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Negotiating Tradition

Stefan Groth


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Juridically speaking, none of these paragraphs makes any sense. It’s a mess.
Delegate of the U.S. during a Drafting Session at IGC 17

In the Caribbean, we have a story: a locust comes to a barn, picks a corn, and flies away. On the next day, he comes again, picks a corn, and flies away. The next day, he comes again, picks a corn, and flies away again. The IGC is like this.
Conversation with ILC Representative at IGC 13

  • 220 If widely adopted, this would be a success, as the political pressures stemming from such a declar (...)

1The sluggishness of IGC negotiations is astounding. Each session I attended saw delegations proclaiming they would leave the negotiating table if things didn’t speed up, yet at the end of these meetings, delegates left with little to show for their efforts. True, some progress has been made since the IGC’s installment in 2000, and draft texts are beginning to coalesce, but an international, legally binding, agreement is not in sight. More importantly, such an agreement would still have to be adopted by WIPO member states. It is conceivable that the outcome of these lengthy IGC deliberations might be no more than a non-binding convention or something similar to the Declaration on the Rights of Indigenous Peoples.220

2On the other hand, WIPO negotiations do exert considerable influence on other processes at the national, regional and international level. Actors refer to arguments used in the IGC to strengthen their position, lawmakers use IGC provisions to draft national legal instruments, and bilateral agreements between member states, or between corporations and ILCs, take the issues discussed at WIPO into account.

3Current scholarly research on the constituting of cultural property lacks reflection about the negotiations themselves, including about communicative practices and events. The aim of this study has been to shed light on the relationship between language and an international committee dealing with the protection of TK, TCEs and GR. Its focus has been to better understand the communicative processes involved and to gain insights into the interrelations between WIPO and other organizations or comparable situations.

4The study began by surveying the debate on cultural property, and putting it in the context of broader scholarly debates. The second chapter introduced a theoretical and methodological framework drawn from linguistic anthropology, the ethnography of communication, and linguistic pragmatics. In the third chapter, the development of IGC negotiations, the range of actors and communicative events as well as the contexts in which they are situated in were delineated. This revealed the main difference between groups of member states as one between speeding up and stalling. The fourth chapter provided a detailed, case-rich, analysis of communicative strategies and patterns, while the fifth chapter sketched the diverging perspectives on TK and TCEs coupled with terminology and communicative events of the IGC.

5International negotiations exist as a series of communicative events in which actors negotiate meaning with a view to achieve their particular goals. Decisions are made through a process of drafting, revising and discussing, which can involve being precise at one point and vague at another. The process involves making oral and written statements that are translated and checked for accuracy and mistakes. Differing terminology needs to be comprehended and used to take account of various fora and issues. Finally, the communicative styles vary from venue to venue and conflicting language ideologies are in place.

6All these language-related aspects point to a major necessity for participants: they must have communicative competence to be able to effectively engage in negotiations. Technical competence in a given issue is insufficient. Actors also must have the linguistic competence to switch communicative styles, to micro-edit the meaning inserted into documents, and to recognize ambiguities in speech and text.

7Communicative competence in this context is twofold. First, it entails the ability of an individual or a group to decipher the meaning of terminology and the arguments employed. Shifting perspectives are used to translate contextualized sociopolitical realities into specific discourses and terminology. For the purposes of analysis, these translation processes need to be retraced to grasp the meanings and implications. Second, communicative competence entails translating and transforming issues into a perspective adequate to the specific context and referential frame. Communicating one’s viewpoint is less an issue of being proficient in the question at hand than it is the ability to analyze underlying perspectives and intentions - and thus being able to place oneself into what one regards as an advantageous position. Communicative competence in this sense does not only mean that what is said is appropriate in a specific situation, but also that what is said is conducive to one’s intentions, and this might be described as the strategic dimension of communicative competence coupled with the reflexivity about linguistic performance, referential frames and boundary objects in the context of a communicative event.

  • 221 See also Bizer et al. 2010 for an economic analysis of IGC negotiations as a game of “minimal resu (...)

