International Negotiation
1:
313–??, 1996.
313
c
1996
Kluwer Law International. Printed in the Netherlands.
American Strengths and Weaknesses
TOMMY T.B. KOH
Institute of Policy Studies, Han Sui Sen Memorial Library Building, Kent Ridge Drive,Singapore 119260
Editor’sNote.
FormerAmbassadorofSingaporetotheUnitedStatesTommyT.B.Kohreflectson American negotiating strengths and weaknesses. Koh also served as president of the ThirdU.N. Law of the Sea Conference, Chairman of the Preparatory Committee for and main Com-mittee at the UN Conference on Environment and Development (Earth Summit), 1990–1992,and UN’s Special Envoy to Russia, Estonia, Latvia and Lithuania.
Key words:
U.S. negotiating style
American Strengths and Qualities
Two caveats are appropriate for any discussion of national negotiating styles.First,theremaynotnecessarilybeadefinablenegotiatingstyleforeachcoun-try or people. Good and effective negotiators, irrespective of their nationalor cultural background, have certain common skills. Second, although it isprobably possible to say impressionistically that the American people pos-sess certain character and personality traits, there are many exceptions to therule, and a person’s negotiating style is inevitably affected by his character,temperament, and attitude toward people.American negotiators have many strengths and qualities. If distance makesthe heart grow fonder, my perception of Americans may be unrealisticallyfavorable and idealized, since Singapore is located 12,000 miles away fromthe United States.First,U.S.negotiatorsareusuallywellprepared.Theyarriveatnegotiationswiththeirhomeworkcompleted,andtheyarearmedwithfacts,figures,maps,andcharts.Theyusually knowwhat their nationalinterests are and what theirnegotiating objectives are. This is not always the case among Third Worldnegotiators.Second, American negotiators tend to speak clearly and plainly. As some-one who was educated in the Anglo-Saxon legal tradition, I regard this as avirtue, not a liability. However, the American preference for plain speakingcan sometimes cause unintended offense to other negotiators whose national
J.K.; PIPS No. 112753 LAWKAPiner25.tex; 17/08/1996; 11:39; v.5; p.1
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TOMMY T.B. KOH
culture prefers indirectness, subtlety, and avoidance of confrontation. Thereare, of course, exceptions to this rule.Third, U.S. negotiators tend to be more pragmatic than doctrinaire. Theyfocus on advancingtheir country’s interests rather than principles which theycherish. The Reagan administration, however, was a clear exception to thisrule, and at the Third U.N. Conference on the Law of the Sea, decided,for rational and arguable reasons, that principles were more important thaninterests.Fourth, American negotiators generally do not regard negotiations as azero-sum game. A good U.S. negotiator is even prepared to put himself inthe place of his negotiating adversary. A good U.S. negotiator is preparedto admit that his adversary, like himself, has certain irreducible, minimumnational interests. A good U.S. negotiator is prepared to engage in a processof give and take, and he believes that the successful outcome of a negotiationis not one in which he wins everything and his adversary loses everything,but rather one in which there is a mutuality of benefits and losses, in whicheach side has a stake in honoring and maintaining the agreement.Fifth, a U.S. negotiator’s opening position is never his final position. Heexpects his opponent to make a counterproposal or a counteroffer. He isanxious to reach an agreement and will, therefore, make concessions to hisopponent,expecting–notunreasonably–thathisadversarywillbehaveinlikemanner. Americans are sometimes completely exasperated at internationalforums when their adversaries do not behave as they do.Sixth, the American people are very candid and straightforward, and thisis reflected in their negotiating style. Americans are not usually perceived ascunning or devious. In only one incident have I found American negotiatorsto be devious, and that was shocking. This incident occurred in July 1981whentheUnitedNationssponsoredaninternationalconferenceonCambodia.Theconferencewas initiated by the ASEAN(Associationof SoutheastAsianNations) countries, which proposed a framework for the resolution of theCambodian situation. All Cambodian factions were invited to participate inthe conference,including,of course,the Khmer Rouge.Vietnam was invited,but boycotted the meeting. At the conference, General Alexander Haig, thenU.S.SecretaryofStatestagedadramaticwalk-out,accompaniedbytheentireU.S. delegation, when the Khmer Rouge leader approached the rostrum tospeak. The picture of this walk-out appeared on the front page of the
NewYork Times
.On a subsequent day, the ASEAN countries and the People’s Republicof China (PRC) were locked in a ferocious confrontation over the futurerole of the Khmer Rouge in any post-settlement Cambodia. The ASEANcountries argued that in light of the massacres and atrocities that the Khmer
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AMERICAN STRENGTHS AND WEAKNESSES
315Rougehadcommitted,itwouldbemorallyandlegallyimpermissibletoallowthem to return to power. We demanded a public election to be organized andsupervised by the United Nations. To ensure free elections, we insisted thatall armed elements be disarmed or sequestered in camp. The Chinese foughtagainst all these points. The negotiating group was composed of twenty-fivedelegations, but the dynamics of the discussions revolved around the PRC,the ASEAN countries, and Pakistan as a middleman. Pakistan, however, wasnotan honestbroker andbasicallysubmitted aseries of amendmentsto dilutethe ASEAN position. I assumed that Pakistan, becauseof its proximity to thePRC, was “fronting” for the Chinese,and was shockedto learn later that theywere actually fronting for the Americans. Although the American delegationhad publicly walked out of the negotiations, they were privately supportingChina for geostrategic reasons. This is the only example of devious behaviorby American negotiators of which I am aware, but I will remember it.
Weaknesses and Idiosyncrasies
One problem in negotiating with Americans is that American delegationsusually suffer from serious interagency rivalries. During the U.N. Law of theSea Conference, the American delegation met every morning and sometimestheirinternalmeetingslastedlongerthantheothermeetingsintheconference.A second problem in negotiating with the United States is the separationof power between the administration and the Congress. One has to be verycareful if one is negotiating an agreement that is subject to ratification by theU.S. Senate. It is important to always keep in touch with U.S. senators asthe negotiating process continues in order to obtain their independent inputs,be aware of their sensitivities, and recognize vested domestic interests andblocking constituencies.A third special characteristic is the influence of the U.S. private sector andprivateinterestgroupsonnegotiations.DuringtheLawoftheSeaConferenceI made it a point to meet not only with the official U.S. delegation andmembers of the Congress, but also to meet with representatives from theseabed mining industry, the petroleum industry, fishing industry, the marinescientific community, the environmental lobby, and individuals who have anaffection for marine mammals. The reality of political life in America is thateven one of these many lobbies can block ratification of a treaty. Foreignnegotiators must understand the domestic political process in the UnitedStates and must, in some way, interfere in American internal affairs to ensurethe success of their mission.A fourth problem – the role of U.S. media – is a problem more for U.S.negotiators than for their counterparts. This is a problem because somehow
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