BAB 5 Packaging Agreements

Diplomatic agreements vary in form to an almost bewildering degree. They vary in title or style,
being given such descriptions as treaty, final act, protocol, exchange of notes, and even plain
'agreement'. The purpose of this chapter is to explain this variation, and to indicate what form an
agreement might take depending on its subject matter and the political needs of its authors. There are a
number of reasons aside from accident and changing linguistic preferences that help to explain the
multiplicity of forms taken by international agreements. Some forms of agreement are better at
signalling the importance of the subject matter, while others are better at disguising its significance. And
some are better than others at saving the face of parties who have been obliged to make potentially
embarrassing concessions in order to achieve a settlement. The form taken by any particular agreement
will depend on what premium is attached to each of these considerations by the parties to the
negotiation.

International legal obligations at a premium

This could be because, as with many commercial subjects, it is more suited to municipal law, but it might
also be because the agreement merely amounts to a statement of commonly held principles or
objectives. This is mainly because the obligations derive from consent; because natural inhibitions to
law-breaking exist in the relations between states that do not obtain in the relations between
individuals - notably the greater ability of states to defend their interests, and the far greater likelihood
that the fact and the authorship of international law-breaking will be detected; and because a
reputation for failing to keep agreements will make it extremely difficult to promote policy by means of
negotiation in the future.

What is a 'treaty'?

The term 'treaty' derives from the French word traiter, to negotiate. This stated that a treaty is 'an
international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation'. It is important to add to this that, in order to be 'governed by international law',
an agreement must 'as soon as possible be registered with the Secretariat and published by it'. This is
because unregistered agreements cannot be invoked before 'any organ of the United Nations', which
includes the International Court of Justice.

Signalling importance at a premium

In fact, treaties are more often than not called something quite different. This is because of the
term's historical association with the international deliberations of rulers or their plenipotentiaries, and
because the treaty so-called is presented in an imposing manner, complete with seals as well as
signatures. Agreements ending wars are commonly called peace treaties, as in the case of the Treaty of
Peace between the Arab Republic of Egypt and the State of Israel of 26 March 1979. Agreements
providing all important guarantees of a territorial or constitutional settlement are invariably called
treaties of guarantee. In this case, a good example is the Cyprus Guarantee Treaty of 16 August 1960. A
triv ial agreement sent as a treaty was one to regulate shrimp-fishing off the coast of Brazil . The
executive branch presumably deals with trivial agreements in this way to make the Senate feel that its
constitutional prerogatives in foreign policy-making have not been entirely ignored. However, precisely
because the parties have rejected the possibility of clothing their agreement in international law but
remain politically bound by it, as well as deeply attached to the agreement's propaganda value, it is
doubly important to dress it in fine attire of a different kind.

Convenience at a premium

Since states today negotiate on so many matters, an international agreement does not have to
be of merely routine character for convenience to be an important consideration in dictating its shape.
First, the complexities of formal treaty drafting and its attendant procedures, such as the production of
documents certifying that the plenipotentiaries have full powers, are avoided. Not surprisingly,
therefore, exchanges of notes or exchanges of letters, which consist simply of a letter from one of the
parties spelling out the terms of the agreement and a reply from the other indicating acceptance, are
now the most common form of treaty. Ratification means confirmation on the part of the negotiators'
political masters that they will honour an agreement negotiated and signed on their behalf. The
revolution in communications has virtually removed this problem, although governments still sometimes
favour a form of agreement that requires ratification. They might also insist on provision for ratification
because they know that the significance of the agreement is such that it will be politically unsupportable
at home and, thus, unimpressive to their foreign interlocutors in the absence of some expression of
popular approval, typically by a special majority in a repesentative assembly. In a genuine democracy,
the ultimate form of ratification is a referendum, such as that held by the Labour government in Britain
in 1974 on the issue of whether or not the United Kingdom should remain a signatory of the Treaties of
Rome.

