FROM NEGOTIATION TO AGREEMENT

This phase concerns the interaction between parties as they work to reach an agreement. It begins with the opening of official talks; pro­ceeds through bargaining, problem-solving and concession-making; and ends with an agreement of some kind or/and disagreement (failure).

Most of the research literature on negoti­ation, particularly in international contexts, still either ignores or rejects the roles played by justice. Those studies which have been done on the subject tend to deal with isolated aspects, for example, the role of reciprocity in concession-making for reaching a successful outcome. More comprehensive work on the peace vs. justice question in this phase, further discussed below, is limited and the agreed conclusions are very few. It is here argued that justice and fairness play important roles in this phase, and this can either undermine or promote peace depending on the circumstances. Furthermore, the justice and fairness issues which arise and affect peace­making concern two basic matters. One is process fairness: how parties relate to and treat each other while negotiating, or the relational and process aspects of how an agreement or other outcome is reached. The other concerns outcome fairness or justice: what principles or notions of justice, if any, are to guide the terms of an agreement.

Process fairness

On the first matter, the specific ethical issues which often arise concern fair hearing, fair play and fair procedures (Albin, 2001). Fair hearing means that the process includes or is representative of all parties to the conflict and their interests. It also means that all participating parties have a chance to put forward their cases and be heard, and their interests are considered seriously.

The procedures concern the mechanisms used to arrive at an agreement, which may be explicit and specifically agreed (e.g. voting, single negotiating texts, divide-and-choose) or more diffuse and implicit (e.g. recipro­cation of concessions). Unlike other ethical aspects, the negotiation process, reciprocity— that is, mutual responsiveness to each other's concessions—has been studied extensively by psychologists, sociologists and political scientists (see e.g. Parks & Komorita, 1998; Welch Larson, 1998). In the negotiation literature, it is widely recognized as both an ethical and an instrumental norm needed to move the process forward and reach an agreement. It is a fairness concept which influences whether and how far negotiators concede and accept a particular proposal. At times, it is more or less equalized with process fairness or justice (e.g. Zartman et al., 1996). By contrast, major philosophers and theories of justice respond differently: reciprocity is at once endorsed as a major principle of justice (Gauthier, 1986), accepted under certain conditions (Rawls, 1971), or rejected outright (Barry, 1995). Numerous academic studies on negotiation have over the years distinguished, conceptualized and labelled different patterns of reciprocity. They include equal concessions and equal sacrifices; tit-for-tat or matching; responsiveness to trend; and comparative responsiveness, meaning that each party makes concessions based on a comparison of its own and the other's tendencies to concede (Druckman & Bonoma, 1976). Comparative responsiveness was found to be the most practiced pattern of concession-making in a study covering six different international negotiations (Druckman & Harris, 1990).

What is thus portrayed is a quite specific kind of reciprocity, whereby one party's concession (its size and kind) is determined by the other's previous concession or series of concessions. Moreover, among various condi­tions, rough power equality is seen as required for or favors reciprocity in concession-making of this kind (e.g. Zartman, 1991). Although much remains to be learnt, this does not quite correspond to reality. Most major negotia­tions of international significance today are between parties whose relations are rather marked by inequalities of various kinds: in military capacity; political, diplomatic, and economic status and leverage; in responsility for the problems under negotiations; and in resources and ability to contribute to or bear burdens resulting from a solution. Reciprocity remains a vitally important fairness concept and praxis. But what is mostly seen as fair and practiced is instead “diffuse reciprocity”, whereby the emphasis is on crafting an agreement based on a reasonably balanced exchange of concessions. What is judged to be “reasonable” and “balanced” is not simply a comparison of the various parties' respective concessions and contributions. At least as important to take into account appears to be each party's relevant circumstances which may concern resources, entitlements and responsibility with regard to what is under negotiation. Each party is expected to reciprocate “enough” in view of both how far other parties have moved and its own capacity to afford concessions (Albin, 2001).

