International Negotiations: an Introduction to the Concept, Types and Classification of Negotiations

International Negotiations: an Introduction to the Concept, Types and Classification of Negotiations Abstract Gennady I. Kurdyukov Kazan Federal University, Professor, Doctor of Law, Faculty of Law Iskander R. Asatullin Kazan Federal University, graduate student, Faculty of Law Arthur A. Khalifaev Kazan Federal University, graduate student, Faculty of Law +7(951)065-82-99; e-mail: shmel8989@mail.ru The present scientific article concerns the growing role of diplomatic negotiations, held on a bilateral and multilateral basis between the authorized representatives of states and other subjects of the international law as the main means of regulating international relations in the context of globalization. The analysis of international negotiations as an institution in the law of international treaties as a complex socio-legal phenomenon with further determination of their place and role in the international system has been conducted. The article substantiates the importance of negotiations as the main means in strengthening and further development of international collaboration of all subjects of international law, the specifics of functioning the diplomatic negotiations in international relations. The article also proposes logically the typology and classification of negotiations. The article uses the dialectical method of scientific knowledge, as well as an integrated system approach to the analysis of legal phenomenon of negotiations. Scientific methods of analysis and synthesis, formal and legal method, method of comparative jurisprudence, legal and logical method, and other methods have been used to elicit and investigate the problems of the modern international and European law. Scientific literature of the known representatives of the Russian and foreign schools of International and European Law was used by the authors as the theoretical basis in writing this article. Keywords: Diplomatic negotiations, the United Nations Charter, international relations, settlement of disputes, typology of negotiations, classification of negotiations, the conclusion of international treaties. http://www.ijhcs.com/index.php/ijhcs/index Page 71

Introduction The modern world is complex and diverse. In international legal relations it is a system that includes states, international organizations, nations and peoples who struggle for self-determination, the existing links between the subjects, as well as the norms of international law that govern the whole mechanism of the functioning of this system. Diplomatic negotiations as an independent sub-system function in the international system in connection with other systems, the most similar of which are the system of international relations, international law and the states in which they act as the main elements of the system. Pointing to the impossibility of the existing the international relations of states without negotiations, it is worth noting the inverse relationship of the latter. The general state of the existing relations between the countries affects the negotiations. It is the rules of law that determine the future character, possible forms and procedure of negotiations. Things are more complicated in the question of interaction of the institute of negotiation and international law. The first act in relation to the system of international law as: the means of harmonizing the existing legal positions on various issues; the international legal phenomenon which is the result of the emergence of states. In the first case, the negotiations are considered only as a political comprehensive whole - a subsystem of international relations, and in the second case - as an element of the international legal system. The development of the institute of negotiations are influenced by legal phenomena (national legal systems, international law), and non-legal (socio-political situation in the very countries, the internal politics of states), determining their specificity both legal and non-legal. Therefore, the negotiations as a legal institution are interdisciplinary in nature, including the features of both domestic and international law. Methods Negotiations, in its unity, are a set of specific types and forms of exchange of views of the participants in international relations. Any single type, form of negotiations has its own characteristics that distinguish it from others. Even a single diplomatic contacts of the subjects of international relations are characterized by their individuality and uniqueness. The first complication that arises at the beginning of cognizing the diplomatic negotiation process - the lack of a set unambiguous definition. The rapid enhancement of the role of negotiations in the modern world requires a more specific differentiation, sequential selection of all known types and forms of their existence. It seems essential to order the terminology used. The analysis of the theory and practice shows that the perfectly clear and most correct designation for all types of exchange of views is the term international negotiations. The selected concept embraces all types and forms of exchange of views in the field of international relations: diplomatic and non-diplomatic, bilateral and multilateral, direct and those involving the go-betweens. All of these forms and types of negotiations are characterized by its own peculiarities that distinguish them from each other. These differences should begin with terminology. Each concept should be represented by its terms. It is justified from the point of http://www.ijhcs.com/index.php/ijhcs/index Page 72

