizations involved were in a position to gain control over the bloodiest wars in the post-Second World War era, in particular conflicts in the Middle East or former Yugoslavia, let alone bring them to a conclusion. Indeed, the UN and the regional organizations in Europe (CSCE, EU), Asia (ASEAN, SAARC), Africa (AU) and America (OAS) were able, in numerous cases, to provide assistance through mediation and thereby contribute to the establishment of peace, as was the case in Cambodia, Namibia, Liberia, Mozambique, Cyprus, Haiti, Macedonia, Kosovo, Georgia, Rwanda, and Iraq; but the conflicting parties had to be ready to accept such assistance. International organizations were not able to force peace upon them. Thus, negotiations are not always an adequate means with which to achieve a desired goal. The most violent conflicts in recent times have mainly been solved by superpower the United States, which has provided or even enforced security. Equipped with a credible threat potential, the United States has played an important role as mediator/warring party in several conflicts, beginning with the Camp David Agreement between Israel and Egypt in 1979, to the Gaza-Jericho Agreement between the PLO and Israel in 1993, the Israel–Jordan Agreement in 1994, the Israel–PLO Agreement in 1995 and the attempt at an Israel–Syria agreement. To these can be added successful efforts in inner-state conflicts, such as those in Angola and Mozambique during the 1980s; the help towards a peaceful transition to the Swapo government in Namibia in 1992, or the ANC government of Mandela in South Africa in 1992–94; the armistice in Ethiopia in 1992; the reintroduction of President Aristide in Haiti in 1994, who had been overthrown by the military; and the treaty with North Korea in the same year, which provided for the renouncement of nuclear weapons. This treaty was unfortunately later broken. In the line also stands the peace agreement


between Ecuador and Peru, considering the United States as a guarantee power. With the ambassador Mrs Smith, the United States could overcome the deadlock in the Northern Ireland negotiations. Successful mediation attempts were also made by former President Carter, who intervened in more than 20 conflicts around the globe – which went mostly unnoticed by the public. Nevertheless, the failed attempts by the United States as part of the UN in Somalia 1993 need to be mentioned. Neither the UN intervention troops, nor the subsequent peace mission UNOSOM could establish peace in the country. As painful as the realization of its failure to achieve peace must have been for the international organizations, the former German foreign minister, Klaus Kinkel, was right in placing emphasis during a parliamentary debate on 30 November 1995 on the issue of participating German troops in the Bosnia mission: ‘It was the political and military commitment and weight of the United States that finally tipped the balance in favor of the conclusion of the peace treaty, which has now finally been achieved’. As long as international organizations are not equipped with a credible threat potential, they have to rely on their powerful member states. The United States can combine negotiations with credible sanctions (‘carrots and sticks’). The Harvard Project model has already invented the BATNA as a way out, that is, the best alternative to negotiation. Parties can simply refuse to negotiate if they do not expect any gains at all (no-win solution). Non-negotiation or the employment of other means can represent a better option. In other situations, negotiations are discontinued because it is impossible to bring conflicting interests together. There also exist cases where negotiations have been entered into only because conflicting parties have an interest in demonstrating goodwill, in the knowledge that the result of the negotiations will not have any binding consequences.

8 The Power of Institutions: Collective Negotiating in Groups

Negotiation analysis often concentrates on face-to-face constellations between two or more negotiators whose emotions, competencies, visions, leadership, skills, personal styles, strategies, etc., determine the outcome of the negotiation process. Notwithstanding the importance of such factors, environmental factors, especially institutions, also determine the negotiation process. Such structural factors are institutions in the broad sense of the term and comprise assemblies, norms, rules, values, ideologies, cultures, symmetric or asymmetric constellations, etc. Hence, they include all those factors which influence a negotiator’s action besides his own personal qualities. As Johan P. Olsen (1996: 251) remarks institutions matter in the following way: • institutions provide rules for appropriate behaviour, that is, they clarify the roles of the various actors; • institutions give meaning to behavioural regularities, that is, they provide legitimacy to rules and practices; • institutions create rights and resources and regulate their use. Thus institutions regulate how bargaining is actually carried out in practice and influence the preference formation of the negotiators (Friis 1997: 73). I consider here the processes of decision-making and the finding of solutions (Welsh 1973) as a process of collective decision-making in international forums. Political bodies and constituencies are the most important location for decision-making in representative democracies and may involve a great number of private and public organizations. 125


Within the determinants of decision-making processes, I include among others, the structure of the decision-making process and its elements, such as size, duration, composition, extent of representation, ideological or pragmatic orientations, the issues to be discussed, the degree of obligation or the binding force of the decisions, the pressure to decide, and the rules and modalities. To the instruments capable of influence decisions, belong, among others, power resources, coalitions, quotas and proportionality, the differentiation possibilities of issues, bargaining and package deals, playing on time, escape into non-binding decisions, etc. Furthermore, the costs and benefits of decisions have to be taken into account, as well as their results and consequences. The model of analysis, in its simple form, concentrates on the relationship between the actor and his environment; the outcome, then, depends on the particular form this relationship takes and more specifically, the outcome differs according to the different institutional settings. Negotiations and decision-making29 are central to pluralistic and representative democracies and take place in a wide range of political bodies. Decisions in the political sense of the term are, in general, made by small groups on behalf of a greater community. In assemblies that function as organs of representation, decisions are reached through negotiation, voting or balloting. The negotiation process leads to decisions, but not all decisions are reached by negotiation. By studying the negotiation process, we are, at the same time, studying one of two or three different decision-making processes. Their arena consists of various levels of private and public organizations and political institutions such as the different organs of the European Community. By selecting EU institutions as an object of study, we restrict ourselves to elected political elites, selected administrators and representatives of private organizations. The public is itself not present but is represented and constitutes the subject of the various outcomes of negotiation- and decision-making processes. The legitimacy of the EU institutions is questioned with decreasing acceptance rates by the electorate in various member countries. As a result, the elite institutions have been challenged and have had to respond to such challenges, as for example during their discussions at intergovernmental conferences (IGC) for EU reform since the 1990s. In this chapter, we focus on an important section of the possible forms of ‘decision-making and solution-finding’ (Welsh 1973), namely collective decision-making in bodies, since they are the most common decision-making institutions in representative democracies (Taylor

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1975: 417). Giovanni Sartori has defined assemblies as durable and institutionalized small groups of three to thirty members (Sartori 1984: 93). They interact directly with one another and produce decisions continuously rather than occasionally. The assemblies we are studying in international and regional contexts mostly fit this definition. Thus for example, we take, as the empirical base of negotiation processes, the communitarian and the intergovernmental organs of the EU, that is, the Council of Ministers and the European Council, together with the national bodies of the EU member states, as the main intergovernmental institutions; and the European Commission, the European Court of Justice, the European Parliament as the main communitarian bodies. Assembly negotiations function as a pool of the different interests of their members, which should eventually lead to a common policy. A wide spectrum of voluntary or coercive procedures and techniques can lead to the aggregation of individual preferences for a collective decision: economically through market forces (through bargaining and exchange) or politically through consensus-producing processes (negotiating, voting). Power resources and their application play an important role in a process with multiple preferences. Assembly decisions cannot be viewed as a single selective action. They are the result of complex processes and structures involving a multitude of persons and opinions. Pre-existing fi xed interests, that is, utility functions, are not always the initiator of these processes. Instead, opinions and structured decisions are formulated during a dynamic process of trial and error, prior to the vote. It is in negotiations as a part of ‘preparatory’ diplomacy or problem-counselling, that the issue area is defined and decisions are prepared. The meeting in the lobby, the walk in the woods, the round of golf, the dinner reception and other locations are such places where influence is manifest and approximation attempts are made or even solutions are found. Formally, the decision-making process takes place in a given framework, in which the decision-makers pursue their interests. They have instruments at hand that can give rise to costs, risks or benefits. Internal and external conditions, instruments, targets, cost-benefit considerations, and outcomes, constitute six basic variables of a decision-making process. We distinguish between the internal and external conditions of negotiations in assemblies and between the factors which can be influenced by the actors and those which cannot. While the former distinction is at the centre of the agent-structure debate, the latter refers to the distinction between objective and subjective factors of the


negotiation process. Internal conditions are related to the assembly itself, and external determinants stem from a broader set of norms derived from the political community as a whole. Pre-existing conditions or conditions that cannot be altered by the actors, directly determine the structure of the negotiation bodies. Internal conditions include size, duration, composition (organizational differentiation, political party composition), representation, ideological or programmatic orientation and the issues to be decided on. External conditions comprise the binding and non-binding character of decisions, pressure exerted on the negotiators, future expectations of action, and, above all, rules and procedures of decision-making. In terms of instruments, we deal with the use of power, influence and leadership, coalition forming, the setting of quotas and proportions, enlargement or differentiation of subject matters, exchange or linkage, delay through submission to committees or ratification or escape into generalizations. The targets of decision-making processes are not always clear from the beginning since interests may change during the negotiation process. Cost-benefit considerations determine the decision to start negotiations. If the negotiators do not see any benefit from their engagement in a negotiation process they will not begin negotiating at all. Their must be some win-win perspective for both parties. Outcome variables are non-decisions, partial decisions, radical decisions, ambiguous decisions, majority decisions, stable decisions, conservative or progressive decisions, and future- oriented decisions. Ever since the nineteenth-century debate in the United Kingdom over the two types of voting system, namely majority voting and proportional representation, two core principles in each democratic decision-making body have been of significance: effectiveness and representativeness. Whereas representativeness means the participation and inclusion of citizens in the political process, effectiveness has to do with the capacity of governments to produce outcomes for the people. Both principles might show contradictions and mutual exclusiveness.

8.1 Effectiveness We begin by studying the internal and external conditions of the negotiation process in groups. As far as the internal structure is concerned, there exist as mentioned before a variety of variables determining the


structure of assemblies. Especially, the size of an assembly affects its structure as a working unit. Derived from organizational theory and empirical observations, we can establish a number of hypotheses: The bigger the assembly, the more organizationally differentiated it becomes (committees, sub-committees). A day-to-day observation can illustrate this hypothesis. By inviting people for dinner and sitting around a table, one can observe that conversation among all of the guests at one time is possible as long as there are not more than about eight guests (see Olson 1971: 52–5). If there are more than 10–15 (Pfetsch 1987), then the discussion only takes place among three or four sitting close to one another. We can test this hypothesis (see Thomas and Fink 1963) by studying the different EU assemblies in course of the enlargement of the EC from 6 to 9, 9 to 12, 12 to 15, and finally 15 to 25 members. The more the Community expanded in scope and membership, the more it became heterogeneous and the more negotiations became bound by the circumspection of many participants (Wallace 1995: 33). The plans of some governments at intergovernmental conferences (IGC) or at the convention meetings for a European constitution to reduce the number of commissioners and strengthen the Presidency of the Council has been one strategy of curbing further differentiation and, as a consequence, overcoming inefficiency. The increase in the number of actors has been accompanied by an increased chance of issues appearing on the EC agenda as compared to the national agenda (Cobb and Elder 1983), i.e. each enlargement has brought new dimensions and areas of activity (see Granell 1995: 137). The first enlargement ushered in a more democratic perspective and a new world dimension with its transatlantic relations. With the second enlargement, new social and cohesive orientations were brought to bear with Latin American links. The third wave of enlargement emphasized environmental and social aspects and opened its outlook towards Third World countries as well as towards the East, in anticipation of the fourth round of enlargement. These expansions enlarged the policy issues and, as has been noted by Peters, ‘the presence of alternatives is an important characteristic of agenda-setting in the EC’ (Peters 1994: 18). The more issues that exist which are considered to be important, the greater the necessity of finding an organizational framework in the form of a Directorate-General (DG), a committee, or otherwise. Thus the committees of the European Parliament reflect the DirectorateGeneral in the Commission.

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The smaller the assembly, the higher the ballot’s value or weight for each individual under otherwise constant voting procedures. This hypothesis states only a statistical calculation: if there are only two voters then the weight of each is 1/2. If there are ten voters, the weight of each is only 1/10. The smaller the unit of decisionmaking, the more the preferences of each participant count (see Tullock, 1971). The attempt at securing equal representation and keeping the assemblies small is evident in the construction of various EU organs. Qualified majority voting, as well as the introduction of the rotation system in the Council of Ministers, follows along these lines. The troikasolution enlarges the mandate of each country in the political process. Due to the fear by the larger states of losing control of the decisionmaking bodies, a provision was introduced that one of the larger countries must be represented, and arguments were put forward in the intergovernmental conference for restraining the scope and the authority of the community arenas. However, because of the fear of losing equal rights and weightage, the smaller countries are against any concentration of office holders in EU organs. The higher the number of participants, the higher the costs of producing consensus (internal costs) and the fewer the disadvantages for the individual voter (external risks). The first statement refers to more or less organizational circumstances: the more participants there are, the more time is needed to produce consensus and consequently, the more costly the process of producing results. Internal costs comprise costs such as those relating to bargaining and influence, implementation and monitoring, and information costs, etc. (Cornett and Caporaso 1994: 226). With regard to the external risks (Sartori, 1984: 85), there is a tendency for results produced by a small group of insiders to leave out important politicians. People who are affected by the decisions remain unacknowledged and consequently, the decisions may not last long (see Buchanan and Tullock 1962: 45). Amendments are the result of such restricted decision-making processes. With the addition of more actors, as has been the result of the enlargement of the EC/EU, more divergent interests are being pursued. Each country brings in its own interests and wants them to be realized. As a result of an increase in the number of members, an assembly becomes more heterogeneous and the windows of opportunity for agreements become narrower (Wallace 1995: 33). Hence, with


unanimity in important policy fields, the time needed to achieve consensus increases. It can be said that the amount of time spent on discussions about issues increases as the number of member countries in the EU increases. Disadvantages for an individual actor would arise if he were a victim of the ‘tyranny of the majority’ (Alexis de Tocqueville). This, however, rarely happens because of the voting rules expressed in the treaty and the voting practice in EU organs. As a rule, decisions are taken on a consensus basis even in cases where majority voting would be possible. It is part of the community spirit not to vote down a country by insisting on a decision by majority rule. The less time available, the easier it is in a system of majority voting for leading majorities to win. Decisions taken under time pressure have a tendency to be asserted by a majority party that does not take into account minority positions. The dictate of the majority prevails even if there is the political will to include minority positions. On the contrary, if there is no time limit, parties can seek consensus on a broader scale. In the EU, this hypothesis can only be tested in a selected number of policy fields, since unanimity is still required in the domain of high politics. As mentioned above, even in the case of majority voting, the consensus principle is dominant in EU organs. Whether this hypothesis will hold true in the future, when more majority voting will be possible and the larger countries possessing more weight in the Council will have an advantage, remains to be seen; in principle, no decision can be taken by the smaller countries without the consent of the larger ones. Also, as a principle and more in theory than in practice, there should be no discrimination of any one group – be it rich or poor, North or South, central or peripheral, agrarian or industrial, etc. Subgroups within an assembly can, by forming coalitions with others, reach a majority position and minimize the influence of an existing majority. Minorities can also benefit from a situation where two or more majority groups of equal size with opposing views counterbalance their weight and have to rely on the support of smaller parties. Under certain conditions, minorities do have their chance to prevail. According to our hypothesis, small groups have either no influence at all or some influence, taking into account their relative weight (see Moscovici et al. 1969; Allan 1984). This can be the result of the behaviour of majority groups towards one another. If the larger countries


cannot agree on a particular issue, the smaller ones have their chance by joining one side or the other. Coalition-forming in EU organs is an ongoing process and does not demonstrate a stable pattern. Depending on the issue, various coalitions are possible. Even the German-French duo in recent times deviated from its unity on agricultural policy. A good example of using differences among parties within an assembly was the tactic applied by the US Government towards the EU during the negotiations in the Uruguay Round (Landau 1996). The US negotiator succeeded in dividing the German-French duo and by forming an alliance with Germany could assert its own position.

8.2 Representativeness Decisions are more likely to be stable when an assembly is highly representative, consensual and there is no pressure to decide. Follow-up costs are usually lower. This hypothesis states the other side of the coin with regard to hypotheses under 8.1. If an assembly is representative and time is available to carry out an extensive discussion, then it will be able to include the major actors and their interests. Consequently, the outcome of such negotiations is highly legitimized (Marin 1983: 205) and has a tendency to last longer. One of the unique principles of the EU is that it tries to create a homogenous pattern of policy representation (Pfetsch 1995: 189). The small countries should be able to have their say as much as the poorer and the peripheral countries. By equilibrating these various differences and diversities, the EU is also attractive to minor states in terms of power. Otherwise, it would be difficult to understand why smaller countries, such as the Benelux countries, are among the champions of European integration. So far, the decisions initiated by the Commission and taken by the Council have been fairly stable in the sense that a high proportion of them have been implemented in the member countries; they are enduring since equal representation is the dominant principle in EU organisms. Even decisions made with time restraints, such as those on agricultural policy or on the budget, show fairly stable results. The ideological and/or programmatic proximity of organized member-groups reduces the spectrum of controversial alternatives and leads to coalitions. This produces a high consensual potential as a prerequisite for solutions.


Ideology can aggregate diverse interests and can serve as a unifier in the decision-making process. In parliamentary systems, governments are formed on the basis of ‘natural allies’ procuring maximum pay-offs for the participating parties (Dodd 1976: 38). This empirically tested relationship rarely holds true in the case of EU parties since they do not possess the same coherence observable within national constituencies. Nevertheless, some alliances may be formed on the basis of ideological vicinities. Party alignments do not play a decisive role in the Council, the Commission or even in the European Parliament. In national constituencies, political parties provide a mechanism for the coordination of policies across levels of government or across institutions. Fragmentation results from, among other things, the fact that neither the European Council nor the Council of Ministers possesses party affiliations as a coordinating instrument. Political parties within the European Parliament are aggregations of national parties; they lack the unity required for a more coherent policy. On the executive side, the European Council and the Council of Ministers are intergovernmental entities separately accountable to their national constituencies. What brings them together is a common interest in the European project and the advantages that they can expect from it in terms of national policymaking. With respect to the executive and legislative bodies of the EU, it is argued that the styles and cultures of the Commissioners are as important as specific calculations about the national advantages that might come about (Peters 1994). Here, the professional styles and the political cultures of the various countries might play a role. It is said that within the Brussels apparatus, French administrative traditions are backed up by the fact that the French language is used more commonly than other languages. Externally, however, English is the more commonly used language. Ideology is, therefore, not an important factor. More important factors for the building of consensus are the common will to build a united Europe; the vision of the Union’s final form, which gives rise to certain institutional patterns; the will to secure a country’s interest in a specific matter; a common economic interest in bigger markets (largescale production); and outside pressure from globalization processes. External or internal pressure on negotiators to produce results can either facilitate compromises or harden positions. Last-minute decisions can result from the pressure imposed by a strict timetable. Manipulation of the timetable, that is, ‘the stopping of the


clock’, as seen during negotiations on agrarian policy or in the recent GATT/WTO negotiations, is the last resort with which to reach an agreement in time. Time pressure can be healthy because it forces the parties to actually come to an agreement; without such pressure no resolution may have been reached. External pressure can, however, have a negative effect on the negotiating parties if they react negatively to such pressure. External pressure can also serve as an alibi for a policy.

