The Art of Getting More Back in Diplomacy

The Art of Getting More

Back in Diplomacy

Negotiation Lessons from North Korea,

China, Libya, and the United Nations

Eric N. Richardson

University of Michigan Press

Ann Arbor
Copyright © 2021 by Eric N. Richardson
All rights reserved

For questions or permissions, please contact [email protected]

Published in the United States of America by the University of Michigan Press

Manufactured in the United States of America
Printed on acid-­free paper
First published October 2021

A CIP catalog record for this book is available from the British Library.

Library of Congress Cataloging-­in-­Publication data has been applied for.

ISBN 978-­0-­472-­07506-­5 (hardcover: alk. paper)

ISBN 978-­0-­472-­05506-­7 (paper: alk. paper)
ISBN 978-­0-­472-­12953-­9 (e-­book)
Contents

Acknowledgments vii

Chapter 1. Introduction: How to Get More Back in

Multiparty Negotiations 1

Part I: Deploying Negotiating Theory and Tactics in Select Case Studies

Chapter 2. Negotiation Theory Overview: Setting the Stage 13

Chapter 3. Oft Used Negotiation Tactics and Diplomatic
Responses for Your Negotiation Toolkit 27
Chapter 4. DPRK, Denuclearization Discussions, and BATNAs
(Best Alternative to a Negotiated Agreement) 35
Chapter 5. Libya and the Negotiation for a Unity Government:
Local Power Outlasts the Ivory Tower 51
Chapter 6. Creating the First International Monitor on
LGBTI Rights: Asking Too Much or Too Little? 57
Chapter 7. Surveillance, Free Expression, and the Right to Privacy
in the Digital Age 65
Chapter 8. Sudan: Giving Respect and Salvaging Compromise
from the Worst Alternatives to a Negotiated Agreement 75
Chapter 9. Waking the Sleeping Dragon: Overplaying the Hand on
Human Rights Negotiations with China 87
vi  Contents

Part II: Multiparty International Negotiations and Structural Factors

Chapter 10. Participants, Observers, and Guarantors:

Is Anyone Truly Neutral? 99
Chapter 11. Host or Matchmaker? Using Convening Power as a
Vehicle for Mediation, Influencing Counterparts,
and Controlling Outcomes 111
Chapter 12. Combatting Genocide with a Little Help from
My Friends: Empowering Partners 133
Chapter 13. North Korea Back Again: A Victory for
Trumpian Negotiation or a Defeat for Everyone? 143
Chapter 14. Conclusion: You Can Get More Back . . .
Without Giving Up Your Core Interests 161

Bibliography 175
Index 183

Digital materials related to this title can be found on the Fulcrum platform
via the following citable URL: https://doi.org/10.3998/mpub.11978420
Acknowledgments

This primer on the art and science of negotiations focuses on observations

from the working-­level and on negotiations I participated in personally. It
could not have been produced without contributions from all those I nego-
tiated with, negotiated against, and observed, studied, and consulted with
during my career as a lawyer and diplomat. I had some formal training in
negotiation with law professor J. J. White and diplomatic instructor Harold
Saunders, but most of the lessons in this text come from learning by negoti-
ating and learning by watching others negotiate.
In addition to those whose work is discussed in detail here, I feel indebted
to the other negotiators, too many to name, who contributed to these les-
sons in very positive ways. These include diplomatic supervisors and men-
tors Jeffrey Feltman, Sung Kim, Peter Mulrean, Richard Roth, and Richard
Erdman; U.S. diplomatic colleagues Mark Lambert, Susan Thornton, David
Sullivan, Steven Townley, Valerie Ullrich, Paula Schriefer, Susan O’Sullivan,
Scott Busby, and Christopher Klein; nongovernmental colleagues John
Kamm, Biro Diawara, Simona Ross, Hans Hogrefe, and others at UNHR,
and David Harland, and others at the Centre for Humanitarian Dialogue.
Those who contributed to these lessons were also negotiators from other
countries where we had shared positions, such as the late Ambassador Youssef
Ismail Bari-­Bari, the late Ebenezzer Appreku, Ian Duddy, Sami Bougacha,
Harriet Berg, Barbara Fontana, Yaprak Alp, Mats Foyer, and countless dip-
lomats whom I found on the opposite side of the table in Washington, the
United Nations, and in various capitals, but from whom I learned just as
much.
As this is my first published book, I especially appreciate the help of my
viii  Acknowledgments

editors and reviewers, including William Inboden, Joel Wit, Robert Ein-
horn, Ronald Nowak, and the team at University of Michigan Press. Finally,
and most importantly, I have to thank my family members for their reviews
of the text, patience, support, and confidence, specifically Maureen, Siena,
Maya, Zac, Mom, Dad, and Uncle Jeff.
Chapter 1

Introduction
How to Get More Back in Multiparty Negotiations

Multiparty international political negotiations are unique. Like any negotia-

tion, there are basic tools you can use to do a better job—­whether for your
client, your institution, your country, or yourself. This book focuses on les-
sons you can use drawn from multiparty international political negotiations I
participated in personally, and it tells the inside story: the good and the bad,
whether about the United States or other nations that I dealt with in more
than twenty years as a diplomat working on problems from North Korea to
China, and from Libya to the United Nations. In the end, one lesson stands
out above all others: international political negotiators who bring an exclu-
sively corporate or litigation approach to political negotiations underperform
and often fail. And when they engage in multiparty international political
negotiations, they often fail spectacularly, with negative consequences that can
last a long time for their country, their interests, or their clients.
Many tactics deployed in business and litigation settlement negotiations
only make sense for people negotiating over money. For a real estate mogul,
a corporate lawyer, or a drug dealer, when you are negotiating over money,
certain tactics work because you are splitting a finite commodity. Negotia-
tions over money are designed to be a zero-­sum game. Win-­lose. Get more
than the other guy does. The amount of difference is quickly and easily
measured and valued in dollars and cents. How to maximize the financial
takeaway from a business deal is the underlying approach of The Art of The
Deal, the book Donald Trump authored, and of his negotiating style before
and during his presidency. It is also an approach I have seen deployed repeat-
edly by negotiators who come to international political negotiations from
outside of government, especially private litigators and dealmakers.
2  The Art of Getting More Back in Diplomacy

Some dealmaking tactics from private business can be deployed in inter-

national political negotiations. You can press your opposite number. You
can walk away from a deal until you get what you want. You can criticize
the dealmaking process in public and in private and use pressure from actors
outside of the negotiation itself. Some of these tactics work in international
political negotiations and some of their successes will be demonstrated in
the chapters that follow. Diplomats I have spoken with from North Korea
to the European Union and from Cuba to China would agree that “Getting
More Back” for your country is the ultimate goal of any negotiation.
But serious failure often arises for a government when a negotiator from
a commercial setting fails to adjust to the reality of multiparty international
political negotiations, where your behavior, your reactions and your willing-
ness to spoil relationships over zero-­sum outcomes are judged over the long-­
term. In an international environment like the United Nations, a party who
is your opposite number today may hold the key vote you need for success
tomorrow. The nature of sovereignty and the international political environ-
ment means that nations have to deal with nations time and again, whereas
commercial partners or competitors can often avoid an interlocutor from a
past deal if that previous negotiation turned ugly or if sharp tactics resulted
in a feeling of unfairness and bad blood. For the purposes of this book and
considering differences between the international political negotiating land-
scape and that of a commercial actor, the bottom line is this: when money
is not the primary thing at stake, international political negotiations require
more diplomatic tactics focused on maintaining relationships and negoti-
ating pathways. Sometimes “getting more back” requires different tactics
in a political negotiation than it does in a financial one. So certain tactics
that might yield positive short-­term outcomes in a settlement negotiation
or a business deal become so toxic in the international political negotiating
environment between states that they are of limited utility and can even
be counterproductive. As we will see in several of the case studies that fol-
low, a businessperson’s or litigator’s approach can be especially damaging in
multilateral negotiations in ongoing venues like the United Nations, where
a given negotiation is just one incident in a continuing set of relationships
among states that will be carried out over several negotiations on different
topics over the course of years.
Success in international political negotiations, especially those that take
place in a multilateral venue like the United Nations, becomes much more
likely for negotiators who can explore the range of interests to find or create
win-­win situations. In a business or litigation setting, where negotiations are
mostly over money or financial compensation, it is not always possible to
 Introduction  3

