Packaging Agreement

DTAP-C05: Packaging Agreement ¹ §

• Do these questions at home and answer in class
  1. What are the advantages and disadvantages of packaging an agreement (formally) in the form of a treaty?
     • Formal vs informal package: there is hidden agenda ⇒ negotiations could collapse
  2. What are the advantages and disadvantages of packaging an agreement informally?
     • What is formal & informal packaging?
     • Why states prefer one or the other?
       • Big states
       • Small states
       • Cambodia prefers which one?
  3. Briefly explain the methods commonly used by negotiators to save face.
• Packaging an agreement happens at the very end of the negotiation
  • When parties promised what they will each do
  • Parties might not agree on how they package it: formal or informal
  • If not careful, negotiations could be thrown out at this stage
• Treatyies are usually called conventions, concord, declaration, exchange of correspondence, pact, agreed minutes
  • Title of treaties are only reserved for topics of important matter
    • Ex: North Atlantic Treaty NATO, Treaty of Listborn
  • Actors call agreements treaties to emphasize it’s importance
  • Peace Treaties
  • Treaties of Guarantee: agreements of all important guarantees of territorial or conditional settlements

What form the agreement is depends on §

1. Subject matter
2. Political needs of the author: if the authors of the agreement think it is of best political importance but does not warrant creating a international legal obligation, it won’t be a treaty of binding international law
   • Instead they dress it in a fancy way like the Atlantic Charter and Helsinki Final Act

• Formal Treaty: if the subject is appropriate to be a regulation or international law
  • It signals the issue is important
  • Why use treaty if many criticize it as ineffective: because it’s the most widely honored, even by unsavory states
  • Because breaking a consensual treaty is much more looked down upon than a bilateral agreement
  • Problems:
    • Take a long time: for parliaments to support, not fit for urgent matters
    • Parliament could just reject the treaty to gain public support to win the next election
      • Waste of time drafting the complex text and negotiation
• Informal Agreements: are for convenience and routine agreements
  • Non-binding agreements or unpublished
    • Problem:
      • An unbinding agreement in one leadership could be easily dropped by the next administration, especially in democratic states
      • Not easy to monitor compliance to agreement
      • The lack of transparency to the mass public
      • No ratification process, someone can just reject agreement
  • Advantages: Inconveniences avoided by using informal agreements:
    1. The complexities of formal treaties: informal benefits smaller and newer foreign ministries as well as large and overburdened FMs due to less added workload
       • Informal letters of offer and reply letters of acceptance is the most common form of treaties nowadays
    2. Ratification of agreement: no longer negotiators signed → political leaders disagree and doesn’t ratify agreement
       • Due to communication revolution: no error of communication
       • Ratification only existed for negotiators misinterpreting commands
       • Governments usually prefer no ratification: put into force quicker, no time for change of mind or ratification failure
       • Ex: US uses “executive agreements” which are treaties by definition, but doesn’t require ratification
    3. Informal agreements are used for commonly held principles/objectives: that is non-binding, but everyone agrees with
    4. Unwanted publicity: informal agreements isn’t required to be published.
       • Avoid stirring domestic political parties: agreements can be published to be binding, but in informal style to avoid attention
       • Avoid give helpful info to enemies states.
• If ratification can’t be avoided, governments must use ‘Double Edged Diplomacy’

Saving face §

• Saving face: sensitive negotiation don’t want to be publicized
  • Concessions if public could bring backlash from supporters
  • What one party want to disguise, the other will want to highlight
  • If unpopular, negotiations could fail in packaging
• Strategies of Saving Face
  1. Language is the most fundamental to nationality and pride to be translated to both parties’ state of origin:
     • it reflect relationship of of equality and contain an equal exchange of concessions between both parties
     • Problem: One side’s language could be interpreted differently. Therefore there should be a third language which is usually English
  2. Small Print: disguising a concession in complex writing
     • By saying very little about it, brush it under the carpet, add trivial details unrelated to the concession
     • to place embarrassing concessions in documentary appendages to the main text
       • side letters, interpretive notes, appendices, additional protocols
       • make it less likely to attract attention
       • Problems with this
         • in a complex and tense negotiation under great pressure of time, there is more chance of a slip-up: might not do its job
         • it can subsequently be claimed that ancillary documents do not have the same value as the main text of an agreement
  3. Euphemism: covering up meaning of concession in text
     • Calling sending loans or money as humanitarian or foreign assistance or aid instead
     • Ex: Japan calling reparations after WW2 as financial assistance to countries it invaded to save face.
  4. Putting the concessions in separate but related agreements, while highlighting the safe one

References §

Footnotes §

1. C05-DTAP-Diplomacy theory and practice By Geoff Berridge ↩