8.3 Negotiating in regionally integrated institutions such as the European Union The inherent contradiction between effectiveness and representativeness has become the focus of many discussions following the 2004/2007 enlargement of the EU with a further twelve countries. Never in the history of the community was the enlargement realized with such a speed and that many countries which provoked immediately the question of governance of the whole political system. The question of effective decision-making in EU bodies with 25 members, that is, in the Council but also in the Commission became problematic. Solutions had to be found reducing the number of decision-makers. Each assembly has the task of producing results, which are decisions. It is evident that this requires energy resources. Energy resources can be consumed by internal struggle, leaving nothing for external problem solving and decision-making. A more equal distribution of power and influence and thus, a more balanced situation, becomes possible when, for example, the chairman and the host country are named through a system of rotation, or when the host country is a neutral state. In the latter case, the dominance of one state and its representatives cannot be based on organizational or local advantages. Deviations in the numeric size of one party and its subsequent effects on decisions can also be explained by the talent and the power of persuasion of politicians. Not only the authority of an office, but also the authority of an individual, can influence decisions. The EU member states possess different national resources in terms of size, population, economic capability, military strength, etc. But it is one of the characteristics of the Community to secure equal representation in the different decision-making organisms. This is achieved by the weighting of votes, rotation in offices, equal representation in EU organs, etc. Whether this principle will continue into the future remains an open question.


Decision-making processes incur costs that increase with the size of the assembly, though the external risks may diminish accordingly. Procedural and organizational rules may also influence an assembly’s running costs and/or additional costs later. Internally, unanimous decision-making is cost-intensive, but incurs low additional costs afterwards. Majority decision-making is less cost-intensive in producing decisions, but may incur higher costs in terms of external risks. Another feature of the size of assemblies is the respective value of each vote. The value decreases when the number of members increases. There is also the question of time pressure. In the EU arena, decisions often have to be taken at a certain point in time. In debates on agricultural issues or on the budget, time pressure secures to a great extent the making of decisions. Pressure on the decision-makers also comes from external pressure groups, which, as a consequence, may block a consensual decision in EU assemblies. Dominant basic values and overarching general priorities can compensate such pressure. This may lead to second-best solutions for individual countries.

9 The Power of Law: Negotiating Within the Framework of International Norms and Principles

Law without power is powerless; power without law is tyranny. We therefore have to make sure that that which is right is powerful and that which is powerful, right. (Pascal) The norms of international law and the principles of International Organizations represent important institutions for negotiations over political and trade-related confl ict. Judicial norms form the framework within which negotiations take place. They provide orientations as well as legitimization. The UN Charter explicitly demands in Article 33, that any dispute whose continuation is likely to endanger the maintenance of international peace and security, shall, first, seek a solution through peaceful means, such as negotiation, enquiries, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements. The International Court of Justice (ICJ) can decide provided that the parties agree to go to the Court and implement the decision. It thus depends on the free will of the parties and is that procedure where negotiations take place between the respective parties. Also, the International Criminal Court (ICC) depends on the will of the country to deliver accused subjects to the Court. In the area of trade, the statutes of international or regional economic organizations, such as the WTO, contain rules on the interaction between states and individuals. Other instances of peaceful conflict mediation are the International Maritime Court or the courts of integrated communities such as the EU or the system of the European Convention on Human Rights. Here, judicial accountability is usually present. The GATT/WTO has had binding jurisdiction at its disposal since 1994. The trade conflict between the United States and the EU over the 136

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issue of the civil aircraft industry was dealt with according to these norms. In other organizations too, conflicts have been settled by a court of arbitration. There, conflicting parties can choose the arbitrator themselves. If no agreement can be found, the arbitrator presiding over the case will be chosen by the president of an international court. On the issue of foreign direct investment, the Centre for the Settlement of Investment Disputes (ICSID) plays an important role; most of its decisions – usually relating to large sums of money – are respected. Numerous cases of conflict have been decided upon by judicial norms, but they are less known to the outside world as they can not be spectacularly transmitted through the media. Although the international judicial system is not as well equipped with sanction possibilities as national ones, there have been a number of cases in which conflicts were reconciled by the International Court of Justice (ICJ). Thus the four-decade dispute between the United States and the USSR on the issue of the peaceful transit of ships was resolved in 1989 by conjunctly passing a protocol on the interpretation of international law. In the opinion of the USSR, military ships had to announce their passage before sailing. Records confirm the international norm of ships of any kind having free passage. It is worth noting that cases have to be brought to the ICJ by the affected parties themselves and that they voluntarily accept the verdict. Thus the number of judgments has remained very limited. What happens when the will to comply with international law is absent, or when such norms are violated? What kind of sanction possibilities do such organizations have? Although their powers of sanction have recently been improved (e.g., the UN through tribunals on war crimes and the EU through the European Court of Justice), they remain much weaker than in nation states. Two empirical case studies from politics and economics clarify the positive influence of international norms and principles: the Petersberg Conference on Afghanistan and the abovementioned trade dispute between the United States and the European Union over the airline industry.

9.1 The Petersberg (Germany) conference on Afghanistan Following the victory of the international war alliance and the collapse of the Taliban dictatorship in Afghanistan, the task of reconstructing the country was next on the agenda. To this end, a

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conference in Petersberg (Bonn, Germany) was convened, and in which delegates drew up an agreement on 5 December 2001 that formed the basis of the new political arrangements. The way in which the conference was organized shows similarities with previous arrangements in Bosnia, Kosovo and East Timor. The most influential states, the United States, the United Kingdom, France, Germany and Russia, used the UN system, including its special ambassador Lakdhar Brahimi, to direct the process and the results of the negotiations towards a democratic reconstruction. Delegates from Afghanistan were carefully chosen and representativeness and political importance given consideration. The major challenge was to commit representatives of different tribes and their diverse power interests to just one document. Economic and political influence/pressure from the United States and other countries led to the Afghan representatives accepting the agreement, which was co-designed by the international community and the UN. This diplomatic procedure was legitimized by the presence of the UN. The agreement embodied a road-map for the establishment of a new Afghan government, the draft of a new constitution and the preparation of democratic elections. This case clearly shows that higher international norms and externally driven influence do have an impact on domestic consolidation. In the interaction between the domestic and the international arena, actors respect the right to self–determination; principles and structures of international law guarantee the framework for the unfolding of democratic processes and statehood.

9.2 The US–EU trade dispute The US–EU trade dispute over the civil aircraft industry constitutes a conflict of competition held within the framework of the GATT and the WTO. In the ‘Agreement on Trade in Civil Aircraft’, GATT member states committed themselves in 1979 to the renouncement of tariffs, quotas and similar trade barriers in the domain of aircraft construction. Furthermore, no subsidies were to be granted to aircraft producers, should international competition become distorted as a result. Both sides violated these regulations: the Americans, because the civil aircraft industry profited considerably from government expenditure on military aircraft, and the Europeans, because research and development subsidies to Airbus were supposed to make the European industry more competitive. Americans cited the principle of ‘equal competitive opportunities’ that ought to be guaranteed, for example

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the compensation of the decrease in aircraft exports during the 1980s. Bilateral talks between the two sides were initially unsuccessful and a formal complaint to the GATT in Geneva followed. The complaint was triggered by the takeover of Messerschmitt-Bölkow-Blohm (MBB) by Daimler-Benz AG in 1989 and the willingness of the German Government to compensate exchange rate differences. The GATT urged entry into negotiations, which finally led to an agreement in 1992.30 Therein both sides committed themselves to transparent methods of subsidization. The merger of Boeing and McDonnell-Douglas (authorized by the Federal Trade Commission) amplified the European fear that the aircraft producer would now retain its market-dominant position in Europe. As a result, the European Commission took legal proceedings against the merger, and announced sanctions, which were answered with counter sanctions. The four governments involved in the Airbus holding (Germany, France, the United Kingdom and Spain) voted against the merger. A trade conflict between the two giant trade blocks was imminent, as Clinton backed Boeing and Kohl and Chirac supported Airbus. Then Boeing made concessions in terms of the technology transfer from the military to the civil domain and exclusive contracts with the three US airlines, American, Delta and Continental, and thus avoided a European veto. This cleared the way for the merger between McDonnell-Douglas and Boeing, which came into being in August 1997. The European aircraft industry replied in a similar way with concentration (cooperation between DASA with DaimlerChrysler, Aérospatial with Matra) and reorganization (Airbus). Through these processes, a powerful oligopoly emerged on the global market for civil aircrafts. Subsequently, European governments authorized financial support that ran counter to the agreement of 1992. President Clinton intervened by declaring the subsidies incompatible with GATT regulations and threatened reprisals. Negotiations between the US Trade Minister, Charlene Barshefsky, and the EU Commissioner in Trade resulted in a deadlock and the US Government filed a suit against the EU in the WTO on the matter of illegal sanctions. The WTO asked both parties to re-enter into bilateral negotiations. Following lengthy talks, they had reached no agreement, so both sides handed over the case to the WTO arbitration body in 2005. This is likely to become the most expensive and difficult suit in WTO history. This ongoing economic dispute, now with new negotiators on both sides, shows the interconnectedness of national and international law in which multilaterally established rules represent the standard for both regional powers.

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The limitations of legal means are, however, quickly reached when violence comes into play and conflicting parties see no way out through the application of peaceful means. ‘International law has not passed the acid test, if violence is applied’.31 Such situations have arisen in numerous cases outside democratic states. National or sub-national policies of violence were a sign of dissolving empires after the Second World War. The use of sanctions by the UN in accordance with chapters VI and VII of the UN Charter, which make provisions for peaceful as well as military instruments, were only partly successful, as, for example, in Bosnia, Iraq/Kuwait and Afghanistan, where military operations took place within the framework of the UN. In summary, the application of international norms depends on the willingness of the involved and affected parties. Without the voluntary consent of individual governments, military deployments cannot be effected, and without the approval of the affected parties, a trial cannot take place. Nevertheless, international norms have been observed in many cases and have solved or at least mitigated conflicts.

10 The Mediator, the Facilitator

Les intermédiaires dotés de confiance valent mieux dans les mauvaises affaires que le contact des personnes directement intéressées – Trustworthy mediators value more in bad affairs than contact with the people directly interested. (Metternich 1820 cited in Metternich 1883) The mediator participates in negotiations as a third party not directly involved in the conflict, as compared to the negotiator, who directly and actively shapes the negotiation procedure as a self-interested party. In the following, I use the term ‘mediator’ or ‘mediation’ as generic term for all peaceful activities which influence solution-oriented action and are induced by third parties. In the same way that the progression of a conflict can be divided into different phases, we also can categorize the different attempts at mediation in an analytic model. Bercovitch and Langley distinguish between the context in which the mediation takes place, that is, the nature of conflict, the nature of the parties and of the mediator; the order of events in the mediation process, in which the mediator’s strategy plays a central role; and the mediation result. Third parties try to deescalate or terminate a conflict by non-violent means. It is a ‘process of conflict management where disputants seek the assistance of, or accept an offer of help from, an individual, group, state or organization to solve their conflict or resolve their differences without resorting to physical force or invoking the authority of law’ (Bercovitch, 1991: 8). Based on this definition, Bercovitch and Langley developed an actor-context framework for the analysis of an adaptive process (see Figure 10.1), in which they distinguish between: 141


Context

Type of conflict

Process

Nature of parties

Nature of mediator

Result

Mediationstrategies

Figure 10.1: Analytic model of mediations Source: Bercovitch and Langley 1993.

• The mediation context, which itself is divided into three variable clusters: (a) the nature of the dispute, (b) the nature of conflicting parties and (c) the personality of the mediator; • The mediation process, which is determined by tactical behaviour or the strategy employed, such as (1) communication-facilitating strategy, (2) the assistance in formulation strategy, and (3) the manipulation strategy; • The result of mediation, which may assume one of four different dimensions: failure, ceasefire, partial success, or complete success. The three last categories can be summarized in the group ‘successful’. Between 1945 and 1990, we can observe that out of a total of 364 mediation attempts, 97 addressed international conflicts. Of these, 71.9% failed to be resolved (Pfetsch and Rohloff 2000: 190).

10.1 Mediation strategies The negotiation process can be influenced by intervention from third parties. Mediation efforts therefore have to be adapted to the evolution of conflict, that is, in certain phases of conflict evolution, certain mediation measures are appropriate. Taking the confl ict in Bosnia as an example, the synoptic overview (Table 10.4) demonstrates the interaction between conflict evolution and mediation instruments. Research on the conditions for successful and unsuccessful mediation is still is its early phases, and has only recently become the subject of scientific analysis (e.g., Bercovitch 1984; 1993; 1996). The goals of mediation can be defined in different ways: prevention of conflict or crisis, containment of the course of war, mediation of a ceasefire with or without guarantee, mediation of peace treaty, maintenance of negotiations in different phases (pre-, main-, post-phase), etc. Figure 10.2,

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Communication facilitating mediation strategies • • • • • • • • • • • •

Get in touch with the parties Gain the confidence of the parties Enable communication between the parties Identify and clarify issues and interests Bring clarity into the situation Avoid partiality Develop a good relationship with the disputing parties Supplement lacking information Develop a framework of understanding Encourage sensible communication Offer positive evaluation Enable the interests of each party to be discussed

Formulation strategies of the mediator • • • • • • • • • • • •

Choose the venue Control the pace and formalities of the meeting Control the state of negotiation environment Take down minutes Propose a course of action Underline common interests Reduce tensions Control the time sequence Deal the less-disputed issues first Give structure to the agenda Keep the parties at the negotiation table Keep the discussion focused on the issues at hand

Manipulative strategies of the third party • • • • • • • • • •

Alter the expectations of the parties Take over the responsibility for concessions Make substantial proposals Point out the possible costs of non-agreement to the parties Deliver and select information Propose concessions which the parties can accept Help negotiators withdraw from existing commitments if necessary Reward concessions made by the parties Help design a framework for acceptable results Urge parties to be more flexible

Figure 10.2:

Strategies of the mediator

lists different strategies, categorizing them according to their role as communication-facilitating, formulating and manipulative strategies and presenting them in the form of instructions. For the majority of conflicts observed since 1945, attempts to find a solution have been made. Some of these have been successful (Pfetsch and Rohloff 2000: 195). The main difference between negotiation with those parties who are directly involved and mediation, is that in the


latter negotiators are themselves partial parties whereas mediators embody a third party without direct interests. In the case of EU, it is the EU Commission or the President of the European Council which may assume the role of the third party in order to mediate between diverging interests. In past years, cases of successful negotiation have inspired public interest, despite the fact that the media prefer to report on violent conflicts. President Carter’s mediation between Arabs and Israelis, or later in the Haitian and North Korean conflict (other mediation missions undertaken by Carter in the 1980s, such as those in Africa, are less well known); the secret mediation in the Israel–Palestine conflict by the Norwegian Foreign Minister, Johan Holst; and the role of Pakistani diplomats in initiating relations between China and the United States, which made Henry Kissinger’s shuttle diplomacy possible. These are examples of successful mediation by third parties. Although these example are ones in which conflicts were mediated by prominent politicians, the mediation services of international and regional organizations are far more significant. Examples of their vital role include UN mediation in the conflicts of Namibia, Cambodia or Kuwait, but also less successful attempts, such as the Vance/Owen and Stoltenberg/Owen missions, from the UN and EU respectively, in former Yugoslavia. The significance of third parties taking on the role of mediator or arbitrator has increased over time (Levine 1971). Mediation attempts rose from 1.3 per year (1815–95) to 2.4 (1896–1920) and had reached 3.9 between 1921 and 1960. Butterworth (1976) states that third parties had participated in 77 percent of all cases of conflict, Haas (1983) calculates this figure to be 75 percent out of 108 cases of conflict between 1945 and 1965. We discovered (Pfetsch and Rohloff 2000: 201) that in more than half of all the conflicts occurring between 1945 and 1995, a third party participated as a mediator (in 364 out of 661 cases). The importance of third parties is further underlined when we distinguish between different types of solution: a third party participated in 55 percent of all negotiated resolutions, but only in about 30% of coercive solutions. In order to better understand mediation, it should be emphasized, that the term mediation has several meanings. Sometimes – probably most often – the term comprises all the activities undertaken by a third party which help to deescalate or at least provisionally end a conflict. As third parties possess a broad range of instruments, it appears necessary to distinguish between these and to only use the term ‘mediation’ for a particular form of intervention by third parties.


A clear definition emerges from the answers to the following two questions: Who participates in mediation, and which instruments are available to the mediator?