create value by looking for win-­win outcomes. But international political

negotiations almost always have multiple successful outcomes because the
objectives of the parties are about more than dollars and cents. States want
prestige, security, recognition for their leader, better relationships, and finan-
cial gain, and have multiple other objectives in a political negotiation. When
multiple states are involved in an international political negotiation, the web
of interlocking objectives becomes even more complex. Because of this, mul-
tiparty international political negotiations present many more options for
creative solutions that satisfy part or all of the interests of the key players.
As this book analyzes these case studies in detail and considers how differ-
ent negotiating tactics worked or did not work, it will take both a theoretical
and a personal approach. On the theoretical side, it will look at negotiating
tactics in the context and perspective of multiparty international political
negotiations. Multilateral negotiations—­like in the United Nations—­are
just one type of multiparty negotiations. A multiparty political negotiation
is one in which there are at least three participating parties. As a result,
multiparty negotiations can find a negotiator (or the state that the negotia-
tor represents) in several different roles. One key to getting more back for
your client or country requires understanding the roles of direct participant,
indirect participant, mediator, observer, and guarantor.
Direct participants are those whose interests are so central to the nego-
tiation that an agreement cannot be reached without addressing their con-
cerns. In the Israeli-­Palestinian conflict, for example, Israel and the Palestin-
ian Authority are direct participants, but other parties, including the United
States, have had significant roles in those negotiations, including the ones I
participated in during the late 1990s under the Oslo Accords.
Indirect participants may also have interests important to the negotia-
tion at hand. But the interests of indirect participants are not so central to
the issue such that the indirect participants’ interests must be resolved as part
of the overall deal at the heart of the negotiations. Sometimes the interests of
indirect participants could be resolved in a parallel forum or could even be
ignored and still produce a durable resolution of the key issues of the direct
participants. On discussions of the North Korean nuclear issue, for example,
Japan might be considered an indirect participant. As a neighboring coun-
try and potential target of the North Korean nuclear and missile threat,
Japan clearly has strong interests in resolving the North Korean issue. It also
has interests in trade and in discovering the fate of its citizens abducted by
North Korea over the past forty years. But the North Korean nuclear issue
could be addressed without Japan’s participation, making it an indirect par-
ticipant, rather than a necessary direct one.
4  The Art of Getting More Back in Diplomacy

Observers are just that, parties outside the negotiation who are observ-
ing. Some observers are also mediators but not all play that role. In multi-
lateral negotiations, such as in the United Nations, it is more common that
a member state, or even a part of the United Nations itself, plays the role of
mediator. Mediation has become a complex profession, in both the political
and the commercial world, with its own litany of tools and tactics. While
mediation is not the primary focus of this book, it will be useful to identify
from the case studies addressed here when an observer is acting as a media-
tor, to determine whether the mediator is a truly neutral party or an inter-
ested party, and whether the tactics deployed from the commercial world
also apply in the international political arena. In the case of Libya’s dueling
governments after the downfall of Moammar Qaddhafi, Egypt attempted
to act as a mediator. But as we will see in chapter 5, Egypt’s role in Libya is
not a neutral one; it wants to resolve Libya’s political disputes on terms that
will install its favored actors to political power in Libya, on terms that will
protect its border region, and on terms that will allow Egyptian workers to
have jobs and earn money in Libya.
Finally, we will look at a particularly important role for some negotia-
tion participants in multiparty talks, the role of the guarantor. Guarantors
are defined as parties whose participation in the negotiation is because of
the real or perceived influence that the guarantor can bring over one of the
direct participants. One of the key questions this book will analyze through
the case studies considers when and how a guarantor exerts this real or per-
ceived influence, and how other participants in the negotiation can influ-
ence the guarantor to exert that influence. Sometimes this results in multi-
party negotiations becoming a negotiation within the negotiation.
Given these complexities, success as an international negotiator in these
different roles requires flexibility, perspective, and situational manage-
ment. The later chapters in this book will look at a few examples of mul-
tiparty negotiations from these different perspectives and analyze which
tools work best for negotiators in each of the different roles of direct par-
ticipant, indirect participant, mediator, and observer. Sometimes a state
attempts to disguise the role it is playing in a negotiation, because hiding
its role is in its interest. For example, several of Libya’s neighboring states
have attempted to put themselves forward as neutral mediators of the
ongoing civil war in that country, when their goal in mediating or bring-
ing parties together was actually to ensure that their own national interest
was protected. Moreover, regardless of which role a country is playing, we
find that negotiators who can consider the interests of multiple parties and
“create value” by deploying creative solutions that satisfy part or all of the
 Introduction  5

interests of the key players tend to be the most successful negotiators, and
the ones in greatest demand.
Throughout, I offer my personal experience as an American diplomat
participating at the working level from within each of these negotiations
and observing the conflicts or issues that negotiations are trying to resolve.
Sometimes the stories are colored by experiences outside the negotiating
room. For example, I was the one who suffered expulsion from the Chinese
Foreign Ministry when U.S.-­China relations over human rights reached
a boiling point. I had to work to maintain relationships when a political
appointee’s Washington-­focused rhetoric threatened to blow-­up key rela-
tionships or a UN meeting. And it will be my future working-­level col-
leagues who will have to find a way back to the negotiating table with South
Korean allies or adversaries like the North Koreans because President Trump
failed to institutionalize the relationships and processes necessary to discuss,
agree, and verify denuclearization on the Korean Peninsula. But the observa-
tions made here are based on some twenty-­five years of being on the ground
as a negotiator and diplomat, and they provide real fodder for practical and
academic work to make politicians, businesspeople, and future diplomats
better negotiators.
So which tactics from the private negotiating environment can be
deployed in the public sector and which do not work in international nego-
tiations? This book will explore some of those questions and provide case
studies from international political negotiations that illustrate negotiating
styles, good and bad, and provide perspectives that will help you answer
these questions for yourself and determine which negotiating styles work
best for you.
First, we will look at tactics that work in any negotiation: political, finan-
cial, or otherwise. Do not give something up unless you get something back.
International political negotiators who give something away without getting
something back are just like negotiators in a financial deal who leave money
on the table. Every concession is worth something, even in a political nego-
tiation. Sometimes what you get back for giving something away is good
will. Sometimes it is prestige. Sometimes it is more tangible. But if you care
about the end product of the negotiation, each little concession should be
thought of as a mini-­negotiation on the path to getting what you want at
the end of the process.
Second, the positions of a negotiating partner must be tested. Of
course, how you test those positions matters. You might prefer to test posi-
tions in a relatively safe way for your client or country, rather than in a
way that will, for example, lead a counterpart like North Korea to respond
6  The Art of Getting More Back in Diplomacy

