Friday, July 20, 2012

Negotiation by exhaustion: the mad dash to the finish

by Dan Lee, Control Arms
From yesterday onwards the Conference has started to extend its hours into the night, with negotiations also taking up the delegates’ upcoming weekend before the final allocated week of negotiation time. The commitment by governments to use this extra time to ensure they reach an agreed arms trade treaty (ATT) is admirable, but it comes with certain risks. The most obvious of these is that delegates will begin to tire, burn out, and exhaust themselves from long and increasingly tense days of negotiating. These days will almost certainly get increasingly longer as the week goes on.

As with many conferences, the risk is that the Treaty could ultimately be decided by "negotiation by exhaustion". This phrase was coined by the Tanzanian delegate on the final night of the negotiations for the Kyoto Protocol in 1997, when negotiations continued through the final night of the Conference right through to the final plenary (Oberthür & Ott, 1999). The Kyoto Protocol negotiations were also decided by consensus, but Chairman Raul Estrada-Oyuela played a central role in the way the final negotiations proceeded. 

This sort of experience can be a good thing in some ways. It may reduce the amount of time delegations spend trying to filibuster or get in the way of certain issues they are less in favour of. It may spur governments on to find agreement quickly and efficiently in order to cover a lot of ground very fast. It may even lead them to find agreement where there previously was none, with quick last minute compromises to get things done.
But it can also risk damaging the quality of the discussions taking place. At Kyoto, most delegates became highly fatigued and had little willingness to engage in long and extensive discussions. As such, vital pieces of information may be lost in the eagerness to get things done as soon as possible. Extensive discussions can be inefficient and self-serving, but at other times they may reveal arguments and information that would not otherwise see the light of day. The same can be said of the compromises that delegations may be forced into, towards the end of negotiations. Already we are seeing governments making compromises, which is positive. But compromises should only be there to ensure that in the end, as strong a Treaty as possible results. The willingness to get the Treaty completed should not come at a cost to its quality. The same goes for the decisions made by the Chairs, and the work of the Secretariat, who will also suffer from the exhaustive process.

Another drawback of this kind of negotiation is the issue of capacity. Larger states are much more adept at dealing with long, drawn-out negotiations. These are the states that are already equipped with wide pools of resources, many advisors, and large delegations. At Kyoto, the United States was able to benefit by having a different negotiator head their team every few hours, to ensure they were fresh, aware, and awake. It was argued that "[o]n a few issues, the advantage of being awake and willing to invest some energy made a decisive difference". Smaller delegations will be at a huge disadvantage as negotiations wear on, and will need all the assistance and understanding they can get to participate effectively and to have their voices heard. To some extent, regional and cross-regional groupings will one way of ensuring the burden is shared between groups of like-minded governments. 

The Conference on the ATT has already lost nearly a week of negotiating time at the start, and nothing is yet agreed on any final text to send to capitals for approval. If delegations are going to reach any agreement on a worthwhile Treaty by the middle, or at the latest the end of the next week, they will need to show much perseverance, but also a great deal of understanding for their fellow delegates, who will be under increasing strain from the negotiations.