10.2 Who mediates? Four different actors play a role in international political disputes: • • • • •

States, governments, groups of states Regional or universal international organizations Independent politicians, single persons Minority sub-national ethno-cultural movements NGOs and other groups

Regardless of who assumes the role of the mediator, it is always an individual actor who is involved in the negotiation process and often his capabilities determine whether or not the negotiations succeed. The actual conflict management work is always undertaken by a same number of individuals who search for agreements at conference tables, at evening receptions or during walks in natural surroundings. Negotiations usually take place behind closed doors. What qualities does a mediator possess? According to Bercovitch (1984), the role of mediator is determined by the following aspects: • He is voluntarily accepted by the conflicting parties; he cannot be successful without the confidence and the cooperation of the disputing parties; • He must be perceived as credible and independent by the parties; he must be sufficiently impartial, something I refer to as maintaining equidistance; • Through his intervention he must influence, alter or modify an international dispute; • He may only apply peaceful means to convince the conflicting parties of his proposals; • He transforms a dyadic interaction into a triadic one; • His job is perceived as being temporary by all participants. In addition to this presumed neutral position of the mediator and the more utilitarian and idealistic view of the third party, the self interest of the third party should also be underlined. Experience shows

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that mediators are usually not neutral, but pursue their own interests, particularly when the mediating body is a state. Even when the mediator plays the role of an ‘honest broker’ (Bismarck), the broker still seeks a reward, or in other words, the mediator, as the broker, is on the lookout for profit (Touval and Zartman 1985: 321). Gains for the third party can take the form of increased reputation, upcoming profitable economic relations or, as in the case of Bismarck, colonies. The personal qualities of a successful mediator – similar to those of a good negotiator – comprise: • Knowledge of the conflict and the interests it is based upon; • Knowledge of the instruments and techniques available to the mediator; • Ability to understand the position of a negotiation partner, as well as the willingness to see the world through the eyes of the other and to understand behaviour in its cultural context; • Sensitivity towards culturally determined attitudes and the behaviour of the conflicting parties; • Ability to actively listen • Patience and a feeling for the right moment32 ; • Communicative talent and the ability to express ideas clearly; • Process-oriented behaviour • Knowledge of crisis management, for example, the capability to point out the advantages of a proposal to all participants; to maintain control, even in stressful situations; the ability to react adaptively, flexibly and creatively to situations, obstinacy, etc. Further personal qualities a mediator should possess are found in Bercovitch (1985: 163–4), Iklé (1964), and Simkin (1971). Other authors emphasize negotiation strategies (Kaufmann, 1962; Fisher et al. 1997; Zartman, 1985a; Burton, 1972). Regarding the resources of a mediator, the following points should be considered: • • • • • • • •

His legitimacy His material and immaterial means His expertise His negotiating skills Support from other powers His availability over time Rewards he can offer Pressure he can exert


• References he can prove • He has know-how • He has an information advantage One can also categorize the attributes of mediators according to their personal or contextual origins. The abilities as shown in Figure 10.3 emerge. In addition to the reputation of individual politicians such as Jimmy Carter, the organization that delegates an ambassador or chief-delegate is also important. The degree to which this organization or the mediator is respected by the conflicting parties is what creates a temporary but stabilizing system for the negotiation process, comparable to the framework offered by an international conference. Geoff Berridge mentions examples of, and reasons for, the fact that it is not unusual for more than one mediator to be active in a confl ict. However, just the addition of one mediator complicates the process – for better or worse – and transforms the dyad of confl ict participants into a ‘regime surrogate in disputes’ (Princen 1992: 8). Table 10.1 lists the mediation efforts by various third parties during the Bosnian conflict (1986–98) according to the conflict development cycle of intensities of the conflict. The numerous plans proposed by international agents could not be implemented and only the NATO intervention could end the conflict with the subsequent protection status to ensure the reconstruction and consolidation of new regimes. The most well known and frequently appearing mediator since the end of the Second World War is the United Nations. The Secretary-General, along with the Security Council and/or the General Assembly, had supported more then twenty official UN peace missions up to 2005. The number of mediation attempts in addition to the peace keeping missions is much higher. The UN participated as a third party 192 times (52%) out of a total of 364 mediated conflicts, most of which took place in the

Personal attributes – – – – – –

Energy Intelligence Humor, endurance Credibility Confidence Impartiality

Figure 10.3:

Context attributes – – – – – –

Ability to reward Ability to execute coercion References Legitimacy Expertise Knowledge/information

Attributes a mediator should possess

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Table 10.1:

Phases of confl ict and mediation in the case of Bosnia

Stage of confl ict

Confl ict events

Latent Conflict

1986–1990: inner Yugoslavian regime crisis; economic and ideological loss of legitimacy of federal organs Memorandum 1986: Proclamation of Great Serbia claims mysticnationalist reasoning (‘Annihilationcomplex’); The rise of Miloševic´ from communist official to nationalistic ‘Serbian Leader’ March 1989: Abolition of Kosovo’s autonomous status 1991: Yugoslavian–Slovenian war (June–July); Yugoslavian–Croatian war

Crisis

Violent crisis/ war

1992: Serbian War against Bosnia-Herzegovina 1993: War between Croatians and Muslims 1994: Croat–Muslim federation against Serbia and Bosnian Serbs 1995: Croatia reconquered areas, occupied by Serbia; NATO intervention

Ceasefire Consolidation Civilization

1996–1998: Demobilization, repatriation of expulsed and refugees, reconstruction, reconciliation

Mediation

Support by some groups (e.g., Croatia/Holy See) Brioni Declaration; Mediation by individual foreign ministers (Baker, Mock, Genscher); Good services (Greece, Austria) The Swiss Canton Model The Regionalization Model (Vance-Owen Plan) The confederation model (Owen/Stoltenberg Plan) The Union of two states (Plan of the contact group)

Reconstitution of BosniaHerzegovina with international guarantees and practical division of the country into two parts (Dayton Agreement) SFOR, tribunal, high representative, fi nancial aid, election monitoring, reconstruction of infrastructure


Middle East and Africa (Table 10.5). Organizations such as the African Union (AU), the Organization of American States (OAS) or the Arabian League (AL) also intervened (Pfetsch and Rohloff 2000: 196). As far as national actors are concerned, the United States participated in the majority of mediation attempts. During the cold war it was much more active than the USSR. Touval and Zastman (1985: 235) discover 57 cases of US mediation, not including 30 further attempts in Latin America, whereas the USSR only mediated in 17 publicly known cases. Ten out of these 17 efforts took place jointly with the United States, which shows the remarkably weak status of the Soviet Union/Russia as an independent mediator. When both powers act outside their direct sphere of influence, then mainly in the Middle East – often in coordination with efforts of the UN. Our facts support Touval’s findings: Out of 33 observed US mediations, 15 (45) took place in cooperation with UN efforts. The United States as well as the UN concentrated on crises occurring in Sub-Saharan Africa, East and South Asia, in northern Africa and often in the Middle East. The USSR only was active in four cases as mediator in South Asia and the Middle East; the United Kingdom mediated in 12 cases. Now as ever, the other four members of the Security Council Russian, the United Kingdom, France and China cannot be connected to successful mediation. Table 10.2 shows the frequency of UN mediations in national as well as international conflicts in different regions. The third main group of mediators represents regional and transnational organizations such the EU (EC), OSCE (CSCE), OAS, AU (OAU) and AL and the Holy See. Of these organizations, the OAS, AU and AL have undertaken the most mediation attempts in national and international conflicts. The fourth identifiable group or type of mediator consists of equidistant and impartial states which are accepted as mediators because of their low-key profile, their credibility and their neutrality. Whether or not they are accepted by conflicting parties strongly depends on their willingness to achieve a final reconciliation. Given that such mediators do not possess carrots and sticks as incentives or means of coercion, the disputes are often over issues of low intensity. Even if the ideological cleavage between two disputing parties does not allow direct contact with each other, this type of mediation agent is useful. Often, these mediators only offer ‘good services’ at first and become more active later on, as was the case in the well-known example of Algerian mediation in the US–Iranian hostage crisis or in several Austrian mediation attempts during the 1970s.

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Negotiating Political Conflicts Table 10.2:

UN mediations by region (1945–95)

Region

Total

Europe

28 15% 0 0% 5 3% 19 10% 46 24% 41 21% 53 27% 192 100%

North America South America Central America Sub-Saharan Africa East Asia/South Asia Islamic Africa/Middle East Total

Source: Pfetsch and Rohloff 2000: 196.

Formal and informal individual mediation efforts are difficult to grasp in their totality. It remains undisputed that former US President Carter was a capable individual mediator. But we only know this as a result of his fame – the real number of unofficial activities remains unclear. For example, a short phone call from the German Chancellor Helmut Kohl to his ‘friend’ President Yeltsin during the climax of the Chechen conflict could be understood as a mediation attempt – though unsuccessful – as equally as Jimmy Carter’s visit to Pyongyang, which ended in the signing of a formal agreement that led to a provisional breakthrough in the negotiations over the North Korean nuclear program.

10.3 Third party instruments Mediation is distinguished from negotiation not only in terms of actors, but also in terms of the instruments which are applied. 33 According to international law (e.g., the UN Charter) seven types of non-violent instruments can be distinguished: • Negotiation • Enquiry


• • • • •

Mediation Conciliation Arbitration Judicial settlement Referral to regional agencies.

Robert L. Butterworth (1976) and Jacob Bercovitch (1985) have proposed a more complete and differentiated approach of management techniques, enumerating the following intervention techniques: • • • • • • • • • • • • •

Conciliation Mediation Arbitration Enunciation, indictment Good services Investigation, fact finding Quarantine Intervention Coercion Observation Discussion Referral to other organizations Exhortation.

The list of intervention techniques shows that according to the terminology applied here, mediation does not represent the only form of intervention by third parties. In German usage, the term mediation (Vermittlung) is broader than in English and cannot be considered equal to the English term. Only in politics are the terms congruent. International and regional organizations use these instruments differently. Discussion, investigation and indictment have been the most commonly used tactics by the UN. In contrast to these, mediation was only a minor means. This has also been the case for the OAS, while the AU and the Arab League have made the most use of mediation (Pfetsch 1990: 122). With regard to mediation, the following questions may be raised concerning the mediator: does he belong to a superpower, a medium power, or to a neutral small nation? In the case of an institution, is he acting on behalf of the UN (Security Council, Secretary-General, General Assembly, UN mission with observers or with troops) or other regional organizations? Does he perhaps belong to a non-governmental

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organization, or is he even a private individual? We might also ask questions about the goals of mediation, the techniques available, and the negotiation strategies, power resources, etc. The place where negotiations take place can be chosen from a broad range of locations; they could occur in a neutral place, at the usual location of the mediator, at the usual location of a confl ict party, or even across several locations. The so-called shuttle diplomacy makes use of this latter possibility. Besides the location, context is also important – bilateral or multilateral, private or public, formal or informal, with or without the media. Negotiation can take place at one point in time, repeatedly or continuously. The mediator can make use of the following resources: (1) The legitimacy he possesses; (2) His material and immaterial resources; (3) The rewards he can offer, the coercion he can exert on the parties; (4) His knowledge of the issue, the information he has access to and others do not; (5) His negotiation skills, the expertise he has at his disposal; (6) Support from other powers; (7) His availability over time; (8) A resolution can be a possible instrument in UN negotiations. All of these factors have contributed to positive effects in several cases. The chances of success are high if: • third parties have a balanced relationship with both confl ict parties (equidistance); this does not necessarily imply neutrality; • the mediator is dealing with clearly identifiable parties who have the authority to make decisions; • the expected result enables the parties to save face; • the disputed goods can be divided and the possibility of compensation is provided; • there is support from great powers or from the most important regional powers; • the mediator has negotiation resources at his disposal. These are mostly material, or could be immaterial, for example, prestige; • finally, the parties are exhausted and both understand that further fighting will not lead to any gain.


The results of the mediation process can be characterized as follows: has the goal been achieved or not? Has the negotiated result been accepted by all parties? Whose interests did the negotiator follow during the negotiation process? What are the reasons for this mediator and not another being accepted by the conflict parties? Finally, to what extent did the mediator contribute to the final results (ceasefire, solutions)?

10.4 The mediators, the conciliators We are now in a position to define some characteristics of the mediator. A mediator plays an active role in the negotiation process, by developing proposals that can be accepted by the parties concerned. In general, propositions are jointly developed, but are not binding. The mediator is voluntarily commissioned by the disputing parties, and may pursue his own interests. President Carter’s mission during the Israel–Egypt conflict represents a well-known and successful example of mediation. The Camp David Agreement between Sadat and Begin in 1979 has been achieved on account of President Carter’s active mediation. He undertook a lengthy shuttle diplomacy between the residences in which the disputing parties lived for the duration of the negotiations. During this time, he put forward proposals until he found one acceptable to both parties. The bilateral relations between Israel and Egypt were excluded from the talks about the complex situation arising from the Middle East confl ict. Just before Carter’s mediation activities, both sides had made contact through visits, thereby indicating their willingness for reconciliation. Besides the negotiating skills of the President, it was also the presidential prestige and bargaining power that decisively influenced the outcome, as well as the power of coercion that ensured the implementation of the agreement. Both sides received financial aid from the United States, something which would have been withdrawn had the negotiations failed. This method embodied credible coercive power. The enumeration of different instruments does not mean that only one special tool is applied during mediation; on the contrary, several instruments are often used at the same time. Decisive differences exist between mediation and other means of seeking a solution. ‘Mediation


and conciliation are distinguished from arbitration and judicial settlement in that a disputant is free to reject a mediator’s or conciliator’s suggestion, but is expected to accede to arbitral or judicial rulings’ (Levine 1971: 26). Recent enquiry has stressed the importance of the pre-negotiation phase for the entire negotiation process. It seems to me that mediation plays a significant role at this stage. This has been shown, for example, by the successful attempt by the Norwegian Foreign Minister and his wife in 1993–94 that first enabled the establishment of unofficial communication between Israelis and Egyptians and later facilitated an agreement. Through the activation of a mediator, the two-player game between the two conflicting parties extends to a three-player game including the mediator. How the process is to be shaped depends not just on the conflict itself, but also on the third party. In summary, it can be said that a mediator is not directly involved into the conflict and does not have any particular interest in the disputed matter; nevertheless, he participates with his own interests in the negotiation or mediation process, yet these are distinct from those of the conflicting parties. He is voluntarily accepted by the disputing parties with the aim of supporting the quest for a solution through the submission of proposals. His or her suggestions are not binding and can be rejected. To be successful, he must be equipped with bargaining power and should be equidistant to the conflicting parties (see chapter 6). Conflicts are most frequently settled by the conflicting parties themselves. Conflict management is not only a question of available instruments, but also a function of existing regimes. When negotiation rules and instruments for deliberation and negotiation exist, the settlement of conflicts by peaceful means becomes easier. Our findings in connection with national regimes support this argument. Democracies have more possibilities at the disposal for the settlement of conflicts through negotiation, whereas authoritarian regimes tend to end conflicts with menace or the application of force. The existence of international regimes leads us into the direction of inference. The significant role that international organizations play – measured by the frequency of their involvement in international conflicts, their rate of success and their quantitatively non-graspable fact of existence – supports the assertion that the world is more peaceful with them than it would be without them. The following conditions determine the success of mediation:


• The third party should have an equidistant and balanced relationship to both parties, what does not necessarily means neutrality; • The mediators should dispose of negotiation resources and bargaining power, that can be material but also immaterial (e.g., prestige); • Parties should be clearly identifiable; the spokesman of a group should possess legitimacy in representing the group; • The result should be achieved by the manner that no party loses its face; • The intervention of a third party should be made at the right moment. William Zartman (1985a: 232–6) contends that conflicts are more likely to be resolved when ‘each party must recognize its opponent’s strength and its own inability to overcome it’ or ‘when the upper hand starts slipping and the underdog starts rising’. The ripe moment for a solution is, then, associated with two sorts of conflict intensities: the ‘plateau’ situation describes a deadlock when no one party perceives a positive way out. In such a situation, a conciliator can reinforce such an unpleasant perception and convince the parties that further quarrel will not lead to any gain. The second point in time for conciliation is what Zartman calls a precipice, which can be an impending catastrophe that has been narrowly missed or has just occurred. A foreseeable catastrophe will force both sides into negotiations. It must be said that in practice, the determination of the right moment is as much a matter of intuition as of reasoning. • The disputed issue should be divisible, that is, there must be sufficient issues to allow for exchange deals. • The support of great or important regional powers gives the mediator more bargaining power and influence. • In long lasting acts of war, a state of depletion is achieved; then both parties will recognize that no further gains are possible by continuing military actions. Two conditions have to be stressed in particular: equidistance and bargaining power. In the Beagle Channel conflict between Argentina and Chile, the United Kingdom was at first to undertake the mediation mission. Chile, however, considered the relationship between the United Kingdom and Argentina as too close, therefore both parties agreed to engage the Holy See as mediator on account of its equidistance to both catholic countries.

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• • • • • • • •


Equidistance of the mediator to each conflict party Negotiation power Clearly defined and legitimate parties Face saving Ripeness of time Support of great powers Differentiation possibilities of disputed goods Pat situation

Figure 10.4:

Summary of elements for successful mediation

The many successful mediation attempts by the United States have to do with the bargaining power of the superpower, that is, the Camp David Agreement between Israel and Egypt not only was arranged by the skilful mediator President Carter but also by the fact that the United States could guarantee the arrangement promising financial support to both parties.

10.5 Mediation in civic affairs Not until recently have so-called mediations been established in areas such as jurisdiction, administration, marriage counseling, in companies, or even in schools as a means of conciliating teacher – student or student – student conflicts. In these contexts the term ‘mediation’ is used in a different meaning from that described above. This process of cooperative solution-seeking is denoted by five features: (1) It is performed by an independent third party, (2) the affected conflicting parties negotiate and decide freely, (3) the mediator does not make any proposals on his own, (4) the process should be implemented at an early stage in the planning and (5) no binding decision can be made as a result of the process (see Passavant 1987; Stöbe 1996: 183–204). The mediator distinguishes himself from the envoy and the conciliator in so far as he cannot make any suggestions of his own upon which parties might agree. Such procedures at first became institutionalized in the United States before they were introduced in Germany. The most significant difference between German and American mediations lies in the differences between their judicial systems. In North America, mediations really can result in binding decisions even without executive decisions, whereas in Germany mediations are only possible in pre-negotiations which do not possess a binding character. Mediations disburden courts by settling conflicts extra judicially. Under the term ‘mediation’ we can generally sum up cooperative negotiation that takes place in informal, non-institutional frameworks. Compared to the case


of legal procedures, mediation is similar to the process of dispute settlement outside of a court of justice. According to the German understanding and in civil domains (administration of law, working life, environmental questions, family and schools), mediation may be (Montada and Kals 2001: 17) defi ned as the following: Mediation is a procedure aimed at settling disputes outside of court; it is carried out by mediators who are not involved in the conflict themselves; the procedure is directed towards finding a compromise between the parties in conflict; the willingness to achieve an appropriate solution is a necessary feature. Nevertheless, very different procedures are subsumed under this definition, as the following example proves. In 2000, an 18-month long ‘mediation’ – as it was denoted – took place in ‘open dialog’ form on the issue of the enlargement of Frankfurt Airport, in Germany. The 21 members of the mediation group consisted of delegates from the airline industry and other companies, trade unions, local representatives from the airport surroundings, and delegates from the state and federal governments (FAZ, 1 February 2000). Civic initiatives and environmental groups boycotted the event, denouncing it as an ‘alibi event’ (RNZ, 1 February 2000). A former president of the European Parliament and SPD politician, a delegate from the Frankfurt Chamber of Commerce, a representative from a previous anti-enlargement struggle and an evangelical pastor were appointed as mediators. One hundred and twenty experts went over 21 scenarios and came to the conclusion that in 2003 at the latest, the capacity of the airport would have been reached. Thus, an extension would be necessary, and four alternatives were possible, out of which one had to be chosen. In the narrow sense defined above, this example is not one of mediation, because not all of the mediators were independent personalities, but represented their own interests. Moreover, this event can be seen as a dialog between different interest representatives, who sought for an agreement prior to parliamentary decisionmaking. The blockade by environmental groups made no ideal recommendation possible. Nevertheless, this and other dialogue, conciliation and mediation process make sense, as they involve the parties concerned, pre-structure the field of interests, and may avoid lengthy legal proceedings.