by launching a nuclear-­tipped missile at the United States or marching

thousands of troops on Seoul. But if a counterpart says they will not do
something that is of high value to your country (or your client), do not
take no for an answer until you test the proposition. The negotiating style,
and errors, of the Brazilian delegation in Geneva in advancing a resolution
in 2014–­2016 to create the first UN mechanism on LGBTI rights, a UN
independent expert, will be our primary case study as detailed in chapter
6. The case study examines whether proponents of creating a UN Special
Mechanism to look at sexual orientation and gender identity could have
created the mechanism two years earlier in 2014, when the issue first had a
majority of the UN Human Rights Council. Or alternatively, did negotia-
tors “leave money on the table” in 2014 by not pressing for creation of the
mechanism until two years later.1
Third, invent options for mutual gain. Fisher and Ury’s seminal negotia-
tions primer Getting to Yes emphasizes how win-­win options are usually avail-
able. Creative solutions that benefit all parties are almost always advisable.
In multiparty international negotiations, a negotiator who can understand
the complex web of objectives of the many states involved and the possible
concessions that can create value or produce win-­win solutions will often
be able to come up with solutions and overcome obstacles. As we will see in
chapter 10, sometimes many more than two parties consider themselves cru-
cial participants in the negotiation. And when as many as 193 member states
of the United Nations consider themselves party to the negotiations, find-
ing enough “win” to go around can be challenging indeed. Sometimes the
win-­win solutions involve looking beyond the immediate negotiation. For
example, until July 2018, Ethiopia’s primary consideration in the United
Nations was opposition to and criticism of its neighbor and rival, Eritrea.
In my time working at the UN in Geneva, I frequently used U.S. support
for Ethiopia in its campaign against Eritrea as a negotiating tool and trad-
eoff to find areas of common interest with Ethiopia on UN resolutions and
topics that had nothing to do with Eritrea. Other states appreciated that a
negotiation with the United States in the UN was an opportunity to raise

1.  In addition to the detailed discussion in chapter 6, compare media coverage of the two
events in Adam Howard, October 15, 2014, “UN Passes Resolution on Behalf of LGBT
Citizens Around the Globe,” MSNBC, available at http://www.msnbc.com/msnbc/un-
passes-resolution-behalf-lgbt-citizens-around-the-globe, with Carol Morello, June 30, 2016,
“UN Council Creates Watchdog for LGBT Rights,” Washington Post, available at https://
www.washingtonpost.com/world/national-security/un-council-creates-watchdog-for-lgbt-
rights/2016/06/30/54976de6-3eee-11e6-80bc-d06711fd2125_story.html?utm_term=.
c2fa20c82b7a
 Introduction  7

their bilateral interests with the United States—­be they for a political visit,
bilateral aid, or just a request for a visa.
At the same time, a tactic or tool uniquely available to those participating
in multiparty negotiations is the ability to empower other states to take on
certain leadership roles in multiparty negotiations. Frequently, the best way
to achieve one’s goals in the UN is to work with and through others. We will
also look at the unique roles that parties can take on in multiparty nego-
tiations, including roles of direct participant, indirect participant, observer,
mediator, and guarantor.
Fourth, we will learn from best (and worst) practices and typical argu-
ments used by different types of negotiators. This will include a brief discus-
sion of standard arguments I have observed in international negotiations,
as well as ways to debunk many of them. Chapter 3 provides a range of
examples.
Following that, we will examine specific case studies and their impact on
key aspects of negotiation theory. We will start by looking at the importance
of understanding each party’s Best Alternative to a Negotiated Agreement,
or BATNA. A classic tool in teaching negotiating theory, understanding the
BATNA also requires understanding one’s interests and the interests of a
negotiating partner and then coming up with ways of changing, or even
deceiving, a negotiating partner about your BATNA. The idea of deceiv-
ing other parties about your BATNA is an approach that seems to appeal
to those executives turned negotiators who would follow the theory of The
Art of the Deal. On the other hand, we will show how “logical strongmen”
in international politics, such as in Libya and North Korea, often are good
negotiators because of their clarity about their BATNA. Ironically, nego-
tiating counterparts often describe these strongmen as crazy or irrational,
and yet the “irrational” strongmen often out-­maneuver negotiators seen
as coming from democratic or reasonable governments. Operating within
their constraints and alternatives, these “logical strongmen” are usually clear-­
minded about their path and their alternatives because they operate in a
world of very stark choices.
After that, the next chapters will illustrate the limits of a businessperson’s
winner-­take-­all approach to negotiations over money. These case studies
demonstrate why and how certain aspects of a business-­style approach to
negotiation (walking away from the table, pushing for every concession or
every dollar, or threatening counterparts) can be counterproductive. This is
especially true in an environment of negotiation among and between states,
where the same negotiating parties are likely to have to work together again
on the same or different topics once the negotiation is completed.
8  The Art of Getting More Back in Diplomacy

Imagine the challenges President Trump faced with European partners

in NATO after his handling of the summer 2018 NATO Summit. Trump
wanted NATO partners to commit to spending a higher percentage of their
annual national budgets on defense spending. Aiming to reach a target for
spending 4 percent of GDP, Trump used several of these tactics, includ-
ing public bullying and threats of trade retaliation, to pressure the NATO
partner countries to reach this threshold. When the NATO countries largely
held their ground and stuck to a previous deal in which they would gradu-
ally increase spending, Trump took to the airways to declare victory. He
inaccurately claimed that his negotiating strategy caused European NATO
leaders to offer new concessions, and that they agreed to faster and higher
defense spending in future years. The president sought to use the media and
claim victory, but this tactic did not ultimately cover up the fact that no new
concessions were actually reached, and that the European NATO members
merely reverted to their previous agreements about gradual defense spending
increases.
I have watched political appointees turned ambassador bring this tough,
litigation style to the UN with poor results. One ambassador whom I worked
for at the UN Human Rights Council was very rough in initial encoun-
ters with other ambassadors, especially those from countries that had a bad
human rights record, such as Sudan addressed in chapter 8. This played
poorly not only with the country being criticized but also with other more
influential ambassadors who observed this behavior.2 It was necessary for
professional diplomats to shore up the damaged relationship because, in the
one country/one vote system of the United Nations, the United States would
need that relationship again. Working with such an egotistical personality
made me feel a bit like a diner at an American restaurant where someone else
picks up the bill but leaves a poor tip. Much as you might subtly supplement
the tip with an extra $20 bill, I felt the need to work with those offended
by the litigator-­ambassador and compensate for his rough behavior, in the
interest of longer-­term relations and the interests of my country. In this
way, working in a UN environment is much like living in a city of limited
restaurant choices. Don’t leave a bad tip at a restaurant you plan to revisit.
Similarly, in the United Nations, you will have to return again and again
to the same negotiating counterparts and, over time, brinksmanship-­type
behavior will undermine their willingness to work constructively with you
and detract from your ability to Get More Back for your country.

