Detención ilegal y arbitraria, desde la Corte Interamericana de Derechos

If prenegotiations are successfully concluded, the next task for sender and target state would be to move into “around the table mode”. For constructive engagement this means that the negotiators try to agree on basic principles of a settlement: “the formula stage”. 227 Once this important point has been reached: that is the perception by each side that the other is serious about finding a negotiated solution, each side must now decide how to present the case in the most convincing and tactically advantageous light. While most scholars on negotiation assume a universal diplomatic culture, 228 negotiators, however, maintain that culture and language are formative concerning methods of approaching the formula. Hence, two basic styles of persuasion can be identified. The “factual-inductive” which draws conclusions on the basis of factual evidence: eschewing a grand philosophical debate, it plunges straight into discussion 226_{Morton E. Winston, “Assessing the Effectiveness of International Human Rights NGOs”, in Claude E.}

Welch (ed.), NGOs and Human Rights: Promise and Performance (Pennsylvania: University of Pennsylvania Press, 2001), p.27

227_{G. R. Berridge, Diplomacy – Theory and Practice, p. 46} 228

Zartman and Berman argue that cross cultural idiosyncratic differences can be accommodated within a general model of negotiation.seeI. William Zartman and Maureen R. Berman, The Practical Negotiator, pp.225-228

of concrete detail, building an agreement primarily through mutual compromise of exchanged concessions. This style is the Anglo-Saxon pragmatic tradition of the common law on which most western diplomats rely and which is also consistent with the legal training that most public officials have received. 229The second approach is the “axiomatic-deductive” style which first establishes the principles, or formula, governing the issues susceptible of a solution and then works out the implementing details. Zartman argues that the deductive approach based on a formula is both present and desirable in successful negotiations 230 and it is therefore viable for constructive engagement. This approach is particularly useful for cross-cultural negotiations, reconciling a high context 231 approach of first agreeing on axioms and philosophical principles with a low-context 232 pragmatic approach of concession and compromise. 233

Recognizing a formula is essentially sharing a perception or definition of the conflict and establishing the cognitive structure of reference for a solution. A formula involves general considerations rather than precise measures, and therefore leaves room for manoeuvring in the final determination of details. But it also supplies guidelines for recognizing when detailed bargaining on specifics went beyond simple bargaining and instead implied an agreement on a different notion of justice or allocation. 234Finding a formula during constructive engagement means confronting the basic elements of demands and rewards. Trial and error is still the best way of reaching an agreement,

229_{Raymond Cohen, Negotiating across cultures – International Communication in an Interdependent}

World, (Washington D.C., US Institute of Peace Press, 2000), p. 100

230_{I. William Zartman and Maureen R. Berman, The Practical Negotiator, p. 93}

231_{A high context culture communicates allusively rather than directly. As important as the explicit content}

of a message is the context in which it occurs, surrounding non-verbal cues, and hinted-at nuances of meaning. Loss of face (humiliation before the group) is an excruciating penalty to be avoided at all costs. This negotiation style is therefore shame orientated rather than guilt orientated. Directness and especially contradiction are much disliked. It is also hard for speakers of this kind of culture to deliver a blunt no. see Raymond Cohen, Negotiating across cultures – International Communication in an Interdependent World, p.32

232_{Low context culture exemplified by the United States and Europe reserve a different role for language.}

What has to be said is stated explicitly. While politeness is obviously not precluded but negotiators of low context cultures hardly see the need for contrived formulas and verbal embellishments. Hence, guilt not shame is the psychological price paid for misdemeanour. Ibid ,p.32

233

Raymond Cohen, Negotiating across cultures – International Communication in an Interdependent World, p.106

according to Zartman. 235 The sender may come up with a framework for agreement that is comprehensive, relevant, balanced, flexible and seemingly irreplaceable, and still the target turns it down. They only way is to try again. While both sides are trying to make positions plain, the search for referents, criteria, perceptions, definitions, and principles rooted in each party’s stand goes on. Working on this level, it becomes much easier to find the elements needed to formulate a framework for the solution. 236 The process of proposing and the tactics of trial and error can be improved by first preparing alternative formulas as well as simply gathering information. These alternative formulas should include possible offers that the target may come up with, along with alternatives the sender might find equally attractive followed by any other proposal that may be salient at the moment. The greatest advantage of preparing alternative formulas is not in seizing the other party’s acceptable proposals, but in being ready to counter his unacceptable ones and to shift to a new proposal if the first fails – that is what Zartman refers to as trials and errors. 237 A crucial part of the process of making the target accept a certain formula is the way inducements are presented. Particularly at this stage, the sender has to make it clear that good outcomes will follow from accepting the formula. Similarly, warnings that defection of too many proposals for a formula will naturally leave both parties with undesirable outcomes can help shape the target’s perception or alternatives, although if too coercive they may instead contribute to increased resistance. 238Once sender and target agreed on a formula either by joint discovery or by the sender’s proposal, the search for detailed agreements can begin.

235_{ibid, p. 118} 236

ibid, p. 120

237_{ibid, p. 121} 238_{ibid, pp. 127-128}