By incorporating attorneys in legal disputes, possibilities exist of to achieving a settlement outside legal proceedings. Many lawsuits do not end in court, but end in settlement. This is achieved either by the attorneys in charge or the defendant and plaintiff also participates in negotiations. The plaintiff can thus take on the mediating role between the his own party and the opposition, as he has bargaining power at his disposal with which to withdraw or reduce claims, and may thereby be able to foster a compromise. The procedure fi nally ends with a settlement that satisfies both parties and their attorneys and ensures that nobody loses face. This example also does not represent mediation according to the abovementioned definition, because no independent mediator is involved. The lawyers represent the interests of their clients. Moreover, this procedure does not end in non-binding recommendations. Such a proceeding outside of court has the character of a free decision, so that the result is considered to be binding. This quasimediation procedure is found in the civic sector and anticipates the decision-making of a sovereign authority.

11 Modalities of Conflict Termination

How do conflicts end? Non-violent conflicts are terminated either by voluntary agreement, by threat (imposed termination), or by withdrawal before the next level of confl ict intensity is reached. Negotiations are the most important means for bringing about such forms of termination. Yet the ending of a conflict is not necessarily meaning the same as a political solution. A whole range of modalities exist.

11.1 Typology of conflict termination and the role of negotiation Negotiations are not always the best way to achieve a desired political goal. Parties may refuse to begin negotiating because, right from the start; they do not see any advantage for their own position and view negotiation as a no-win solution. A better option may then be not to negotiate and/or pursue their interests by other means. In other cases negotiations are broken off because divergent interests cannot be accommodated. It can also be the case that a party enters negotiations merely to demonstrate willingness, knowing that the outcome will have no real impact on its further policy. Hence, there are various reasons for not considering negotiations to be the best way of achieving a specific desired goal. In this chapter, I enquire into the limits to (as well as the possibilities of) negotiations and determine the borderline between the advantages and disadvantages of negotiating. 11.1.1 Some historical examples The different types of conflict resolution – even in cases of violence – can be accompanied by negotiations either between the confl ict parties 159


themselves or facilitated by a third party. Negotiations are, therefore, a regular part of the settlement of conflicts, whether in terms of personal meetings, in the presence of a third party, or within the framework of an international conference. Even if the main representatives do not meet face-to-face, the conflict parties still remain in contact with one another. Messages can be communicated through the mass media and be taken into account by the opponent. During wartime, this form of communication appears to be common practice. Empirical examples show that some forms of negotiation can and do accompany the different modalities of conflict management. Eight forms of modalities dealing with conflicts can be identified and illustrated with empirical cases. In all these examples, negotiations did take place but assumed a completely different character in each case. (1) War without external intervention (India and Pakistan over Kashmir) (2) Wars with external intervention (Bosnia) (3) Threat (Diktat) (Parisian peace treaties after the First World War, Munich, Cuba) (4) Court decision (Minquiers and Ecrehos) (5) Passive or active withdrawal (policy of Glasnost by Gorbachev) (6) Negations with a third party (Egypt and Israel, Camp David) (7) Negotiations between parties (Saar solution) (8) Open, ongoing, continuation (Gibraltar, the Falklands) 1. During the long-lasting conflict between India and Pakistan over the Kashmir issue, bilateral talks and negotiations have taken place at sporadic intervals. From time to time there have been wars between the two combatants. Negotiations have, so far, not led to a solution; both sides have not given up their claims. 2. In the case of Bosnia, international organizations, including the European Union and the superpowers, made efforts to mediate. Plans for a new political order in the country were proposed but not accepted by the militant parties. They continued fighting as long as they expected gains through ethnic cleansing and the use of force. Only the United States succeeded in terminating the war through the use of military power and achieving the acceptance of a peace plan, whose implementation was accompanied by a stick and carrot strategy. 3. Threat can be exercised in various ways. A victorious power can impose its will upon a defeated party, as was the case with the so-called peace treaties following the First World War. A strong power can exert

Modalities of Conflict Termination 161

pressure on a weaker power and in this way dictate a particular outcome. This occurred with the Munich Agreement of 1938, due to which the state of Czechoslovakia was dismantled with the consent of the four powers of western Europe. The negotiations only took place among these powers, and excluded the affected party. A great power can also force a party to retreat with the use of face-saving diplomacy, as was the case in the Cuban crisis. 4. A court decision must be preceded by negotiations between the parties in which they agree to both go to court and to accept the legal decision. 5. Active and/or passive withdrawal can be either accompanied by negotiations or occur silently. In the case of the active withdrawal by the former Soviet Union in the 1980s, negotiations took place within various political forums, at different levels (national, regional and international) and among both individual governments and collective communities. The political reorientation of Gorbachev had to be accommodated within the communist bloc and among the superpowers. 6. Negotiations with the help of a third party. Specific conditions must exist in order for a third party to succeed in bringing confl icting parties to an acceptable position. Jimmy Carter succeeded in arranging an agreement between Sadat and Begin in Camp David in 1978; in his capacity of US President, he was equipped with bargaining power and the power to apply sanctions; he managed to achieve a consensual agreement that is still effective today. 7. Negotiations between the parties themselves. An example of this kind of solution is provided by the agreements between Germany and France over Saar, a prerequisite being the construction of a European Community in the 1950s and the will of the French and German governments to reach a modus vivendi on disputed issues, such as Saar as a political entity. The framework of détente, infused with the European spirit, made a solution possible to which both sides and the population of Saarland could agree. 8. Some ongoing conflicts have remained unsolved for decades and no solution has been found, in the sense that the disputed issue is no longer controversial. An example of this modality is provided by the Gibraltar and Falkland conflicts. Both are disputed territories over which the question of sovereignty was (and still is) contested. Negotiations took place on numerous occasions (in the case of the Falkland conflict with third parties) and a war provided a further expression of incompatible positions. Today, both conflicts lie dormant, the conflicts

162


remain latent, and the parties’ concerned (the United Kingdom, Spain, Argentina) are not interested in aggravating the confl ict through the use of forceful means. Besides other factors (importance of the disputed issue, reputation, etc.), the theory of democratic peace does not allow for the employment of military means.

11.2 The quality of negotiated agreements The results of negotiations in assemblies can be of different qualities. We can distinguish eight forms of ending negotiations. 11.2.1 Non-decisions A non-decision on a material issue can be one of the results of a decision-making process. The decision for a non-decision can arise from a very heterogeneous group with highly divergent interests, or as an intended strategy to avoid unfavourable results. Both considerations played a role during the period of the empty chair instigated by France in the 1960s. Alternatively, a veto against a proposal can express general opposition on the part of one country, a tactic United Kingdom undertook in revenge for the sanctions on the export of British beef. The potential for consensual solutions increases with the ideological or programmatic proximity of the different groups, and with larger issue packages with more subject matter to decide upon. Internal or external pressure can accelerate or delay a decision. Compromises become more likely when the groups estimate that a future matter (e.g., participation in a coalition government, campaigning) is more important than a current issue. The level of consensus is an equally important aspect of decisions on regulations for elections and voting. A high basic consensus facilitates majority decisions; divergent interests favour a unanimous decision. Deadlocks in the decision process can be overcome through delay or adjournment. One way of deferring a matter is to transfer it to committees. In such committees, experts can produce and deal with more information. One important technique applied by political actors is therefore the resort to non-decision when reaching a decision might otherwise be inimical to their interests. In the various policy-making bodies of the EU, such a technique is secured with the principle of unanimity, primarily on issues of high politics. The Community can provide many examples of this strategy, such as the numerous plans, proposals, and reports produced by special committees for its further development.


Most of them became obsolete shortly after their publication, as did the Fouchet plans in the 1960s; others evolve into concrete policies such as the Werner and the Delors plans. Social programmes are also very unpopular with a substantial number of influential EU members, and whenever they are put on the agenda they run the risk of being cut down or even cut out. 11.2.2 Partial decisions A solution can incorporate the entire subject matter up for negotiation or just parts of it (partial decision). Broad decisions can be reached by way of enlargement and differentiation or exchange and linkage. Partial decisions can symbolize the lowest common denominator in cases of severe differences of opinion among member governments. Scharpf (1999) holds that in the EU, as well as in federal systems, countervailing forces among actors at various levels of decision-making create a socalled ‘decision-trap’. This implies an inability to come up with more progressive visions and a tendency to stick to conservative solutions. Peters (1994) argues, however, that the opposite could also be true. Because of its openness – and, I would add, because of its elite structure – the EU can channel demands from social groups more easily than national constituencies. ‘The fragmentation of the institutions and the multiple points of access permit policy entrepreneurs within the EC/EU to have the system consider a wide range of options’ (Peters 1994: 24). 11.2.3 Radical resolutions A non-binding general statement, that is a non-binding radicalization or ideologization, can also serve as a solution when highly heterogeneous groups struggle to reach binding decisions on concrete or material issues. The smallest denominator then is a non-binding platform on which divergent views can be accommodated. Ideological slogans such as ‘imperialism’, ‘communism’, ‘capitalism’, serve as activating principles. Pragmatic solutions are common when the assembly is forced to reach a binding solution. The particular structure of the EU as mentioned before does not allow radical solutions but rather pragmatic solutions. 11.2.4 Ambiguous decisions Decision-making processes may also generate a choice of options when there is no need for binding decisions (ambiguous decision). The result will be realistic and pragmatic recommendations unless the situation

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leads to empty phrases, irresponsible demands or over-generalizations. Compromises are also ambiguous decisions, since they take both sides into account and can, as a result, be interpreted in different ways. This form of decision formula can, in some instances, be the only way of bringing the divergent interests of EU actors in policy matters together. It could form the minimum consensual platform for otherwise divergent interests. 11.2.5 Majority decisions and compromise An outcome either only reflects the numerical majority or includes minority positions as well. Majority positions are successfully implemented if the majority is not forced to compromise; minorities have their chance to influence the decision-making process if the majority party is divided or if a large party has no absolute majority and needs a small party as its coalition partner. A fairly large assembly under time pressure favours majority positions more than do smaller assemblies without time pressure. According to the EU Community Law, majority rule must be applied to specific issues, especially the common market and not so common fields such as foreign and security policies. In reality, however, even in these fields a consensual approach is preferred to majority voting. 11.2.6 Stable and unstable decisions Decisions are either stable over time or must be revised, rejected or modified. The stability of decisions depends on a large number of factors. Generally, decisions are stable if they have been reached without time or power pressure, with a high consensus, on the basis of unanimous decision-making or with respect to the further scope of action. Representation alone, for example with fi xed quotas, does not suffice unless there is a high consensual potential, for example through ideological or programmatic proximity among the organized members. Coalition governments with a barely sufficient majority have shown themselves to be relatively stable. In the EU, the practice of voting follows a pattern of consensus and not a ‘tyranny of the majority’. This is a result of the expectation of other more stable decisions in the future. 11.2.7 Conservative or progressive decisions Decisions reached in a group process are either aimed at the preservation of the status quo or at initiating change. Unanimous decisionmaking favours status-quo-oriented decisions; majority decision-making


is more flexible and presents more opportunities for change. Thus countries such as the Benelux states, Germany, Italy, Greece, Portugal and Spain are willing to deepen or/and widen EU favour-qualified majority voting in the Council in the field of foreign and security policies (as well as in other policy fields, such as those of justice and home affairs). Those countries reluctant to enter into the integration process or even refrain from it, such as the United Kingdom, Denmark and Ireland, want to keep unanimity voting. The preservation of the veto position can prevent necessary changes and stabilize the status quo. However, in EU assemblies, both types of outcome are possible and the result does, of course, not only depend on the rules of the game. Political will is the decisive factor and where there is a will there is a way, which could result in a change in the rules. In the EU there are numerically more conservative governments, such as the British and the Danish, who want to preserve national competencies as far as possible. Others expect the development of a federal European state and are, therefore, prepared to concede more competencies to a third tier organization such as the EU. 11.2.8 Future-oriented agreements Finally, solutions arising from decision-making situations can refer to present or future goods. The chief negotiator has to show a willingness to compromise when, in coalition negotiations, for example, he wants to secure government participation. Present goods can be exchanged for prospective goods. If future behaviour is more highly valued than contemporary behaviour, concessions can be made on currently negotiated goods in order to receive prospective concessions. In EU negotiations one has often been able to observe that compromises made over issues currently in dispute have been reached in favour of the future general development of the Union.

11.3 Military, territorial and political results Above all the results of violent conflicts can be distinguished by the extent to which they are related to issues. Military, political and territorial results can be differentiated between, depending on the means or mode of conflict management applied and the characteristics of the issues and values under dispute. The frequency of each of type of result for 661 conflicts is provided in brackets below (Pfetsch and Rohloff 2000: 203–7): Militarily, a conflict can be terminated by:

166


• the victory of the party that started the war (18%); • the defeat of the party that started the war (28%); • a military deadlock situation (e.g., ceasefire, withdrawal of troops, armistice) (41%); • a short interception, followed by the resumption of hostilities (12%). Different interpretations can be found for each of these types of result. For example, Carroll (1969: 305) recognized that there are no less 15 meanings of the term ‘victory’, in order to avoid mentioning the term ‘defeat’ in the eyes of the defeated. In 239 violent confl icts between 1945 and 1990, the defeat of the aggressor (28%) has occurred far more frequently than its victory (18%). Ceasefire (temporary and permanent) was the outcome in 41% of conflicts. This result should give aggressors food for thought. Warlike disputes reckon with either victory or defeat. On the basis of interstate wars between 1816 and 1992, Reiter and Stam (2002) pointed out that democracies finished wars more successfully, within a shorter time period, and with fewer casualties, and have better military leadership than autocracies. Furthermore, democracies depend more on public opinion and decide more carefully (Reiter and Stam 2002: 198–9). Not only as attackers but also as defenders, they achieved better results than did dictatorships or oligarchies (Table 11.1). Democracies won 93% of the wars they started themselves (dictatorships: 60%) and 63% of the wars in which they were attacked (dictatorships: only 34%). Particularly when we think of the two world wars, this argument becomes plausible. This result also confi rms the hypothesis that democracies have better management capacities at their disposal. But these results are not only dependent on the regime type, but also on the extent to which democracies are industrialized countries and thus have more sophisticated military equipment at their disposal. 11.3.1 Territorial results When there territorial matters are under dispute (including border demarcations and maritime borders), possible results are: • • • • •

division of the country (12%), conquest/incorporation (17%), territorial losses (7%), dropping of territorial claims (14%), maintenance of the status quo (49%).

Modalities of Conflict Termination 167 Table 11.1: Victory and defeat in wars according to regimes (according to Reiter/Stam, 2002, p. 29) Dictatorships

Oligarchies

Democracies

Total

A.1 War initiating country Wins 21 Losses 14 Winning percentage 60%

21 15 58%

14 1 93%

56 30 65%

A.2 Targeted country Wins Losses Winning percentage

18 27 40%

12 7 63%

46 65 41%

16 31 34%

11.3.2 Political results The political results of conflicts finally decide whether of not a solution has been reached, even though not every agreement based on negotiations represents a solution (these terms are defined later on). Political results are categorized according to political goals, to the way they have been attained, or to the consequences that follow for the actors. Political goals can be subdivided according to the degree that the claims of the relevant actors were fulfilled: did the initiating party achieve what it claimed or not? Under which circumstances have policy results have been reached within the period 1945 to 1995? • • • •

by way of a consensual negotiation result (16.1%), by way of partial material solutions (42.4%), by maintaining the conflict situation (22.2%), or by way of compromise (19.3%) (see Pfetsch and Rohloff 2000: 205)

Empirical data demonstrate that more than 60% of political negotiation results have resulted in partial solutions or open non-solutions. In a few cases, consensual agreement has been achieved. What consequences did these policy results have on the positions of the respective actors? What does the political result mean for the government, the opposition or the external government involved in the conflict? A government or opposition can be strengthened or weakened, stabilized or destabilized/suppressed; an external government can enlarge or withdraw its influence. The empirical results take the following form:

168

• • • • • •


The government becomes stronger (10%) The opposition becomes stronger (17%) The government becomes weaker (4%) The opposition becomes weaker (25%) External powers maintain, increase (9%) or lose influence (9%) Regime changes follow (27%).

In matters of political power, changes in regime type are most common, that is, the dispute ends in the weakening of the opposition. For ethno-religious conflicts there are at least four ways in which such sub-national disputes may be terminated: • suppression by the central authority or victory government, • autonomy and self-determination • secession from the national framework • bilateral arrangements (specific rights) or federalism.

over

the

Which result out of these possibilities is finally realized depends on the relationship between the elites of the central authority and the opposition. The list of political results shows that negotiations have played a crucial role and were also present in violent conflicts. Nevertheless, political solutions, in the narrow sense, were hardly ever achieved.

11.4 Formal versus informal termination In some cases agreements end with a legal contract signed by the parties; in the period 1945 to 1995 we count altogether 576 political treaties signed most of them by autocracies (Table 11.2). In other cases consent is only offered verbally. In reality there is evidence that

Table 11.2:

Political treaties by regime type

All states Democracies Transitory regimes Autocracies

1950s

1960s

1970s

1980s

1990s

Total

89 40 12 37

122 39 21 62

135 31 20 84

68 33 10 24

162 68 43 51

576 211 106 258

Source: Pfetsch and Rohloff 2000: 206.


formality or informality is not significant as far as the stability of the agreement is concerned. A conflict that ends with a formal agreement is not necessarily more durable than one ending without.