2.  See, e.g., Interview with former Ethiopian ambassador Minelik Getahun, September
2017.
 Introduction  9

I observed more than one litigator-­turned-­ambassador who did not

understand that countries like the United States have a special card to play
in international political negotiations: Giving Respect. Giving respect in
an international negotiation costs the country conceding it little or noth-
ing—­in fact, the giving of respect sometimes increases the giving state’s sup-
ply. But time and again, be it with the litigator-­turned-­ambassador, or the
U.S. political approach to refuse to negotiate with states in an “axis of evil”
until prerequisites are met, poor negotiators squander the special commod-
ity of Giving Respect. Chapters 10–­12 deploy examples from negotiations
over human rights in China and the Israel-­Palestinian peace accords to illus-
trate how overreaching may produce a positive short-­term outcome but can
often damage the prospects for long-­term sustainable win-­win results that
would better achieve the parties’ interests.
The final chapters of this book will return to China and North Korea in
2021. With China, we consider how the breakdown in dialogue between the
United States and China as a result of their growing power conflict and com-
petition has limited the opportunity to explore win-­win possibilities. Failure
to cooperate in addressing the coronavirus pandemic is the most obvious
result of the failure of these two superpowers to have a successful negotia-
tion, but we consider a range of additional factors about their relationship as
a way of illustrating the tactics discussed throughout this text.
In the North Korea situation, repeated summitry between President
Trump and North Korean chairman Kim Jong Un aimed at reducing the
threat of North Korea’s nuclear weapons has failed and, in 2020, pros-
pects for peace on the Korean Peninsula seem distant. Despite his claims of
North Korea as a foreign policy success, President Trump has squandered
any potential breakthrough with North Korea by failing to turn his summit
meetings into an agreement with sufficient detail to make Americans safer
and ensure North Korea’s denuclearization. Through bluffing, threats, and
ego, President Trump has brought the United States closer to conflict with
nuclear-­armed nations like North Korea and potentially Iran, China, and
Russia, than it has been since the Cuban Missile Crisis. As we will examine
in chapter 13, the as-­yet-­unfinished story of his negotiations with North
Korea may be one of the tipping points that could undermine America’s
position as a superpower. Even to the extent that summitry with North
Korea appears successful, the occasional face-­to-­face negotiation between
two strongmen does not necessarily translate into implementation of a mul-
tiparty peace agreement, which will be necessary to establish lasting security
on the Korean Peninsula.
One of the strengths of President Trump’s unorthodox style as a “dif-
10  The Art of Getting More Back in Diplomacy

ferent type of negotiator” was a willingness to meet with Kim Jong Un

or other authoritarian leaders when others would not. But North Korea’s
resumption of its provocative weapons programs and destabilizing behavior
suggest that President Trump squandered that opportunity, no matter how
good a personal relationship he claims to have established in meetings with
Kim, Chinese President Xi, Russian President Putin or others. Getting More
Back for your country often is more complicated than getting more back for
yourself. In failing to understand and be able to deploy this lesson, many
businessmen-­turned-­diplomats find their tactics failing them in the art of
multiparty international negotiation.
P a rt I

Deploying Negotiating Theory and

Tactics in Select Case Studies
Chapter 2

Negotiation Theory Overview

Setting the Stage

Like any tactician, a good negotiator needs a toolkit. This kit may include
her personal qualities, her relationships, her knowledge and experiences, but
it also should include tactics to deploy in a negotiation. To ensure that you
have all the tools of international negotiation at your disposal, this chapter
aims to give negotiators the basic theoretical background for creating their
negotiations toolkit, while chapter 3 aims to fill your negotiator’s toolbox
with specific tactics and responses to negotiating behaviors and ploys that
are sometimes put forth based on these theories. Whether deployed in a
single negotiation or as part analyzing a set of negotiation case studies as
in this book, deployment and understanding of these principles is essential
for success. Moreover, situational management requires having a plethora
of theoretical approaches, strategies, and tactics available and choosing the
appropriate one to deploy depending on the content and context of the
negotiation at issue. Finally, reviewing these principles is important as back-
ground for subsequent chapters, which will look at the application of these
and other tactics over the course of several case studies.

Understanding and Identifying Each Side’s Interests

In order to understand any negotiation, a negotiator must be aware of his

(or his client or state’s) interests as well as the interests of his counterpart.
As Harvard professors Fisher and Ury describe it, this means parties should

13
14  The Art of Getting More Back in Diplomacy

focus their negotiation efforts on interests rather than positions.1 Positions

are usually conclusory statements put forward to explain the desired nego-
tiation outcome, but they rarely offer principles, ideas, or knowledge about
the reasons why a desired outcome is needed by one party or the other.
Understanding those underlying reasons and motivations is necessary for
a negotiator to move beyond a discussion of dueling positions into a more
nuanced analysis of interests. Discussion of interests also increases the likeli-
hood for creative solutions that can result in win-­win outcomes.2
A good negotiator not only understands his own side’s interests and
motivation but also strives to understand the interests and motivation of the
other side. This is valuable in searching for new alternatives or “win-­win”
solutions that create value. In addition, a negotiator who strives to under-
stand his counterpart’s interests and motivation is more likely to be able to
estimate how valuable certain concessions are to his counterpart, and to
extract the best deal in exchange for any concessions he or she makes. The
businessperson’s approach to “never leave money on the table” in a negotia-
tion can also apply to international political negotiations. As we will see in
several of the forthcoming examples, particularly chapter 6’s discussion of
negotiations to create the first UN mandate offering protection based on
Sexual Orientation and Gender Identity (SOGI), participants in a multi-
party international political negotiation sometimes have difficulty testing
the positions and interests of their opposite number. This can produce sub-
optimal results, and as described in chapter 6, may have delayed UN action
to systematically protect LGBTI individuals from discrimination.

Best Alternative to a Negotiated Agreement (BATNA)

The principle of BATNA is one of the most useful theoretical and tacti-
cal principles in negotiation theory. It helps negotiators understand why a
counterpart might not strike a deal. It also creates a framework for influenc-
ing the relative positions and beliefs of a counterpart about his alternatives,
so as to make reaching a deal on favorable terms more likely.3

1.  R. Fisher and W. Ury. 2011. Getting To Yes. 2nd ed. New York: Penguin Books. Chapters
1 and 3.
2.  See, e.g., Jeswald W. Salacuse. 2003. The Global Negotiator. New York: St. Martin’s
Press, p. 49, emphasizing the need to “search for the other side’s needs and interests and don’t
be afraid to reveal yours.” As Salacuse notes, revealing your own interests can be easier once
work has been done to build a relationship and establish trust, as illustrated in more detail in
chapter 8’s example involving negotiations with Sudan.
3.  Fisher and Ury, Getting to Yes, chapter 6.
 Negotiation Theory Overview  15

An early example of influencing a BATNA in U.S. diplomatc history comes

from an analysis of Benjamin Franklin’s letters to the French government at
the time of the American Revolution. Franklin was sent to France in 1776 to
persuade the French to join the war on the side of the underdog American revo-
lutionaries and against the British.4 His French counterparts repeatedly rebuffed
his entreaties and noted privately their fear that entering the war against Britain
was a greater risk to France’s political and commercial interests than joining sides
with the sympathetic upstart American revolutionaries. With his knowledge of
French officials and culture, Franklin wooed them to the U.S. side, comparing
the undeveloped American colonies to a lover whom France could seduce. Less
colorfully, Franklin’s narrative and descriptions aimed to influence the French
BATNA. He pointed out that France had a limited opportunity to secure its
position and lucrative trade with the American colonies, now and in the future.
He bluffed and cajoled, suggesting that France needed to aid the colonies in
order to improve its trading position. In future, the dispute with Britain might
be smoothed over such that American trade might remain monopolized by Brit-
ain, thus closing the French out of a lucrative market. In the end, his efforts paid
off and France agreed to offer limited aid to the American revolutionaries, which
ultimately developed into Lafayette’s assistance and full French recognition of
the colonies later in the war.
As we will see in the examples that follow, an expert negotiator is keenly
aware of his counterpart’s BATNA and tries to influence it in a range of situ-
ations. Perhaps less well known is the importance of also being aware of your
counterpart’s and your own WATNA (the Worst Alternative to a Negotiated
Agreement). Even the best negotiator can fail if she uses excessive brinksman-
ship and spoils a deal, failing to account accurately for the lack of alternatives
to striking a negotiated agreement that are available to her and her client.