In sum, various aspects of process fairness go very well with peace-making and indeed promote it: a negotiation process perceived as fair will enhance the likelihood of an agreement being reached and implemented. The same arrangements may be accepted or rejected, depending on how parties feel about the process which produced them. The absence of fair hearing or fair play may well derail it. Similarly, if negotiators judge that their concessions are not sufficiently reciprocated, they may adopt more compet­itive tactics or withdraw from the process altogether.

Principles of outcome justice and peace-making

Achieving justice is rarely the sole or even primary objective of international negotiators. Yet what justice or fairness principles should guide in the terms of an agreement is an issue which always arises, more or less explicitly. The reasons are several. A nego­tiated agreement involves benefits and costs which must be allocated between parties in a reasonably balanced way. A single distributive principle seldom emerges on its own as the obvious one to use in complex international contexts: several principles— and several interpretations of them—tend to be applicable. Each principle leads to a different mix of benefits and burdens for parties, giving them different biases towards the range of possible allocation criteria.

There are two related aspects to the question of whether notions of outcome justice promote or undermine peace. The first concerns the particular concepts involved, which may be more or less easily combined with making peace. The second, discussed in the next section, concerns the compatibility of the justice notions held by parties. Starting with the concepts involved, three distinguishable types are internal, external and impartial cri­teria (Albin, 2001). The internal (contextual) approach is mostly procedural: it gives the concerned parties and the negotiation process the task of defining the substantial meaning of justice or fairness within that process.

Impartial criteria, rooted in the philo­sophical literature, denote another procedural notion of justice: they indicate conditions which a process and an agreement must fulfill in order to be taken to be just and fair. While starting assumptions and specific requirements vary between approaches, they all place constraints on the pursuit of narrow self-interests and the use (abuse) of power and coercion. In John Rawls' renowned theory of “justice as fairness”, parties, because of their selfishness, must define the substance of justice without knowing the effect on their own interests and position (Rawls, 1958, 1971). In Brian Barry's theory of justice as impartiality, by contrast, parties are motivated to be able to justify their behavior on grounds which others can accept as balanced and reasonable. Justice is what is agreed freely by parties, who are roughly equal in capacity to reject or veto a proposal. What is just elicits voluntary consent without the use of threats or rewards, and is also acceptable from a more general detached viewpoint (Barry, 1995).

External criteria here refer to well- recognized substantive principles of justice, whose general content is independent of particular contexts. A number of these are extensively discussed in the research litera­ture, and often reflected in actual international negotiations, for example, the principles of equality, proportionality, compensatory justice and need (Albin, 2001; Deutsch, 1975; Pruitt, 1981).² What principles are most relevant for a specific problem and how they are to be interpreted need to be decided and agreed in negotiations.

Whether pursuing justice promotes or undermines peace thus depends in part on the particular concepts and principles involved. The contextual approach, by leaving the task of defining justice solely in the hands of the negotiating parties, is most easily combined with peace-making. The mere fact that some­thing has been negotiated and agreed is the major, and sometimes a sufficient, indication that it is just. The impartial approach specifies requirements, and sometimes assumes moti­vations to behave justly, which best match negotiations between roughly equal parties. Negotiations between sharply unequal parties will not necessarily be entirely devoid of impartial justice, but they will rarely satisfy all the conditions commonly associated with this approach.³ In this situation, pursuing “perfect justice” is indeed likely to make agreement, or even negotiation, impossible. The impact of external substantive criteria on peace processes will vary widely with the choice of particular principles and with the circumstances. An agreement based on equality may be hard to achieve when the parties are not equal to begin with. Compensatoryjustice requires identifying and motivating parties to provide a remedy for some inflicted harm. As for forward-looking vs. backward-looking notions, the former by definition are more easily combined with peace-making (when endorsed by parties). The latter supposedly prevent agreement from being reached or from being durable, as well as the achievement of justice. Based on wide-ranging case study research, Zartman concludes: “The record is striking. When parties base their position on a repetition of their past grievances, their past legalities, and their demands for reparations and punishment, negotiation is, in fact, war: an attempt to eliminate the other party by other means, not the search for a solution” (Zartman & Kremenyuk, 2005, p. 291).

