The EU as a global negotiator? The advancement of the EU’s role in multilateral negotiations at the UN General Assembly

Abstract

This paper aims to account for the EU’s role in multilateral negotiations at the UNGA by looking at the negotiations on the enhanced observer status. During the negotiation process, the EU experienced significant opposition and had to accept an intermediate setback in form of a postponement of the vote. Despite this, the EU’s enhanced observer status was adopted by the UNGA in May 2011 as resolution 65/276. This research contributes to the understanding of the EU as an actor in multilateral negotiations and the interaction between state and non-state actors. I argue that the EU is in the process of establishing itself as an active and recognized actor at the UN and determining its role as a highly integrated regional organization and non-state entity in the state-centric environment of the UNGA. I analyse the negotiation process and the final agreement through the lenses of a bargaining approach and as an alternative, mutual recognition as global justice.

Introduction

Over the years, the EU has become a frequent participant in multilateral negotiations and has collectively represented the goals of the Union and its Member States (MS). The negotiations towards the enhanced observer status followed the adoption of the Lisbon Treaty (ToL) and aimed to alter the Union’s participation rights at the UN General Assembly (UNGA). The ToL ¹ regulated that the EU should be represented by the High Representative and Vice-President for Foreign Affairs and Security Policy (HR/VP) instead of the rotating Council Presidency. ² An informal practice at the UNGA allows major groups of UN MS to be represented by a single state representative and to speak at the very beginning of plenary debates. ³ As long as the EU was represented by the Council Presidency, the EU could benefit from this practice and speak at the beginning of UNGA session among the major groups. As the HR/VP is not a state representative, but an intuitional representative, the EU would have spoken at the end of UNGA session among the non-state observer entities. Instead of achieving a more effective representation and more visibility at the UNGA, the EU feared losing the possibility to be able to take part in the UNGA on the same terms as before and therefore initiated the negotiations on the enhanced observer status. ⁴

As a case of structural reform at the UNGA, the EU’s request for enhanced participation rights is a particularly relevant and interesting case of the EU’s foreign policy and role in multilateral negotiations. It illustrates the EU’s capacity to negotiate for its own sake, navigate the complexities of multilateral negotiations and interact in the state-centric system of the UN. The negotiation process towards the enhanced status was the logical consequence for the EU to implement the regulations of the ToL and to preserve the status quo of the EU’s representation at the UNGA. The EU aimed towards an enhanced observer status, which consists of an institutional representative but holds the same rights as a major group at the UNGA. While the envisioned status did not have any limiting effect on the rights of the UN MS, it touched upon the sensitive issues of the UNGA’s structure and created some uncertainty concerning the EU’s future position in the UNGA.

The literature looking at the EU’s role in multilateral negotiations has frequently concentrated on the EU’s ‘presence’ ⁵ that impacts international relations and the EU’s ability to act in multilateral cooperation. As the EU is not a state, even though it shares some characteristics with states, it has been assumed that the EU is a different actor that pursues a different foreign policy, which is not only guided by self-interest but also by the right thing to do. ⁶ A common claim in this regard has been that the EU needs to speak with one voice and needs to be a unified actor, in order to be effective and perform well on the international stage. Effectiveness in this regard has frequently been assumed to be achieved by the fulfilment of goals and has been used to assess the EU’s foreign policy objectives and the outcomes of international negotiations. ⁷ Trade negotiations have not only been the area of multilateral negotiations that have received most scholarly attention but represent also a field, in which the EU‘s foreign policy has been successful and the EU is seen as a powerful actor. ⁸ In the case of the EU’s enhanced observer status, researchers highlight the EU’s ability to negotiate a certain outcome in international settings, but also its lacking flexibility and experience to steer the negotiation process towards an envisioned result. ⁹ This research goes beyond the existing literature by concentrating on the EU’s behaviour in the negotiation process and the interactions with state-actors. I thereby provide a more nuanced understanding of the interactions in negotiation processes and the negotiation dynamics at the UN. This research highlights the EU’s ability to exercise a negotiation strategy with which it is able to influence the direction of multilateral negotiation processes and interact with state-actors.

