Unit 8: Practice of Diplomacy: Negotiation, Mediation and Diplomatic Agreement

Introduction

Two systemic wars (First World War and Second World War) fought in 20th century taught the powers of Europe and world in general that settlement of interstate problems through war causes tremendous economic costs, catastrophic humanitarian consequences and complete destruction of the all parties included in the war. With the experience gained from these systemic wars, the new world order was established to promote more diplomacy and put more decisive restrictions on use of force in world politics. Especially the horror of the Second World War has been quite influential in the construction of this new world order. In this regard, it is fair to argue that the practice of diplomacy has gained a greater significance in the post-Second World War world order.

Negotiation

Two words, diplomacy and negotiation, are often used interchangeably. Yet, overall conduct of diplomacy cannot be reduced to negotiations. Negotiating with another party is rather a specific sector of diplomatic practices. Diplomacy, on the other hand, encompasses a broader variety of practices varying from routine correspondence between parties to negotiations and agreements. Therefore, diplomatic negotiations take place within a more specific context, focuses on one or set of problems and issues between the parties.

“Negotiation can be defined as an attempt to explore and reconcile conflicting positions in order to reach an acceptable outcome. Whatever the nature of the outcome, which may actually favour one party more than another, the purpose of negotiation is the identification of areas of common interest and conflict” (Barston 2014, 51).

“Negotiation as a process by which states and other actors communicate and exchange proposals in an attempt to agree about the dimensions of conflict termination and their future relationship” (Bercovitch and Jackson 1997: 25-26).

Negotiating with other party or multiple parties is one of the major diplomatic practices. Firstly, actors may use negotiations as a minor tactic within a greater strategy. It should be noted that interests and intentions of the actors are dynamic and may change once they are in a negotiation process.

Secondly, parties may determine a set of goals to achieve through negotiations and be satisfied if they can end up at any point within this range in the end of the negotiations. This is called win-set. This concept is coined by Putnam in his famous article in which he defined diplomatic negotiations as a “two-level game” (Putnam 1988). Putnam argues that state actors play a two-level game in their conduct of diplomacy. The first level is the domestic level. In the domestic game, the actor needs to consider different factors varying from satisfying the public to surviving in the office. In other words, domestic political dynamics such as elections and inter-party competitions are influential in the domestic game. The decision maker aims to get the support of the domestic institutions and audience before starting the second level of the game, namely the international negotiation with other parties. The support that the actor mastered in the first level broadens the win-set of the actor for the second level. In this regard, a win-set is set of desired outcomes that would be achieved through international negotiations. For an actor, any outcome of negotiation within this range would be acceptable, whereas the outcomes out of this win-set spectrum would count as loss and failure, this is unacceptable. On that sense, it is possible to frame negotiations as a practice in which actors can compromise based on the scope of their win-sets. Larger win-sets on both or all parties make the negotiations more likely to end up with success. Putnam suggests that “agreement is possible only if those win-sets overlap, and the larger each win-set, the more likely they are to overlap. Conversely, the smaller the greater the win- sets are, the greater the risk is that the negotiations will break down” (Putnam, 1988: 438). In this regard, it should be noted that international negotiations are not only shaped in the international arena but they are significantly shaped through the interplay between the domestic and external spaces.

Win-Set: Win-set is a term coined by Robert Putnam in his famous article that he developed a framework for foreign policy decision-making (Putnam, 1988). According to Putnam’s framework, win-set of an actor can be defined as any desirable outcome from an international bargaining process. In other words, any outcome within the range of its win-set would be considered as gain by the actor. The formation of this win-set, according to Putnam, is directly related with the domestic political dynamics. Therefore, win-sets that determine the foreign policy agenda of a country is directly connected with the domestic politics of that country, according to Putnam’s framework.

Thirdly, negotiating parties can be motivated for setting a norm in a broader level. This is usually the case for issues that concern broad range of audience.

The negotiation process does not only take part between states. state to state negotiations constitute the vast majority of all diplomatic negotiations. Interstate negotiations may be conducted on various issues. Land and sea borders, water issues (Dinar 2000), settlement of violent conflicts, trade and customs issues and other specific problems between states can be subjects of interstate diplomatic negotiations. It should also be noted that sometimes states negotiate with political entities that they do not recognize as a sovereign state.

• Diplomatic negotiations with de facto states can be given examples of such interactions.
• Negotiations may take place between states and nonstate actors (Cooper and Hocking 2000). Especially in the post-Cold War era, the interactions between states and non-state actors significantly intensified.
• Sometimes international diplomatic negotiations can be among non-state actors. Such negotiation processes usually take place after multiparty civil wars (Raeymaekers et al. 2008).
• International diplomatic negotiations can include an international organization and a specific state government. Acceptance to an international organization is a typical topic for such a negotiation. Another possible subject matter for such a negotiation can be focusing on a behavior of a government which is not welcomed by international community and the international organization would initiate a process to convince that government to commit certain internationally recognized standards or principles.