11.5 Conflicts in the UN Security Council The majority the 49 conflicts that have been brought before the Security Council between 1945 and 1993 were larger conflicts, but only a few has been dealt with. Why? The UN is an international organization, which means that the great powers are dominant. Through the means of double veto (referring to material and procedural questions), permanent members of the Security Council were able to block debate over conflicts in which they themselves were involved. As this was frequently the case, only about 15% of the 300 larger conflicts between 1945 and 1993 could be debated. Out of 98 wars and conflicts in this period, only 18 were bought before the Council, and only in two cases were permanent members directly involved (Suez crisis and Falklands conflict).34

11.6 Historical cases Quantitative data analysis does not show the specific circumstances under which a result is reached and which events followed. This can only be illustrated through case studies. Following the end of the First World War, the victorious countries signed six so-called peace treaties: Versailles (concerning Germany), Saint Germain en Laye (Austria and Hungary), Neuilly sur Seine (Bulgaria), Trianon (Hungary), Sèvres, and Lausanne (both Turkey). These negotiations did not all take place under equal conditions. The defeated parties had to accept what the victors dictated. As a consequence, those treaties were considered as forced agreements. What was the outcome of the peace treaties? Did they result in peace? In order to answer this question we have to take a more detailed look at the treaties. The issues dealt with referred to territorial agreements, fi nancial transfers, or new political regimes. States that had not existed beforehand (or had only existed temporarily) were created as sovereign states: Hungary, Czechoslovakia, Yugoslavia, and Poland. Furthermore, several territorial successions and accessions were carried out: AlsaceLothringia from Germany to France, Posen and western Prussia to Poland; southern Tyrol, Trieste, Istria, Dalmatia, and parts of Carinthia

170


from Austria to Italy; and Macedonia from Bulgaria to Yugoslavia. Slovakia was detached from Hungary and, together with Bohemia and Moravia, became Czechoslovakia, and so on. Turkey lost a large amount of its territory to Greece, the UK, France and Italy. Often, the affected population demanded the revision of the decision, on the basis that it was made without their approval. In some of the transferred territories insurrections took place, as was the case in the newly Austrian Burgenland and in Fiume. In other areas, referenda took place, as in Carinthia and Silesia, although the latter referendum, which turned out in favour of Germany, was not accepted by the Allies and the territory became Polish. The Treaty of Sèvres (1920) was partly revised through the Treaty of Lausanne (1922). What happened to the financial agreements? In the case of Germany, new conditions were worked out some years after Versailles (Dawes Plan and Young Plan). Insurrections took place in the Ruhr area against the occupation, that is against the forced reparations. It was easy for extreme right-wing movements to bring the issue into the realm of public debate. As is well-known, Hitler aimed at a revision of the Treaty of Versailles. When he felt strong enough to do so, he overturned territorial losses by force. It can therefore be claimed that forced peace treaties tend to be revised if the possibility arises. The Munich Agreement represents a further example for an oppressed agreement that could not be maintained as soon as circumstances allowed its revision. After the war, Hitler’s territorial gains from the Czechoslovakia were annulled, as were other conquests made during the war. After 1945, when Germany had been defeated and the Federal Republic established, the treaties between Germany and the Czechoslovakia and the Czechoslovak Federal Republic in 1974 and 1991 held the forced treaty of 1938 to be nil ex tunc. As a first finding, one might claim that the Second World War represents the continuation of the First World War. Thus, Eric Hobsbawm (1994: 75) refers to the 30 year war between 1914 and 1945. The unjust peace treaties that followed 1918 constitute one reason for the Second World War. Second, the Potsdam Agreement that was forced upon defeated Germany without approval by the population, has also been revised in several points (prohibition of weapon production, avoidance of installing a central government, Allied control over the German economy, partition into zones of occupation, territorial agreements concerning Belgium and the Netherlands). Yet, two territorial losses remained permanent: Alsace-Lothringia and all of the territories


beyond the Oder-Neisse line. How does that fit into our main hypothesis? The current situation proves that both territorial changes have been approved by German governments and were voluntarily recognized in respective treaties (1990). How we can explain partial revisions and partial acceptance of losses? There is more than one explanatory factor. After more than 40 years, the cold war had made any change impossible, and broad sections of the population had accepted the situation. The German population had been expelled from the areas east of the Oder-Neisse line and the refugees became integrated into the German economic boom, with the result that enthusiasm for returning to the former poorer German areas decreased. In contrast to the First World War, Germans felt guilty for the wars of aggression initiated by Hitler and the majority of the population accepted the territorial losses. With the development of the European Union, the borders also lost their significance. Border adjustments between Germany, the Netherlands and Belgium after 1949, the solution in the Saar question between Germany and France, and Germany’s peaceful reunification show that forced changes under certain circumstances can be revised consensually. Policy change from national power politics to regional negotiation politics makes peaceful revisions possible. Thus, postwar history proves that revising unfair peace treaties must not necessarily be carried out by force.

11.7 Unfinished wars: Short-lived results Taking our analytical and empirical findings as a basis, we can now more precisely denote the conditions under which – according to our hypothesis – either the result of war is revised, or a permanent situation is created. Military results can be enduring when: • the defeated party has been expelled and can no longer avenge itself; • national and/or international actors maintain the status quo, in particular, when a return to the previous situation is externally blocked; • when the defeat is accepted by the participating parties; • the defeat is accepted by the population and considered justified; • the division of a country after civil war is based on the principle of self-determination.


These conditions, combined together, result in two groupings of conditions of acceptance following the termination of war: either, the result of war is temporarily accepted and/or acceptance is based on the norms of international law and is considered justified. Military results are not permanent, when: • they are considered to be unjust and as a consequence trigger feelings of avengence; • a ceasefire is only called as a means of winning time and strengthening forces; • due to a change of elites, formally recognized results are challenged by new elites; • a new situation (e.g., changes in international power structures) makes the return to a former position possible; • war-related questions remain open and unresolved; • an external power supports the return to status quo ante. Outcomes resulting from war do not generally last very long if they were not negotiated politically. Only a political solution – achieved though negotiations – can sanction the changes brought about by war, as European postwar history has proven.

12 Resolution Through Negotiation

Also setzt ein jeder Friede voraus, dass alle Ansprüche, die bis auf den Zeitpunkt ein Staat auf den anderen haben konnte und die zu Feindseligkeiten Anlass geben könnten, abgetan und für Null erklärt sind . . . [Die] Ursachen zum künftigen Kriege sind durch den Friedensschluss insgesamt vernichtet. – Each peace presupposes that all claims that one state has against another and that cause enmity be removed and declared nil . . . A conclusion of peace nullifies all existing reasons for a future war. (Kant, Refexionen) For the resolution of conflicts, especially violent conflicts, the analysis of causes becomes relevant, since a solution should aim at removing such causes. I will differentiate the factors that cause war according to the Aristotelian scheme of cause assignment. Apart from general explanations such as ‘man’s aggression’ or ‘the ruler’s stupidity’, four complexes of causes can be discerned. First, as causa materialis, that is, theories focusing on the structures of international and national political systems, the lack of a dominant international agent of enforcement (i.e., due to the dissolution of bipolarity) or a national law enforcement agency (i.e., in weak states) can be mentioned here. Non-consolidated regimes and failed nationbuilding processes can lead to crises of identity, participation or distribution. Crises of horizontal legitimacy (ethnic communities, minorities) and vertical legitimacy (consent to political leadership) can lead to conflicts and even to wars. Historically, these kinds of situations developed after the collapse of the Habsburg double monarchy, the Ottoman and the Czarist empires, the colonial empires of the British, the French, the Dutch, and the 173

174


Portuguese and of the Soviets. The disintegration of empires leaves a vacuum that states vie to fill. In addition to political structures, many theories of war refer to economic or ecological structures: deprivation caused by poverty (‘war starts in the cooking pot, not in the mind’), the so-called North–South divide, welfare gaps within states (autonomist endeavours by more developed regions in Spain, Yugoslavia, the Soviet Union, etc.) and among states of the North and states of the South. Environmental damage, such as drought or water shortages, can also provoke conflicts, as was the case in Ogaden, between Ethiopia and Eritrea. Second, under causa formalis, one can include existing historical facts or those rationalized after the event, numerous theories of false perception, and threat scenarios. The clash-of-civilizations theories à la Huntington and ideological rivalries belong to this category. Third, the causa efficiens or instrumentalis traces the causes of conflicts back to the actually existing or assumed existence of armaments or military technology. These means of destruction become more and more independent and develop a dynamic of their own, irrespective of political goals. The assessment or miscalculation of means which could potentially applied for mass destruction gives rise to calculations and judgements envisaging success and victory. The arms race is based on the perceived threat of the other side’s armaments. The consequences of the militarization of whole societies should be mentioned here, as well as the claim for political leadership as a result of economic power. Fourth, according to the causa finalis, the objectives of a nation’s action are responsible for causing wars. The classical pattern of power politics, with its absolutist perception of power as the ultimate goal of national politics, is deeply rooted in the thinking of leading politicians and has determined the state system since the age of absolutism; its echoes can still be heard today. The twentieth century witnessed this kind of power politics as expressed in the foreign policy doctrines of superpowers or in the struggle for power of smaller or ‘neglected’ countries. These theories of deprivation can be applied to Germany, Italy or Japan at the turn of the twentieth century. The grand ideologies of the nineteenth and twentieth centuries – nationalism, socialism, racism – promoted such claims, which aimed at expansion and contained the potential for aggression. These and other theories certainly provide important partial explanations for violent behaviour. However, the validity of these theories, which link various causes and effects of war, is limited: the weak state

Resolution Through Negotiation 175

theory as absence of a law enforcement agency, for instance, only concerns a small number of states. The cold war theory, according to which international turbulence can be controlled, indicates only a state of non-war between the superpowers, and omits the vast number of wars and conflicts that took place in the Third World. The theory that regards the clash of civilizations as the new conflict cleavage ignores the state, which is still the most important actor in the international arena. Furthermore, the theory of liberal institutionalism, which states that wars can be contained and controlled by international organizations, has contributed to the fact that wars between states no longer occur so frequently; instead, the international community has so far been unable to solve the problem of ethno-political wars. There is empirical evidence among OECD countries in favour of the theory of democratic peace, which suggests that democracies do not fight against democracies, yet the transition to democracy may be full of conflicts; and, in addition, democratic states do not differ from authoritarian regimes in their behaviour towards the outside world.

12.1 The theory of ‘unfinished’ peace agreements With regard to the violent behaviour of the twentieth century, I would like to suggest a theory of ‘unfinished’ peace (agreements), which follows Kant’s peace theory and adds further thoughts to his reflections on the transition from peace to war and vice versa. According to the philosopher from Koenigsberg/Kaliningrad, peace is not necessarily a desirable state in the history of human development. Furthermore, it can only be deemed possible and necessary at a certain stage of cultural development, which, however, remains unspecified. Nonetheless, the development of mankind tends in the long run towards a state of peace, and this results primarily out of three reasons: the duty of the rule of law (Rechtsstaatlichkeit), the principle of publicity (Öffentlichkeit), and the effects of acts of war on people. In discussing the conditions of a negotiated solution Kant put forward a set of peace-promoting conditions in his essay ‘Perpetual Peace’ (Zum ewigen Frieden, 1795). According to the so-called preliminary articles, several actions ought to be prohibited: deliberate deception at the conclusion of peace treaties, the annexation of another piece of land, the signing up of mercenaries, the indebtedness of the state arising from acquiring the means necessary for war, the intervention or interference in another state’s affairs, and fi nally, all policies making mutual trust in future peace impossible. The state of peace can only achieved by a

176


republican order, by a ‘federation of free states’ or ‘confederated states’ ‘league of nations’ (Friedens- oder Völkerbund) and by each state conceding an unrestricted right of travel to the other (Besuchsrecht). These conditions are only partly fulfilled today: peace treaties and cease-fire treaties are concluded with the intention of undermining them (Miloševic´, for instance, agreed to and broke at least 30 ceasefire treaties in the Bosnia war); there are still – albeit more and more infrequently – cases of states trying to annex other states, but the annexation of Kuwait was probably the last attempt. Soldiers can still be recruited, and military spending is also high, especially in countries that see themselves exposed to high threats (Pakistan, India, Israel, etc.). The principle of non-intervention in internal affairs has been codified in the UN Charter, but it has been violated in many cases – even if ‘only’ by proxies. In total, in the 50 year-old history of conflicts after the Second World War, the governments of neighbouring countries have politically and militarily intervened 206 times (Pfetsch and Rohloff 2000: 182), although in many cases, the intervention was demanded by domestic elites. Finally, it is extremely rare that peace agreements are concluded with the aim of avoiding future confl icts. The sequence of conflicts that have occurred in the very same countries proves that earlier peace agreements have not been concluded in the spirit of mutual trust. In order to prove the thesis that arbitrary peace leads to war, the first and sixth of Kant’s preliminary articles are of significance. These articles state that for all controversial issues, agreements should be based on free and unconditional arrangements and peace treaties should secure mutual confidence in the future. It is my central thesis that the nonfulfillment of these conditions can explain most wars in the twentieth century. For this purpose, we shall fi rst interpret Kant’s conditions in a manner appropriate to our times. In Kant’s own words, the first preliminary article claims: ‘No conclusion of peace [as a reason facilitating eternal peace] shall be considered valid as such if it was made with a secret reservation of the material for a future war.’35 The sixth preliminary article insists: ‘No state at war with another shall permit such hostility as would make mutual trust impossible during a future time of peace’.36 Kant puts further emphasis on his demand by calling for the immediate fulfillment of these demands, together with the prohibition of annexation. Moreover, he adds in his ‘Reflections’: ‘Thus, every peace presupposes that all claims be discarded and annulled which one state could, up to the present, submit to another state and which could be the cause of hostilities. Peace establishes a new beginning


in the relations of two states beyond which nothing from the past may be searched out which cannot be regarded as obsolete.’37 To put it in other words, Kant says here that all acts of war and all peace agreements should be designed in such a way that the causes of war are removed and peaceful coexistence with the former enemy is made possible. Peace treaties should not be treaties of revenge, but rather treaties of balance and settlement, and they should be brought about by negotiations, not by war. For, as Jean Monnet, the co-founder of the counter-model to power politics, the European Union, has said: ‘The spirit of discrimination has been the cause of the biggest disasters in the world’ (Monnet 1976: 413). As is well-known, after the First Word War, President Wilson, who acted in the spirit of Kant, managed to neither assert his demand of a ‘just peace’ (Gerechtigkeitsfrieden), nor his principle of ‘the peoples’ right to self-determination’. 12.1.1 Kantian peace in the Western world The government activity of Western politicians has come into line with Kant’s six conditions to a large extent, albeit in the course of a painful learning process. The Potsdam Agreement and its implementation differ considerably from the victorious powers’ peace dictate at Versailles. The defeated nations were offered reconstruction aid and integration into the world economy, mercenary armies have become rare, instead there exist citizens’ military services (Bürgerwehr) or a state’s own professional army. Expenditure in the military sector have been reduced on a large scale, especially following the end of the East–West conflict, and there has been no military intervention in the western part of Europe (however, there has been in the eastern part). Finally, the uniting of the western European states is characterized by the spirit of mutual trust and peaceful settlement of interests (Interessenausgleich), as opposed to veiled sinister intentions. Confidence-building measures have become a principle of collective security since the Helsinki Conference (1975). In Kant’s spirit, the project of European integration in particular can be regarded as the peace model par excellence. Since the declaration made by the French Foreign Minister, Robert Schuman, over 50 years ago (9 May 1950), there has been no war at all between member states and other democratic states. The authors of this project were well aware of the revolutionary nature of this model. Schuman called it a ‘courageous deed’, a ‘founding act’, and the spiritus rector, Jean Monnet, explained: ‘We are here to accomplish a common achievement, not to bargain for advantages, but rather to look for our own advantage in the advantage of all’ (1976: 378). The overcoming of

178


old-style diplomacy, designed as confrontation and guided by national egoism and thinking in terms of an international balance of powers, was supposed to be brought about by ‘ceding sovereignty in a limited, but decisive field’ and by creating shared institutions, so that peace and prosperity for the European countries could be achieved. However, this project, which developed as a successful model, has been beneficial only with respect to the western part of the world. As noted above, the mentioned peace conditions have only scarcely or insufficiently been met in the rest of the world. A glance at the conflict barometer shows that one can count numerous violent confl icts beyond the region of ‘democratic peace’, albeit to a considerably lower degree than in prewar times. In more recent approaches to conflict and peace research, Kant’s republicanism (democratic peace) and his idea of a federation or confederation (international institutionlism) in particular have stimulated discussion in international relations.

12.2 The six components of a durable solution It is just as important to consider the termination of conflict also as its beginning since the modalities of a conflict’s termination determine its future development. It would be fair to say that the conclusions of the so-called peace treaties in the first half of the twentieth century have laid the foundations for the various wars in the second half of the century. ‘Bad’ peace treaties became the source of wars. All five Parisian treaties after the First World War led to further wars thereafter. What, then, are the conditions for durable peace? Mutual trust has to be based on treaties considered fair and just, and these are, as I argue, based on six conditions: First, peace negotiations must include all the conflicting and affected parties; second, treaties should be negotiated freely and be based on consent; third, all the relevant issues of the conflict have to be included in the negotiations and should remove all the controversial issues; fourth, consensus has to reached without any secret reservation; fi fth, an agreement should reflect the power relations among the negotiating parties; and, fi nally, it should take into consideration the prevailing historical circumstances. Needless to say, these conditions are ideally conceived and, in reality, are seldom fulfilled. Yet as guiding principles they may be helpful. Because these conditions have only been met in rare cases, peace treaties were either not concluded at all or such peace treaties did not last long, were revised or triggered further conflicts. Statistics illustrate this point: 79 out of the 104 conflicts counted by us between 1945 and

Resolution Through Negotiation 179 (1) (2) (3) (4) (5) (6)

All parties affected by the conflict must be included Free will, voluntary consent All controversial issues have to be dealt with All parties must agree to the result without reservation The solution must reflect power relations Validity within the limits of the circumstances.