In this paper, I aim to account for the EU’s ability to contribute to a multilateral negotiation process leading to the adoption of an agreement. I strive to understand how the EU influences a negotiation process by analysing the EU’s interaction with other negotiation parties and its behaviour in advancing its agenda. As part of this, I argue that the EU is in the process of establishing itself as an active and recognized actor at the UN, and therefore has to navigate the state-centric negotiation dynamics at the UNGA. While the EU’s particular character and its high level of integration cause certain difficulties when actively engaging in multilateral negotiations, it also provides the chance to shape and alter negotiation processes and interactions. I show that the enhanced observer status was a crucial step towards this goal, as extensive participation rights are indispensable for an active and involved role. In addition, this research depicts how the EU is able to contribute to multilateral cooperation that goes beyond the activities of the EU’s MS. The EU is frequently described as the most integrated regional organization, and as such, is required to find its place as a non-state entity in the state-centric environment of the UNGA. I therefore ask: How and why did the EU succeed in its negotiations towards an enhanced observer status (despite the intermediate setback)? How does the EU shape a negotiation process towards agreement?

As a standard assumption, rational choice is frequently seen as the most appropriate way of explaining the interactions among states. In the state-centric environment of the UN, rational choice theory suggests that the EU adapts its negotiation strategy to traditional foreign policy behaviour and existing patterns of interaction. ¹⁰ Bargaining is thereby often seen as an ever-present part of social interaction and explains the path towards collective agreements. ¹¹ In multilateral negotiations at the UNGA, actors frequently negotiate according to their self-interest and use bargaining to achieve its fulfilment. In negotiations that affect the UNGA structure, UN MS often pursue a negotiation strategy that protects their power position and follows their self-interest. ¹² Consequently, negotiation parties use their bargaining leverage to achieve their self-interest and to make other negotiation parties support their goal. ¹³ It is, however, also commonly understood that a bargaining approach carries certain risks and is a costly negotiation strategy, and considering the state-centric environment at the UN, this might exceed the EU’s resources. As the EU is not a state and does not hold all the rights and capabilities, rational choice might not be able to fully capture the EU’s behaviour in multilateral negotiations. Consequently, I turn towards an additional perspective following mutual recognition as global justice, which might provide additional insights explaining the EU’s behaviour and interactions in multilateral negotiations. Just negotiations help to coordinate expectations and to exchange concession, and therefore increase the likelihood of an agreement. Consequently, states actually care about just and care negotiations, and are more willing to compromise. ¹⁴ The EU’s initial setback would therefore be explained by the lack of fairness and justice in the initial course of the negotiation process. The setback offered the possibility to pursue a just and fair negotiation process that leads to the achievement of an agreement. ¹⁵

Setting a precedence: the EU’s quest for an enhanced status

The EU’s preparations to present the initiative towards enhanced observer status to the UN membership in New York already started in 2007, even before the ToL was adopted in 2009. Internally, various EU institutions were involved in the preparations and several Council Presidencies expressed their ideas on a possible pathway towards an enhanced observer status. ¹⁶ The first consultations were conducted unofficially, without a mandate from Brussels, and without a text being presented to the UN membership. In spring 2010, the EU Delegation in New York launched the first official campaign, including consultations with around 100 countries. However, no draft resolution was tabled until July 2010, so that consultations remained rather vague and unspecific. The first draft resolution presented by the EU aimed for the following participation rights: participation in the UNGA general debate, its committees and working groups, international meetings and conferences; the right to speak in the same fashion as other major groups; the ability to circulate documents; the right to make proposals and amendments; the right to raise a point of order; and to use the right of reply. The EU did not aim for the right to vote. ¹⁷

As the EU leaders wanted to take the opportunity to speak and present the EU visibly at the 65th UNGA ministerial week, it was decided to put the enhanced status to a vote in September 2010. The consultations had already led to some changes in the draft resolution, such as highlighting the intergovernmental nature of the UN and the possibility for other regional organizations to achieve enhanced participation rights in the future. Consequently, the EU announced the upcoming vote on the revised draft resolution to the UN membership and finalized the consultations. ¹⁸ During the UNGA plenary session on 14 September 2010, the African Group, the Caribbean Community (CARICOM) and some individual states, such as Iran and Venezuela, expressed their opposition due to the lack of sufficient time for consultations, the shortcomings in transparency and inclusiveness and the possible effects on the UNGA’s intergovernmental structure. A motion to postpone the vote on the draft resolution was introduced and adopted with 76 votes in favour, 71 opposed and 26 abstentions. Thus, the EU’s pledge for an enhanced observer status had experienced an intermediate setback and was put on the provisional agenda for next year’s session of the UNGA. ¹⁹

