Archive | July, 2013

37. International negotiations

31 Jul

International negotiations

1. In the area of diplomatic relations, negotiation can be defined as the discussions between representatives accredited two or more States to achieve specific objectives. Obviously, negotiations in this environment should have the political will and essential premise of the parties to negotiate and reach a satisfactory outcome.

2. Negotiations are the primary means to prevent or resolve conflict situations or controversial issues. They can also be used to conclude international commitments, to establish international standards, to increase political understanding and economic, legal, social ties between governments, and to strengthen their friendly relations. As an essential tool of diplomacy, negotiations facilitate the reaching of a satisfactory outcome through the reconciliation of interests.

3. Bilateral negotiation is intended to create or modify an action or omission by the other party, or seeking to uphold a viewpoint which may materialise after the signing of an international legal instrument.

4. Multilateral negotiation takes place in various forums and meetings and are made at the request of the parties. The Vienna Convention on Representation of States in their Relations with International Organizations of a Universal Character regulates this issue. Its preamble recognises the importance of multilateral diplomacy and its contribution to promoting friendship and cooperation between States, whatever their political, economic and social standing.

5. The diplomatic negotiator in any way must apply the necessary firmness in defending the interests of his State, but it must always be carried out with the tact and diplomatic courtesy when doing so.  What tends to ensure the effectiveness of efforts in this area, in addition to constant and scrupulous respect of the complex rules that govern the development of relations between members of an international community, is the extensive knowledge of international affairs along with the appropriate expertise in this specific matter being negotiated. This allows effective management, with the skill and efficiency required of the principles, rules and procedures governing the exercise.

6. Negotiation, no doubt, is the quintessential diplomatic activity that aims to bring the positions of the various subjects of international law involved in the process. In that sense, the basics for successful negotiations include the following:

a) Have a detailed knowledge of the problem and the State’s position, which enables the negotiator to identify the strengths and weaknesses;

 b) Evaluate with the utmost rigour and objectivity the position of the other party and find points of coincidence, the positions of intransigence and possible points of concession

c) Develop a plan for development of negotiation, in addition to the exposure of the State’s position and the arguments of the other party;

d) Maintain a continued exchange of information with the Foreign Ministry to clarify, update, and redirecting the instructions and note any misunderstanding or error;

e) Demonstrate knowledge, accuracy, confidence and political support of the government.

7. International negotiations have become one of the procedures that has aroused much interest. This is due to the importance of the issues that have recently been subject to processes of this nature. In the economic sphere, international negotiations have gained unprecedented importance, especially in the case of countries that have given high priority to achieving their development objectives and economic growth, and consequently their economic linkages with the outside, for which negotiation is an irreplaceable instrument.

© by Odeen Ishmael

 

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36. The effective conclusion of international treaties

20 Jul

The effective conclusion of international treaties

1. Treaties are a means of limiting international randomness since they assert the reconciliation of interests, stabilise the balance of power and provide assurances within a fluid and changing environment.

2. In the current historical juncture and under the growing interdependence of states treaties have increased as usual requirements of bilateral and multilateral negotiations.

3. In essence, treaties are legal instruments of the highest hierarchy in the relations between States, and through these agreements a variety of links generates a wide range of rights and obligations. Because the scope and validity of these international commitments, their decisive effect on the present and future of nations must be adequately addressed.

4. Treaties must be expressed in writing in accordance with the principles and rules established in international law. They constitute the most objective source of international legal obligations manifested by States and other subjects of international law.

5. In this direction, it is noted that the conclusion of treaties is the result of understandings freely entered into between two or more States (or between these and other bodies subject to international law). Through their negotiations, they voluntarily consent to create, define, establish, modify or terminate a legal relationship between them. The validity of a treaty depends crucially on the ability and consent of the parties, according to international law, to conclude and cause its possible implementation.

6. The compromise of any international commitment (and particularly of a treaty) should be based on the guidelines of the State’s foreign policy. It is formulated and managed by the Head of State who may delegate the task to negotiate and sign to the Minister Foreign Affairs (or in some cases by other Ministers) or a diplomatic agent endowed with the appropriate credentials.

7. Similarly, according to the principle of unity of action outside the state and the consequent international responsibility, the conclusion of treaties will be under the control or knowledge of Ministry of Foreign Affairs, which is the State institution officially recognised by the international community to implement foreign policy and the assumption of obligations between States (and between these and other subjects of international law).