Seeking Win-­Win Solutions5

One important reason for understanding your counterpart’s interests, moti-

vations, positions, and BATNA is the opportunity to turn zero-­sum nego-
tiations into win-­win solutions. Negotiators often refer to this as “creating

4.  Stacy Schiff. 2005. A Great Improvisation: Franklin, France and the Birth of America; see
also William Grimes. April 6, 2005. “Ben Franklin Took on France with Insouciant Diplo-
macy.” New York Times, E6: “When the Battle of Saratoga gave America the momentum, he
pressed his advantage, tormenting Vergennes with the possibility that America might find it
advantageous to strike a deal with Britain.”
5.  Fisher and Ury, Getting to Yes, chapter 4; Salacuse, The Global Negotiator (outlining
seven principles for global deal making, stressing “always create value”).
16  The Art of Getting More Back in Diplomacy

value.” Analysts of negotiation theory often distinguish between distribu-

tive negotiations, which are zero-­sum negotiations like real-­estate deals or
financial settlements, and integrative negotiations, which allow for possible
win-­win outcomes.
In most negotiations, especially multiparty international political ones, it
is possible to find elements of an integrative negotiation. Usually, concepts
or issues exist within the context or confines of a negotiation that parties
value but that do not necessarily have to be divided or distributed in order
for the parties to reach a successful conclusion. For example, in negotiations
over language in UN resolutions, there are often principles or issues that are
not central to the theme of the resolution that a good negotiator can insert
or address to accommodate interests of some parties and find opportunities
for compromise. Even in negotiations that are not about language, there are
usually additional interests that one or another party has that can produce
the opportunity for win-­win solutions that create value. These might include
actions that create prestige, such as treating a smaller state with respect or
including favorable mention of a particular leader’s favorite ideology or past
achievement into a public document. We will see many examples of win-­win
solutions in the case studies.
Recently, the term “win-­win cooperation” has been associated in par-
ticular with the thought of Chinese President Xi Jinping. As outlined at the
end of chapter 9, a resolution in the UN Human Rights Council (HRC) in
2018 sought to institutionalize into soft law the value of the idea of win-­
win cooperation. While the Chinese definition of win-­win cooperation may
have particular characteristics, it would be a mistake for negotiators from
outside China to resist the win-­win concept solely because of its appear-
ance in Xi Jinping’s thinking and speeches. To the contrary, acknowledging
the term can offer value to Chinese interlocutors that can be exchanged for
something else. At the same time, negotiators who come from a different
perspective can expand on the contents of “win-­win cooperation” so that it
does not necessarily erode international human rights standards or otherwise
take on a meaning at odds with principles of a state’s responsibility for pro-
tection of individual rights.

Evaluating Based on Objective Criteria6

To avoid conflicts that arise in negotiations or to work around obstacles that

may arise, it is helpful if the parties can agree to evaluate a situation based

6.  Fisher and Ury, Getting to Yes, chapter 5; Salacuse, The Global Negotiator, p. 53.
 Negotiation Theory Overview  17

on objective criteria. Facts are usually a helpful arbiter for working around
problems. If parties can agree on the facts of a situation, one can often find
a way of characterizing those facts that will acceptably allow a negotiation
to move forward.
When facts are in dispute, parties can often find the space to move for-
ward by referring to factual assessments or previous studies to address differ-
ent parties’ positions related to past events. If there is dispute, for example,
on who is at fault for a particular past action, it may be possible to refer to
a UN or other international assessment of the situation as an objective cri-
teria. Reasonable parties can rarely disagree that X or Y report described the
facts in a certain way, even if they dispute the report itself.
In some cases, exploration of the facts will reveal that the dispute does not
necessarily center on the facts but focuses on how to characterize those facts.
Sometimes a party objects to certain embarrassing events being acknowl-
edged in a public document but can agree to the facts themselves. This was
the case, for example, in negotiations that will be discussed in chapter 8
with the government of Sudan over past human rights violations. When
we hit a wall, I often returned to an agreement that we made early in the
discussion to focus on the facts: for example, that in April 2016 unarmed
student protestors were killed in a university protest. By relying on objective
facts—­that the students died—­rather than emphasizing that it was security
forces who did the killing, it became relatively easy to agree to describe the
facts in the negotiated agreement, and we narrowed our dispute to how to
refer to which parties were at fault. In other cases with Sudan where it was
necessary to state which parties were at fault for an action, it was helpful
to be somewhat vague and refer to outside criteria. For example, Sudanese
counterparts could agree to take note that certain human rights violations
were committed by “parties mentioned in the Independent Expert’s report
on page 72” instead of having to publicly restate the responsibility of certain
security force actors.

Strategic Patience/Synchronizing Time Horizons

Having a reasonable time horizon for striking an agreement and a com-

mon understanding of your and your negotiating partner’s relative time
horizon for reaching agreement is an essential part of longer-­term inter-
national political negotiations. Traditionally, American negotiators are
impatient, seeking immediate results and tied to certain domestic political
considerations, while Chinese negotiators often take the longer term view
of political developments. The term “strategic patience” has been used
18  The Art of Getting More Back in Diplomacy

to describe U.S. policy related to some examples in this book: on North

Korea, it showed the change from a hurry to negotiate denuclearization
steps under Special Envoy Christopher Hill to a willingness to negotiate
but only under certain conditions, as pursued by Hill’s successor, Special
Envoy Stephen Bosworth. Ultimately the phrase was used to characterize
the lack of activity on North Korea during the late Obama and early Biden
administrations. Similarly, on Libya, the United States advocated a shift
from the pressure for a unification deal in late 2016 under outgoing Spe-
cial Envoy Jonathan Winer to a more measured approach, which hoped
to bring the parties together but recognized that, as long as terrorism was
being defeated in Libya, the United States could exercise more patience,
an approach advocated in 2017 by U.S. Ambassador to Libya Peter Bodde.
Different U.S. administrations feel differently about the concept of strate-
gic patience and the concept has been heavily criticized. Generally, how-
ever, American negotiators are impatient and press to move faster than
necessary to reach deals, and sometimes faster than merited by their own
national interests. Other countries have learned this characteristic about
U.S. negotiators. They sometimes use this impatience against the United
States by withholding negotiating sessions or negotiating slowly, so that
the concession of actually having a meeting becomes more important than
the substance of the negotiation. In 2020–21, North Korea has used this
tactic with the United States in withholding agreement to meet at the
working level to follow up on agreements reached in summit meetings
between President Trump and Chairman Kim.