The second attempt

Following the setback, the EU revised its negotiation strategy and enhanced its internal communication and decision-making procedures. A task force was set up to coordinate the EU institutions, the EU MS and the EU Delegation in their outreach activities and campaigning. ²⁰ The new strategy aimed for more inclusion and transparency and the adoption of the resolution was made a priority in all meetings of the EU and the EU MS with third countries. While the adoption of the enhanced status by consensus was still the goal, the tight schedule was loosened. The EU tried to accommodate the opposing countries with small concessions and language changes in the draft resolution. ²¹ After some months of campaigning, the EU had persuaded the majority of the UN MS, while the CARICOM was still opposed to the draft resolution. Due to increasing impatience among the remaining UN membership, the EU decided that the consultations had gone on for long enough and it was time to wrap the negotiation process up. In the remaining time, the EU intensified its consultations with the MS of CARICOM to come to an agreement before the adoption date. The EU was especially afraid that the opposition of the CARICOM would influence the African states to alter their position again. ²² The HR/VP Ashton came to New York to support the final negotiation effort and put more political weight on the EU’s negotiation efforts. It was however not until the night before the voting session, that an agreement between the EU and CARICOM was finally reached. The CARICOM permanent representatives agreed to support the EU and vote in favour of the draft resolution the next day. ²³

The adoption of resolution 65/276

On 3 May 2011, the draft resolution on the enhanced observer status was presented to the UNGA plenary. While broad support for the EU’s goal was expected, some interruption was caused by a last-minute amendment introduced by Zimbabwe, to cut out the right of reply from the resolution. The amendment failed with a clear majority. Subsequently, the UN MS took the vote on the draft resolution and adopted the enhanced observer status for the EU as resolution A/RES/65/276 by consensus, with 180 votes in favour, no opposition and two abstentions. ²⁴

After the adoption, the CARICOM explained their vote and outlined their position towards a restrictive interpretation of the resolution. Despite the EU’s condemnation of this move, the MS of CARICOM submitted a letter to the Secretary-General, in which they presented the opinion that the EU should be the last major group to speak, as it was represented by an institutional representative, instead of a state representative. ²⁵ The Secretary-General settled the issues formally by highlighting the custom that the order of the speeches by major groups was varying from session to session. ²⁶ Nevertheless, the CARICOM states continued to disturb the EU’s participation in the upcoming period by attempting to establish a custom that the EU should be speaking as the last of all major groups. ²⁷

Methodological and analytical framework

In this paper, I conduct a within-case study of a critical case by applying an interpretative approach with qualitative data. This methodology allows for a better understanding of the circumstances, in which the hypotheses of this research are or are not fulfilled. This is achieved by a theory-testing exercise, which determines the analytical framework with the stronger explanatory power. The interpretative approach is suitable to explain the context of the negotiations, the dynamics and the interactions. ²⁸ My primary sources consist of EU and UN documents, and additionally semi-structured interviews with EU official and UN MS representatives. ²⁹ The primary data covers the positions of the most involved negotiation groups and is able to provide a comprehensive understanding of the different positions and points of interactions. I triangulate the primary interview data with the primary document data and secondary sources. The aim is to close the gaps of the primary documents, which are at times unable to show the events occurring behind the official façade of diplomatic relations, and to verify the information received during the interviews.

Rational choice theory assumes that actors choose their negotiation strategy following their self-interest and permanent preferences. ³⁰ A bargaining actor evaluates a negotiation mainly from the view of its utility. A bargaining approach assumes that actors aim to maximize their strategic goals and their interests in the outcome agreement. Preferences are ranked in terms of the expected utility maximization. A rational actor chooses the highest-ranking preferences with the highest expected utility. The calculation of costs and benefits are ideally conducted before entering an interaction with other actors. ³¹ A bargaining approach is thereby defined as involving manipulative tactics, threats and firm commitments, as well as win-lose attitudes. ³² In multilateral negotiations, a cost-benefit-analysis is considered particularly important for actors due to a large number of actors and opinion involved in a negotiation process, and the aim to reach a consensus decision is emphasized. ³³

