Constructive ambiguity
Encyclopedia
Constructive ambiguity is a term generally credited to Henry Kissinger
, said to be the foremost exponent of the negotiating tactic it designates. It refers to the deliberate use of ambiguous language on a sensitive issue in order to advance some political purpose. Constructive ambiguity is often disparaged as fudging. It might be employed in a negotiation, both to disguise an inability to resolve a contentious issue on which the parties remain far apart, and to do so in a manner that enables each to claim obtaining some concession on it. It warrants further hopes that the ensuing postponement of resolution on this particular point, in a way that causes neither side excessive discomfort, will enable them to make real progress on other matters. If this progress takes place, the unresolved question might be revisited at a later date, if not voided altogether by the passage of time. On the other hand, since ambiguity in agreements can generate subsequent controversy, the likelihood of its employment proving constructive in comparison to further attempts to negotiate the point in question in clear terms, is a question best left for historians.
The UN Security Council agreed on the text of the Resolution 242 after the crushing defeat that Israel
inflicted on joint Arab
forces during the Six Day War in 1967. As a result of bargaining between the powers sitting in the Security Council, the resolution reflected the deeply polarized political opinion. The provision of the resolution which prompted different and incompatible interpretations was the one immediately following the preamble of the text, reading: “establishment of just and lasting peace in the Middle East should include the application of both the following principles:
The use of an unnatural English construction “territories occupied in recent conflict”, omitting the expected definite article “the”, made it possible to question whether Israel was asked to withdraw from all the territories occupied in the recent conflict, or to withdraw from some, but not all, such territories. Notably, the French translation of the document, unlike the English original, used the definite article, demanding the “retrait des forces armées israéliennes des territoires occupés lors du récent conflit”. Thus the French version, which together with the English version was an official UN version of the document, suggested that Israel must withdraw from all territories that it occupied during the Six Day War. Naturally, the French interpretation suited the interests of Arab countries, who made numerous attempts to prove its validity. By contrast, Israel opposed such an interpretation, and the sponsor of the resolution, Lord Caradon
, appears to have had no intention of inserting the definite article into its text. Caradon additionally emphasized the additional and clarifying light that the second part of the first provision shed on its first part, and insisted that it must be given uppermost consideration. According to him, the boundary that existed before the Six Day War did not satisfy the right of Israel to live within secure and recognised boundaries. Consequently, under this interpretation, Israel did not have to withdraw to its pre-Six Day War borders.
The Shanghai Communiqué
The Shanghai Communiqué
was issued by the United States of America
and the People's Republic of China
on 27 February 1972, during the U.S. President Richard Nixon
's visit to China. Henry Kissinger acted as the principal U.S. negotiator in this matter. The document contained an ambiguous provision inserted by the United States: “The United States acknowledges that all Chinese on either side of the Taiwan Strait
maintain there is but one China and that Taiwan
is a province of China.” This provision lent itself to interpretation as the very first expression of American support for the one-China policy
, calling for a reintegration of Taiwan into the PRC. But that is not what it meant in its original context. The fact acknowledged by the U.S., that the PRC and Taiwan agree that there is “but one China”, does not imply any sort of agreement on internal arrangements for the “one China”. On the contrary, for as long as the Taiwan issue has been posed, Chinese governments on either side of the Taiwan Strait have been unable to agree on a formula for their reunification, let alone to have it supported by the U.S. government. Nevertheless, its official endorsement of the term “one China” helped the U.S. to find a proper balance between its relations with the PRC and its relations with Taiwan, without jeopardizing either. Its use reflected a negotiated instance of constructive ambiguity that reduced the immediate risk of open conflict.