view of practical importance, because various objects in the process of cognizing must have a stable terminological and conceptual originality and uniqueness. The scientific concept is not able to reflect all the facets of characteristics of a single type of negotiation, but it should summarize and derive stable common features, which are common to all forms and kinds of a cognizable phenomenon. The mentioned features should have basic primary character, i. e., reflect the essential characteristics of all negotiations. The main features of the negotiations are those inherent without exception in all types and forms of negotiations, i. e. without which negotiations are not impossible, or which fundamentally distinguish them from other existing forms of international cooperation. Applying a logical method, such features may be referred to by the following: 1. The presence of the object (the subject), being of mutual concern for the subjects of international relations. 2. A definite circle of the participants interested in the process of negotiation. 3. The voluntary character of participation in the negotiations, based on the sovereign equality of all basic subjects of international law. 4. International legal nature of diplomatic negotiations relating to the fact that negotiations are held by will endowed with appropriate competence by the subjects. 5. Coordination character of the negotiations conducted via harmonizing the legal positions and coordinating the joint efforts and actions of the entities. 6. A unique business form of exchange of views, positions, due to time-limited process. 7. Official, as a rule, character of negotiations between the higher public authorities. 8. Imperative character of the designated authorities and their officials, which rightfully allows to speak on behalf of the subject of international law. The characteristics listed above make it possible not only to define the concept of negotiations, but also separate them from other forms of international collaboration. The main internal nature of negotiations should be considered the characteristic of a phenomenon as a peculiar organ of international cooperation of the subjects of international relations. Interpretation of the negotiations as the organs of cooperation expresses not only the nature of certain concrete negotiations but the essence of negotiations on the whole. But negotiations in general terms can be interpreted as the organizational and legal mechanism of the bilateral or multilateral exchange of views and discussion by the subjects of the issues that they interest in. Such variant of interpretation of international negotiations points to two important features: first, negotiations are the mechanism of international legal cooperation, and second, being the mechanism, negotiations are used for international exchange of views by the subjects of international legal relationship. The first feature indicates the nearest generic, more general concept from which the concept of negotiations comes, and the second feature is specific, that is, it helps the concept of negotiation stand out from the more general concept of international http://www.ijhcs.com/index.php/ijhcs/index Page 73

legal communication. The specific character should be considered the most important of all the main features of the phenomenon under study, as it points to the main designation of the negotiations in the system of international relations. At present, in legal literature there are many definitions of negotiation which reflect a different worldview and the subjective perception of the phenomenon. However, none of them are regarded as generally recognized, not only internationally but also at government level. First of all, it is worth noting the prevailing understanding of the negotiation as the means of resolving disputes. One of them belongs to a diplomat and scientist A. Lall. Considering negotiations in a broader sense, he defines them as follows: International negotiations are the process of settling international disputes and complex situations by peaceful means, the other than legal or arbitration procedures, in order to promote and reach a consensus between the interested parties [1, p. 5]. The author considers this definition in terms of semantic value broader than the scope of Article 33 of the United Nations Charter (means of peaceful settlement of disputes), because it provides inclusion of all forms of exchange of views and positions between the parties concerned. However, reference to dispute settlement contained in the definition as the appointment of negotiations brings the attempts of broader semantic interpretation to naught. In today s context international negotiations are increasingly being used equally not only in the aspect of dispute settlement but also in the aspect of development of interstate cooperation. Some scholars recognize the relevance of direct negotiations defining them as the primary means of resolving international disputes, regulated by international law and established practice of states, because they are the most effective in achieving a sovereign equality of the parties and can be used on repeated occasions for the resolution of political and legal disputes [2, p. 1229]. There are more simplified definitions. Negotiations are search for solutions via peace and mutually acceptable agreements [3, p. 183]. One of the few common definitions of negotiations is given by L. Oppenheim: International negotiations should be understood as communication between two or more states which is undertaken and aims to reach an agreement between them on the matters of mutual interest [4, p. 397]. As can be seen from the above definitions of variants, the authors widely interpret negotiations and refer essentially all types and forms of exchange of views of participants to them. The main drawback of these definitions is that they are too general and do not contain any indication of the characteristic features of this phenomenon. In this regard, a notable step forward is the definition given in The History of Diplomacy - the only one in the literature that is the most common and broadest. Diplomatic negotiations are called official contacts and discussions between states or governments of various kinds of political, economic, humanitarian and other problems with a view to harmonize the foreign-policy strategy; exchange of views and information; conclusion of bilateral or multilateral agreements [5, p. 743]. Results Legal and semantic analysis of the investigated concept makes it possible also to offer the following definitions of negotiations. http://www.ijhcs.com/index.php/ijhcs/index Page 74