Figure 12.1:

Six conditions for durable political solutions

1995 later led to further conflicts; 65 of them were wars (Pfetsch and Rohloff 2000: 108). In most cases, wars of independence were followed by struggles over matters related to nation-building and state-making, and sometimes one ethnic war led to another one. The unfinished – because unrecognized – Algiers Agreement (1975) between Iran and Iraq did not prevent Saddam Hussein’s aggression towards Kuwait in 1991, and the 2000 agreements of Dayton and Paris did not impede Miloševic´ from perpetrating ‘ethnic cleansing’ in Kosovo. War was over, yet the conflict continued. As evidence for the theory, that is, agreements reached by consent and according to the six above-mentioned criteria, several cases of some duration can be listed. The Camp David Agreement of 26 March 1979, which was reached between Israel and Egypt with the help of US mediation and which stipulated the return of some of the territories conquered by the Israelis, was implemented and has remained stable up to now. It was, however, only a partial agreement between two countries and did not touch upon all the complexities of the Near East confl ict constellation. The same holds true for the 13 decisions made prior to 1995 by the International Court of Justice (e.g., over the affiliation of islands (for instance Minquiers and Ecrehos), borders (cf. Honduras– Nicaragua), or fishing rights (UK–Norway), that were accepted by the disputing parties and remained been durable to this day. Even the revision of inequitable peace treaties can be brought about by consensus and without coercion – in changed contexts. Examples are the border corrections between the Netherlands and Germany of 8 April 1960, the resolution of the Saar question between France and Germany through the integration of the Saar region into the Federal Republic (1 January 1957) after a referendum, or German reunification after the conclusion of the 2 + 4 negotiations on 3 October 1990, which was a masterpiece of multi-level diplomatic negotiation. These agreements demonstrate that coerced situations can be revised by consensus. Nonetheless, there exist examples of permanent losses through war, like, for instance, Germany’s territorial losses in the two world wars as the price paid for military aggression, or the loss of Karelia suffered by

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Finland in the Finnish–Russian War in 1940. Such results of war can be permanent, either if the defeated population was expelled or extinguished and cannot take revenge, if the national and/or international actors maintain the status quo, or, finally, over the course of several years, if the defeat can be accepted by the concerned parties and/or considered justified. The concept of a satisfactory and hence durable solution and the conditions under which such an outcome can be achieved require further explanation. Are the negotiated results acceptable for all relevant participants within the given time and space? Are the results based upon decisions of free will or were they forced upon the participants? How are these conditions linked to the negotiation process? (1) The inclusion of all parties concerned in the agreement is a necessary condition if a durable result is to be achieved. Negotiations over or with groups labeled as terrorists, such like the Palestinian PLO, Basque ETA, Northern Irish IRA or the Kurdish PKK, could not be successful because the affected groups were either not involved or the treaties were signed without their consent. International conferences are often held in the absence of the parties concerned (e.g., Czechoslovakia in the Munich Agreement of 1938); in multilateral negotiations rules of exception may be applied in order to sign a treaty or an agreement with consensus (EU or UN conferences); in rare cases majority decisions are made. The Treaty of Maastricht on the European Union, for instance, offers special opt-out clauses to countries such as the United Kingdom and Denmark that could not agreed upon the whole package. The Ottawa Agreement on anti-personnel landmines was not signed by some of the most important landmine-producing countries. In the same way, the Convention on Climate Control was not signed by the main producers of pollution; therefore, the agreements lost a considerable degree of effectiveness. The military agreement on Kosovo was neither signed by the Serb nor the Albanian representatives of Kosovo. All of these examples show that agreements which did not include the relevant parties did not get their consent, or which ignored important problems, remained without effect or had to be revised and negotiated anew. Trade agreements in particular show the importance of including all parties. The negotiating partners become dependent on each other as they require the other’s assistance in order to reach their outlined goals. During negotiations, the parties make efforts to maintain and extend contacts. Iklé (1999: 340) explains how diplomats develop personal attachment to the negotiation process when they are involved in


especially protracted negotiations. Even diplomats representing completely opposing standpoints, as for instance the representatives of industrial countries and developing countries, at some point begin to develop a certain degree of affection or a cooperative spirit among their colleagues and negotiating partners. Cooperation over a long period promotes and demands mutual trust. The feeling of working jointly on a common project is decisive in complex negotiations. A good example can be found in the protracted process of the Uruguay Round, which lasted seven years. The diplomats involved in the negotiations, who had initially attacked one another, gradually established reciprocal relations and, in the subsequent course of negotiations, opted for less and less measures of escalation. In the end, the Uruguay negotiations were concluded successfully. (2) Voluntary consent in negotiations means, first, that all the participants negotiate without coercion or constraint and that they give their consent to an agreement without being forced to do so. In reality, however, such situations are rare, as the negotiator’s ‘free’ will is always influenced by internal or external restraints. Political acts are always entangled in claims of interests which may lie beyond individual preferences. Since Machiavelli’s times we know that necessità and virtù are in a strained relationship of tension with one another. Still, in our case, free means that the parties consent because they reckon with a positive, at least not a negative, result. Being free in a decision has to be seen in the respective historico-political context as well. During the cold war, treaties were signed under the prevailing restraints of the East–West conflict and once that ‘war’ was over, the new framework led to new treaties. (3) Often, negotiations are very complex and comprise various disputed issues. An ideal solution takes into account all the disputed issues that are capable of achieving the voluntary consent of the negotiation partners. Partial agreements which only treat some selected issues from a whole catalogue inevitably make further agreements necessary. The complexity of the Israeli–Arab conflict offers a broad spectrum of partial agreements between Israel and the Arab countries (Camp David in 1979, the 1994 Peace Agreement between Israel and Jordan, the Oslo Agreement of 1993 or the Wye River Agreement of 1998 between Israel and the Palestinians). Further conferences have to treat the issues that remain open. Once one (partial) problem is solved by an agreement, the next is already waiting. However, if no solution is found, the unsolved conflict can escalate or, combined with another problem, even lead to war.38 Peace treaties and peace agreements do not always

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end the conflict cycle – on the contrary, the theory of ‘unfi nished’ peace claims exactly this: that it was especially the deficient peace treaties of the twentieth century that were the cause for further conflicts (Pfetsch 2001a). For instance, the Algiers Agreement of 1975 between Iran and Iraq did not avoid the first Gulf War; the ceasefire agreement after the first Gulf War, in 1988, neither prevented Iraq from warring with the Kurds in the north of Iraq’s own country, nor did it prevent Iraq’s attack on Kuwait in 1990. It is only thanks to the deep-reaching sanctions of the international community that Iraq could be kept under control. If the international pressure was loosened or the international protectorate abolished, the danger of a continuation of the confl ict is great. The same holds true for the situation in Bosnia and Kosovo, where both territories had to come under international control. (4) Agreements on controversial issues are often signed with tacit reservation and, thus, lose their validity right from the start. For an agreement to be durable it is necessary that it be concluded without reservation – without qualification, without an ulterior motive and in good faith. For reasons of prestige and gaining time, Miloševic´ signed, during the Balkan wars, quite a number of ceasefire agreements in the full knowledge that they would never be kept. Sometimes signatures are made even though it is known that the agreement cannot be put into practice. President Sato, for instance, could not keep his promise to President Nixon concerning the limitation of textile exports, because it met with severe domestic pressure (Kissinger 1979: 363–8). (5) In paraphrasing a statement by the German socialist of the nineteenth century, Ferdinand Lassalle, one can say that questions of international treaties (constitutional questions) are not questions of law but questions of power. With regard to the acceptance of an agreement, the important condition is that every party feels that it reflects – either objectively or subjectively – the prevailing power relations. There is certainly no one-to-one relationship between the perceptions of these relations by either party, but coming to terms with an agreement has to a lot to do with the perception of the strengths of each party. (6) Existing framework conditions can impose important limitations on the conclusion of an agreement. It is sometimes possible that the circumstances under which an agreement is signed may not create a better result for the weaker party, but despite this, the weaker party’s position could sometimes be improved by the signing of a treaty. For instance, the Ostverträge, that is, the treaties signed by the Federal Republic of Germany, as part of its policy of détente toward the eastern European communist/socialist states, were concluded under the


restrictive conditions of the East–West conflict. The two-state principle was accepted for the sake of improving the humanitarian situation. After the collapse of Soviet hegemony, the four former occupation forces consented to the unification of the two German states during the 2 + 4 negotiations. If – and only if – all parties involved in, or affected by, the conflict agree out of their own free will on all the issues to be negotiated, then – and only then – can the result of the negotiations be called a solution, meaning a just and fair outcome. The stability of an agreement – as the argument goes – depends, on the one hand, on the external conditions and the modalities fundamental to it, and on the other hand, on the nature of the relationship (symmetrical or asymmetrical) between the negotiating partners. In other words, the life expectancy of a negotiated agreement depends on how and under which circumstances it was reached, and this depends to a large extent on the structural relations that pervade the whole negotiation process. Symmetry and asymmetry are important background variables to the negotiation process and its outcomes. It can be shown that negotiated results achieved freely and without reservation by all parties concerned and for all points at issue have been stable and remained valid for a certain period of time (under the rule of ceteris paribus). Examples are the 1977 agreement on the Beagle Channel between Chile and Argentina and the 1979 Camp David Agreement between Egypt and Israel. Negotiated results such as these are solutions. All other outcomes reached by means of negotiation are not of the same nature, be because not all parties affected by the conflict were involved, or because not all the disputed issues were negotiated or were accepted without reservation. In terms of the conferences on climate control, another empirical case, one (still) cannot talk of a final agreement. The framework of agreement has led to further (partial) agreements (the Kyoto Protocol with quantified emission reduction rates) that were subject to consultations at the subsequent conferences in Buenos Aires, Bonn and The Hague. However, those member states party to the agreement have so far failed to agree on its binding guidelines. The negotiators were under pressure from pollution and the interests of victims which, among other things, prompted the US negotiators to withhold their signature and thus endanger the agreement. The controversial issues were negotiated, but concrete targets for the respective pollutants were missing. A lack of consent over the convention and the most important partner’s final refusal to sign

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reduced the effectiveness of the agreement. The framework conditions have, after all, probably changed. One would expect that awareness of the threat posed by environmental damage will increase and compel the United States to make concessions as well. In short, the agreement reached at the conference corresponds only in part to the six conditions of a durable solution, and, consequently, remains subject to change and further deliberation.

12.3 Justice and fairness in negotiations Any considerations about achieving a lasting solution to a conflict have to take into account the notion of justice. What is considered just or unjust depends on many factors: views moulded by culture or religion play their part, as do the circumstances under which results are achieved. For instance, compromises are highly valued in Western negotiating cultures, but declared as a weakness in the Arab world. If, according to one of Bismarck’s sayings, politics is the ‘art of the possible’, then the possible can determine the framework within which an outcome might be considered just. For instance, the treaties resulting from Germany’s policy of détente toward the former USSR and eastern Europe (Ostverträge) were regarded as just and equitable in the beginning of the 1970s, despite the fact that the two-state theory was instilled into them. Nonetheless, within the context of the cold war, they constituted the best possible solution. After the end of the cold war, the treaty of reunification made these treaties obsolete. The attitude toward justice can also be determined by respective views on punishment. The principle of ‘an eye for an eye’, drawn from the Old Testament, differs considerably from the New Testament’s instruction to ‘turn the other cheek’. Punishment is oriented towards taking a hard line, soft negotiation results in compromises. Adopting or avoiding one of these lines is also influenced by the status of a country, which decides whether or not the risk of polarization should be taken. There are different standards of justice that can be distinguished as internal (cf. below, criteria (1)–(5)) or external criteria (cf. below, criterion (6)). The distinction between proportional or functional justice and disproportional justice matters, too. Justice in international negotiations can refer to symmetry and asymmetry, which can serve as guidelines for just or unjust solutions. Symmetrical relations tend to produce just solutions. Here, symmetry refers to resources as well as processes. Ever since Plato’s Politeia, equal power has been associated


with justice and an extreme power imbalance is said to preclude justice. At the very least, equal power facilitates negotiations that lead to a just and fair outcome. This could thus constitute a prerequisite for a just outcome. The focus of the discussion over justice is on the negotiated results rather than their derivation. An important – if not the single most important – indicator for a just negotiation outcome is the negotiators’ satisfaction with the result achieved. If the result is accepted without qualification or exception, one can assume that the parties feel that the result is just and that they will not demand further negotiations aimed at revision. Seven concepts of justice can be identified and if accepted attribute to a stable social and political situation. (1) Justice measured by power, or strength and status (e.g., operationalized by GNP or financial contributions to IOs) of a country. Goods, benefits or votes are distributed according to a country’s strength. The strong one gets more, the weak one less. In the World Bank, fi nancial contributions matter: it is on their basis that each country’s vote is weighted. The financial contributions of the countries are rewarded. In accordance with its contribution it receives influence. Negotiation results reflect these power relations. In more private relations it could also be the case that achievements are rewarded and give the person more respect. Those who contribute more to the common good and carry more responsibility, merit more consideration than those who contribute and carry less. The rewards, then, uphold the principle of justice and permit the acceptance of different status levels. (2) Another reference of justice could be a country’s weight expressed by its population: votes are weighed according to the number of inhabitants, for example, in the case of the number of seats in the German upper house, the Bundesrat. Each Land or state receives seats and votes according to its population. This rule also applies to the European Parliament, where the number of seats is approximately distributed according to the population of the member countries and the European Council of Minister’s qualified votes are weighted by the majority of the members of the Council and if necessary by the majority of people that stands behind them (double majority). (3) One-country one-vote. In this case, it is not size and power that matters, nor the economic or military weight, but numeric membership. This principle equalizes power as well as population relations. It determines votes in the UN General Assembly and in other international organizations not considering differences among the various


states. In more private relationships this principle may stabilize social coherence since persons on the same social level are eager to be treated as equals and this fosters a sense of belonging. (4) Approximations to an equalizing procedure form a compromise between principles (1), (2) and (3); a non-proportional or functional distribution of votes, size, power, or performance reduces discrepancies, attenuating weight devices, for example, the distribution of seats in the European Commission. Here, the smallest country, Luxembourg, has a seat, as well as does the Netherlands, which is far larger. The rotation principle for the Presidency of the EU guarantees that also the smallest country has a say. The Senate in Washington also has a nonproportional distribution of seats; each state has two representatives regardless of their size and population. In social systems the acceptance of the criteria of non-proportional distribution can stabilize the group as a whole as it reinforces the right to belong to the group and be respected as a member. (5) Justice through consent: if a party agrees to a negotiated result out of free will and without coercion, it can be assumed that the party will consider the outcome to be just and fair. Otherwise, even the weakest negotiator has the power of a veto, interrupting the negotiations or presenting unacceptable conditions. If no better alternative is at hand, any party may agree to and accept a result. The various criteria of justice can serve as a reference. Consent also means the acceptance of reality – that which exists must be permitted to exist. (6) Justice of a prior claim: first past the post, noblesse oblige, first come first serve, the winner takes all, the right of the firstborn (primogeniture), the principle of making the polluter pay, etc. All of these principles are generally absolute, that is, they do not allow for division and sharing, but distribute absolute payment. In private life the principle of prior claim has various facets. In a family, the first born claims more rights than his younger siblings and this may be accepted by the parents. In family companies the eldest gets more rights in the company than the other members of the family. The first born may even inherit land or property or, in royal families, the crown. (7) External criteria for justice: for example equality (everybody is equal in the face of the law, the same law is valid for everyone), equal rights (e.g., between men and women, black and white), needs (everyone receives according to his needs, everyone contributes according to his or her abilities): these principles derive from moral systems and are often applied in practice.

Resolution Through Negotiation 187 Justice can be based on: – weight measured by power – weight measured by population – equality – inequality, non-proportional distribution – consent – prior claim – external criteria.

Figure 12.2:

Seven concepts of justice

Justice presupposes that at least one (or more) of these principles are accepted and believed as ‘just’. It is not the criteria of justice itself but the belief in it that counts. We can sum up our considerations as follows: negotiation results are just if they take into account the seven aforementioned criteria of justice, and the six conditions for durable solutions, that is, if they take into consideration given power relations and historical circumstances, and are accepted by all affected parties voluntarily, without force and without reservation. Agreements forced upon parties can initiate new conflicts or even wars. Peace agreements that are deserving of their name do bring about peace. If the twentieth century had respected these facts, it would have been spared from many of the wars that took place.

12.4 Peace agreements forced upon the parties risk new wars; peace agreements deriving of their name bring about peace Kant’s first and last conditions, in particular, provided an explanation for the recurrent outbreak of war after war. The idea that the conclusion of peace should lay the foundation for future trust was not heeded in the climate of incited nationalism at the beginning of the twentieth century, and this provoked most wars of the twentieth century. This idea also holds solutions for the numerous wars triggered by the arbitrary territorial divisions undertaken by colonial and imperial powers that led to disaster after independence – either in the case of the national borders that arbitrarily divided peoples and tribes, or the treaties of independence that did not include the necessary measures for political reconstruction. It was not until the ‘Agenda for Peace’, drafted by the former Secretary-General of the UN, Boutros Boutros-Ghali,


came into being, that a more comprehensive peace concept was formulated in which the consolidation of political order after war was considered an important task. This is of particular importance because, after the end of the territorial tapping of the world by the nation-state, future wars will break out in the interior of countries. Only policy change in traditional national power politics towards the cooperative politics of negotiation and integration in western Europe can be brought into accordance with the Kantian ideas of political order. In southern Europe, the Caucasus and in Russia, the politics of power and violence still dominate the common approach to conflict. The answer to the question about the bellicose events of the twentieth century posed at the beginning of this chapter can be expressed as follows: since the treaties signed at the beginning and during the course of the twentieth century were dictated by the power politics pursued by the victorious countries, and, as a result, were considered unjust and did not lay the foundation of trust for the future, further wars resulted from them which continued up to the end of the twentieth century. The lesson to be drawn from the twentieth century is that peace, and not war, constitutes the critical situation, that is, a situation requiring perseverance and endurance; not war, but peace constitutes the emergency scenario. The transitional phase from war to the postwar period is decisive for the question of war or peace. The task of politics and the economy is plain to see: organize peace in such a way as to allow for trust in the future. This can be achieved by involving the concerned countries and their population in the peace negotiations and reaching an agreement about the issues at hand without reservation. In Kosovo, Bosnia, and Chechnya as well as at the African Horn, these negotiation tasks remain unfulfilled and await fulfilment.

13 Hypotheses About the Nature, Environment, Rules of Conflict, Third Parties, and Outcomes/Solutions

13.1 Hypotheses concerning the nature of conflicts • The nature of conflicts (intensity, internal–external, interest conflicts, value conflicts, etc.) determines the modalities under which negotiations are held. • High-intensity conflicts are more difficult to solve than lowintensity conflicts. • A positive outcome is more probable in the case of mild confl icts (Frei: 1976). Yet, this hypothesis is highly contradictory. It also can be claimed that the higher the intensity of a conflict and the higher the expected losses by the parties involved, the more likely the parties are to wish for an end to the conflict (Jackson 1952: 123). In a stalemate position in which no party can expect to win or make any gains, the desire to cease the dispute will predominate. • Civil conflicts are more difficult to manage than international conflicts. Internal conflicts are in general more violent because they are more emotional, and third parties are rarely involved as mediators. International law forbids intervention in the internal affairs of a state without the consent of its government. • Parties to internal conflicts are sometimes not easy to identify; a small number of unsatisfied participants can make it impossible to terminate an internal conflict. • Conflicts of interests are easier to resolve than value conflicts. Hence negotiations on economic issues can more easily lead to agreements. • Intensity, ideological quality, the duration of the conflict, cultural patterns, etc. determine the duration of negotiations. 189

190


• The higher the number of parties involved in a confl ict the more difficult is becomes to find solutions and achieve success in mediation (Snyder and Glenn 1972).