6-Point Agreement
In the wake of the Yom Kippur War
between Israel and Egypt
, both negotiators and belligerents faced the issue of the status of the Egyptian Third Army, surrounded by the Israeli Defense Force on the eastern side of Suez
. Almost no progress was achieved in the first phase of peace talks held in October. While the talks continued in Washington in November, the UN Security Council issued Resolution 340, which demanded that the Israeli Force withdraw to the lines occupied on October 22, 1973, at 1650 GMT, causing an end to the encirclement of the Egyptian Third Army. However, Israel refused to comply with the UN SC Resolution 340. Thereafter negotiations fortunately continued and resulted in a so-called "6-Point Agreement", signed on November 11 at Kilometer 101 of the Cairo
-Suez road. It was the first agreement that Israel signed with an Arab country after the outbreak of hostilities between Arabs and Israelis in 1949. One of the chief mediators to the agreement, Henry Kissinger, US Secretary of State, frequently used the term "constructive ambiguity" during the negotiations, to explain his negotiating strategy as well as the key purpose of the 6-Point Agreement. Provision B of the agreement contained an ambiguity that created an incentive for Israeli negotiators to engage in further talks leading to Israel's compliance with SC Resolution 340 and ensured that talks continue and arrive at a solution that would save the face of one of the two parties. This result could not have been achieved by a quick jump or a fiat. Provision B says: "Both sides agree that discussions between them will begin immediately to settle the question of the return to the October 22 positions in the framework of agreement on the disengagement and separation of forces under the auspices of the UN." This provided for a syntactical ambiguity that allowed Egyptian and Israeli negotiators to interpret their accord in diametrically opposite ways. Egyptian negotiators interpreted this provision as a clear demand that Israel withdraw its armed force in accordance with UN SC Resolution 340, linking "return to the October 22 positions" and "under the auspices of the UN". By contrast, Israeli negotiators interpreted the provision as calling on the parties to negotiate a "separation of forces" agreement without any specific request to return to the October 22 lines, by linking "discussions... to settle the question" and "under the auspices of the UN".
Syrian-Israeli peace negotiations
In the course of the Syria
n-Israeli peace negotiations, the call for a "comprehensive, just, and lasting peace" was replaced by the formula of "full peace for full withdrawal" in May of 1993. The former requirement tended to link the Syrian-Israeli talks to the Palestinian and other negotiating tracks, whereas the latter formula of "full peace for full withdrawal" tended to sever such links and ties in favor of a separate settlement that "stands on its two feet," as the Israelis put it. This short-lived "constructive ambiguity" may have witnessed a face-saving attempt by Syrian President Hafez Asad to maintain coordination among the different Arab-Israeli negotiating tracks, while offering Israel a full contractual peace in return for the Golan Heights. The revelation of the Oslo Accords
between Israel and the PLO in the summer of 1993 effectively ended this ambiguity, whereas the subsequent Israeli-Jordanian peace treaty
of October 1994 rendered it irrelevant. Syria's neighbors, for their part, no longer sought "comprehensive peace".
Sinn Féin
Sinn Féin
is a political party in Northern Ireland that was often affiliated with terrorism while pursuing Irish unity
. US Northern Ireland
Special Envoy Mitchell Reiss
has pointed out its cynical use of constructive ambiguity, when in the 1990s, Sinn Féin adopted a strategy labeled as “TUAS.” Within the policy document, this acronym meant “Tactical Use of Armed Struggle”; however, the same acronym was publicly translated to mean “Totally Unarmed Strategy.”
(AUSFTA) and Republic of Korea-United States Free Trade Agreement (KORUSFTA)have produced final texts after contentious and largely unresolved negotiations about whether, for example, pharmaceutical innovation
(a constructive ambiguity) should be 'valued' (also a constructive ambiguity) through the operation of nominally competitive markets (requiring strong anti-trust law to be effective) (the United States position) or through expert evidence-based assessment of objectively demonstrated cost-effectiveness
)the Australian and Korean positions). Concern has been expressed in the academic literature that the inclusion of Non-violation nullification of benefits
(NVNB)provisions in such bilateral trade agreements could encourage ongoing lobbying
by multinational corporations of domestic policy makers to pass legislation
rewarding their version of the trade deal mentioned constructive ambiguity of innovation
(see Annex 2C.1 of the AUSFTA) causing issues for democratic sovereignty
over domestic policy.
Henry Kissinger
Heinz Alfred "Henry" Kissinger is a German-born American academic, political scientist, diplomat, and businessman. He is a recipient of the Nobel Peace Prize. He served as National Security Advisor and later concurrently as Secretary of State in the administrations of Presidents Richard Nixon and...