International negotiations as a process are interaction between the subjects of international relations, carried out by public authorities and their authorized representatives by establishing contacts and discussing issues of mutual concern. International negotiations as the form are the legal mechanism of bilateral and multilateral discussion by the international entities of the issues of interest, with or without controversial nature, carried out on a temporary basis by the bodies and authorized representatives of both parties in accordance with the principles and norms of international law. The most general definitions presented are formulated by the formal-legal method of study [6, p. 128-139]. Considering the current available practice of holding negotiations, the analysis of terminology and the emerging trends in the development of the institute of negotiations, it would be timely to give the following definition. International negotiations in the broad sense are the well-organized process of bilateral and multilateral cooperation of the subjects of international law on the establishment of relations, discussion and resolution of issues being relevant to them, carried out on temporary or permanent basis by public authorities or authorized representatives of both parties in accordance with the principles and norms of international law. In narrow sense, negotiations should be understood as certain organizational-legal bilateral and multilateral exchange of views and positions between the concerned parties of international relations, carried out on a temporary basis by public authorities and their authorized representatives in accordance with the principles and norms of international law. For the best understanding of the relation of individual and common features, extraction of characteristics, specifics of various formats of negotiations and thus determining their real place in relation to other well-known international and legal phenomena observed in the system of international relations, one should refer to the typology and classification of negotiations. It is possible to distinguish the following main types of diplomatic negotiations: negotiations between the states of one socio-political system; negotiations of the states, representing different socio-political systems. The proposed typology does not exclude inter-type and intra-type classification of negotiations on the basis of characteristic features but is an important condition for the classification. As distinct from the typology of negotiations, their classification has undergone a certain scientific analysis. Thus, in a number of foreign studies on the process of negotiations definition is formulated, and by using the formal principle the forms of negotiations are distinguished. In particular, L. Oppenheim, in his famous course, gives the following judgment on the forms of negotiations: International law does not establish any special form of conducting negotiations. Therefore, such negotiations may be oral or conducted through exchange of written proposals or arguments, or both ways. More important negotiations are usually carried out through the diplomatic exchange of written communications, since only in this way one can avoid misunderstandings that can easily occur in the process of oral http://www.ijhcs.com/index.php/ijhcs/index Page 75