13.2 Hypotheses concerning the environment • Countries with well-established rules for confl ict resolution reach peaceful solutions more easily than countries without a culture of negotiation. This means that democracies which possess these rules are successful at resolving both domestic conflicts and conflicts among themselves. • Compulsion or external pressure exerted by a dominant superpower can force a negotiated agreement upon smaller countries within its sphere of influence. • Intercultural negotiations are more complicated if the difference between cultural patterns of behaviour is great. • Conflicts are more intense and enduring the more they are integrated into an environment influenced by external divergent interests. Historical examples of this relationship are provided by divided nations such as Korea, Cyprus and Germany. • The location in which negotiations take place is an indicator for the power position and intentions of the negotiators. If negotiations are being conducted in a neutral country this indicates that all parties are equal; the choice of a location in the country of the third party demonstrates the power of the mediator; if the location is in a weaker country this indicates the intention to treat it as an equal.

13.3 Hypotheses concerning the issues in conflict • Conflicts are more difficult to solve, the more dimensions of national sovereignty are at stake, that is, territory/boundaries, national independence, leadership/regime, population and its composition (nationalities, peoples, ethnic groups, etc., which raise the question of political participation and autonomy), security interests (military), welfare interests (economic and other resources). • Conflicts are more difficult to solve, the more ideologically they are loaded. Ideology rests upon basic values, basic identification issues (language, religion, culture, or symbols) and in doing so prevents mutual understanding and peaceful coexistence. In a more general way one can say that the escalation or de-escalation of a conflict depends on the action-reaction scheme within which governments and opposition conduct themselves.

Hypotheses 191

• So-called new conflicts or wars endure for long periods because more issues are involved, private economic issues and political issues are interlinked, and local warlords control territorial resources that finance soldiers and war supplies. They profit from ongoing conflicts.

13.4 Theses on conflict management • According to the conflict cycle with its different intensities (latency, crisis, severe crisis, war), the instruments of conflict management must be chosen according to their appropriateness. Success in conflict management is crucially dependent on the adequate choice of means. The symmetry of ends and means determine the success of negotiations. Prevention and early warning are adequate means for low intensity conflicts. Crisis management techniques can be employed in crisis situations. If a conflict enters a severe stage, only war prevention instruments are adequate. In armed conflicts, peaceenforcing means might prevent combatants from becoming further engaged in conflict. Following the termination of wars, the consolidation of the regime in the defeated country is important. Great powers are the most apt mediators, because they have the symmetry of means at their disposal.

13.5 The role of third parties, the mediators • To be successful the third party should remain equidistant and not be too close to either one of the parties. Impartiality is a precondition which must be accepted by all participants. Equidistance does not mean that the mediator is neutral since he also pursues interests. The UK was not accepted as a mediator by Chile in the Beagle Channel conflict because of its close links with Argentina; the Vatican, instead, was more equidistant to both of them. • To be successful, a third party should possess bargaining power, be it spiritual or material. Effective mediation is more a matter of resources than of impartiality, claims Bercovitch (1986). Resources are needed not only to bring the disputing parties to the conference table, but also to keep the parties in line with agreements. The United States invested material resources in order to bring about the Camp David Agreement between Egypt and Israel. The Vatican as a mediator in the Beagle Channel Dispute between Argentina and Chile had prestige with both parties in its capacity as a spiritual power.

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• The smaller the difference in power inequality, the greater the influence of a mediator. This statement, developed by some authors (Liska 1962; Young 1967: 44), coincides with the statement that in situations with a clear imbalance, the stronger party will reject any compromise proposals (Lall 1966; Cot 1968: 18). • The greater the economic interdependence of the confl icting parties, the greater the chances of successful mediation. This thesis was developed by Daniel Frei (1976: 73) and corresponds with the old idea that trading partners do not go to war and that economic goods are more easily to reach consent over than ideological goods. • Mediation has a better chance of success when the adversaries are recognized as the legitimate spokesmen for their parties and also the more clearly defined, accepted and cohesive they are. The party spokesman must be clearly identifiable and be a legitimized speaker for the group (Bercovitch 1986: 160); otherwise internal struggles within one party lead to invalid agreements (Frei 1976). A party or leader suffering from internal weakness cannot afford to make concessions on foreign policy issues. Seen from another angle, aggressiveness in foreign policy often goes hand in hand with internal weakness. Only a strong party is able to make concessions and successfully sell them to his constituency. • A mediator improves his chances when he manages to exclude ideological elements. This statement, put forward by Kelman (1966), corresponds with the statement that a conflict is easier to solve the smaller the values are that the parties ascribe to the object at stake, such as ‘vital interests’, ‘honor of the party’, ‘principles of justice’, etc. (Randle 1973; Holsti 1967; Grewe 1964, 1981: 560). It is also a piece of advice given by Fisher in the Harvard Project. • A mediator has a higher chance of success if he manages to prevent either party from losing face by accepting a proposition. It is an uncomfortable position for a party to give something up and get nothing in return. A mediator’s efforts must concentrate on gains for both parties; these will enable a politician to be accepted by his constituencies. • Mediation has a higher chance of success the more the relevant external powers are willing to agree and support de-escalation. Since mediation is mostly carried out in international confl icts, the behaviour of external powers is decisive. If external parties pursue divergent interests, the intensity of conflicts may increase if larger powers intervene (Pfetsch and Rohloff 2000: 170, 172). States are more likely

Hypotheses 193

to adopt an accommodating strategy if they receive non-military support from major powers (Brecher 1993: 245). • In a deadlocked situation or stalemate, a mediator can play its role more easily. In such situations the parties cannot see a way out on their own. Especially in the cases of war, military means are either exhausted or both parties do not see any gains to be made from the use of military instruments. What remains are results achieved with the help of non-military means and in such a situation a third party’s time have come (Zartman 1985a). • The result of mediation depends on the way in which mediation is brought about. Successful mediation is to be expected if the mediator possesses means symmetric to the conflict and the appropriate qualities of a mediator.

13.6 Hypotheses concerning the resolution of conflicts • The higher the complexity of the conflict, the more difficult it is to solve, that is, the more different structural variables (economic, social, ethnic, religious, cultural, political) accumulate. Complexity can be measured by the number of participants, the number of third parties involved, the level of involvement (bilateral, multilateral, regional and/or major powers), and the number of issues. • Solution-finding is more easily to achieve when the disputed good can be divided. Very often, there is more than one issue at stake, with some being more sensitive than others. By disentangling issues, partial solutions can be achieved. There are various techniques available for linking issues, for creating package deals, log-rolling, etc. • Value-charged differences over issues make solution-finding more difficult. This is the case when divided societies contain heterogeneous groups fighting each other (Lebanon, Cyprus, Northern Ireland, and Spain). • The strong power position of a negotiator and/or mediator makes the finding of solutions easier. • Conflicts are more difficult to solve the less institutionalized rules exist. This argument leads to three aspects. First, in reference to internal conflicts, a polity, which possesses the institutional arrangements for channeling disputes from the bottom up and the top down is better equipped for peaceful solutions than one which reacts only with repressive measures. This is the same as saying that democratic regimes are internally more peaceful than dictatorial regimes. The same argument has also been applied to international disputes.

194

•

•

•

•


Authors do not agree on the statement that democratic regimes are altogether more peaceful in their external relations. On the contrary, and this forms the second aspect, in the postwar period, democratic regimes have shown the highest rate of participation in wars (Pfetsch and Rohloff 2000: 72), but do not rank as highly as initiators, especially in violent conflicts. They primarily, and this forms the third aspect, have shown more peaceful behaviour in their relations with each other. Conflicts are more difficult to solve the less expectations there are that the parties involved stand to make gains. A zero-sum game offers fewer such possibilities. ‘Conflict resolution requires an outcome that has something for everyone. Parties cannot be expected to give up their claims without receiving compensations’ (Zartman 1985a: 242). Conflicts are more difficult to solve the less the parties directly involved show signs of understanding and compromise. Mutual trust is a precondition for any lasting compromise. Distrust goes hand in hand with conflict, trust with agreement. Thus the willingness of Egypt and Israel to negotiate was an important precondition for the 1979 Camp David Agreement. Conflicts are more difficult to solve the higher the risk is for parties to lose face. Agreements must bring some benefit to the parties, who, on their part, are bound to offer something to their clients and supporters. Any agreements must show signs of a victory in one issue or another. Conflicts have a higher chance of being solved, the more efforts are undertaken at a propitious moment. Four factors play a role: the collapse of a regime, the absence of any other alternatives, adaptation to the new power relations, and fi nding a formula as a common denominator (Zartman 1989: 216-18; 1991b: 310).

13.7 Hypotheses concerning outcomes • The durability of solutions depends on the level of consensus reached in the solution. Durable solutions emerge when the following questions can be answered in the positive: were agreements supported by all the parties involved? Did negotiations include all the relevant issues under dispute? Was consent given without reservation? Did the agreement take the prevailing power relations into consideration? Were the historical circumstances observed within which the agreements were signed?

Hypotheses 195

• Results achieved through war are seldom permanent. • Phony compromises do not last long. • Agreements can more easily be reached the more the issue under dispute can be divided and differentiated, the more differently valued goods can be exchanged, and the more package deals, logrolling, etc., are possible. • Democracies possess more institutionalized rules for conflict management and, as a result, are more successful at resolving confl icts.

14 Conclusions

The following findings have been found to be relevant for the questions raised in the introductory chapter.

Is there a new understanding of conflicts? A new conflict culture may be arising as a result of increasing interdependence in the global system: the more integrated the world becomes, the more the means of achieving peaceful relationships will be on the political agenda. In the Western democratic world, the traditional national power politics of the Westphalian state system has, in many policy fields, been substituted by cooperative negotiation politics, with the win–lose strategy being to a great extent displaced by the win–win strategy. As a result, particularly our considerations about durable negotiation results, that is, those achieved by means of consensus, cooperation and integration will be of importance.

Are there new theoretical approaches to conflict and negotiation research? Whereas former conflict studies concentrated primarily on the causes of violent conflict, the focus later shifted towards dealing with conflicts across the whole spectrum of intensities. How can conflicts be managed in order to prevent them from becoming violent? How can states and societies achieve peaceful coexistence in the future? The negotiation and mediation literature mentions a wealth of conflict resolution techniques and strategies; the theory of unfinished peace and that of finished war provide advice on how to regulate conflicts in such a way that they are prevented from evolving into violent confrontations. 196

Conclusions 197

It is not that conflicts should be eliminated from the agenda, rather their violent implications. As a result, a new theory has crystallized which not only provides explanations for violent political behaviour, but which can also give us an indication of how the peaceful coexistence of states and societies can be framed in the future. The theory of unfinished peace allows us to make statements about finished peace.

What constitutes the new understanding of negotiations? A holistic view of the negotiation process, which is seen as a circle where the end is connected to the beginning and the objectives set for the outcome exert influence over the design and arrangement of the negotiation process. The study has elaborated the conditions for successful management of conflict and for approaches to the finding of solutions.

What are the relations between the conflict and the negotiation processes? According to the differentiation between confl ict phases, it is possible to derive clues about the instruments appropriate for the resolution of conflict. Negotiations are only one of the numerous options for conflict resolution and exist side by side with many others which might promise greater success. Negotiations are not the universal cure for conflicts, nor the only way of reaching solutions. In the introductory chapter, I had formulated 12 more specific questions to which answers were to be found during my analysis: • Basic terms and conceptions such as negotiation, negotiator, negotiation process, conflict, symmetry–asymmetry, negotiation culture, negotiation power, empowerment, negotiation instruments and strategies, institutions, law, mediation, resolution have been defined and propositions made. • Negotiations are only one form of conflict resolution and they can only be successful under very specific conditions and conflict constellations. The conflict cycle indicates the appropriate instruments with which to harmonize means and ends. • The relationship between the subject of negotiations, which is the conflict, and its management, must focus on the idea of symmetry between means and ends. Only such a relationship makes a consensual solution possible.


• The study has elaborated on the very specific constellations under which mediation efforts can be successful. • There is a wide range of negotiation techniques and strategies available for the solving of conflict situations. It has been demonstrated that in economics, the variety of instruments is broader than in politics. Economic issues can be more easily differentiated and diversified than value-loaded political issues. • Power plays an important role in the negotiation process. I have shown how negotiation power can assume five different forms and can be transformed during the course of the negotiation process. • There are numerous ways in which a weaker party in an asymmetric relationship can become stronger. • According to the perception of the negotiators, cultural patterns can impede negotiation in cases where perception follows national stereotypes. There exist, however, transnational cultural patterns, such as professional cultures, which make comprehension possible. The study has elaborated empirical case studies that demonstrate the role of culture in various contexts. National negotiations styles have been highlighted. • Institutions and political assemblies matter. They provide, to a certain degree, a framework for the negotiation process, guide its organization and determine the resolution in various ways. The role of institutions has been discussed with an emphasis on effectiveness and representativeness. • International law can serve as an orientation for confl ict resolution and the decisive search for solutions. Court decisions based on free will are also implemented. The power of sanctions is not very well developed in international affairs. • Various modalities of conflict management and resolution have been mentioned. Only those results based on consensual agreements and achieved with or without a third party can be called durable solutions. Enforced agreements and termination by threat are followed by other conflicts. The formula reads: war ends, conflicts goes on. Unequal and unfair arrangements give rise to further disputes. • I have elaborated six conditions for a durable solution to political and economic conflict and analyzed the characteristics of fair and just solutions. These criteria can serve as a basis for predictions about future conflict development.

Parts of this book have been published elsewhere in the following: • Politische Theorie der Entscheidung in Gremien. Journal für Sozialforschung, 27, 27 (3/4), 1987, PP. 253–75. • Träger – Mittel – Ziele. Eine politische Theorie der Entscheidung in Gremien. Handlung und Reflexion. Theoretische Dimensionen des Politischen. Darmstadt: Wissenschaftliche Buchgesellschaft, 1995, PP. 93–124. • Institutions Matter: Negotiating the European Union. In Peter Berton et al. (eds.), International Negotiation. Actors, Structure/Process, Values. New York: St Martin’s Press, 1999, PP. 191–222. • Kreatives Verhandeln in Politik und Wirtschaft. In Rainer M. Holm-Hadulla (ed), Kreativität, Berlin/Heidelberg: Springer 2000, PP. 127–55. • Symmetry and Asymmetry in International Negotiations. International Negotiation, 5, 2000, PP. 21–42. • Why was the 20th century warlike? In Estavão Martins (ed.), Relações Internacionais. Visões do Brasil e da América Latina. Brasilia: IBRI, 2003, PP. 319–40. • Die Rolle des Krieges in der neuen Epoche. In K. Kaiser and H.-P. Schwarz (eds), Die neue Weltpolitik. Bonn 1995, PP. 140–46.

199

Notes 1 Adenauer 1966. 2 For further details, see Pfetsch and Rohloff, 2000. 3 Justifiable and unjustifiable wars: There are wars fought for justifiable ends and those fought for unjustifiable ends. Justifiable ends are – as stated above – values recognized by international law, i.e., by the UN Charter (independence from colonial domination, self-determination, human rights). Unjustifiable ends are those of aggression against another country, annexation of foreign territories, expulsion of certain groups of people, ethnic cleansing, etc. This distinction is not identical with just or unjust wars since this would imply that the use of force is justified by international law. Since 1928, the use of military force as a means of attaining political goals is internationally outlawed. 4 The KOSIMO Project (explained later) distinguishes between seven motives due to which wars are waged or have been waged: Territory and borders, autonomy and self-determination, colonization/decolonization/ independence, ideology, international and national power, and economic resources. These motives can often be observed in combination. After 1945, national power has been more frequently fought over (22.3%) than international power (14.3%). On a global level, other frequently disputed issues are those which can be attributed to the category of ‘ideology/ religion’ (21.4%). Fewer wars have been fought over issues such as resources and territories. These motives can be summarized according to international and national matters: (a) international: colonialism, border/territory, ideology, resources. (b) predominantly national issues: national power, autonomy/secession (Pfetsch and Rohloff 2000). 5 Developed by Melvin Dresher and Merill Flood 1950: Flood Experiment (RAND Corporation, 1950), see: S.J. Brams 1994: theory of moves. Cambridge: Cambridge University Press. 6 Developed by J. von Neumann and O. Morgenstern 1944: Theory of Games and Economic Behaviour. Princeton, NJ: Princeton University Press.; see F.C. Zagare 1984: Game Theory. Beverly Hills, CA: Sage. 7 Pfetsch 1991. 8 F.R. Pfetsch 1996: Globales Konfliktpanorama 1945–1995. Münster: Lit Verlag. 9 More information available at <www.hiik.de>. 10 – be credible to those you represent; – make it clear that you respect the positions of the other side; – know the dossiers well; – maintain good a network; – be aware of power relations; – make sure that the other side does not lose face; – learn to play on various playgrounds; – be firm and have endurance; 200

Notes 201

11

12

13

14

15

16

17

– make concessions at the right moment in order to achieve something in return; – be yourself and keep to your negotiation style. The question as to what extent the political process is determined by the political culture as a subunit of the ‘national culture’ is of rather more theoretical interest, here, and is irrelevant for the practitioner. English: The New Bantam English Dictionary, US, 1979; Combined Dictionary Thesaurus 1995. German: Meyers Grobes Taschenlexikon in 24 volumes (Bibliographisches Institut, Brockhaus) 1987, resp. Neues Konversations-Lexikon, ein Wörterbuch des allgemeinen Wissens, hrsg. von Hermann I. Meyer. Bibliographisches Institut 1871. French: Nouveau Petit Larousse, 1958, 1968. Federal: relating to the central government of a federal union; pertaining to a compact or a union of federal states, which agree to delegate certain specific governmental powers to the central government. Consisting of a group of states independent in local matters but united under a central government for other purposes; defence. Föderalismus: Beziehung für ein Gestaltungsprinzip sozialer Gebilde, u.a. von Staaten; soll der Sicherung der Eigenständigkeit und Selbstverantwortung gesellschaftlicher Teilbereiche dienen in dem Sinne, daß der übergeordneten Gewalt jeweils nicht mehr Regierungsbefugnisse gegenüber nachgeordneten Gewalten eingeräumt wird, als im Interesse des Ganzen geboten ist. . . . Fédéral: Relatif à un groupement d’Etats qui constitue une unité internationale distincte, superposée aux Etats membres, et à qui appartient exclusivement la souveraineté externe. Subsidiarität: gesellschaftspolitisches Grundprinzip für den Aufbau von Staat und Gesellschaft und deren Beziehungen. Dem Subsidiaritätsprinzip zufolge hat die übergeordnete Gemeinschaft die Pflicht, der nach- und untergeordneten Gemeinschaft behilflich zu sein (subsidium = Reserve, Beistand) sofern deren Kräfte zur Existenzerhaltung und Aufgabenerfüllung nicht ausreichen (Schmidt 1995). Democracy: Government by the people, usually through elected representatives. Demokratie: die Herrschaftsform, in der die Macht bei allen Bürgern liegt. Démocratie: Gouvernement où le peuple exerce la souveraineté. Government: Established system of administering state affairs. Persons entrusted with the affairs of a state. Regierung: Staatsorgan, das die richtunggebenden und leitenden Funktionen in einem politischen System ausübt; . . . Spitze der Exekutive in einem Staat. Gouvernement: Ensemble de ceux qui gouvernent un Etat. Culture: Training of the mental or moral powers, or the result of such a training: refinement; improvement and development through care and training. Particular type or stage of civilization, as of a people or period; appreciation of art, music, literature. Kultur: das von Menschen zu bestimmten Zeiten in abgrenzbaren Regionen in Auseinandersetzung mit der Umwelt in ihrem Handeln Hervorgebrachte (Sprache, Religion, Ethik, Institutionen, Recht, Technik, Kunst, Musik,

