Between communicative action and strategic action: the Article 113 Committee¹

Since the renumbering of articles following the Amsterdam Treaty, the former Article 113 Committee is now called the Article 133 Committee. As EU negotiations on the WTO Agreement on Basic Telecommunications Services took place before this change, the committee in question will be referred to as the Article 113 Committee in this article.

and the negotiations on the WTO Basic Telecommunications Services Agreement

Abstract

This article argues that Habermas’s concept of communicative action significantly adds to our understanding of EU negotiations concerning the WTO Agreement on Basic Telecommunications Services. Accounts of bargaining and strategic action alone leave us in the dark about important parts of these negotiations. Building on existing work, the paper suggests how the concept can be made operationalizable for empirical research. The most important step in this direction has been a further specification of the conditions conducive to communicative action. Important conditions that have been identified are: a strongly shared ‘lifeworld’ amongst negotiators, uncertainty and lack of knowledge, technical or cognitively complex issues, the presence of persuasive individuals and low levels of politicization. By contributing to the conditions and mechanisms of actors’ preference and (norm) change, the article adds to the debate on socialization. As the concept of communicative action advanced our understanding of international negotiations, it should generally contribute to our comprehension of EU negotiations: an important precondition for communicative action, the existence of a shared lifeworld is particularly well developed in the EU, given its dense patterns of institutionalization and socialization.

Keywords:

• Article 113 Committee
• basic telecommunications services
• communicative action
• constructivism
• negotiation
• strategic action

Acknowledgments

I am grateful to Alexander Brand, Geoffrey Edwards, Martin Falbe, Anja Hennig, Patrick Leblond, Melanie Morisse-Schilbach, Stefan Robel and two anonymous referees for their comments on earlier drafts.

Notes

Since the renumbering of articles following the Amsterdam Treaty, the former Article 113 Committee is now called the Article 133 Committee. As EU negotiations on the WTO Agreement on Basic Telecommunications Services took place before this change, the committee in question will be referred to as the Article 113 Committee in this article.

One has to distinguish between the theory and what I refer to as the concept of communicative action. While the concept denotes a particular mode of action, the theory of communicative action not only entails communicative action, but other alternative modes such as strategic action (cf. Habermas 1981, 1986, 1992 ). This analysis focuses on the concept not the theory, unless indicated otherwise.

There is more literature on the related aspects of ‘persuasion’ (e.g. Checkel 2002) and ‘deliberation’ (e.g. Joerges and Neyer 1997).

Although Habermas did provide three necessary preconditions for communicative action (cf. p. 382), these are held to be insufficient for determining when actors change behaviour from strategic to communicative action (e.g. Keck 1995).

Keck (1995: 34) complains that Habermas ties ‘strategic action’ to an egotistical value system, while, according to Keck, it is compatible with altruistic values. Müller (1994) has convincingly contended that in the mainstream rational choice IR literature (e.g. Keohane 1984) actors are reduced to utilitarian egoists. Hence, Keck uses a very broad account of rational choice. I follow the more narrow mainstream conception of rational choice and strategic action.

Recently, a number of scholars have begun to reverse this trend. Drawing on new institutionalist and constructivist insights, they see EU negotiations as characterized by ‘problem-solving’ (cf. e.g. Elgström and Jönsson 2000; Lewis 1998). Some earlier works such as Haas (1958) view Community negotiations in similar terms.

Even where reference is made to the Council, substantive negotiations will have taken place at the official level in most instances. Hayes-Renshaw and Wallace (1997: 78) have estimated that about 85 per cent of the decisions taken by the Council are effectively negotiated and decided at the diplomatic level of the Council framework.

‘Persuasion’, the process of convincing someone through reasoning, has to be distinguished from communicative action. While the former places causal weight chiefly on the persuasive appeal of the interlocutor and the open-mindedness of the persuasion target, the latter mainly emphasizes the force of the better argument (Checkel 2002: 4).

Deliberating (considering and discussing reasons) is broader than reasoning and arguing. Reasoning (modification in view by persuasion) has been distinguished from arguing (the transition from premises to conclusion) by emphasizing cognitive change (cf. Ullmann-Margalit 2000: 5; Concise Oxford Dictionary 1990).

