Excerpts from the Statement by
Ambassador J.ENKHSAIKHAN,
Permanent Representative of Mongolia to the
United Nations On Draft guiding principles for international negotiations


New York, 14 October 1997

International negotiations, as the most widely used ways and means of bilateral and multilateral cooperation between States, as well as other actors of international relations, today play an increasingly important role in the management of international relations, the peaceful settlement of disputes and the creation of new international norms of conduct of States. There is no doubt whatsover that the role of negotiations will continue to grow in the future. While the international community is regulating and, in some cases, has even codified or harmonized many aspects of diplomatic relations and conduct, the one type of diplomatic activity that has not yet been affected by this process of harmonization, is the conduct of international negotiations.

Legally, international negotiations are understood to be conducted on the basis of principles of contemporary international law. However, lack of clearly agreed general rules concerning the conduct of international negotiations gives rise to or provides room for different interpretations of even such generally recognized principles as the sovereign equality of States, non-discrimination, non-interference, negotiation in good faith, cooperation of States, non-use of force and so on. As international practice amply demonstrates, changing the agreed or implied rules of negotiations, or backtracking from previous agreements complicates subsequent negotiations. Lack of an atmosphere of cooperation and goodwill for the conduct of negotiations, or attempts to gain a unilateral advantage at the expense of others, impede fruitful negotiations. Raising completely irrelevant preconditions and deliberately creating obstacles to ongoing negotiations also adversely affect negotiations and the spirit of goodwill that are essential for the successful cooperation of States.

On the other hand, favorable international environment is being created for international negotiations to be strengthened as the most flexible and effective means of bilateral and multilateral cooperation between States. The end of the "cold war" is creating favorable political conditions for broadening and deepening international cooperation in the rapidly globalizing world. Thus the "cold war", represented by the zero-sum game mentality, where some gain at the expense of others, seems to be giving way to more positive trends and constructive attitudes, driven by the realities of an increasingly interdependent world based on the need of advancing the common interests. Such notions as might is right, or that force is the ultimate form of power are being widely rejected. Rejection of the use or threat of force implies greater recourse to cooperation and negotiation. Moreover, democratization of international relations can not be confined to having States voice their views or grievances only. The new international order, to be just, democratic and based on respect for the sovereign equality of all States, should ensure equal and fuller participation of States in actual decision-making on issues that affect their interests.

Proceeding from the above, Mongolia believes that it is necessary and timely for the international community to identify and elaborate a set of principles to guide States in the conduct of international negotiations. In the view of Mongolia, these principles could be embodied in an international document in the form of a code of conduct of States or guiding principles containing a set of generally accepted rules necessary for the conduct of international negotiations in full conformity with the principles and norms of contemporary international law. The adoption of such rules would, in our view, also promote justice and fairness in negotiations that at times fall victim to the so-called realpolitik or power politics.

We are all realists. Identification and definition of the content of such principles would not per se create the necessary political will of States that is essential for successful negotiations. On the other hand, we are not pessimists. We believe that existence of such generally accepted principles would perform a dual purpose of serving as guidelines for conducting effective negotiations and as a general criteria against which the conduct of zstates at negotiations could be assessed. Moreover, by defining the standard minimum for the conduct of the negotiating parties, such rules or guidelines could induce them to act accordingly and at the same time offer them some leverage for requiring other parties to act likewise. These principles would contribute to enhancing the predictability of the behavour of negotiating parties and reducing uncertainty, thus promoting an atmosphere of mutual trust at the negotiations. These principles could, therefore, contribute to enhancing the effectiveness of international negotiations as the means of managing relations, settling disputes and creating new norms of international conduct and thus would fully meet the interests of all States, large and small alike.

In proposing to draft guiding principles for international negotiations, we have also taken into account the objectives of the "United Nations Decade of International Law", with which Mongolia fully subscribes itself. Drafting and adopting such principles are in full conformity with the spirit and objectives of the Decade since both seek to strengthen international law and promote fair regulation or manaement of international relations. In that sense, they are complementary. On the other hand, adopting such principles at the turn of the century could be an important contribution of this Committee to the objectives of the Decade and a fitting way to mark its end.

Mongolia believes that the appropriate forum for such elaboration would be the General Assembly, which by Article 13, paragraph 1 (a) of the Charter, is encouraged to initiate studies and make recommendations for the purpose of promoting international cooperation in the political field and encouraging the progressive development of international law and its codification. To this end, we have submitted the draft guiding principles for international negotiations, as contained in document mentioned above, for the consideration of this Committee. My delegation hopes that the draft would be useful and perhaps serve as a basis for discussions and elaboration of such principles. It is also our hope that during the consideration of the sub-item numerous ideas, helpful proposals and comments would be expressed to make the draft principles both effective and useful.

Since the issues involved are complex, their substantive consideration and finalization would seem to take quite some time. It is to be hoped that bearing in mind the honest intention and ultimate aim of drafting such principles, distinguished delegates would try to avoid bringing in highly politicized and controversial issues that would only lead to sterile debates, accusations or recriminations, losing the sight of original intention.

As to modus operandi, we do not believe, and many agree with us, that this question should be referred to the International Law Commission, which already has a heavy agenda and workload. Moreover, the guiding principles can not be seen as purely legal principles. Bearing in mind the nature of negotiations, the fact that every negotiation has its specifics, these principles would be applied in specific political context, differing from one negotiation to another. Therefore my delegation, upon consultation with some delegations, proposes that the substantive consideration of the draft principles be carried out within the Working Group on the United Nations Decade of International Law. We look forward to fruitful discussion of the sub-item "Draft guiding principles for international negotiations".