8.2 Preparing for the negotiations

A good negotiator prepares thoroughly for the negotiations. This means that the negotiator has a good understanding of the issues at stake, as well as clarity about, his/her country's interests and position on each of the issues and the respective positions of other countries on all the issues. He or she has to be fully conversant with all the key issues that will come up for negotiation in the next round of negotiations and must know all the issues that have been accepted or rejected in the past negotiations. The negotiator must be fully aware of the legal implications of the Rules of Procedure and adopted text, must be familiar with diplomatic protocol and must have social skills that enable him or her to mix freely in the international context.

In the context of modern environmental diplomacy, a negotiator must not only have legal and political skills, but also good depth of knowledge on economics, finance and natural sciences. In addition, since most of these issues cover complexity at a very detailed level, the negotiator has to be able to assimilate the facts and separate them from the assumptions and the perceptions. The negotiator needs to prepare in advance on the basis of the perceptions of the stakeholders in his or her own country in order to determine his or her own position on these issues.

According to the Vienna Convention on the Law of Treaties, the effect of a treaty on a particular State cannot be considered invalid because of the lack of authority of the representative (Art. 47). Error by the representative can be accepted as a way to render a specific treaty invalid in relation to the specific State, but only if "the error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty" (Art. 48 (1)) except when "the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error" (Art. 48 (2)). This implies that the negotiator must at all times be fully prepared for the negotiations, otherwise he or she may put the country represented in a compromising position.

A good negotiating team consists of a group of negotiators who cover the various issues and have expertise in complementary areas. The team is led by a head of delegation. There is frequently a deputy head who can negotiate during the all-night sessions. A clear division of labour among the team members in terms of substance and process is arranged in advance and takes advantage of different skills and technical backgrounds. The younger team members are groomed into the process. Some team members focus on cross-sectoral issues so that the country position is consistent in different related sub-issues. Some may be entrusted with the task of building coalitions with other countries. Some may focus only on monitoring the process, and securing the most important documents for the negotiations. Legal drafters may be involved simply in drafting the text. Some may be responsible for making copious notes of the negotiations so that it is possible to double check on the (changing) positions of other countries.

The preparations need to be done in advance of the negotiations, so that at the negotiations there is time to respond to the new ideas and views that are being circulated.