There are, nevertheless, many occasions when governments do not feel the need either for an
opportunity for second thoughts on an agreement or for its popular endorsement. This was the
notorious fate of the Treaty of Versailles, signed in June 1919 but, in the following November and again
in March 1920, refused the two-thirds majority by the US Senate needed for American ratification. The
strain of campaigning for ratification - coming, as it did, on top of the mental and physical exertions of
the peace negotiations - had also caused the American president, Woodrow Wilson, to have a severe
stroke, from which he very nearly died . Six decades later, President Jimmy Carter had an equally acute
problem of ratification with the second Strategic Arms Limitation Treaty, although fortunately it did not
have the same effect on his health.

An executive that feels no need for ratification is, then, unlikely to invite certain delay and
possible trouble by casting its agreements in a form that requires endorsement by a popular assembly.
Another way of sidestepping the Senate is for the US executive branch and its foreign negotiating
partner each to issue a 'unilateral non-binding declaration', which, in practice, nevertheless is expected
to be politically effective. Each indicated in its separate statement that, provided the other showed
similar restraint, it would continue to honour the provisions of the technically dead Agreement. This
does not normally require ratification, and so comes into force immediately upon signature. As a result,
it is popular for this reason as well as because it avoids the formal complexities of the treaty so-called.
Informal agreements with other titles might, however, also be so framed in order to avoid pressure for
ratification. To avoid the former, agreements on sensitive matters might be published but in such
informal style as to be unlikely to attract attention. The first is the so-called Simonstown Agreements
between Britain and the Union of South Africa concluded in 1955. The agreements took the form of an
exchange of letters . The second good example is the Anglo-Argentine agreement on the Falkland Islands
of 1971. To avoid presenting intelligence gifts to unfriendly states, the parties to a successful negotiation
may not only conclude an informal agreement, but withhold publication. This means that it is not a
treaty. As Ware has noted, a good example of such an agreement is the UK-US Memorandum of
Understanding on British participation in the Strategic Defence Initiative.

Saving face at a premium

In politically sensitive negotiations where publicity for any agreement achieved is unavoidable,
and even desirable, what excites special interest in its packaging is the issue of 'face' - reputation for
strength. This means the necessity to save from excessive embarrassment those parties whose
concessions would otherwise make them vulnerable to the wrath of their supporters. Where face is a
vital issue, the composition and structure, as well as the title of any agreement, might not only be an
important, but also a controversial element in a negotiation. It will be important because some kinds of
packaging will be better than others at disguising the concessions that have had to be made. Settlement
of the Iranian hostages crisis was helped by using a form of agreement - a declaration by the Algerian
mediators - that suggested Ayatollah Khomeini had made his own concessions to the third party rather
than to 'the Great Satan'.

Both languages, or more

Language is fundamental to nationality, so diplomatic agreements must be acutely sensitive to

it. Until the seventeenth century, most treaties were written in Latin, thereafter in French, and in the
twentieth century chiefly in English . However, since the end of World War II it has become much more
common for copies of agreements made between parties speaking different languages to be translated
into the language of each. Vienna Convention on the Law of Treaties - each version is typically described
as 'equally authentic' or 'equally authoritative'. The Paris Peace Accords of 1973, which ended the
Vietnam War, were drawn up in English and Vietnamese. The agreement concluded between Cuba and
Angola in 1988, which concerned the withdrawal of the forces of the former from the territory of the
latter, was written in Spanish and Portuguese. Where there are only two languages, this is a recipe for
trouble. It is even more likely that this arrangement, provision for which was made in the Vienna
Convention on the Law of Treaties, will be used in agreements where an English-speaking state has been
employed as a mediator. Many agreements, however, have no mas ter text, thereby underlining the
greater importance that is generally attached to saving face compared with avoiding possible future mis
understandings. No text was nominated as the one that would prevail in the event of disagreement.

