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How a Level I Negotiator Deals with a Level II Agitator

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How a Level I Negotiator Deals with a Level II Agitator \\jciprod01\productn\H\HNR\21-1\HNR104.txt unknown Seq: 1 31-MAR-16 8:39 Strategizing the Two-Level Negotiation: How a Level I Negotiator Deals with a Level II Agitator Shivan Sarin* CONTENTS I. Introduction .......................................... 143 R II. A Theoretical Guide to the Two-Level Negotiation .... 145 R III. The Logan Act: An Example of the Level I Block ..... 149 R A. History and Purpose of the Logan Act ............ 149 R B. Limitations and the Two-Level Game ............. 151 R IV. Two-Level Negotiation in Practice .................... 152 R A. Folding in Level II with Level I: The Case of Central America .................................. 152 R B. The Bifurcated Middle Ground: The Case of the China-India Relationship ......................... 156 R C. Expanding the Win-Set with a Hard Line: The Case of Early 2015 Iran Negotiations ............. 159 R V. Conclusion ........................................... 161 R I. INTRODUCTION On March 9, 2015, forty-seven senators, led by Senator Tom Cot- ton, published an open letter to the leaders of the Islamic Republic of * Litigation associate at Ropes & Gray LLP in Boston, MA. I would like to thank the many colleagues who have contributed to the ideas and execution of this Article. In particular, I greatly appreciate the guidance of Nicholas Burns, Robert Mnookin, and James Sibenius. I would also like to give special thanks to the staff at Harvard Negotiation Law Review, who provided excellent editorial and substantive commentary through the many iterations of this Article. The views expressed in this Article are my own and do not reflect the opinions of Ropes & Gray LLP. Any mis- takes remain my own. 143 \\jciprod01\productn\H\HNR\21-1\HNR104.txt unknown Seq: 2 31-MAR-16 8:39 144 Harvard Negotiation Law Review [Vol. 21:143 Iran to “bring [Iranian] attention to . features of [the] Constitu- tion.”1 In writing this letter, the senators sought to alter the pro- gressing nuclear negotiations between the United States and the Republic of Iran.2 Such a letter may have been unprecedented in its approach, but legislators and those away from the negotiation table have constantly sought to influence the results from behind the table. Much has been written, both theory and application, on the bene- fits and costs of this “two-level game.” In a two-level game, the first level involves negotiation at the table between two nations; Level I negotiators are representatives of their nations. The second level in- volves convincing the domestic populace to accept the deal. The Level II negotiator is behind the table but is critical for any deal to be approved. As of yet, not much has been written on how Level I negotia- tors — those at the table — use Level II disagreement from behind the table to make a deal. With the congressional reactions to Iran and Cuba providing just two examples in 2015, congressional leaders con- stantly influence presidential negotiations. The challenge of ensuring a lasting negotiation will only rise as congressional skepticism of presidential action increases. This Article looks at theory and practice to answer the question: how do Level I actors negotiate in the face of active Level II disapproval? The answer depends heavily on the context of the negotiation, but at least four strategies emerge. First, a Level I negotiator can preempt disagreement with a Level II agitator by restricting the ac- tion set of the Level II agitator; the Logan Act of 1799 exemplifies this strategy. Second, the Level I negotiator can appease the Level II agitator by actively integrating it into the Level I process. The ap- proach of President Ronald Reagan during the Central American ne- gotiations around the Nicaraguan contras in 1987 illustrates this strategy. Third, a Level I negotiator can bifurcate her actions, staying steady on her positions at the Level I table while changing rhetoric to 1. Senator Tom Cotton, et al., An Open Letter to the Leaders of the Islamic Re- public of Iran, (March 9, 2015) http://www.nytimes.com/interactive/2015/03/09/world/ middleeast/document-the-letter-senate-republicans-addressed-to-the-leaders-of-iran .html. 2. Peter Baker, G.O.P. Senators’ Letter to Iran About Nuclear Deal Angers White House, N.Y. TIMES (Mar. 9, 2015), http://www.nytimes.com/2015/03/10/world/asia/ white-house-faults-gop-senators-letter-to-irans-leaders.html. \\jciprod01\productn\H\HNR\21-1\HNR104.txt unknown Seq: 3 31-MAR-16 8:39 Fall 2015] Strategizing the Two-Level Negotiation 145 please the Level II audience. Prime Minister Jawaharlal Nehru’s ap- proach to China between 1950 and 1972 shows this approach. Fi- nally, a Level I negotiator can stay steadfast in her beliefs despite