, said to be the foremost exponent of the negotiating tactic it designates. It refers to the deliberate use of ambiguous language on a sensitive issue in order to advance some political purpose. Constructive ambiguity is often disparaged as fudging. It might be employed in a negotiation, both to disguise an inability to resolve a contentious issue on which the parties remain far apart, and to do so in a manner that enables each to claim obtaining some concession on it. It warrants further hopes that the ensuing postponement of resolution on this particular point, in a way that causes neither side excessive discomfort, will enable them to make real progress on other matters. If this progress takes place, the unresolved question might be revisited at a later date, if not voided altogether by the passage of time. On the other hand, since ambiguity in agreements can generate subsequent controversy, the likelihood of its employment proving constructive in comparison to further attempts to negotiate the point in question in clear terms, is a question best left for historians.
Examples of Constructive Ambiguities in Diplomacy
UN Security Council's Resolution 242The UN Security Council agreed on the text of the Resolution 242 after the crushing defeat that Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
inflicted on joint Arab
Arab
Arab people, also known as Arabs , are a panethnicity primarily living in the Arab world, which is located in Western Asia and North Africa. They are identified as such on one or more of genealogical, linguistic, or cultural grounds, with tribal affiliations, and intra-tribal relationships playing...
forces during the Six Day War in 1967. As a result of bargaining between the powers sitting in the Security Council, the resolution reflected the deeply polarized political opinion. The provision of the resolution which prompted different and incompatible interpretations was the one immediately following the preamble of the text, reading: “establishment of just and lasting peace in the Middle East should include the application of both the following principles:
- withdrawal of Israeli armed forces from territories occupied in recent conflict;
- termination of all claims or states of belligerency and respect for…territorial integrity…of every State in the area and their right to live in peace within secure and recognized boundaries.”
The use of an unnatural English construction “territories occupied in recent conflict”, omitting the expected definite article “the”, made it possible to question whether Israel was asked to withdraw from all the territories occupied in the recent conflict, or to withdraw from some, but not all, such territories. Notably, the French translation of the document, unlike the English original, used the definite article, demanding the “retrait des forces armées israéliennes des territoires occupés lors du récent conflit”. Thus the French version, which together with the English version was an official UN version of the document, suggested that Israel must withdraw from all territories that it occupied during the Six Day War. Naturally, the French interpretation suited the interests of Arab countries, who made numerous attempts to prove its validity. By contrast, Israel opposed such an interpretation, and the sponsor of the resolution, Lord Caradon
Hugh Foot, Baron Caradon
Hugh Mackintosh Foot, Baron Caradon, GCMG KCVO OBE PC was a British colonial administrator and diplomat who oversaw moves to independence in various colonies and was UK representative to the United Nations....
, appears to have had no intention of inserting the definite article into its text. Caradon additionally emphasized the additional and clarifying light that the second part of the first provision shed on its first part, and insisted that it must be given uppermost consideration. According to him, the boundary that existed before the Six Day War did not satisfy the right of Israel to live within secure and recognised boundaries. Consequently, under this interpretation, Israel did not have to withdraw to its pre-Six Day War borders.
The Shanghai Communiqué
The Shanghai Communiqué
Shanghai Communiqué
The Joint Communiqué of the United States of America and the People's Republic of China, also known as the Shanghai Communiqué , was an important diplomatic document issued by the United States of America and the People's Republic of China on February 27, 1972 during President Richard Nixon's visit...
was issued by the United States of America
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
on 27 February 1972, during the U.S. President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
's visit to China. Henry Kissinger acted as the principal U.S. negotiator in this matter. The document contained an ambiguous provision inserted by the United States: “The United States acknowledges that all Chinese on either side of the Taiwan Strait
Taiwan Strait
The Taiwan Strait or Formosa Strait, formerly known as the Black Ditch, is a 180-km-wide strait separating Mainland China and Taiwan. The strait is part of the South China Sea and connects to East China Sea to the northeast...
maintain there is but one China and that Taiwan
Taiwan
Taiwan , also known, especially in the past, as Formosa , is the largest island of the same-named island group of East Asia in the western Pacific Ocean and located off the southeastern coast of mainland China. The island forms over 99% of the current territory of the Republic of China following...
is a province of China.” This provision lent itself to interpretation as the very first expression of American support for the one-China policy
One-China policy
The One-China policy refers to the policy or view that there is only one state called "China", despite the existence of two governments that claim to be "China"....