202 Notes

18

19

20 21

22

23

24

Philosophie, Wissenschaft), auch der Prozeß des Hervorbringens der verschiedenen Kulturinhalte und -modelle . . . und entsprechen der individueller und gesellschaftlicher Lebens- und Handlungsformen. Kultur (1871): eigentlich höhere Ausbildung und Vervollkommnung eines derselben fähigen Objekts, z.B. Kultur des Bodens, der Waldungen, der Thiere, besonders aber die Erzeugung, Entwicklung, Bereicherung und Veredelung des geistigen Lebens des Menschen. Nur in diesem Sinne wird das Wort gebraucht, wenn von der Geschichte der Kultur die Rede ist, und auch da wird es nicht auf die Menschheit im Allgemeinen angewendet, sondern nur auf die Völker, welche auch wirklich zu den Kulturvölkern, d.h. zu denjenigen Völkern gehören, die auf ihrem Gebiete mit eigenen Kräften Eroberungen gemacht, zu ihrem Fortschreiten und zu ihrer Entwicklung selbstthätig mitgewirkt, dem geistigen Leben neue Formen gegeben oder von anderen Völkern angenommene eigentümlich ausgebildet haben und eben dadurch eine selbständige Ausstrahlung des großen geistigen Mittelpunktes der menschlichen Bildung darstellen. Culture: Ensemble des connaissances acquises: instruction, savoir. Ensemble des structures sociales, religieuses, etc., des manifestations intellectuelles, artistiques, etc., qui caractérisent une société. Civilization: Countries marked by a highly developed technology and culture. Total culture of a given people or period. A stage of development in human society that is socially, politically, culturally, and technologically advanced. Zivilisation: in der engl./frz. Bedeutung, die sich seit 1945 auch weitgehend im deutschen Raum durchgesetzt hat (wo der Begriff ursprünglich nur auf die guten Sitten sowie auf gutbürgerliche Lebensart bezogen war), das Selbstverständnis der modernen bürgerlichen Gesellschaft als ein Konglomerat von Stand der Technik, Umgangsformen, sowie der wissenschaftlichen Erkenntnis. Civilisation: Ensemble des caractères communs aux sociétés évoluées. Ensemble des caractères propres à la vie intellectuelle, artistique, morale et matérielle d’un pays ou d’une société. See Bercovitch 1985: 163ff.; Iklé 1964; Simkim 1971; for strategies, see Kaufmann 1962; Fisher et al. 1997; Iklé 1964; Zartman 1985a; Burton 1972. Fisher et al. 1997. Robert Trappl et al., Machine Learning Methods for Better Understanding, Resolving, and Preventing International Confl icts in R. Trappl (ed.) Programming for Peace. Dordrecht: Springer 2006, pp. 251–318. Richelieu claims that waiting for the right opportunity (attendre les occasions), seizing the favourable moment (saisir le moment favourable) and finding the suitable moment for negotiations (le temps convenable à la négociation) depend on the nature of the transaction and the attitude of the negotiation partner. The broad term ‘manifestation’ has been selected in order to provide a comprehensive conceptual framework for the very different forms, structures and constellations related to symmetry and asymmetry. For this example I thank Raymond Cohen in Jerusalem.

Notes 203 25 There are plenty of books written for practitioners that insinuate that every thing can be solved by negotiations or argumentation (e.g., G. Spence: How to Argue and Win Every Time. New York: St Martin’s Press 1995). 26 BATNA = Best Alternative to Negotiated Agreement. 27 Habermas 1992, pp. 370–71. 28 Grewe 1981. 29 In this book we use the terms ‘negotiation’ and ‘decision-making’ interchangeably. The term decision-making is a broader term in that it covers both the outcomes of the negotiation process and the decisions brought about through voting and balloting. The outcomes of negotiations are decisions, but not all decisions are achieved through negotiations. The terms ‘negotiation process’ and ‘decision-making process’ can be used synonymously. 30 Amtsblatt der EU Nr.L.301, 17.10.1991, Brussels. 31 Frowein, Jochen A. Konfliktbewältigung im Völkerrecht, in Pfetsch 2004, pp. 149–62. 32 Here a famous quote from Bismarck (author’s translation): ‘When a statesman hears the rustling of God’s cloak through events, the only thing he can do is leap forward and seize hold of the garment’s hem’ (Richard Linde 1927: Der Alte vom Walde. Bielefeld/Leipzig: 43). 33 Often, the term ‘mediation’ is used to describe a special form of intervention by third parties in legal language. 34 Christoph Rohloff: Der UN-Sicherheitsrat. Mg. Arbeit, Universität Heidelberg 1994. 35 ‘Es soll kein Friedensschluss [als Ermöglichungsgrund für einen ewigen Frieden] gelten, der mit dem geheimen Vorbehalt des Stoffs zu einem künftigen Kriege gemacht worden [ist]’. 36 ‘Es soll kein Staat im Kriege mit einem anderen solche Feindseligkeiten erlauben, welche das wechselseitige Zutrauen im künftigen Frieden unmöglich machen müssen’. 37 ‘Also setzt ein jeder Friede voraus, dass alle Ansprüche, die bis auf den Zeitpunkt ein Staat auf den anderen haben konnte und die zu Feindseligkeiten Anlass geben könnten, abgetan und für Null erklärt sind. Mithin macht der Friede einen neuen Anschnitt (Anfang) zwischen zwei Staaten, über den hinaus zurück nichts hervorgesucht werden darf, was nicht als angemacht (erledigt, abgetan) betrachtet würde.’) (Reflection No. 7837). 38 In many cases, former colonial states had to solve the question of political order after the respective wars of independence: blood was shed again in the struggle for national power. Furthermore, one ethnic war was followed by a second – either between the same groups or between different ethnic communities; there were also wars for international power and foreign influence followed later by wars for national power, e.g., struggles for international hegemony and central political predominance (Pfetsch and Rohloff 2000: 108).

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Index Adenauer, Konrad 10 Afghanistan 32, 119, 137 ANC – African National Congress 25, 80 AU – African Union 22, 149 Agreements Algier 179, 182 Camp David 72, 82, 123, 153, 156, 160, 161, 179, 181, 183 Dayton 148, 179 Ecuador–Peru 123–4 Israel–Jordan 123, 181 Gaza–Jericho 123 Israel–PLO 123 Israel–Syria 123 on Trade in Civil Aircraft 138 on anti-personnel landmines 180 Oslo 181 Potsdam 170, 177 AL – Arab League 22, 151 Albin, Cecilia 75, 79, 103, 107 Algeria 93–94 APEC – Asia–Pacific Economic Cooperation 36 Argentina 26, 111, 155, 162, 191 Aristide, Jean-Bertrand 80, 123 ASEAN – Association of South-EastAsian Nations 22, 36, 123 Best Alternative to Negotiated Agreement, BATNA 71, 80, 120, 124 Begin, Menachem 153, 161 Belgium 60, 118, 170, 171 Ben Bella, Mohammed 93 Berlin 11, 28, 79 Bercovitch, Jacob 2, 110, 141, 142, 145, 146, 151, 191, 192 Bismarck, Otto von 82, 146, 184 Blaker, Michael 51–3 Bot, Bernard 39 Bosnia–Herzegovina 19, 148 Brandt, Willy 99

Boulding, Kenneth 86, 108 Brahimi, Lakdhar 138 Brazil 36, 102, 104, 111 Bush, George W. 80 Butterworth, Robert L. 144, 151 Callières, François de 1, 36, 37 Carroll, Berenice A. 20, 166 Carter, Jimmy 82, 124, 144, 147, 150, 153, 156, 161 Castro, Fidel 70 Chile 104, 110, 111, 155, 183, 191 China 28, 36, 48, 72, 116, 144, 149 Chirac, Jacques 62, 139 Churchill, Winston 21 clash of civilization 28, 175 Clinton, William Jefferson 139 Crisis, Cuban Missile 18 Crozier, Michel 1, 68, 89 CSCE – Conference on Security and Cooperation in Europe 101, 123, 149 Cuba 70, 101, 160 culture, negotiation culture xiii, 39, 40, 42, 45, 47, 52, 120, 197 Cyprus 123, 190, 193 cycle, confl ict 32–4, 109, 182, 191, 197 negotiation 15, 86, 123 Czechoslovakia 100, 106, 161, 180 Dahl, Robert A. 92, 100 diplomacy, shuttle 71–2, 144, 152, 153 De Gaulle, Charles 62, 93 Delors, Jacques 66, 69, 75, 78, 89, 163 Denmark 59, 118, 119, 165, 180 Deutsch, Karl W. 67, 91, 92 Duisenberg, Wim 62 East–West Confl ict 26–7, 30, 91, 177, 183 212

Index 213 Eban, Abba 80 Egypt 71, 72, 74, 82, 123, 153, 156, 160, 179, 183, 191, 194 Empire Habsburg 74, 77, 173 Ottomane 173 Czarist 173 Enzensberger, Hans Magnus 28 EU – European Union CAP – Common Agricultural Policy 74, 104 Committee of Regions 76 Court of Justice 76, 127, 137 Council of Ministers 60, 61, 84, 85, 127, 130, 133 Commission, EC 61, 69, 75–8, 89, 127, 129, 132, 134, 139, 144, 186 ECB – European Central Bank 62–3, 75 Economic and Social Committee 76 EP – European Parliament 60, 61, 76, 127, 129, 133, 157, 185 IGC – Intergovernmental Conference 130 Monetary Union 78 Maastricht Treaty 180 SEA – Single European Act 75 Falkland 160, 161, 169 Faure, Guy Olivier 2, 25, 43, 48, 50, 51 FAZ – Frankfurter Allgemeine Zeitung 157 FDP – Free Democratic Party 115 Félice, Fortuné Barthélmy. De 1, 35, 37, 89 Finland 101, 119, 180 Fisher, Roger 70, 80, 119, 146, 192 FLN – Front de Libération Nationale 25, 50, 93, 94 France 1, 45, 50, 57, 58, 60–2, 93, 94, 99, 101, 116, 118, 119, 138, 139, 149, 161, 162, 170, 171, 179 Frei, Daniel 189, 192 Fried, Alfred A. 23

FTAA – Free Trade Area of the Americas 36 Fukuyama, Francis 28 Gaddafi, Musammer al- 80 Galli, Ernesto 58 Galtung, Johan 59 game positive-sum game 2, 7, 22, 23, 38, 122 zero-sum game 2, 3, 7, 22, 96, 122, 194 GATT – General Agreement on Tariffs and Trade 7, 21, 36, 85, 102, 105, 111, 134, 136, 138, 139 GCC – Gulf Cooperation Council 22 Germany 24, 36, 43, 45, 53–7, 60–2, 77, 81, 82, 99, 116, 118, 132, 137–8, 156, 157, 161, 165, 169, 170, 171, 174, 179, 182, 184, 190 Ghali, Boutros, Boutros 33, 187 Goethe, Wolfgang von 58 Gorbachev, Mikhail 82, 160 Greece 23, 165, 170 Grewe, Wilhelm 1, 6, 106, 121, 192 Habeeb, William Mark 94, 100, 103, 106 Habermas, Jürgen 2, 119, 121, 122 Haiti 80, 123 Hallstein, Walter 69, 89 doctrine 55 Helsinki 81, 101, 177 Herriot, Edouard 42, 43 Hitler, Adolf 80, 170, 171 Hobbes, Thomas 91 Hobsbawm, Eric 170 Holst, Johan 144 Holsti, Kalevi 29, 192 Hussein, Saddam 79, 80, 179 IMF – International Monetary Fund 21 IRA – Irish Republican Army 80, 180

214

Index

Israel

11, 71, 72, 74, 78, 79, 80, 81, 83, 123, 144, 153, 154, 156, 160, 176, 179, 181, 183, 191, 194 IC – Islamic Conference 22 Italy 43, 58, 59, 99, 118, 119, 165, 170, 174 Iklé, Fred Charles 1, 112, 146, 180 India 36, 102, 160, 176 ICSID – International Centre for the Settlement of Investment Disputes (WTO) 137 Ireland 60, 74, 100, 119, 123, 165, 193 Island 59 Japan

36, 50–3, 99, 100, 101, 102, 174 Jerusalem 50, 71, 75, 79 Jönsson, Christer 43 Johnson, Lyndon B. 11 Jordan 29, 74, 123, 181 Kant, Immanuel 57, 173, 175, 176, 177–8, 187, 188 Kaplan, Robert 29 Kelman, Herbert C. 106, 192 Kennedy, John F. 43 Kennedy Round 104 Khrushchev, Nikida 43 Kinkel, Klaus 124 Kissinger, Henry 1, 71, 72, 144, 182 Kohl, Helmut 62, 81, 139, 150 Korea, North 22, 28, 123, 144, 150, 190 South 190 Kosovo 19, 32, 109, 119, 123, 138, 148, 179, 180, 182, 188 Kuwait 80, 140, 144, 176, 179, 182 Lassalle, Ferdinand 182 League of Nations 79, 176 Locke, John 91, 92 Luxembourg 186 compromise 84

Machiavelli, Niccolo 44, 82, 181 Mann, Thomas 64 MERCOSUR – Mercado Común del Sur 36, 111 Metternich, Clemens Wenzel Nepomuk Fürst von 1, 141 Michels, Robert 68 Middle East 27, 29, 123, 149, 150, 153 Miloševic´, Slobodan 80, 122, 148, 176, 179, 182 Monnet, Jean 177 Morgenthau, Hans 91 Munich Agreement, Diktat 80, 161, 170, 180 Namibia 22, 123, 144 NAFTA – North American Free Trade Agreement 36 NATO – North Atlantic Treaty Organization 22, 56, 74, 77, 82, 109, 119, 147, 148 Netherlands 39, 59, 60, 118, 170, 171, 179, 186 NIEO – New International Economic Order 96 Norway 59, 78, 179 Nye, Joseph S. 96 OAU – Organization of African Unity 22, 149 OAS – Organization of American States 22, 149 OECD – Organization for Economic Cooperation and Development xiii, 22 OPEC – Organization of Petroleum Exporting Countries 73 OSCE – Organization for Security and Cooperation in Europe 7, 22, 30, 101, 110, 149 Ostpolitik 99, 100 Pakistan 144, 160, 176 peace democratic 162, 175, 178 peace treaties 160, 169, 170, 171, 175, 176, 178, 179, 181 Peters, Guy B. 69, 75, 129, 133, 163

Index 215 Petersberg Conference 137–8 Plan Dawes and Young 170 Delors 78, 163 Fouchet 163 Werner 78, 163 PLO – Palestinian Liberation Organization 25, 80, 123, 180 Portugal 23, 59, 74, 100, 118, 119, 165 Rabin, Yitzhak 81 reciprocity 81 Reiter, Dan 166 Richelieu, Armand Kardinal xiii, 1 Rhodesia 81 RNZ – Rhein-Neckar-Zeitung 157 Roosevelt, Franklin D. 21 Ross, Dennis 82 Rousseau, Jean-Jacques 44 Russia 28, 36, 138, 149, 188 SAARC – South-Asian Association for Regional Cooperation 36, 123 Sadat, Anwar 81, 153, 161 SALT – Strategic Arms Limitation Talks 85, 99, 100 Sartori, Giovanni 127, 130 Scharpf, Fritz 163 Schuman, Robert 177 Smyser, William Richard 45, 47, 53, 55, 56 Soviet Union 10, 24, 55, 70, 93, 99, 101, 106, 115, 149, 161, 174 Spain 23, 59, 60, 118, 119, 139, 162, 165, 174, 193 SPD – Social Democratic Party 115, 157 Spector, Bertram 72, 80 Stam, Allan 166 Stalin, Josef Wissarionowitsch 80 Subsidiarity 63–4 Sweden 59, 101, 119 Switzerland 81 Syria 74, 123

Taiwan 101 Tokyo Round 102, 103, 104 Tocqueville, Alexis de 131 Touval, Saadia 146, 149 Trichet, Jean-Claude 62 UK – United Kingdom 82, 119, 138, 139, 149, 155, 162, 165, 170, 191 UN(O) – United Nations (Organization) 1, 5, 7, 21, 30, 32, 77, 87, 101, 110, 119, 123, 124, 137, 138, 140, 147, 149, 150, 151, 152, 169, 180 Charter 5, 32, 33, 136, 140, 150, 176 General Assembly 85, 94, 151, 185 ICJ – International Court of Justice 136, 137, 179 Secretary General 147, 151, 187 Security Council 30, 84, 85, 147, 149, 151, 169 UNCED – United Nations Conference on Environment and Development 99, 100, 104, 108 UNOSOM – United Nations Operation in Somalia 124 USA – United States of America 35, 48, 51, 56, 57, 77, 81, 82, 99, 100, 101, 102, 109, 110, 123, 124, 138–40, 149, 160, 161, 184 Uruguay Round 51, 52, 99, 100, 102, 104–6, 110, 111, 112, 132, 181 USSR – Union of Socialist Soviet Republics 35, 55, 71, 72, 100, 101, 116, 137, 149, 184 Wallace, Helen 118, 129, 130 War, Cold 21, 24, 35, 91, 101, 106, 149, 171, 175, 181, 184 Balkan 182 Finnish–Russian 180

216 Index War, Cold – continued First World War 79 Second World War 21, 80 Wilson, Woodrow 177 World Bank 21, 36, 185 WTO – World Trade Organization (since 1995 successor of GATT) 105, 134, 136, 138, 139

Yeltsin, Boris 150 Yugoslavia 110, 123, 144, 148, 169, 174 Zartman, William I. 2, 11, 13, 38, 39, 40, 47, 87, 98, 101, 102, 103, 104, 105, 107, 108, 146, 155, 193, 194

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