Moving the Goalposts

One of the most frustrating experiences I had as an American negotiator

occurred when officials at the U.S. State Department headquarters in Wash-
ington, D.C. would change their minds about what was and was not accept-
able in an agreement; to use an analogy from American football, they were
moving the goalposts. In UN negotiations, we found this happened often. In
chapter 9, I describe how Washington authorized the U.S. delegation to the
UN Human Rights Council in Geneva to raise the issue of Chinese human
rights and to host a side event with Nobel Peace Prize laureates, including
the Dalai Lama, under the condition that at least one of a traditional group
of cosponsors joined in cohosting the event. After further domestic discus-
sion and pressure from the Chinese government, the number of states that
the State Department wanted to join with us in cohosting the event with the
 Negotiation Theory Overview  19

Dalai Lama constantly changed. Washington’s demand increased to “more

than one,” then six and then other, often inexact numbers of cosponsors
that were required to commit to joining the United States before the China
human rights situation could be raised in the UN. More disturbing, folding
to a call from Chinese officials to the UN Secretary General, our govern-
ment said we could not host an event with the Dalai Lama on UN grounds
under any circumstances. (The event was eventually held at Geneva’s Gradu-
ate Institute, next door to the UN, with the Deputy High Commissioner
for Human Rights acting as moderator). This is just one of chapter 9’s many
examples of moving goalposts.
Moving the goalposts could be a tactic aimed at gaining more conces-
sions. Over time, parties who have invested in a negotiation process with
the belief that they will reach an agreement may become so invested that
they are willing to continue to offer concessions—­even more significant
concessions than when the negotiation began and no deal was in sight—­in
order to reach the goal of an agreement. Often public expectations have
been created that a deal will be reached (for example, Trump’s North Korea
summitry) or a negotiator will have promised her capital that she can bring
home an agreement, so the prospect of loss of the potential agreement could
cause the negotiator to concede more than was originally anticipated. In this
way, shifting goalposts can be a positive tool when deployed carefully and
selectively.
Unfortunately, the practice of moving the goalposts was common in the
U.S. government while I was serving as a diplomat, but it was rarely used
as an intentional tactic. Rather because our government is so large and the
clearance process so cumbersome, the highest-­level officials are often con-
sulted only at the latest stages of an international negotiation. An opinion by
a cabinet-­level official or White House advisor that differs from the strategy
pursued up until the point of their clearance can cause others to perceive the
United States as moving the goalposts. And because of the lack of transpar-
ency of the inner workings of government decision-­making, it can appear
to other negotiating countries that the United States is moving its goalposts
for tactical or malevolent reasons or to extract concessions, rather than as a
result of such a cumbersome clearance process.
For example, in early 2017 while I was serving in the U.S. Libya External
Office, the United States had advocated for a particular candidate to become
the lead UN official handling Libya. Within the span of days, the White
House reversed that position after a senior advisor who had not previously
been consulted considered the question and vetoed the candidate that the
United States had been supporting. Officials across the U.S. government
20  The Art of Getting More Back in Diplomacy

had to explain that the candidate we pressed for in advocacy at levels as high
as UN Ambassador Nikki Haley was now the candidate the United States
opposed.
The shifting of goalposts can be especially challenging if it takes place
after other government(s) reached an agreement with the United States on
a path forward and brought their own domestic agencies to an agreement
only to find out that the U.S. requirements, for whatever reason, had been
changed. One such case was the negotiation over a resolution on China at
the UN in 2004 and the release of Uighur businesswoman Rebiya Kadeer,
As discussed in chapter 9, China agreed in 2004 to release Ms. Kadeer as
part of an exchange in which the United States agreed to forego sponsoring
a resolution about China’s human rights at the UN Commission on Human
Rights. However, the United States moved the goalposts and decided to go
ahead with the resolution anyhow at the last minute, leaving Ms. Kadeer to
another year in prison until her release was successfully negotiated. I accom-
panied her as she was released and arrived in exile in the United States in
March 2005.7

Working with and through Others

There are many aspects of and benefits from working with and through oth-
ers, but the lesson that I wish to emphasize here is the value that can accrue,
especially in the United Nations, when large countries like the United States
offer support for a principle or a resolution but avoid taking the lead. Favor-
able reaction to an idea proposed in a negotiation sometimes is a reaction
to the idea itself. But it can also signify positive or negative reaction to the
party or, in the UN context, to the UN member state that proposes the idea.
Given a general tendency in the UN to seek consensus agreements, the idea
of having a small state, a state from the developing world, or a state that
holds a particular position—­such as chair of a regional group, or vice-­chair
of the Human Rights Council—­propose an idea can often get others to view
the idea’s merits more favorably. By contrast, when the United States raises
an issue in the UN, a handful of states are likely to respond with immediate
suspicion, including members of the so-­called Like Minded Group, includ-
ing China, Russia, Cuba, and Egypt.

7.  “China Releases Political Prisoner Ahead of Visit by Rice.” March 17, 2005. New York
Times, available at https://www.nytimes.com/2005/03/17/international/asia/china-releases-
political-prisoner-ahead-of-visit-by-rice.html
 Negotiation Theory Overview  21

In multiparty negotiations, especially those in the United Nations, it

is especially important to empower other partners and give them greater
responsibility for the success of your project. This can be done at multiple
levels in a multiparty negotiation; concrete illustrations from the HRC are
conveyed in chapter 7. Sometimes empowering others occurs, for example,
by having a smaller state member of a core group announce an initiative,
such as in an organizational meeting for the HRC. Sometimes empower-
ment is demonstrated by having them lead the communications or send out
an email announcing a particular meeting. In other cases, it involves having
another party chair a meeting or lead a discussion. Empowering others in
the UN context of negotiating resolutions can be as simple as being one
of the last speakers on a topic and merely saying, “I agree with what the
delegate from X country already said.” You will see in the discussion of UN
resolutions about privacy in the digital age and those on South Sudan the
importance in the UN that core groups play in the formulation of policy
and distributing information and responsibility for issues. It also can be use-
ful for the United States to step back from a public leadership role on certain
issues, as the U.S. position brings great strength but also political baggage.
Sometimes U.S. leadership can even be a reason that other states will target
an issue to be defeated, when the same issue might pass without controversy
if it was led by a less politically powerful, and polarizing, sponsor.

Preparing Well before and during a Negotiation

As in any professional endeavor, preparation for your negotiation is cru-

cial. Thinking through each of the elements of negotiation theory outlined
above, when you might deploy them and how you would handle them, is
an essential part of a toolkit. Sometimes a cheat sheet of interests and tactics
can be readied in advance to help a negotiator anticipate what the positions,
tactics, and interests of an opposing party will be, what external factors can
be brought to bear to influence his sense of alternatives, and even to map the
various interests on the other side or sides of a negotiation. Preparation may
also include preliminary discussions to set the stage for leaders to close the
gap on final issues or to reach a written agreement. As we will see in chapter
13, the failure to prepare for the Hanoi Summit between North Korea and
the United States led to a breakdown and embarrassment for both Kim Jong
Un and President Trump.8

8.  See John R. Bolton. 2020. The Room Where It Happened. New York: Simon & Schuster.
22  The Art of Getting More Back in Diplomacy

For multiparty political negotiations, an elaborate series of negotiations

is often required with the same issue often discussed multiple times at each
level. Typically, experts take a first stab at reaching consensus on a draft
agreement. Then ambassadors, foreign ministers, and finally heads of state
may be consulted in turn to approve the same agreement or to settle differ-
ences. When issues or language are agreed upon at the expert or working
level, the agreement often holds at other, higher levels. But when disagree-
ments arise on a particular aspect of the agreement at any level, the custom is
to “elevate” disagreements to higher-­level decision-­makers in protocol order,
hoping that the higher-­level officials can find agreement where experts could
not. Sometimes higher-­level decision-­makers change and undo work done
by experts or others if they disagree with an aspect of a draft decision. As
you will read in chapter 8 on Sudan, I was typically empowered by the
State Department to negotiate the terms of resolutions relating to human
rights in Sudan. I assumed that my counterparts were similarly authorized,
a question that was put to the test when one of Omar al-­Bashir’s ministers
visited Geneva and tried to undo weeks of preliminary work on an agree-
ment because it had been “elevated” to his level.
In larger or more extensive negotiations, it is advisable to have a team
work together and take on different roles to help with the preparations and
keeping track of interests, positions, and motivations of a counterpart. In my
diplomatic experience, most multiparty political negotiators are concerned
about who will speak during the negotiations and what they are going to
say. In large countries like the United States, this often means a significant
domestic negotiation over what the “instructions” for the negotiator will say
and how much flexibility he or she will be given. Bottom-­line instructions
are, of course, important, but an excessive focus on them may leave to the
side opportunities to prepare one’s tactics and strategies for gathering infor-
mation and analysis by those in a negotiating team who are not speaking, as
well as for ensuring that a full range of tasks are undertaken.
One possible set of roles for a delegation and team members in a negotia-
tion might include the following:

• Head of delegation: This is the main speaker, protocol leader of

the delegation, and the one who makes decisions in the absence of
instructions from the capital or headquarters.
• Deputy head of delegation: This person is usually also empow-
ered to speak during the negotiation and may have organizational

chapter 11.
 Negotiation Theory Overview  23

responsibilities, as well as backing up the head of delegation on all

issues of his responsibility.
• Chief of staff: This person typically organizes the delegation for
the head of delegation and communicates logistical and substan-
tive information to the other team members.
• Note taker: One or more people on the delegation should be
tasked with keeping a permanent record of what was said by all
parties. In particularly sensitive or important negotiations, the
capital or headquarters may want frequent updates to be sent by
the note takers or even a verbatim transcript. In other cases, it is
adequate to have merely a generalized set of notes for the record.
Where negotiations are lengthy or where there is appetite for rapid
or verbatim readouts of the negotiating sessions, it is helpful for
notetaking to be handled by a team of drafters working in rotation
with their output approved by the head of delegation.
• Interpreter: An essential role when multiple languages are at
play, but American negotiators often underestimate the value of
the interpreter. In Asia, many former interpreters have risen to
be their country’s foreign minister as a result of their ability to
not only translate the words of important meetings but also to
interpret the positions and interests that underlie those words. In
North Korea, for example, the interpreter for the DPRK delega-
tion during the Six-­Party Talks is now first vice minister and argu-
ably Kim Jong Un’s most important foreign affairs interlocutor for
the United States.
• Writer of agreement: If the negotiation aims to conclude with a
written agreement, it is useful to have a lawyer on the delegation
who can take part in the drafting process. The person writing
the agreement should have a keen sense of the relative political
and legal goals of the document. Sometimes a lawyer will be too
comprehensive or try to specify in too much detail issues where it
remains necessary to have some intentional ambiguity.
Given the use of computers, drafting often takes place with sev-
eral participants gathered around a laptop or computer monitor.
In such cases, “control of the pen” suggests that it is valuable for
the writer also to be a fast typist. In putting down a set of words,
the typist can give initial phrasing to an idea and can offer written
formulations without conversation. This means the person con-
trolling the pen or keyboard can input their ideas without signal-
ing to other negotiators standing around the computer screen the
24  The Art of Getting More Back in Diplomacy

full motivation behind his or her chosen words. In her memoirs,

Condoleezza Rice relates a story about the 2006 G8 Summit,
when a Hezbollah attack on Israel created the need to draft a joint
statement on the fly. Recalling that her “mother had insisted on
typing lessons ‘just in case,’” Rice describes how she was able to
type and negotiate, within and outside the U.S. government. a
quick draft statement presented to the leaders.9
• Document or evidence expert: Many negotiations rely on past
agreements or documents. Especially in negotiations that aim to
produce legally binding agreements, it is often helpful for one
member of the delegation to be the evidence expert and to hold
original copies, where needed, of past agreements or other impor-
tant resources.
• Observer of nonverbal communications and power dynamics:
Sometimes the focus on what you should say causes a negotiator
to miss cues given off by opposing parties. This can be especially
true of nonverbal communication. A member of the other delega-
tion may, for example, exhibit disapproval or displeasure of a posi-
tion taken or a concession made by his own head of delegation
but not say anything aloud. Similarly, there may be differences
in power among the various participants in the other delegation.
For example, in countries with a Communist Party structure, the
highest-­ranking party member is not always the one doing the
talking. A keen observer of nonverbal cues, especially someone
with language and cultural familiarity of the counterpart country,
can be a key to learning valuable insights omitted by the note
taker’s rendition of what happened.
• Experts: Most negotiations have areas where expert knowledge
is important, be they on trade issues, budget, scientific, or tech-
nical areas. It is important to have the right mix of experts on
a negotiating team. Nevertheless, it is often sufficient to have
experts in specific subject matters nearby, without them having
to be constantly present in the negotiation room. In many of the
Iran negotiations I supported while in Geneva, for example, a
team of nuclear and missile experts was waiting in backrooms,

  9.  See Condoleezza Rice. 2011. No Higher Honor. New York: Broadway Books. Chapter
35. I am also a fast typist, having used a manual typewriter in my first paid job as a newspaper
reporter while in high school in Michigan. As with Secretary Rice, these typing skills gave me
a chance to have a hand—­or at least several fingers—­in the drafting of a range of agreements.
 Negotiation Theory Overview  25

but they were not needed in the small negotiation sessions among
the direct participants.10 Still an adequate system needs to be in
place for conveying information between the negotiators and their
experts, usually headed by the chief of staff or deputy head of
delegation.

Finally, we emphasize preparation for negotiations as a tool because it

helps heighten awareness of all the pieces of your negotiation toolkit. Prepa-
ration can remind the negotiator of those tools and to plan when and how
to best deploy them. In preparing this book, I reviewed the memoirs of
most secretaries of state I worked for during my professional career—­from
Madeleine Albright to Hillary Clinton—­and was surprised at how little they
wrote about their negotiation toolkits. As with other senior diplomats, they
focused on the instructions which articulate the positions that the United
States would take. Often they focused in retrospect on justifying positions
taken. They also focused on the question of when or whether the United
States should be “willing” to negotiate with bad actors, like Iran or North
Korea. Thus their memoirs are rife with examples of refusals to negotiate
and of the bottom-­line goals that they sought to achieve when negotiating,
mostly in the Middle East or with North Korea.11 Nevertheless, with all this
focus on instructions and outcomes, they rarely shared detailed discussions
of the actual tactics they deployed, or should have deployed, in preparing
and conducting negotiations.

10.  In negotiations that ultimately contributed to the Iran nuclear deal, the “backroom”
experts passed the time by imagining which actors and actresses they would like to play their
roles and the roles of their principals in an imaginary future Hollywood blockbuster entitled
“P5 plus 1.” Such banter, which can help to break the ice between and among delegation
members, has been lost during the COVID-­19 pandemic when negotiations have largely been
forced to take place online, a topic we expand on in chapter 11.
11.  See, e.g., Rice, No Higher Honor. For example chapter 3 of Rice’s memoirs discusses
the Bush administration’s bottom-­line positions on negotiations with North Korea, the EP-­3
incident with China, and the Kyoto Protocol but offers little appreciation for the tactics one
would have to deploy to reach the goals she outlines. One observation Rice does offer from
a tactical point of view is to compliment Tony Blair on his use of humor in his first meeting
with President George W. Bush. Reading prepared talking points about a trade dispute with
which President Bush was clearly unfamiliar, Blair finished by saying: “And I have now just
said everything that I know about this issue,” which she assessed as a positive way of read-
ing a counterpart and encouraging camaraderie. Similarly, where Secretary Clinton’s book
What Happened discussed foreign policy, it reframes description of major incidents to justify
positions she took in the past, largely without detailing the negotiation tactics or approaches
needed to reach those outcomes. Hillary Rodham Clinton. 2017. What Happened. New York:
Simon & Schuster.
26  The Art of Getting More Back in Diplomacy

Among the memoirs I reviewed, Madeleine Albright’s Madam Secretary

is the best in this regard, particularly in outlining her role in using negotia-
tion tactics to bring together participants in an effort to prevent, and then
end, the war in Kosovo.12 Albright is particularly insightful in describing
how she used tactics with her Russian counterparts, and how they used or
tried to use similar tactics against her. Nevertheless, for most others, their
memoirs contain relatively little about how they consciously put negotia-
tion tools to the service of diplomacy to achieve their goal and focus instead
on the bottom-­line positions. They appear to have underestimated in their
memoirs the value of negotiation tactics to diplomacy. Perhaps these dip-
lomats avoided discussion of their tactics and strategy because they wanted
to keep them secret. Perhaps they observed and deployed them less often
because they arrived only to close a deal, with good preparatory work having
been conducted by others. Whatever the reason, my review of their mem-
oirs suggests that senior statesmen and women failed to make full use of
their toolkits for multiparty international negotiations.13 This chapter and
the subsequent one focus on the importance of having an overview of the
available tools and tactics, because we do not want you to make the same
mistake of overlooking them in your negotiations.