As a standard assumption in international negotiations, rational choice is often seen as the most appropriate way of explaining how states interact. International cooperation is assumed to be little institutionalized and rather anarchical. Rational behaviour and bargaining theory assume that the EU will adapt its strategy to traditional foreign policy behaviour. ³⁴ The UN is often seen as a facilitator of interstate cooperation by providing a platform to solve problems in a mutually beneficial way. Nevertheless, the UN is also perceived as the playground of great powers that have built the organization’s structures to serve their purposes as part of a ‘world as a market in which utility-maximizing states compete’. ³⁵ Negotiations at the UNGA are particular in the sense that the results are often legally non-binding and aim towards consensus-decisions. However, the UN’s structure and customs also enable interstate bargaining and power plays. ³⁶ A great deal of power-play can be observed as decisions affect the reputation and power perceptions of states. ³⁷ In this multilateral environment, bargaining is part of a social role and favours are not only exchanged as part of one negotiation, but also over a course of time that determines the quality of the long-term relationship. ³⁸ While the goal to achieve a consensus decision might restraint bargaining behaviour in certain cases, it also puts pressure on weaker states to accept a bargaining chip and be persuaded in the expectation of receiving favours in return at a later stage. ³⁹

At the UNGA, bargaining behaviour is a frequently entertained negotiation strategy and is often conducted as a quid pro quo by exchanging favours within the UN system. ⁴⁰ Typical bargaining behaviour includes issues linage, package deals, ‘log-rolling’, and side-payments. Payments can take the form of development aid and multilateral loans, support and votes in campaigns for seats in the Human Rights Council and the Security Council (SC), text changes in a draft resolution or the promise to abstaining instead of opposing during a vote. ⁴¹ More forceful ways of bargaining entail threatening and coercion, including the threat of non-participation in negotiations, non-signing of agreements or taking away funding for the UN. These types of bargaining are usually reserved for the more powerful UN MS. ⁴² The goal of bargaining at the UN aims less to an increase of material advantages and concentrates more on reputational advances and relative gains as part of a power play. ⁴³

The use of a bargaining approach in multilateral negotiations at the UNGA is not only a costly strategy but is also often based on the voting right within the UN system. Consequently, the EU is expected to be limited in using bargaining leverage in order to persuade UN MS of their objectives. Mutual recognition as global justice provides an alternative perspective to explain the EU’s behaviour. Global justice expects the EU to promote its self-interest but also aims towards the realization of a fair and just negotiation process. ⁴⁴ Particularly in an environment, in which every state holds one vote and larger resources only influence a decision-making process to a certain extent, mutual recognition might provide an insightful explanation concerning the EU’s role in the complex environment at the UNGA.

While research has shown that a global justice approach enhances the chances to achieve mutually beneficial and durable agreements, it has mainly been applied in the area of trade negotiations, conflict resolution and arms control. ⁴⁵ This article adapts this framework to a case of reform in the UNGA, and produces new insights concerning the behaviour of actor in multilateral negotiations and the power- and resource-based relationships among actors. For states, justice is an important element of multilateral negotiations, and states are more willing to agree to a consensus after fair and just negotiation processes. ⁴⁶ In procedurally just negotiations, there is room for self-interest, as long as the security needs of other involved actors are taken into consideration and reflected in the final agreement. Justice claims might thereby be declared out of altruistic motives or for purely rhetorical and tactical reasons. ⁴⁷

Global justice scrutinizes the creation and reform of institutions and the background of decision-making processes concerning their fairness. Instead of asking whether these decisions are correct, global justice is mainly concerned with the process and the structure of the decision-making process. ⁴⁸ Buckinx claims that global justice can only be achieved by involving global agents in the fight against injustice, and by creating awareness that the design of global institutions needs to include the issue of global justice in their role and structure. ⁴⁹

In institutions, such as the UNGA, not only the outcome of a negotiation is crucial, but even more the process towards agreement. ⁵⁰ Consequently, Albin claims that procedural justice is even more influential in negotiations within a normative setting that aim for consensus. ⁵¹ Albin and Druckman also stress that procedural justice mainly looks at the relationship among parties, the treatment of negotiation parties, and the realization of the negotiation process, including the modes of representation and decision-making. ⁵² The understanding of procedural justice is based on fair representation, fair treatment and fair play, voluntary agreement and transparency. ⁵³ The requirement of fair treatment and fair play aligns closely to mutual recognition as global justice as it assigns particular importance to the interaction among negotiating parties. Fair representation requires a decision-making process with a balanced representation of all affected groups that are able to participate and introduce their interests at each phase of the process. Fair play and fair treatments expects that all involved parties are heard and all their concerns are included in the debate. In addition, closed meetings, informal and exclusive negotiations and hidden agendas should not be part of the negotiation process. As a consequence, the input of all negotiation parties is equally as important and should receive adequate attention. ⁵⁴