DDR in Peace Negotiations : DDR stands for disarmament, demobilization and reintegration. DDR is considered as an essential part of contemporary peace agreements. Especially several African states such as Liberia, Sierra Leone, Ivory Coast and Uganda experienced severe civil wars in post-colonial period. Inevitably, the efforts for settlement of these conflicts had to focus on the status of the former combatants. In fact, many peace efforts which aimed an immediate ceasefire and neglected the status of former combatants failed or violence recurred in spite of signature of a peace accord. Thus, peace negotiations today include detailed discussions about how to disarm, demobilize the excombatants. Reintegration of former warriors to the society is also of utmost importance in order to prevent them to engage in crime in the post-conflict period. For more information, visit the webpage of United Nations DDR Resource Centre. http://www.undrr.org/

The agents of diplomatic negotiations are diplomats of their respective ministries of foreign affairs in international diplomatic negotiations and sometimes, elected ministers of foreign affairs directly take part in the negotiation committee. In a few cases, governments appoint a responsible person, such as an envoy, as the head of negotiating committee.

Success of negotiations is directly dependent upon the attitudes of the negotiating parties. Galtung (2015) argues that if the attitudes of the respective parties in the negotiations rely on a zero- sum understanding, likelihood of failure is greater. When the talk gets stuck the role played by the moderator or the mediator is of utmost importance.

Mediation

The need for and use of mediation in diplomatic practices usually appear when there is a protracted conflict between two or more parties. In some cases, conflicts develop in a manner that gets stuck on a deadlock point. Consequences of the conflict become destructive and inhumane for all fighting parties. Yet, parties do not want to be the initiator for an offer to negotiate as they think this could be perceived as a sign for weakness for other parties. Thus, factions find themselves in a situation that forces them to keep fighting although they are sick and tired of fighting and waiting for a ceasefire to sit and talk about the settlement of the conflict. Under such circumstances, an initiative for mediation plays a very important role in the facilitation of the contact among the parties (Bercovitch and Rubin 1992).

Tracing the history of mediation can easily takes us back to ancient times (Woolford and Ratner, 2008: 41). Yet, modern mediation that appeared as an established practice of diplomacy developed in accordance with the necessities of the contemporary world politics.

The definition of the mediation is a good starting point to investigate the basics and the procedures of the mediation. There are various approaches to mediation’s general definition. Greig and Diehl (2012: 2) defines mediation as a tool for conflict management:

“Mediation is a conflict management tool used widely across a diverse set of contentious cases, running the gamut from divorce settlement talks to labor management negotiations to peace efforts between warring states. Regardless of the type of conflict to which it is applied, the distinguishing feature of mediation is the introduction of an outside or third party into the negotiation process between the disputing sides with, at least partially, the aim of producing a settlement between the two sides.”

This approach emphasizes that the mediator, as a third part which has no conflict of interest with any party included in the conflict, intervenes in the conflict with an aim to bring the overall conflict to a manageable point. In another definition Sisk (1996: 3) suggests that mediation is an effort to stop violence with any possible means of intervention.

“international mediation deals with the process of political change: Is it peaceful or violent? Mediators want to stop the violence by any means possible. The international community must be more involved in shaping the institutions that will ensure an enduring peace -- the outcomes of political change.”

As different from the previous definition, Sisk frames mediation mainly within the context of violent conflicts, and unlike Greig and Diehl, Sisk’s definition suggests that mediation is a conflict- ending tool rather than a conflictordering one. Kressel (2006: 727) defines mediation as follows:

“Mediation may be defined as a process in which disputants attempt to resolve their differences with the assistance of an acceptable third party. The mediator’s objectives are typically to help the parties search for a mutually acceptable solution to their conflict and to counter tendencies toward competitive win-lose strategies and objectives. Mediators are most commonly single individuals, but they also can be twosomes, threesomes, or even larger groups.”