, calling for a reintegration of Taiwan into the PRC. But that is not what it meant in its original context. The fact acknowledged by the U.S., that the PRC and Taiwan agree that there is “but one China”, does not imply any sort of agreement on internal arrangements for the “one China”. On the contrary, for as long as the Taiwan issue has been posed, Chinese governments on either side of the Taiwan Strait have been unable to agree on a formula for their reunification, let alone to have it supported by the U.S. government. Nevertheless, its official endorsement of the term “one China” helped the U.S. to find a proper balance between its relations with the PRC and its relations with Taiwan, without jeopardizing either. Its use reflected a negotiated instance of constructive ambiguity that reduced the immediate risk of open conflict.
6-Point Agreement
In the wake of the Yom Kippur War
Yom Kippur War
The Yom Kippur War, Ramadan War or October War , also known as the 1973 Arab-Israeli War and the Fourth Arab-Israeli War, was fought from October 6 to 25, 1973, between Israel and a coalition of Arab states led by Egypt and Syria...
between Israel and Egypt
Egypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
, both negotiators and belligerents faced the issue of the status of the Egyptian Third Army, surrounded by the Israeli Defense Force on the eastern side of Suez
Suez
Suez is a seaport city in north-eastern Egypt, located on the north coast of the Gulf of Suez , near the southern terminus of the Suez Canal, having the same boundaries as Suez governorate. It has three harbors, Adabya, Ain Sokhna and Port Tawfiq, and extensive port facilities...
. Almost no progress was achieved in the first phase of peace talks held in October. While the talks continued in Washington in November, the UN Security Council issued Resolution 340, which demanded that the Israeli Force withdraw to the lines occupied on October 22, 1973, at 1650 GMT, causing an end to the encirclement of the Egyptian Third Army. However, Israel refused to comply with the UN SC Resolution 340. Thereafter negotiations fortunately continued and resulted in a so-called "6-Point Agreement", signed on November 11 at Kilometer 101 of the Cairo
Cairo
Cairo , is the capital of Egypt and the largest city in the Arab world and Africa, and the 16th largest metropolitan area in the world. Nicknamed "The City of a Thousand Minarets" for its preponderance of Islamic architecture, Cairo has long been a centre of the region's political and cultural life...
-Suez road. It was the first agreement that Israel signed with an Arab country after the outbreak of hostilities between Arabs and Israelis in 1949. One of the chief mediators to the agreement, Henry Kissinger, US Secretary of State, frequently used the term "constructive ambiguity" during the negotiations, to explain his negotiating strategy as well as the key purpose of the 6-Point Agreement. Provision B of the agreement contained an ambiguity that created an incentive for Israeli negotiators to engage in further talks leading to Israel's compliance with SC Resolution 340 and ensured that talks continue and arrive at a solution that would save the face of one of the two parties. This result could not have been achieved by a quick jump or a fiat. Provision B says: "Both sides agree that discussions between them will begin immediately to settle the question of the return to the October 22 positions in the framework of agreement on the disengagement and separation of forces under the auspices of the UN." This provided for a syntactical ambiguity that allowed Egyptian and Israeli negotiators to interpret their accord in diametrically opposite ways. Egyptian negotiators interpreted this provision as a clear demand that Israel withdraw its armed force in accordance with UN SC Resolution 340, linking "return to the October 22 positions" and "under the auspices of the UN". By contrast, Israeli negotiators interpreted the provision as calling on the parties to negotiate a "separation of forces" agreement without any specific request to return to the October 22 lines, by linking "discussions... to settle the question" and "under the auspices of the UN".