While some factors have been discussed in the social-psychological and negotiation literatures (Albin, 1992; Zartman et al., 1996), research to date is far from mapping out fully what steers international negotiations in their choice of justice principle to apply. The most striking and often neglected reality in this regard, however, is that a single principle is rarely chosen: negotiators instead balance and combine different types of cri­teria (Young, 1994). Particularly in complex international cases, internal, impartial and external principles are frequently invoked to weigh all the pertinent factors when forging an agreement. A single standard can rarely capture the wide range of aspects to take into account. Examples of crite­ria which are often combined are mutual gain, proportionality and voluntary consent (absence of coercion). This has been found to serve both justice and peace: parties tend to regard the inclusion and balancing of different principles as an important element of justice in itself, and it certainly facilitates agreement in complex international talks (Albin, 2001).

The multiple roles of outcome justice in peace-making

The second aspect of whether notions of outcome justice promote or undermine peace concerns the compatibility (or not) of the notions held by parties. These notions may be the same or similar, they may be different but reconcilable, and they may be very far apart and irreconcilable. In each of these cases, justice will take on a different role and affect the process and the outcome differently. Here again, it is impossible to argue generally that justice either promotes or undermines peace.

First, notions of outcome justice can play an instrumental role in negotiation and other peace-making efforts as external referents. This applies to situations in which the parties from the outset endorse the same or similar notions of a just solution. They have been extensively observed in the research literature, which refers to such shared notions as “focal points” which emerge as obvious and desirable to all parties (Schelling, 1960). They serve to coordinate expectations, guide the exchange of concessions, and decrease competitive behavior (Bartos, 1974; Deutsch, 1973). They thereby reduce the risks of disagreements and stalemates, and increase the likelihood of a timely and durable agreement being reached. Outcome fairness can certainly assume this facilitating role in international negotiations. The absence of great power inequalities is then important: parties are more likely to have similar notions of justice when they are roughly equal in relevant sources of power. In arms control negotiations during the Cold War, the USA and the Soviet Union as the sole nuclear powers were much directed by the expectation of agreements based on equality, such as equal ceilings or freezes and equal percentage reductions in existing arms arsenals.

This role of justice as an external referent is no longer the predominant one in negotiations of international significance. The existence of a shared notion at the start of the process has become unusual in these, whether, for instance, large-scale multilateral talks over global problems or internal negotiations to end civil war. A major reason is that the parties are typically marked by differences in resources, cultural norms, power and so on, and these shape their outlook on justice. Thus, the existence of divergent or even conflicting notions of justice at the outset is by far the most common situation. These instead become part of the dispute itself, and of any negotiations which get underway. What then happens to justice and the prospects for peace has been studied and discussed in recent work. Clearly, irreconcilable ideas of justice are disruptive: they can lead to violence and war and, if dialogue is not rejected entirely, to deadlock and breakdown in negotiations.

When parties with conflicting ideas of justice still attempt to reach an agreement, one of four routes is commonly chosen (Albin,

2001). First, parties can agree to redefine the problem and craft an agreement based on other considerations than justice. Secondly, they may agree on a procedure to settle their differences over the substance of a solution (e.g. arbitration). Thirdly, they may base an agreement mostly on one party's understanding of justice (e.g. that of the more powerful). Finally, as is often the case, parties may opt to balance and combine several principles which take account of their conflicting notions. This is a way of moving in the negotiation process from initially opposing concepts of justice, to a shared composite notion of what is just in a particular situation. When this succeeds, it increases satisfaction with the outcome and probably also the chances of a durable settlement. Research on the relationship between the handling of justice issues in the negotiation process or in its outcome, and the durability of international agreements, is new and has not yet yielded many definite conclusions.

A project led by Daniel Druckman and this author has so far provided evidence that incorporating principles of distributive justice into the terms of peace agreements contributes to their durability.