In this type of literature, communicative rationality is most explicit in Lewis (1998)

In its Opinion 1/94, the European Court of Justice ruled that in the area of services, which is relevant here, the Community and member states shared competence (except for the cross-border supply of services). In a Code of Conduct for negotiations on services reached between the Commission and the Council in 1995 it was agreed that the Commission should continue to act as sole negotiator, while member states could attend negotiations. With the Treaty of Nice, services other than cultural, audiovisual, education, social and health services have been brought under the scope of Article 133 (ex 113).

Note that – as negotiations were conducted under shared competence (cf. previous note) – ‘EU’ here denotes ‘the Community and member states’. In the context of these negotiations the two terms will be used interchangeably.

This is largely due to the fact that basic telecoms had already been briefly discussed during the Uruguay Round.

By the mid-1990s some countries, including the US and the UK, allowed telecommunications firms to resell capacity to other firms, thereby making these countries cheap hubs for international traffic from across the world. So-called ‘call- back’ services let consumers in countries with high telecommunications rates telephone abroad at inexpensive US or UK rates. In addition, digital technology, particularly the internet and the mobile-telephone network, allows users to bypass traditional voice-telephone networks (e.g. The Economist, 22 February 1997).

Once a service has entered a member state (with low external barriers), so the argument goes, it can be easily traded across the internal frontiers of the single market (interview 1997).

For example, it would bring about foreign investment in a growth sector, new (mainly quality) jobs and lower prices for consumers.

The single market argument led some officials to come to similar conclusions. However, they did not regard the single European market argument as a ‘k.o. argument’, but considered themselves to have substantial negotiating space (cf. pp. 396–7).

The two most disputed issues were foreign ownership restrictions and the general derogations from liberalization. Towards the end of the pre-negotiations, Portugal, Ireland, Luxembourg and, more cautiously, Spain signalled that they would not take up the entire transition period which they had been granted to prepare for competition. This preference change has been attributed to deliberations in the 113 setting (interviews 1997, 1999). Only four countries (Belgium, Spain, France and Portugal) tabled moderate foreign ownership restrictions. Spain, France, Portugal and Belgium would have been more restrictive in their approach to the participation of non-EC nationals had it not been for the pre-negotiations (interview 1997). Luxembourg, Ireland and Greece ‘would most certainly have wanted foreign ownership restrictions included [beyond those that were insubstantial]’ for their countries, ‘unless we had participated in such extensive preliminary discussion’ (interview 1997; cf. WTO 1995).

In the constructivist literature, norms (‘collective expectations about proper behaviour for a given identity’) have been regarded as moulding actors’ interests but also as shaping policies directly (cf. e.g. Jepperson et al. 1996: 52–4).

France withdrew limitations on indirect participation of non-EC companies. Belgium removed all limits on non-EC foreign investment in telecoms facilities and services. Portugal made no direct concessions on commercial presence, but instead lowered the transitional period of market access for public voice telephony and facility-based services from January 2003 to January 2000 and July 1999 respectively.

Spain was regarded as an important market by the United States. Perhaps more importantly, Telefonica operated as a monopoly in some Latin American countries. If Telefonica opened its home market, the US hoped that some Latin American countries would be encouraged to follow suit (Enser 1998: 292).

Most of the bilateral negotiations took place at a very high level. For the Commission, Sir Leon Brittan led most of the bilateral talks. At the beginning, he hardly knew his Spanish counterparts, Ministers Rafael Arias-Salgado and Rodrigo Rato, who assumed their ministerial responsibilities only in May 1996. The level of interaction and socialization hence does not compare to the common lifeworld of the 113 Committee (interview 1997).

Karl Falkenberg, Commission representative in the 113 Committee (Services), whose persuasiveness was undisputed, was little involved in bilateral negotiations with Spain. Sir Leon Brittan, who led most negotiations with Spain, has a mixed reputation as a negotiator. While his intellectual skills are highly rated, he has been described as ‘high-handed’, ‘aloof’ and ‘lecturing’ in his negotiations with member states, even by Commission officials (cf. Financial Times, 9 March 1999; Niemann 2000: 136). The latter attributes are not conducive to persuasiveness (cf. e.g. Checkel 2001: 563).