8Thus, because pragmatic strategies employed in discussions are what essentially constitute processes and outcomes, the pragmatics of speech and the performative aspects of language are of central importance for negotiations. For that reason, the role of pragmatics is significant, since both actors and their competence is contingent both on pre-structured communicative conventions and patterns and contingent on the dynamics of negotiations. The resulting contingencies and ambivalences allow participants to manipulate and exploit the communicative context according to their interests, capitalizing on instabilities caused by the emergent status of the speech community. The nascent or emergent character of the speech community is not a passing characteristic in the negotiations. Rather, because delegations see advantages in these inconsistencies, they are interested in maintaining this “state of exception” (Agamben 2005) as a basis for negotiations. In this vein, one might also term it a speech community of exception. Speeding up delegations benefit from the slow, minimal progress221 as they can generate political, procedural and ethical pressure as a result. That leads to instabilities which need to be countered by concessions offered by the stalling delegations. Stalling delegations, on the other hand, are able to keep discussions on TK, TCEs and GR out of other fora only by making minimal progression, which is achieved by using micro-editing and other pragmatic strategies.

9While all member states thus create instabilities, either by bringing direct pressure to bear or by arguing that the IGC’s work does not yet suffice for an agreement, there is a simultaneous construction of a stability that prevents the negotiations from collapsing. The balance between the instabilities and stabilities that keep the committee in a state of exception is maintained primarily by employing pragmatic strategies. This is exactly why it is so important to take the study of language and language use into account when analyzing international negotiations – and not only over issues of cultural property.

10The instantiations of communicative patterns and strategies analyzed in this study show how actors mediate between different perspectives and contexts, attend to their interests and capitalize on situations of stability and instability. Referring to structural aspects and existing presuppositions for negotiations on the one hand, and dynamic features, contingencies and ambivalences of context, meaning and procedure on the other hand, their activities take place in, and help constitute, a discursive field ridden with contested denotations, strategic behavior, rules and conventions. It makes the IGC both chaotic and ordered at the same time.

11Actors pursue strategies in international negotiations and use terms conducive to their interests. The use of terms in international negotiations is contingent on the context of the utterance, both synchronically and diachronically. To act efficiently, speakers must take pragmatic and semantic meanings and terms into account, and they have to consider the relevant referential frames and audiences. Utterances, as instantiations of communicative patterns and strategies, need to reflect on the ambiguity, vagueness and instability of a speech community in emergence. One way to use this latitude to one’s advantage is by strategically deployable shifters, as they help evoke a reaction by the opposing parties. Creating such situations involves intensifying instabilities as well as generating stability. A speaker can refer back to a stable, authoritative position, while the recipient must make an effort to stabilize the situation.

12The context of the IGC is one of differentiation with respect to the substantive issues being discussed. That context is one of differing, underlying conceptions and presuppositions: these are crucial for understanding the communicative processes and strategies actually adopted. They are closely coupled with terminological constellations and contested denotations of terms, which strengthens an argument for using the ethnography of communication and linguistic pragmatics as methodological and theoretical frameworks for this study. As a core concept, the speech community allows for a perspective on negotiation processes as mediating between structure and process while taking into account the diversity of participants as well as their different skill sets and levels of competence. As it does not presuppose a shared understanding, but rather argues for a partial mutual intelligibility of core issues and strategies on the part of participants, the speech community is a way of characterizing the complex constellations observed at the IGC meetings.

13The pragmatic strategies and patterns of language use in the IGC can best be understood as instantiations of communicative patterns and strategies. What can be observed are not static reproductions of certain linguistic fragments or the repeated use of a fixed set of strategies, but dynamic, adapted instantiations of such patterns and strategies in context.

14Two distinct types of referential frames can be distinguished in this context. The first has strong indexical meaning and assumes a high degree of shared denotationality (with respect to specific terms signifying different stages of negotiation. The second frame has weaker indexical meaning, refers largely to generalized statements, and its implications are, when compared to the first frame, only minor.

15Referential frames are partly determined by their corresponding audiences. Here, the first referential frame refers to specific steps of action and procedures, while the second frame consists of unspecific ideological values with no implied actions. Actors shift between these two frames to make their arguments and bolster their strategies. When the first referential frame does not serve their interests or when it has been compromised by delegations in opposition, there is a switch to the second frame, and vice versa. These referential frames are also marked by a particular type of discourse: resistance to progress can be, and is, framed as caused by technical or procedural issues.