negotiations. The negotiations at congresses and conferences are of greatest importance [7, p. 398]. In a joint scientific work J. Wood, and J. Serret suggest that negotiations are conducted by the Ministries of Foreign Affairs and diplomatic authorized representatives [8, p. 183]. The attention is drawn by more detailed classification of diplomatic negotiations, which is offered in the work by S. A. Williams and A.L.K. Mestral: Depending on the persons who hold negotiations, they may be at different levels. They can be carried out at the highest level, ministerial negotiations, ambassadorial negotiations, meetings of the diplomats who are in charge of certain job, and common of all ones, business meetings of the officials carrying out the examination in the relevant field [9, p. 281]. The representative of the French school of international law Ch. Rousseau distinguishes negotiations on conclusion of treaties depending on the form of a treaty: bilateral agreements are concluded by relations of the Departments of Foreign Affairs; multilateral agreements - during the congress or at conference [10, p. 26]. Observing all the scientific and practical significance of these works, it is worth noting the importance of referring to the disclosure of internal features during the process of classification. Scientific classification must be conformed to the rules of logical distribution of subjects according to their types: 1. One should use the same base within one classification. 2. Aggregate volume of the classified objects must be equal to the volume of the classified type, i.e. proportionality of division must be taken into accounted. 3. Objects of classification should be mutually exclusive, i.e., none of them should be present in the volume of another. 4. The process of division must be consistent. Summary With this in mind, having analyzed the existing classifications of negotiations, one may notice some inconsistencies and blunders of the classified types and subtypes. However, it is possible to provide the following classification scheme of negotiations according to: 1. Geographic basis: universal, inter-regional, regional. 2. Character: diplomatic and non-diplomatic. 3. Participants: bilateral and multilateral 4. Conduction: oral and written. 5. The subjects involved: between states, between states and international organizations, between states and struggling nations, between struggling nations and international organizations, between the very international organizations, between the mixed subjects. http://www.ijhcs.com/index.php/ijhcs/index Page 76

6. The object of discussion: the relationship between the parties at the talks, international relations, the issues of national interest with international overtone. 7. The subject of discussion: political, economic, humanitarian, legal and administrative issues. 8. The goals of conduction: international dispute (conflict) settlement, international treaty preparation, control over the implementation of international obligations, discussion of current international issues. 9. The level of conduction: summit, inter-parliamentary meetings, meetings of foreign ministers, meeting of diplomatic representatives, inter-departmental negotiations, the negotiations of other specially authorized persons, consultations of experts. 10. The form of organization: official visits, meetings, consultations, conferences and summits; here we should recall that the visits and meetings may be formal, informal, friendly, goodwill, business, work. 11. The form of holding: receptions and sittings. 12. The character of the subjects of participation: direct negotiations, good offices, mediation. 13. Period of conduction: periodic, temporary, emergency. Conclusion Negotiations within the general form characteristics are individually unique. At the same time, they are not separated by unbridgeable boundaries. Each type of classification of negotiations in its pure form is infrequent. The same negotiations may embody the features of several types and forms or undergo changes reflecting the complex intertwining of intercommunication of the modern world. Acknowledgements The work is performed according to the Russian Government Program of Competitive Growth of Kazan Federal University. http://www.ijhcs.com/index.php/ijhcs/index Page 77

References: Lall A. Modern International Negotiation. Prinoiples and Practice. N.Y. L., p.5. Castel J.G. International Law Chiefly as Interpreted and Applied in Canada. Toronto. 1976. p.1229. Wood J., Serret J. Diplomatic Ceremonial and Etiquette. М., 1976, p.183. Oppenheim L. International Law. V.1, М., 1949. p.397. The History of Diplomacy. V.U, Book 2, - М., 1979, p.743. On Significance of the Method in Study by Baskin Yu. Ya., Feldman D. I. International Law. The Problems of Methodology. М., 1971, p. 128-139. Oppenheim L. Public Law, V.1, s/v.2, p.398. Wood J., Serret J. Diplomatic Ceremonial and Etiquette, - М., 2011, p.183. Williams S.A., Mestral A.L.C. An Introduction to International Law. Toronto, 1979, p.281. Rousseau Ch. Droit International public. P., 1970, р.26. United Nations Charter and Statute of the International Court of 1945. / International Law in Force. In 3 volumes. М.: МIIIL. 2004. V.1. Malcolm N. Shaw. International law. Cambridge University Press, Sixth edition, 2008. International Law. General Part. Workbook. Executive editors. R.М. Valeyev, G.I. Kurdyukov. М.: Statute, 2010. Osminin B.I. Conclusion and Implementation of International Agreements in Domestic Laws, М. 2010. Brownlie I. Principles of Public International Law. Fifth Edition. Oxford, 1998. Merrills J.G. International Dispute Settlement, 4th edition: Cambridge University Press, 2005. http://www.ijhcs.com/index.php/ijhcs/index Page 78