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In Treaty we Negotiably Trust: Unearthing the Interrelationship between International Negotiation and Treaty in Constructing International Common Interest

Friday, 22 February 2019
by Evangelos Raftopoulos, Professor of International Law, Panteion University, Athens, Greece, Fellow, C-EENRG, University of Cambridge, United Kingdom
In Treaty we Negotiably Trust: Unearthing the Interrelationship between International Negotiation and Treaty in Constructing International Common Interest
To treat is but to negotiate and to be ‘in treaty’ is but to be in negotiation”  Clive Parry

¿óôå ç èåïý åíÝñãåéá, ìáêáñéüôçôé äéáöÝñïõóá, èåùñçôéêÞ áí åßç. Êáé ôùí áíèñùðßíùí äç ç ôáýôç óõããåíåóôÜôç åõäáéìùíéêïôÜôç” (“It follows that the activity of God, differing from beatitude, is theoretical.  And among human activities that activity which is the most akin to the divine activity will be the happiest” (transl. mine)) Aristotle, Nicomachean Ethics, Book X, viii, 8.

There is a challenging and refreshing approach in my new book “International Negotiation: A Process of Relational Governance for International Common Interest” that maintained my spirit daringly devoted and my interest creatively alive throughout the years of its writing. I propose a relational theory that systematically unveils the interrelationship between International Negotiation and Treaty as a process of relational governance constructing International Common Interest (ICI), thus raising a fundamental theoretical claim and a practical platform for an interdisciplinary and more knowledgeable understanding and conduct of international negotiation.
This fundamental “theoria at work” approach transcends, in pragmatic terms, long-rooted methodological exclusivities and complacent theoretical rigidities and abstractions generally associated with “negotiation” in theories  international relations and “treaties” in positive theory of international law: namely, the one-dimensional prescriptive models of negotiation generated in the realm  of international relations theory, examining it as a distinctive political process; and the inadequacy of the corresponding one-dimensional approach to treaties  in the realm of positivistic theory of international law, perceiving treaty as a static, “objective” legal concept analogous to private law contract. The former, exclusively focusing on the political feature of international negotiation, elaborates its explanations in terms of autonomous prescriptive models, which, despite some merits, pursue prevalence or accommodation of interests in international power relations. The latter only marginally perceives international negotiation as a distinctive political process – and for this reason as theoretically untouchable and methodologically marginalized. Negotiation is merely perceived as a political means of settlement of international disputes that may lead to “objective” international law solutions, with no further inquiry into its nature and its relation to treaty. Establishing the “(private) contract view” of treaties associated with rules and principles related to market or money economics, while overlooking the essentially public law nature of international law and its subjects, treaty is considered as the legal superstar in the static positivist theory of international law. Thus, in both disciplines, theories, chained with their methodological assumptions and serving their methodological barriers, provide a complacently authoritative version of a discrete and “objective” understanding of “negotiation” and “treaty.” Understood as separate constructs, “negotiation” and “treaty” only marginally meet, always within the strictly defined bounds of their respective methodologies.

Building on this theoretical transcendence, my book proceeds to construct a “theory at work” that brings the relational nature of international negotiation process and treaty regime activity to light, analyzing it as the governance instrumentation for continuously constructing international common interest. This is a central point for the understanding of the structured nature of international negotiation process. In this combined theoretical, philosophical and practical endeavour, I explore international negotiation from a novel, international law perspective: as a structured process of relational governance that generates patterns of common interest relations between and among international participants and in continuous interaction with the polycentric international public ordering. Using an interdisciplinary approach that incorporates law, philosophy, politics, and linguistics, I propose a holistic, “bios theoretikos” model of multilateral international negotiation that not only offers a “subjective” view of international law in practice but further demonstrates the importance of understanding the nature and function of horizontal normativity of international ordering.

