Stardate 20040408.1500

(Captain's log): We've been running into a conceptual problem in the last few years, where a lot of people have been trying to extrapolate concepts and experiences from their normal peace-time lives into realms where they make no sense. There has been, for instance, the attempt to extrapolate the concept of national law into the larger realm of "international law". There has been the idea that international terrorists should be treated as if they were criminals, and pursued and ultimately tried as we would normal criminals without our own nations. (Among other interesting ramifications of that would be that we could only arrest terrorists for attacks they had already made, not for attacks they were planning, and that we could only imprison them if we could prove their complicity "beyond a reasonable doubt".)

In some cases these things are deliberate obfuscations by people with an agenda, but in other cases it's confusion, where they don't really understand how those things work in one context and thus why they would not work in another. For instance, the reason citizens of western nations (for instance, we Americans in the US) can make contracts with one another and willingly submit our differences to adjudication in civil court is because we rely on the US government to use force if necessary to enforce the decision of the court. We therefore do not ourselves have to use force to ensure the other guy fulfills his commitments under the contract. If we had no faith that the government would indeed use force for us if we prevailed in court, few would rely on the courts and more would use violence directly.

Drug traffickers and other members of organized crime enforce their own deals that way, since they can't use legal contracts or the courts. And in parts of the world where the legal system is corrupt or the government is toothless, agreements are largely enforced with direct violence.

That's why the utopian idea of an international version of civil court is unrealistic. If two nations take their disagreements to such a court, even assuming they believe that the court would be disinterested and competent, how could they be sure that the other side would yield if it lost? There's no enforcement mechanism.

The utopian belief behind this is to assume that everyone would act in good faith. No enforcement mechanism would be needed because the loser of the case would willingly comply with court orders. The best that can be said about that idea is that there's no historical justification for believing it would work out that way.

Another area where many have completely unrealistic expectations is the entire subject of international diplomacy. There will be disagreements between nations, about small things or big things, and many of those disagreements end up being settled without war through agreement or treaty. So doesn't it make sense that the agreement should be just? Shouldn't the party which is in the wrong give in to the other and make amends?

It's a nice idea, I guess. But it's another for which there's no historical justification. One problem with it is that it isn't necessarily obvious which side is in the wrong; too often both sides feel aggrieved. (Too often, both are right.)

But even if there were some sort of consensus on that, it wouldn't matter anyway. Negotiations have nothing to do with justice. They have nothing to do with fairness. They never have.

I wrote extensively about negotiations a year ago in two articles (first second). My conclusion is this: all negotiations are trials of strength, and all successful negotiations are backed up with threats.

In civil contracts, we need not threaten each other because the government threatens us both if we fail to live up to the terms of the contract. If you break a contract, I can threaten you with a lawsuit, which in turn means I can get the government to apply force to you in my favor. You can do the same to me. But each of us could only succeed in doing that if a disinterested party, a judge or jury, decides we're entitled to relief.

In international negotiations there is no such disinterested third party, and that means we have to have our own threats, and the willingness to carry them out.

If there is a fundamental disagreement, and negotiations lead to an agreement, then it means someone has given in. Most commonly both sides give up something, but it is quite often the case that one side gives up a lot more than the other does.

The idealist view is that it should be the "bad guys" who give up a lot, but that's not what really happens. Rather, the side with the weaker negotiating position will nearly always be the one to make the most concessions if agreement is reached.

That's why "fairness" has nothing to do with it. If the agreement happens to be considered fair by disinterested outsiders, it usually indicates that neither side had the upper hand.

What makes one side have a stronger negotiating position? It would take a book to describe all the ways that can happen, because so much of it is a function of specific context. However, overall it comes down to two cases.

If one side needs an agreement more than the other does, the latter has a stronger negotiating position.

If one side is in a hurry and the other side is more patient, the latter is in a st