Mutual recognition takes fair play and fair treatment a step further, as the main focus goes beyond the state as the main object of justice. Instead, individuals, states and groups are also seen as rightful claimants of justice. Mutual recognition raises awareness for the issue of unjust treatment in formal procedures meaning that even in a just order and just structures, inequalities and injustice may occur. This also might lead to situations where a one-solutions-fits-all approach is unsuitable in terms of fulfilling the requirements of global justice adequately and successfully. ⁵⁵ The particular characteristics of an actor, such as a nation’s experiences, history and resources, play a crucial role in the hearing process of an actor. Therefore, a process of due hearing is particularly crucial to living up to the requirements of global justice. This means that it is not only necessary to hear the concerns of all involved, but also that all concerns have to be reflected in a just and fair solution. Thus, the uniqueness and particularity of each actor should be recognized and taken into consideration. ⁵⁶ In the context of the UNGA, due hearing is a crucial component of negotiation processes. Due hearing is operationalized as open, transparent and inclusive negotiations, an outreach effort consisting of multilateral and bilateral meetings, an open time frame to make an informed and comprehensive decision, and lastly, ‘consultations of the whole’. ⁵⁷

Bargaining towards an agreement?

From a rational perspective, the campaign to negotiate an enhanced observer status for the EU’s participation in the UNGA was the logical consequence of the EU’s preferences. The EU’s preferences originated from the need to adapt the EU’s participation rights at the UNGA to the new regulations in the ToL concerning the EU’s external representation. The EU’s request presented an extension of participation rights of observer entities at the UNGA and was comparable to the request for enhanced participation rights by Palestine and the Holy See some years earlier. Several non-papers from Council Presidencies were used to develop ideas on the exact form of the EU’s future status. ⁵⁸ Before the EU’s preferences were fully defined out, the EU Delegation in New York entered informal consultations to gather information on the positions of UN MS and to spread the word about their aim. ⁵⁹

Even after the launch of the official campaign in spring 2010, the EU did not have a draft ready to show their negotiation partners the specific components of their envisioned status. This led to a lack of information and clarity concerning the objectives of the EU, and difficulties for the UN MS to define their position. It also irritated some UN MS and took the momentum from the EU negotiation campaign. ⁶⁰ In addition, the EU rather engaged in bilateral meetings instead of inviting larger groups or so-called ‘consultations of the whole’. ⁶¹ The choice of the EU’s outreach was highly strategic and allowed the EU to tailor its approach to the specific negotiation partner. However, the selective nature of the outreach campaign and the strategic choice of outreach fora also led to limited information and an incomplete picture of the UN MS’ positions.

The consultations showed that the EU was supported by many large states, such as Russia, China, India and the United States. While those countries did not actively promote the EU’s initiative, as they did not want to invest political capital, they considered a more influential EU as a positive development and assumed the EU to be a stabilizing factor in international relations. The EU promised these states that the enhanced status would lead to a more stable representation and a clearer, more well-defined policy of the EU and its MS. ⁶²

The EU however, missed the existing dissatisfaction among some smaller UN MS, particularly within the African Group and the CARICOM. This was caused by the EU’s insufficient focus and communication with these groups but was also a consequence of the high divergence within these groups and their internally changing positions. ⁶³ The lack of interactions was partly caused by miscommunications between the EU’s negotiation leaders and decision-makers in Brussels and discontinuity of leadership due to the EU’s representation by the rotating presidency. In addition, a lack of understanding existed in the EU institutions in Brussels concerning the negotiation dynamics in New York and the strategically most promising path forward. ⁶⁴ The opposition of the smaller states, particularly the CARICOM and the African Group, was described as followed:

‘we already struggle to have our voices heard, and we are constantly fighting for recognition of our national identities in today’s globalized world’ (Nauru on behalf of the small Islands)

‘[UN] Member States are presented today with an anomaly in procedure, where a request for change in the rights and privileges of observers is being deliberated in plenary meeting’. (Suriname on behalf of the CARICOM) ⁶⁵

‘. . .we most certainly did not want to have a precedence set. We saw no purpose in it other than undermining the intergovernmental nature of the GA. (. . .) it is the one body that where one country one vote regardless the size and economic influence or any other normally divisive criteria might be used’(UN MS Representative). ⁶⁶

In addition, the EU was surprised by the lacking support from its longstanding allies, Canada and Australia, who entered a quid pro quo with other UN MS. Both countries agreed on the postponement of the vote on the enhanced status, as they had applications running for a seat at the Security Council (SC) at the time. With the African Group and the CARICOM forming opposition towards the enhanced status and aiming for a postponement of the vote, Canada and Australia decided to abstain in order to secure the support for their campaigns by these regions. ⁶⁷ The EU was unable to leverage Canada and Australia to support their new status and instead, the Union had to accept that other bargaining chips were more influential.