Small print

Sensitivity to language only addresses the question of face in the most general way, and
negotiators must needs turn to other devices when they are confronted with the problem of disguising a
sensitive concession in the text of an agreement. Perhaps the most common way of achieving this is to
say very little about it, tuck it away in some obscure recess, and ensure that the rest of the agreement is
padded out with relatively trivial detail. The Soviet Union was extremely sensitive to any suggestion that
it was abandoning its clients in Kabul to the ferocious, if disorganized, mujahedin. As a result, in the
three agreements and one declaration that made up what were popularly known as the Geneva Accords
on Afghanistan, only two short sentences were devoted to the Soviet troop withdrawal. And the
agreement of which these two sentences were the most pregnant part was padded out, rather in the
manner of a 'final act', with a resume of the history of the negotiations, the titles of the other
agreements reached, and general principles of international law.

Another 'small print' technique for saving face is to place embarrassing concessions in
documentary appendages to the main text. Whatever their title, the point remains to make the
concessions binding by putting them in a written, public agreement, but to do so in such a way as to
make them less likely to attract attention and be easier to play down for those obliged to grant them.
The Egyptians wanted the matter dealt with in side letters to obscure the fact that they had made no
progress on the issue. The Israelis even persuaded the Americans not to restate the substance of their
own position on East Jerusalem, which was that it was occupied territory. Instead, they merely stated in
their own letter that their position remained that outlined in statements by two former American
ambassadors to the United Nations .

Tucking sensitive matters away in documentary appendages to the main agreement also has
disadvantages. For example, in September 1978 the Americans failed to secure unambiguous written
Israeli agreement to a freeze on new settlements in the West Bank and Gaza until the autonomy
negotiations had been concluded, which proved to be a serious oversight. It is inconceivable that this
could have occurred had this issue been addressed in the general framework accord, rather than by
means of a side letter which, in the event, the Israelis never signed . Second, it can subsequently be
claimed that ancillary documents do not have the same value as the main text of an agreement. This is
what the Israeli premier, Menachem Begin, alleged of the side letter of 17 September 1978 from Sadat
to Carter. This was the one in which the Egyptian president indicated his readiness to negotiate on the
West Bank and Gaza on behalf of the Palestinians in the event of a refusal by Jordan to assume this
responsibility. Begin hoped to persuade the Americans that there was no point in discussing the West
Bank at all if the Jordanians refused to take part . Naturally enough, Irish republicans also refused to
admit that the side letter hurriedly written by the British prime minister, Tony Blair, to the Ulster
Unionist leader, David Trimble which contained assurances about the British attitude permitting the
Unionists, at the last minute, to sign up to the Good Friday agreement was part of that agreement at all.

Euphemisms

Indeed, in the description of concessions, the use of words or expressions more palatable to the
party that has made them is another face-saving feature of almost all politically sensitive international
agreements, although at some price in terms of accuracy.

A good example of the use of euphemisms is to be found in the Geneva Accords on Afghanistan
referred to earlier, in which Soviet sensitivities on the issue of the withdrawal of their troops were so
solicitously handled by confining the relevant provisions to the small print. The risk of humiliating the
Kremlin was reduced further by the complete absence of any reference whatever to the withdrawal of
'Soviet' troops. These examples illustrate the fact that euphemistic language can help states to sign
agreements providing for the withdrawal of their military forces from situations where their prestige is
at stake. Rich states negotiating with poorer ones often find it possible to smooth the road to an
agreement by discreetly handing over extremely large amounts of money. Since, however, it would be
humiliating to the poorer state if this were to be too obvious, and not present the richer one in an
especially flattering light either, these large amounts of money are never called 'large amounts of
money'. This is what the Americans called the large amounts of money repeatedly offered to the North
Vietnamese, from as early as April 1965, to encourage them to negotiate an end to the Vietnam War.
 'Separate but related' agreements

This had been the position of the Angolans and their supporters in regard to the proposal that
South Africa would withdraw from Namibia if, in return, Cuba would withdraw from Angola. It is, thus,
significant that, when a settlement of the south-west African imbroglio was achieved at the end of
1988 , it was embodied not in one agreement but two. Moreover, South Africa was not even presented
as a party to the latter, and so did not sign it .