More specifically, contemplating the complementary relationship of international negotiation and treaty as a theoretical activity constructing international common interest, I advance in my book a self-sustained integrated theoretical approach to the negotiation process as a multilateral structured governance process preparing (transformative governance), constructing (constitutive governance), and developing (revisionary governance) relational treaty regimes of ICI. States, with the substantial contribution of non-state entities, negotiate in order to establish “relations serving ICI”. They do not simply negotiate in order to produce an “end-result to a problem”. They negotiate for conventionally workable relational continuity, not for contract-like finality. As a multilateral governance process preparing, constituting and revising treaty regimes of ICI, international negotiation is a three-phased process, textual, contextual and subjective. 
Prenegotiation sets the scene of multilateral governance transforming a problematic or conflictual situation into a relational activity developing ICI. Such transition requires knowledge of the Prenegotiation management and organizational techniques and strategies used by its initiator ( usually, by a state or an international organization): the level of a multidimensional diagnostic determination of negotiable issues, carried out knowledgeably (diagnostic thematic management), intersubjectively (management of “subjective framings”), and contextually (management of the special context of reference);  and, subsequently, the level of multilateral governance developed as a multilateral conferential negotiation  featured by its special structure and function and the application of standard techniques leading to a patterned textual outcome - a declarative instrument pursuing ICI and based on political consensus. 

Constitutive Negotiation sets up the platform for the collective establishment of an ICI treaty regime. Here, negotiation is rigorously examined as an intersubjective relational process whereby a new treaty is “constituted” as a collective normative activity pursuing ICI on a consensual basis and by consistent reference to its context. The product generated by Prenegotiation is part of this context; however, the transition from the Prenegotiation phase to the Constitutive Negotiation phase is nonlinear. The knowledge of the institutive processes of constitutive treaty negotiation is indispendable. Applying, mutatis mutandis, certain methodical elements of the diagnostic level of Prenegotiation, it is generated by a group of States, or an international organization or by the action of an existing treaty regime. It is carried out by an ad hoc body of conferential negotiation, organized and operating on the basis of standardized rules of procedure. The role of the Secretariat is central and multifarious constructive, while the adoption of the consensus procedure provides the basic procedural safeguard. Equally indispensable is the knowledge of legislative-like constructive processes of constitutive treaty negotiation. Here, the negotiation of the textual pattern of the treaty instrument takes centre stage, specifically associated with three levels of treaty patternment that provide the necessary normative material for the construction of ICI: referential patternment (context identification, contextual compatibility, and “added value”); morphological patternment (“framework agreement – performative protocols” or “integrative agreement – executing annexes”); and normative patternment. The latter lies at the heart of Constitutive Negotiation: the knowledge and proper management of treaty-patterned elements constitute the pillars around which the Constitutive Negotiation process is unveiled. Correspondingly, the knowledge and appropriate use of organizational and textual techniques and practices, variably applied in all negotiation phases, creatively contribute to the progress of negotiation and the consensus-building of the ICI treaty relation.

Finally, he Renegotiation is explored as a structured, intra-institutional process of revisionary governance of an operating treaty regime. Reinforcing its relational resilience, Renegotiation builds on the structural and procedural characteristics, techniques and the treaty-patternment approach of Constitutive Negotiation, while it properly integrates some methodical elements of the diagnostic level of Prenegotiation. It is set in operation through by the amendment clause of the treaty, and the treaty Secretariat operates as an institutional guardian of the regime.  Interestingly, the contextuality of the revisionary negotiation further encompasses a particular  context of reference generated by the institutional life of the treaty regime (derivative context).  The negotiation of Its morphological patternment refers to the text drafting of the extend/depth of the amendment of the treaty or, alternatively, to its replacement leaving the treaty regime intact. “Withdrawal” or “denunciation”are hardly considered as alternatives to Renegotiation, although their invocation may trigger Renegotiation. Renegotiation may also refer to the declarative components of a treaty regime (action plans), leading to their “refinement” or “reassessment.” In some cases, Renegotiation may develop in the twilight zone between Constitutive Negotiation and Renegotiation when related to the development of the underdetermined aspects of a particular treaty, undergoing subtle structural transformations and producing new negotiating techniques.

Indeed, in treaty we negotiably trust. But international negotiators should be conscious and knowledgeable of the fact beyond, retrospectively and prospectively: that they are involved in the perennial and intricate process of constructing ICI. This is “the situation sense” and the creative force governing the action of an International practitioner. Broader, this is a call to international scholars and theorists to cross artificial methodological constraints and work creatively by “thinking” and “seeing” the interconnections in international ordering. And, overall, this is an activity of a “theory at work”.
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