The intermediate setback in form of the postponement of the vote led to a wake-up call for the EU and forced the EU to rethink its outreach campaign and interactions with UN MS. The EU acknowledged the omissions and mistakes made, set up a task force and prioritized the negotiations in all contacts with other UN MS. ⁶⁸ Rational choice theory would at this point expect the development of bargaining leverage on the EU’s part, possibly in form of monetary incentives, text changes and political pressure. In addition, the EU could have used the influence of its MS to create further bargaining leverage. This, however, did not occur, as it was decided that the EU as an institution should take the lead on the achievement of its enhanced status at the UNGA and the EU MS would only support in an assisting capacity. ⁶⁹ In the second part of the negotiation campaign, the EU agreed to alter the language of its draft resolution significantly and changed the EU-focused tone to a more general text. The compromise existed in an opening for other regional organizations to apply for an enhanced status, while at the same time integrating a high threshold to achieve enhanced participation rights to avoid complications in the cooperation at the UNGA. ⁷⁰ Furthermore, the EU concentrated on extensive consultations bilaterally, regionally and of the whole UN membership, in order to satisfy the smaller UN MS. In addition, further resources and time were allocated to negotiate towards a full consensus. ⁷¹ While the draft resolution was completely rewritten, the EU aimed to avoid substantive changes to the scope of the envisioned participation rights. ⁷² This strategy consisting of realising the time pressure, behaving more cooperatively and making cosmetic changes to the original draft resolution provided significant progress despite little sign of actual bargaining.

Particularly the final agreement with the CARICOM can be described as an outcome of a bargaining effort. As the CARICOM was the last opposing major group, and the EU feared that other states or groups would withdraw their support, bilateral negotiations were launched and the political pressure was increased. ⁷³ The bargaining chips offered by the EU mainly consisted of text concessions and the use of political capital and pressure. The bilateral negotiations resulted in two changes in the draft resolution ⁷⁴ to guarantee support from the CARICOM. In addition, the HR/VP’s active involvement in the final negotiations put significant political pressure on the CARICOM and increased the CARICOM’s stakes in case of continuing opposition. ⁷⁵ While this incident is a clear sign of bargaining of the EU during the negotiations, the deal between the EU and CARICOM only survived the vote. During the explanation of the vote, and the implementation phase of the enhanced observer status, the CARICOM clearly expressed their dissatisfaction and continued to undermine the EU’s new rights whenever possible. ⁷⁶

It can be concluded that the EU entered into some bargaining activity during the negotiations, and that particularly during the second attempt, bargaining was to a certain extent contributing to the positive outcome. However, the EU did not clearly determine its preferences until a late point in the negotiations, and only gathered insufficient information concerning involved negotiation parties. During the negotiations with the remaining UN membership and particularly sceptical UN MS, such as the African group, Iran and Venezuela, bargaining was not a very visible strategy. While text changes and political pressure have been used as bargaining chips, the EU did not fully use its resources to bargain with UN MS. As an example, monetary incentives have not been used. The traditional foreign policy expectations of rational choice theory cannot fully capture the EU’s behaviour in multilateral negotiations, as it is based on assumptions that do not reflect the EU’s abilities and possibilities.

Justice beyond UN dynamics?

Global justice provides a complementary explanation of the EU’s behaviour in the negotiation process towards the enhanced observer status by focussing on the interactions in the negotiation process and the dynamics between negotiation parties. According to the research of Welch and Albin ⁷⁷ , states actually care about justice in multilateral negotiations, and in addition, just negotiation structures, processes and outcomes increase the likelihood of success. This is also supported by Walker ⁷⁸ who claims that showing respect for individuals, cultural diversity and the procedures of UN negotiations smoothens the negotiation process and facilitates the closure of an agreement.