8. In the negotiating stage of the conclusion of treaties, there must be collaboration of a negotiating team specially assigned to that role. Obviously it is essential that those involved in the proceedings in question are able to demonstrate at all times that they have full knowledge of the specific issues motivating the conclusion of the treaty under their purview.

9. It is also clear that it is their responsibility of having well defined objectives in terms of foreign policy of the State they represent. These officials should master the language in which negotiation will take place (and it is advisable to have the full knowledge of the language of the counter-party). Above all, they should be properly trained in negotiation techniques which involve constant updating of their knowledge because of the frequent generation of new methods designed to ensure proper effectiveness of actions in this area.

10. It should be remembered that those designated to participate in a negotiating team of this nature tend to be generally Foreign Ministry officials (or members of the foreign service) and officials of other relevant State institutions dealing with on the subject of the treaty and who are all committed to defend the fundamental interests of the nation. They may also involve external consultants and, in some cases, representatives of civil society. The complexity and importance of a particular negotiation will require the collaboration of a multidisciplinary team, comprising experts in their field of competence. Their participation, usually as advisers, is limited to the negotiating stage of the completion of the treaty.

11. For the effective implementation of the procedures for concluding treaties, it requires that those involved are able to skilfully handle the assumptions contained in the Vienna Convention on Law of Treaties (1969), which is the international legal instrument governing the matter between States. The 1986 Vienna Convention also regulates all matters connected with the other international instruments between nations and international organisations. Similarly, they should have full mastery of treaty law which is part of public international law), and must be knowledgeable with other relevant principles, standards and procedures for the conclusion of treaties.

12. For the conclusion of treaties, the internationally established procedure includes the following steps:

a) Externally: negotiation, the project, drafting the final document, signature, exchange of ratifications (or the deposit of ratifications in the case of a multilateral instrument) and registration.

b) Internally: legislative approval, ratification by the Executive and the publication in the Official Gazette.

13. Although the generic term commonly used to refer to this category of international commitments is “treaty,” it may assume different names according to certain aspects recognised by international law, without altering the legal or ethical nature of these acts. Consequently, a treaty can be called: convention, union, pact, partnership, agreement, protocol, charters, records, concordat, among others.

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35. New aspects of diplomacy

2 Jul

New aspects of diplomacy

1. The establishment of diplomatic relations, as an attribute of sovereignty of States, is by mutual consent, based on the mutual interests and building on the principle of legal equality of States.

2. A State cannot establish any sustained improvement in the international environment without having to accept and implement the appropriate systems of a collective character. In this context, it is for diplomacy to reconcile between the exercise of national prerogatives and the need for a stable and pluralistic world order.

3. The current dynamics of international politics, which obviously affects the growing interdependence of states, determines the essential role of contemporary diplomatic relations and also with other links generated by the inclusion of new actors on the international stage today.

4. Currently, there is the increasingly accepted international activity of sub-national governments known as “proto-diplomacy.” This term refers specifically to the steps, processes and networks through which sub-national governments seek to establish, among other important links, contacts for cooperation with foreign central governments or with other sub-national governments. The objectives of these activities across national borders are usually foreign trade, the search for investment, environmental protection, cultural exchanges and tourism.

5. “Proto-diplomacy” may create tensions between the central government and the sub-national government since the former holds that foreign policy has historically been in its preserve. Such tension created between the central government diplomacy and international participation of the sub-national government tends to be interpreted as a symptom particularly dynamic to the process of decentralisation of modern federal states.

6. “Proto-diplomacy” practised by a sub-national government may also include initiatives and activities through which it aspires to establish itself as fully sovereign state. The initiatives and activities may also be part of the preparatory work towards a future secession and international recognition of such a status.

7. There is also the concept of “post-diplomacy” practised by “non-governmental organisations” which make direct contacts with foreign governments to promote themselves.

8. Then there is the so-called “anti-diplomacy” which refers to the sinister and destabilising role of international terrorists, drug traffickers, and political and economic espionage.

9. In the theory of international relations, the view is now being expressed that diplomacy should show a distinction between that of “high politics” (which refers only to “noble” cases of foreign policy, namely,  diplomacy, defence and security), and that of “low politics” (which deals with more mundane matters such as economics, trade and welfare.

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