16Shifting referential frames creates an instability that produces stability and instability at the same time: it therefore allows for a number of pragmatic strategies to be adopted. The use of referential frames gradually produces results, since returning to earlier stages of negotiations would imply rejecting the process. Referential frames mediate between the two stances of stalling and speeding up, where the former is primarily taken by developed countries not interested in any change of the intellectual property system and the latter is taken by delegations calling for a quick solution in the form of an international legally-binding instrument.

17Referential frame shifting is also expressed in through the process of micro-editing. By changing small utterance fragments, actors frame texts and passages according to their perceptions and interests. Micro-edits are compensatory mechanisms that permit conflicting utterances and views to be aired while maintaining a degree of stability of the IGC as a speech community at the same time. Micro-edits are highly variable, strategically deployable shifters, whose meaning is mostly viable at the pragmatic, and not on the semantico-referential level.

18Shifters have little to no semantico-referential meaning yet realize a pragmatic function, since the social dimension of the utterance is of what is important. As the meanings of shifters change depending on context, they cause uncertainty as to the specific pragmatic and referential meaning of an utterance. The indeterminacy and variability of shifters makes it possible to use them as part of pragmatic or useful strategies for opening statements or other communicative events in international negotiations. They enable delegations to express their perspective and signal their position to the recipients of a communicative event without having to expand on the implications and presuppositions of their utterance. Shifters not only differentiate between positions, they also map the common ground between actors who otherwise hold incommensurable views. They mediate between actors, contribute to the cohesion of the committee, and allow fundamentally different viewpoints to be expressed, part of the foundation that allows participants to negotiate at all. By indexing negotiating positions, shifters differentiate between actors and interests and refer to perspectives with regard to the substantive issues negotiated in the IGC. As they are shifting depending on the context, it is necessary to reflect this flexibility and resulting ambiguity on the analytical level.

19Opening statements and other conversational genres heard at the IGC contain boundary objects as terms, phrases or rhetoric that bring together otherwise fundamentally different social actors. They enable actors from “intersecting social worlds” (Star and Griesemer 1989: 393) to maintain a coherent and stable identity, in this case the IGC as a speech community, even though it contains divergent, incommensurable viewpoints. The resulting speech community is flexible, as it draws from a coherence established by common factors, terms and viewpoints. Boundary objects in the context of the IGC mediate between the two main positions of stalling and speeding delegations.

20Boundary objects, strategically deployable shifters, and the recipient design of opening statements are dynamic and constantly changing in response to external and internal factors. They are subject to dynamic processes influenced by the composition of actors and strategies. Boundary objects and shifters can also signal a specific stage in negotiations, as illustrated by the phrase “text-based negotiations”. To some extent, this flexibility is also the result of the “state of exception” of the IGC as a speech community. If the coherence of the speech community cannot draw from an extensive history and stable communicative conventions, shifts in meanings and understandings are more likely to happen, and furthermore may even be desired by actors.

21The results of this study are important for two reasons. First, they point to the need for an analytical triangulation in studying international negotiations. The ethnography of such processes needs to be complemented by micro-linguistic analyses of communicative practices and strategies in order to grasp what is happening in negotiations, at which different levels, and in relation to which referential frames. The speech community is a fruitful, expandable concept that combines these elements. Context is the third important part of the analytical triad. Macro-processes beyond the particular setting being analyzed needs to be taken into account to understand the relations between the different levels – for instance illustrated by the perspectives of differentiation on traditional knowledge as outlined in this study.

22Second, this study shows the importance of the ethnography of communication and linguistic pragmatics for the analysis of international negotiations. The pragmatics of negotiations over cultural property in this case significantly determines processes and outcomes at the international level. Without an analysis of language use in this committee, an ethnography would fail to account for important aspects and miss the dynamics, and structures, that make these negotiations possible in the first place. As pragmatic strategies are the condition for international negotiations to work, neglecting them at the analytical level would be a serious mistake.

23For this reason I propose that such a methodological and theoretical triad of pragmatic-linguistic analysis, ethnographic contextualization and theorizing on the macro-level is needed for the study of international negotiations, in speech communities like the IGC, as well as in other international fora.


220 If widely adopted, this would be a success, as the political pressures stemming from such a declaration could benefit ILCs immensely.

221 See also Bizer et al. 2010 for an economic analysis of IGC negotiations as a game of “minimal results”.

© Göttingen University Press, 2012

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