To evaluate the negotiation process towards the enhanced observer status according to global justice and mutual recognition, the negotiation customs at the UNGA have to be scrutinized. Beyond the formal rule of procedure, the UNGA’s internal dynamics determine the interactions among states and the achievement of just and fair negotiations. ⁷⁹ Frequently observed components of UN dynamics are the importance of personal relationships among diplomats at the UN and North-South dynamics that lead to polarization between the Global North and the Global South. ⁸⁰ Moreover, these dynamics are based on the sovereign equality of all UN MS and voting equality in the UNGA, which ‘provides one vote for each Member State regardless of size, ideology or level of economic development’. ⁸¹ Consequently, the ‘UN is a very treasured forum for small countries’. ⁸² Smaller states with less political and economic influence value these principles very highly, as they guarantee a certain level of influence. Respecting the UNGA’s dynamics and established negotiation principles is crucial to ensure not only a just and fair negotiation process but also to increase the likelihood for the EU to achieve the adoption of the enhanced observer status.

During the negotiations on the enhanced observer status, the tendency to fall into North-South divides was quite noticeable. ⁸³ Particularly, the African states and CARICOM aimed to counter their lack of visibility by solidarizing within their regional group and transformed the concern of one state into an issue for the whole group. During the first part of the negotiation process towards the enhanced status, these groups expressed their dissatisfaction with the process and referred during the debates to the history of colonialism, imperialism and the domination of the West. One example was Jamaica, which used the negotiations to strengthen its position in another conflict with the EU. The remaining CARICOM countries solidarized with Jamaica’s cause and created a bloc of opposition against the EU. ⁸⁴

The main concern of mutual recognition, due hearing, can in the context of the UNGA be described as a process of open, transparent and inclusive negotiations, including multilateral and bilateral meetings, an outreach campaign and the availability of information. In addition, negotiations are conducted with an open time frame to make an informed and comprehensive decision and particular to the UNGA, consultations of the assembled UN membership are conducted, so-called ‘consultations of the whole’. ⁸⁵ During the first attempt, the EU mainly conducted regional and bilateral meetings to consult and negotiate on the enhanced status. ‘Consultations of the whole’ were hereby seen as counterproductive and little useful to reach the goal. Additionally, the EU negotiated for quite a while without a written draft, as the internal coordination process was ongoing, and the EU wanted to keep certain flexibility. ⁸⁶ Many smaller MS perceived the lack of ‘consultations of the whole’ and the lack of transparency from the EU’s side as counterproductive. This position was made clear by a number of UN MS:

‘These sorts of initiatives undergo a process of inclusive negotiations where all member states are invited to what we call informal negotiation processes. (. . .) The EU said that it had met with various key actors, key groups, but we had never all come together as it is normal practice for negotiating a resolution’. (UN MS representative) ⁸⁷

‘The process of the evolution of the draft resolution did not offer the necessary transparency, which could only have been provided through open and inclusive discussions. [. . .] the long established United Nations practice of holding informal open meetings [. . .] cannot be replaced by a limited number of unilateral briefings and a series of bilateral consultations’. (Iran) ⁸⁸

While the EU had already included some wishes of the UN membership by including a reference to the UNGA’s intergovernmental character and the future possibility for other regional organizations to achieve a similar status, the lack of transparency and open deliberations remained a point of critique during the UNGA session in September 2010. This shows that the EU made the concession too late in the negotiation process, and in addition, did not manage to communicate its openness to debate the draft resolution. This shows apart from the insufficient process of due hearing also the lack of communication and transparency from the EU’s side. ⁸⁹

‘. . .we do not consider that the revisions go far enough to provide such clarity as would enable us to make an informed decision. Moreover, (. . .)the CARICOM member States are concerned about the unofficial manner in which Member States have been asked to deliberate and consider this draft resolution’ (Suriname on behalf of CARICOM)

‘[the draft resolution] would also accord powers to it equal to those held by the Member States. We wish to lay particular stress on the intergovernmental nature of the United Nations’ (Venezuela) ⁹⁰

The omission to conduct an extensive, open and inclusive consultation process did not only cause irritations among some UN MS but also caused a lack of knowledge for the EU concerning the different positions and implicit expectations. Instead of taking sufficient time to achieve the envisioned consensus, the EU leadership pressured for a quick adoption so that the EU could visibly speak at the Ministerial week and actively participle in the session. ⁹¹

The EU took the postponement of the vote as a warning and scaled up its efforts and resources in response to the mentioned critique. ⁹² This included the creation of a task force and an extensive outreach campaign. In addition, it was decided not to set up a rigorous timeline for the remaining negotiation process, and instead remain flexible concerning an adoption date. ⁹³ The EU pursued an outreach campaign following the expectations of due hearing, consisting of ‘consultations of the whole’ and several regional meetings in New York. In addition, the EU and its MS launched outreach activities in Brussels, New York and the respective countries to ensure a constant exchange of opinions. ⁹⁴ While the EU was active in meeting and listening to UN MS, the reformulation of the draft resolution was mainly symbolic, the main goals continued to be represented in the substance of the text. Minor changes according to the requests of UN MS were made. ⁹⁵ There was, however, no critique raised as to the lack of willingness of the EU to make more fundamental changes to its draft resolution. Many UN MS instead expressed their satisfaction with the second part of the negotiation process as the following:

