NEGOTIATION LESSONS FROM INTERNATIONAL TREATIES 

Please enjoy this January '15 edition of  NEGOTIATION STRATEGIES  in which I explore international treaties and apply their lessons to our own business negotiations.   

For your reading convenience, we also distill this into a brief lessons learned at the end of the column.

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With Best Wishes 

Sincerely,

Raphael Lapin

I recently had the opportunity to visit the Smithsonian National Museum of the American Indian in DC. I went specifically to see an exhibit that I was told about called "Nation to Nation: Treaties Between the United States & the American Indian Nations". From a negotiation scholar perspective, I found it not only enlightening from the US historical standpoint, but perhaps even more so from an international relations standpoint and  specifically a better understanding of international treaties and treaty negotiations.

One insight that emerged for me during that visit was the difference between an agreement and a treaty.  An agreement is a legal document which states and defines legal obligations, considerations, warranties and covenants between the parties, and is sustained  by the rule of law and enforced through judicial consequences. (Or in cases of international law, by the United Nations charter and the International Court of Justice).  A treaty, on the other hand, is not only a legal agreement, but goes way beyond that, in that it also defines the desired relationship between the parties. It is sustained not only by the rule of law, but moreover by trust, honesty and integrity. In addition to being a legal agreement, it is also very much a moral one too.

What further struck me in seeing that exhibit was how differently the United States viewed treaties as compared to the American Indian Nations. The American Indians saw the treaties as moral documents, built on honesty and trust which were intended to define the relationship for generations to come, whereas the United States,viewed them as not much more than legal agreements built on contact law, void of any shaping of a relationship, and without any underpinnings of honesty and trust. (One must question as to what extent, this same difference of understanding and perspective between the US and her foreign counterparts influences US foreign policy today).

How then does the composition of a treaty differ from that of an agreement? 

Whereas an agreement only addresses the immediate and presenting issues at hand, a treaty will also specifically address the intent, purpose and nature of the desired relationships and ways of advancing that relationship, for example agreements on further collaboration and exchange into the future. These may include collaboration in areas of the sciences, agriculture, research, technology, trade, tourism  and cultural issues.

An interesting comparison and contrast between a treaty that addresses the future relationship issues and one that does not, is between the Peace Treaty of Israel and Jordan (known officially as the Treaty of Peace between the State of Israel and the Hashemite Kingdom of Jordan 1994) and the Rio Protocol (known officially as the Protocol of Peace, Friendship and Boundaries between Peru and Ecuador 1942). The Israeli-Jordanian treaty addressed ways of building on the relationship with agreements on future collaboration beyond the immediate substantive issues of the dispute. For example it provided for broad cooperation in tourism and trade and included a pledge that neither Jordan nor Israel would allow its territory to become a staging ground for military strikes by a third country.  The Rio Protocol, on the other hand, only addressed the boundaries dispute, how to delineate them and enforce them without any further relationship building measures for the future.  (It is interesting to note that the Rio Protocol broke down and the Israeli-Jordanian Treaty appears to be strong and durable, although from an academic standpoint there were additional factors both in the process and outcome of the Rio Protocol which one could argue, contributed to its ultimate demise).

When we negotiate and draft business agreements with partners, customers, suppliers or any liaison  in which the long-term relationship is important and of value, we need to apply lessons from international treaties. We want our agreements to not only outline the substantive legal obligations and responsibilities, but we want these agreements to be living documents which define, reflect  and advance the kind of relationship we want. Legal enforcement should be a last resort, and it should be trust and honesty which drives the integrity of the contract. 

Some of the means I use to achieve this are: A well crafted brief preamble which defines the intent, purpose and nature of the desired relationship; well designed dispute resolution clauses; communication systems; and possible collaboration efforts in the future where appropriate. 

It is also important to realize that the establishing of a solid relationship built on trust, honesty and integrity is achieved not only by what we negotiate or the contract that we draft, but also by HOW we negotiate. Our negotiating process must, in itself build trust so that there is congruency between how we conduct ourselves, the process, the agreement and the contract.  This  will provide us with strong and trusting business relationships,  impeccable reputations and healthy profitability.