All definitions of mediation emphasizes that mediation processes are initiated by a neutral third party. Secondly, mediator’s main objective is to facilitate the dialogue between the parties of the negotiation. In other words, foremost function of the mediator is to facilitate the contact. Along with these, providing a new perspective to the parties if the talks get stuck is also a key task for a mediator

A giant in the mediation studies, Bercovitch goes beyond just proposing a definition and clarifies the eight characteristics of international mediation as follows (Bercovitch, 1992: 4-5):

1. Mediation is an extension and continuation of the parties’ own conflict management efforts.
2. Mediation involves the intervention of an individual, group or organization into a dispute between two or more actors.
3. Mediation is a non-coercive, non-violent and ultimately nonbinding form of intervention.
4. Mediation turns an original bilateral dispute into triadic interaction of some kind. By increasing the number of actors from two to three, mediation effects considerable structural changes and creates new focal points for an agreement.
5. A mediator enters a dispute in order to affect, change, resolve, modify or influence it in some way.
6. Mediators bring with them, consciously or otherwise, ideas, knowledge, resources and interests of their own or of the group or organization they represent. Mediators are often important actors with their own assumptions and agendas about the dispute in question. International mediators are both interested and concerned parties.
7. Mediation is a voluntary form of intervention. This means the parties retain their control over the outcome (if not always the process) of their dispute, as well as their freedom to accept or reject mediation or mediator’s proposals.
8. Mediation operates on an ad hoc basis only.

Mediation initiatives has contributed to the construction of peace agreements, peaceful solution of several disputes or prevented potential crises to turn into violent conflicts. Yet, it should also be emphasized that mediation is also used as an instrument by the initiator to construct an international role. The initiator country or organization for mediation sometimes does so to have a say in world politics. Role theory of Foreign Policy Analysis (FPA) literature suggests that countries build certain national roles for themselves and conduct their foreign policy accordingly (Holsti 1970; Walker 1987).

There are two main types of mediation: formal and informal (Berkovich and Jackson, 1997).

• Formal mediation processes start after the authorization of a person by usually an international organization. In formal mediation processes, the mandate and jurisdiction of the mediator are determined in the authorization resolution.
• There have also been cases settled through informally running mediation processes. Informal mediation is a mediation practice in which conflicting parties voluntarily pick a third party mediator to intervene in the conflict and mediate the parties (Hare, 1992: 53). Mediator is selected usually because all conflicting parties attribute a credibility to her/him and acknowledge her/ his impartiality.

The main difference between formal and informal mediation processes is that in informal mediation process, the mediator lacks the economic and political backing enjoyed by the mediators in formal processes. Therefore, informal mediation is considered mainly as a dialogue facilitation initiative rather than providing decisive and binding consequences (Kleiboerr, 1996). It should also be noted that informal mediation is often preferred by governments when they are reluctant to disclose the negotiation process to the public.

Diplomatic Agreement

Ultimate aim for negotiation is to reach an agreement which avoids use of force and bring a peaceful solution to the problem. Once a successful mediated negotiation is finalized, the next step is to officialize the agreed conditions through a diplomatic agreement of which clauses would be binding for all signatory parties. A diplomatic agreement or protocol, in this context, is a binding legal text produced through negotiations between disputing parties to institutionalize the conditions agreed.

Diplomatic agreements may focus a wide array of issues ranging from peacemaking to visa regimes, from trade to usage of bordering rivers as well as settling the violent conflicts.

Types of Diplomatic agreements;

• Multiparty treaties that regulate a general regime of a certain practice for the signatories.
• The type that regulates the conditions for settlement of a non-violent dispute between or among states. Such diplomatic agreements emerge after the negotiation of two states or a group of states which are the parties of the dispute.
• Diplomatic agreements signed after violent conflicts should be noted. World politics have witnessed a growing number of domestic and regional violent conflicts especially after 1960s, which is a term decolonization in Africa and elsewhere gained momentum. Many newly independent decolonized states have struggled with political and economic instability ever since. It is possible to suggest that this type of diplomatic agreements is much more difficult to agree on compared to any other type of diplomatic agreement. After long standing conflicts which left tremendous casualties on each party included, sharpened identities and resentments of the respective parties make detrimental effects on their motivation to sign a peace and lead them to seek revenge. Therefore, peace accords after long standing conflicts inevitably have to address sensitive issues such as power- sharing in the post-conflict term, transitional justice, war crimes and rehabilitation and reintegration of former combatants.

Enforcement of diplomatic agreements is also an important topic to address. When a diplomatic agreement is signed, the final step for it to be put into practice is the ratification process. Ratification is simply the approval of an agreement by the domestic agents of a country. Ratifying body may vary depending on the regime of the signatory country. In absolute monarchies of the medieval world, ratification was not needed because the committee signing a diplomatic agreement was directly authorized by the monarch. Yet, contemporary global democratic principles rendered parliaments as the representatives of the people. Therefore, almost in all liberal democracies, the natural ratification organ is the parliament. Depending on the constitution of the country, parliaments ratify international agreements either with simple or qualified majority. In some cases, the executive organ may decide to present the diplomatic agreement to a public vote or referendum. Ratification is an essential procedure for the activation and realization of a diplomatic agreement. In fact, many diplomatic agreement remained ineffective or annulled because they did not succeed to be ratified.