‘. . .the draft resolution, which was agreed in open, transparent and inclusive informal consultations. . .’ (Paraguay)

‘. . .the proposal now [. . .] has been adamant in its readiness to engage in consultations in a spirit of openness, friendship and mutual respect’ (Bahamas on behalf of CARICOM) ⁹⁶

The final agreement with the CARICOM is however difficult to account for by global justice, as the bi-regional negotiations went beyond the expression of wishes and the consideration of the particularities of the different groups. The CARICOM used their own agenda to pressure the EU, while the EU confronted the CARICOM with political pressure by the presence of the HR/VP and the public announcement of the adoption date. It also became clear that the EU provided sufficient exchange and consultation possibilities to the CARICOM and was willing to accommodate the CARICOM’s wishes to a certain extend. The EU took additional time to negotiate with the CARICOM after all other states had been convinced and approached the CARCIOM with possible solutions. It could have been possible to proceed with a less aggressive approach with more time. However, due to the impatience of other UN MS, the EU was forced to make a decision that would secure an agreement. ⁹⁷

The analysis showed that the achievement of just and fair multilateral negotiations is not only complex but also hard to fully accomplish. The EU achieved the adoption of the enhanced observer status as resolution 65/276, however not with a full consensus and not by fully complying with the requirements of global justice. Nevertheless, the negotiation process was to a large extend perceived as fair and just, which supports the claim that it is not only important to act fair and just, but also to be perceived as such. ⁹⁸

Conclusion

This article finds that the EU can be a successful negotiator and can advance its role in multilateral negotiations at the UNGA. The successful adoption of resolution 65/276 on the enhanced observer status shows that the EU can present its own agenda as a ‘demandeur’ and persuade the UN MS to supports its initiatives. The negotiation process on the enhanced observer status has also highlighted that agreements require a certain level of engagement and the use of sufficient resources. This is especially the case in multilateral negotiations, where a large number of states and groups are involved and aim to realize their self-interest. The EU has to find a middle way on the fine line between adapting existing customs and integrating its own character into the negotiation process.

This article also suggests that rational choice is not fully able to explain the EU’s behaviour and its negotiation strategy. In the case of the enhanced observer status, the EU was not only negotiating for its own advantage but also attempted to negotiate without the explicit use of its MS’s bargaining power. The EU was able to use some text concessions and political pressure as bargaining chips in the final stage of the negotiations, which also carried the cost of losing some privileges of its participation rights to achieve an agreement. While multilateral negotiations in another thematic area and within a field of the EU’s exclusive competence would equip the Union with stronger bargaining power, the EU generally faces the obstacle of lacking the right to vote at UN and thereby, faces a limitation in its ability to bargain towards its interest.

Beyond this and to reach this final stage of the negotiations, the EU behaved more according to the assumptions of global justice to advance its initiatives and achieve consensus. Hereby global justice has proven to provide a strong explanatory power in the negotiations towards the enhanced observer status, but possibly also beyond. The expectations of global justice and due hearing are able to explain the behaviour of many smaller UN MS, other regional organizations and the general negotiation dynamics at the UNGA. Global justice provides a new perspective to analyse the EU’s role in multilateral negations at the UNGA and creates a better and more nuanced understanding of the EU’s approach to multilateral negotiations at the UN. Consequently, the negotiations on the EU’s enhanced participation rights can be accounted for by a global justice approach with a certain overlap of a bargaining approach. As self-interest has to a limited extent a place in a justice approach, as long as it is limited by the self-interest and the security needs of others, the EU’s pursuit of its own participation rights lies within the boundaries of a negotiation strategy according to global justice. The negotiations on the enhanced observer status have illustrated that the EU can promote its norms and values in an international realm and advance its objectives in a multilateral setting. By pursuing a negotiation process that is inclusive and fair the EU is able to shape a negotiation process and to achieve even the inclusion of its own interest in an agreement. The enhanced observer status provides the EU with the opportunity to further increase its role in multilateral negotiations and establish itself as a meaningful and credible negotiator.