Syrian-Israeli peace negotiations
In the course of the Syria
Syria
Syria , officially the Syrian Arab Republic , is a country in Western Asia, bordering Lebanon and the Mediterranean Sea to the West, Turkey to the north, Iraq to the east, Jordan to the south, and Israel to the southwest....
n-Israeli peace negotiations, the call for a "comprehensive, just, and lasting peace" was replaced by the formula of "full peace for full withdrawal" in May of 1993. The former requirement tended to link the Syrian-Israeli talks to the Palestinian and other negotiating tracks, whereas the latter formula of "full peace for full withdrawal" tended to sever such links and ties in favor of a separate settlement that "stands on its two feet," as the Israelis put it. This short-lived "constructive ambiguity" may have witnessed a face-saving attempt by Syrian President Hafez Asad to maintain coordination among the different Arab-Israeli negotiating tracks, while offering Israel a full contractual peace in return for the Golan Heights. The revelation of the Oslo Accords
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...
between Israel and the PLO in the summer of 1993 effectively ended this ambiguity, whereas the subsequent Israeli-Jordanian peace treaty
Israel-Jordan Treaty of Peace
The Israel–Jordan Treaty of Peace was signed in 1994. The treaty normalized relations between the two countries and resolved territorial disputes. The conflict had cost roughly US$18.3 billion...
of October 1994 rendered it irrelevant. Syria's neighbors, for their part, no longer sought "comprehensive peace".
Sinn Féin
Sinn Féin
Sinn Féin
Sinn Féin is a left wing, Irish republican political party in Ireland. The name is Irish for "ourselves" or "we ourselves", although it is frequently mistranslated as "ourselves alone". Originating in the Sinn Féin organisation founded in 1905 by Arthur Griffith, it took its current form in 1970...
is a political party in Northern Ireland that was often affiliated with terrorism while pursuing Irish unity
United Ireland
A united Ireland is the term used to refer to the idea of a sovereign state which covers all of the thirty-two traditional counties of Ireland. The island of Ireland includes the territory of two independent sovereign states: the Republic of Ireland, which covers 26 counties of the island, and the...
. US Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
Special Envoy Mitchell Reiss
Mitchell Reiss
Mitchell B. Reiss is a senior American diplomat who became the 27th president of Washington College in Chestertown, Maryland on July 1, 2010. He served as Director of Policy Planning at the United States Department of State under Colin Powell...
has pointed out its cynical use of constructive ambiguity, when in the 1990s, Sinn Féin adopted a strategy labeled as “TUAS.” Within the policy document, this acronym meant “Tactical Use of Armed Struggle”; however, the same acronym was publicly translated to mean “Totally Unarmed Strategy.”
Constructive Ambiguities in International Trade Law
Some recent bilateral trade agreements such as the Australia-United States Free Trade AgreementAustralia-United States Free Trade Agreement
The Australia – United States Free Trade Agreement is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement . The free trade agreement was signed on 18 May 2004, ratified by the U.S. House of Representatives on 14 July 2004 by a...
(AUSFTA) and Republic of Korea-United States Free Trade Agreement (KORUSFTA)have produced final texts after contentious and largely unresolved negotiations about whether, for example, pharmaceutical innovation
Innovation
Innovation is the creation of better or more effective products, processes, technologies, or ideas that are accepted by markets, governments, and society...
(a constructive ambiguity) should be 'valued' (also a constructive ambiguity) through the operation of nominally competitive markets (requiring strong anti-trust law to be effective) (the United States position) or through expert evidence-based assessment of objectively demonstrated cost-effectiveness
Cost-effectiveness
Cost-effectiveness analysis is a form of economic analysis that compares the relative costs and outcomes of two or more courses of action. Cost-effectiveness analysis is distinct from cost-benefit analysis, which assigns a monetary value to the measure of effect...
)the Australian and Korean positions). Concern has been expressed in the academic literature that the inclusion of Non-violation nullification of benefits
Non-violation nullification of benefits
Non-violation nullification of benefits claims are a species of Dispute settlement in the World Trade Organization arising under World Trade Organisation multilateral and bilateral trade agreements. NVNB claims are controversial in that they are widely perceived to promote the social vices of...
(NVNB)provisions in such bilateral trade agreements could encourage ongoing lobbying
Lobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
by multinational corporations of domestic policy makers to pass legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
rewarding their version of the trade deal mentioned constructive ambiguity of innovation
Innovation
Innovation is the creation of better or more effective products, processes, technologies, or ideas that are accepted by markets, governments, and society...
(see Annex 2C.1 of the AUSFTA) causing issues for democratic sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
over domestic policy.