the disagreement from the Level II agitator. The Iran case study of 2015 demonstrates this strategy. This Article does not seek to identify only one approach as suc- cessful or others as unsuccessful. Instead, it seeks to describe the his- tory of these cases, the facts that led to these choices being made, and the implications of those choices within that negotiation. With this knowledge, this Article strives to provide guidance to future Level I and Level II negotiators in potential strategies both at and behind the table. Ultimately, the decision about a strategy will be fact-based and may involve a combination of all four strategies at different times during a complex negotiation. The Article proceeds as follows. In Section II, I outline previous theoretical analyses addressing two-level negotiations. This Article builds on this past research by identifying ways in which an active Level II disapproval contributes to and deviates from the theory pre- viously laid out. In Section III, I look at the passage of the Logan Act to demonstrate how a Level I negotiator can attempt to preempt Level II interference. In Section IV, I go through three case studies demonstrating how different Level I negotiators have approached Level II disapproval. In Section V, I conclude that the Level I negotia- tor must work with facts on the ground to determine the set of strate- gies that will be most effective in negotiating a deal. II. A THEORETICAL GUIDE TO THE TWO-LEVEL NEGOTIATION Many international negotiations between nations involve two sets of negotiations: one between the executives representing their nations to create a deal, and the other between the executive and her domestic populace, represented by the legislature, to approve the deal.3 The former involves Level I negotiators; that is, negotiations on the terms binding the nations are Level I negotiations. The latter involves Level II negotiators; that is, Level II negotiations occur be- tween the executive and the domestic populace to market the deal internally. Level I negotiations are at the table, whereas Level II ne- gotiations are behind the table.4 3. See, e.g., Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT’L ORG. 427, 427–30 (1988) (discussing the cases of the Bonn summit, U.S.-Japan economic conflicts of the late 1970s, and the U.S. energy policy in the late 1970s). 4. Id. at 434. \\jciprod01\productn\H\HNR\21-1\HNR104.txt unknown Seq: 4 31-MAR-16 8:39 146 Harvard Negotiation Law Review [Vol. 21:143 While much of the focus of international negotiations tends to be on the terms negotiated at the table (the Level I negotiation,) the Level II negotiation can be just as challenging a process. As stated by Robert Strauss of the Tokyo Round trade negotiations: “I spent as much time negotiating with domestic constituents (both industry and labor) and members of the U.S. Congress as I did negotiating with our foreign trading partners.”5 The dual nature of the negotiation leads to complication. Ra- tional moves on one board may in fact be counterproductive on the other board. Yet, while some deviation in rhetoric may be acceptable, drastic differences will undermine trust between the central figure and her counterparts on both boards. The more one uses prevarica- tion to sell the deal, the less likely the deal is to succeed.6 On top of this, the knowledge that any key player can walk away from the ne- gotiation at any time or be evicted by the domestic authority adds additional complexity.7 Many international negotiations, especially treaty negotiations, provide a third level of complexity. If Level I negotiations involve bar- gaining between the negotiators that lead to a tentative agreement, and Level II negotiations involve the domestic discussion to deter- mine whether to ratify the agreement, the domestic constituency re- tains a great deal of power over the negotiations; the legislature could ultimately approve or disapprove the deal.8 Any successful agree- ment involving two nations must fall within four win-sets: those of the two Level I actors and those of the two Level II actors. The larger each win-set is, the more likely they are to overlap.9 In addition, the relative size of the Level II win-sets will affect the distribution of the gains from the bargain; demonstration of a smaller Level II win-set by one nation can force the other nation to cater to these domestic realities. Win-set size can create opportunities. For example, an executive can send her domestic counterpart to discuss political problems and validate the limited size of the Level II win-set. “Having one’s hands tied can be a useful tool in exacting concessions.”10 However, this 5. Id. at 433 (citing Robert S. Strauss, Foreword to JOAN E. TWIGGS, THE TOKYO ROUND OF MULTILATERAL TRADE NEGOTIATIONS: A CASE STUDY IN BUILDING DOMESTIC SUPPORT FOR DIPLOMACY (1987)).
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