12. Madeleine Korbel Albright. 2003, Madam Secretary. New York: Miramax Books.
Chapters 24 and 25.
13. Rice, No Higher Honor, chapter 3 (criticizing the Clinton administration approach to
North Korea). Hopefully, these respected senior negotiators effectively deployed negotiation
tactics but felt compelled to withhold the details of those discussions.
Chapter 3

Oft Used Negotiation Tactics and Diplomatic

Responses for Your Negotiation Toolkit

In addition to the general strategic tools provided in chapter 2, it is also

important for a good negotiator to review the menu of tools and tactics
that others may use with or against you in negotiations, and some possi-
ble responses. This is by no means an exhaustive list of negotiating tools
or perspectives, but rather are those I came across frequently in my career,
found deployed often by others, and whose use the case studies in subse-
quent chapters will discuss. First, we will look at tactics that are specifically
applicable to negotiations that focus on wording—­negotiations about UN
resolutions or other agreements are the classic examples, but many business
negotiations also revolve around the wording of a contract or other written
document, which aims to have some level of legal enforceability. Second, we
will look at some tactics often used in longer negotiations, especially those
in the United Nations, and some possible responses that one can use if these
tactics are deployed against you.

Tactics Specific to Negotiations about Wording

UN resolutions, like contracts, declarations, public and private statements,

and most legal documents, are all about wording. In the United Nations in
particular, negotiations about serious political and foreign policy concerns
are usually resolved by finding the appropriate wording to capture a real-­
life situation with politically acceptable language. A good negotiator who
understands her interests and those of the other parties can usually, in good
faith, find a compromise in the language that is acceptable to all sides. That
is, of course, if the other sides are also operating in good faith.

27
28  The Art of Getting More Back in Diplomacy

The following are tactics that I have often seen deployed in negotiations
in the United Nations and some tips for how to work around them. They
provide a negotiator in such a setting a quick toolkit of terms and phrases
to use, even if the objective is sometimes markedly different from what the
words appear to mean.

1. Avoid the Nasty Words but Get the Content Addressed

In negotiations with several states on human rights, it was clear that there
were certain words that were offensive to a country accused of committing
abuses. Concepts like “monitoring,” for example, offended states as a poten-
tial restriction of their sovereignty. So if it was more acceptable to say that a
resolution would create a mandate for documenting and assessing, why is it
necessary to press for a more offensive term?
In other cases, a state might be willing to admit that a certain event and
its difficult or painful consequences happened, but it may be reluctant to
place blame. One technique I often used to break that deadlock was to refer
to a report or other neutral document that outlined the allegation. Rather
than to say, “Sudan’s security services shot innocent protesters,” we agreed
in one negotiation, for example, to deplore “the incident documented in
paragraph 68 of the recent report by the Independent Expert.” What was
the deplorable incident being discussed? The shooting of peaceful protest-
ers on the campus of Khartoum University participating in a protest.. This
indirect form of referencing was often a useful way of breaking an impasse.
This tactic could also be very useful if an accused country or party was
concerned about publicity; often domestic publicity concerns government
officials much more than publicity that does not focus on their own citi-
zens and remains read by a largely international or UN audience. Insertion
of phrases such as “reports indicate” prior to statements about abuses also
was a way of allowing an accused state to save face and it could claim, at
least domestically, that the reports were just wrong. As I would often tell
foreign counterparts and U.S. officials alike, once there was agreement
on the key mechanisms and underlying principles of a resolution, good
negotiators should always be able to find words to break a deadlock. This
is especially true if they have fully explored options with their counterparts
and are following a path of good faith, interest-­based negotiations.
 Oft Used Negotiation Tactics and Diplomatic Responses  29

2. “We need to update/streamline the language”

Good negotiators often deploy two marvelous catchphrases, “update” and

“streamline,” which are often followed by “just a little” to hide major changes.
Updating often is a surrogate for saying a party wants to add new concepts,
while “streamlining” usually means the party involved wants to delete key
language. When a negotiator asks to update or streamline language, he often
does not want to be transparent about the reasons for doing so. I was sur-
prised how often calls for updating or streamlining went unquestioned in
my UN experience.
But won’t you look silly if you challenge someone who is just seeking
to update or streamline a document? Of course not. Rather than challenge
another negotiator directly, an oft-­used tactic is to ask targeted questions. A
simple yet diplomatically phrased question about the updated or streamlined
language can often help to expose the real motivation behind the party seeking
to make this change in language. Moreover, if the question is posed in a public
setting, like a UN negotiation, it can also serve to highlight for all negotiation
participants the potential significance of the addition or deletion.

3. The Problem or Issue Being Addressed Does Not Exist in Our Country

Delegates from a UN member state who objected to or did not want to deal
with a particular phenomenon would often say that the issue does not apply
in their specific cultural context. When a state was uncomfortable discuss-
ing an issue, be it about human rights defenders, LGBTI persons, domestic
violence, or other sensitive issues or vulnerable groups, it was common for a
state to claim in a UN negotiation or related setting that the issue or prob-
lem did not exist.
A corollary to this denial was the approach that “there is no word for
that” in our language. Egyptian delegates at the UN Human Rights Council
often used this tactic to try to deflect or reformulate the core principles of
a resolution that the Egyptian government did not like. Among words that
Egyptian diplomats claimed were impossible to translate into Arabic were
“human rights defenders,” “reprisal,” or other concepts they did not want to
have resolutions discuss. Online research tools like Google can often help to
rebut these specious arguments, but I found the most useful way to address
this point was to sit next to another Arabic speaking diplomat during the
negotiations and ask him or her. For example, when the Egyptians claimed
that something was not translatable into Arabic, I would do a quick Google
30  The Art of Getting More Back in Diplomacy

translate, and often ask the Tunisian diplomat seated nearby if this was the
correct word in Arabic. Armed with the correct translation, I would try to
offer it in rebuttal but sometimes found that the native Arabic speaker I
consulted would jump in first and propose the appropriate Arabic word to
the Egyptian detractor.
In addition, a list of tactics that a negotiator can use or should be aware of
more generally in any negotiation follows. You can deploy these approaches
in almost any situation, not just negotiations about wording. As with the
other tactics we have discussed, they require testing based on the situation
and response of a counterpart. A good negotiator keeps all of these negoti-
ating approaches in his/her toolkit but deploys them as appropriate to the
context and counterpart(s). They include:

Be nice to people while differing on the substance: This may be the

1.
most significant difference between the business-­litigation model
of negotiation and the United Nations model. Repeated interac-
tions in multiparty political negotiations require that UN negotia-
tors try to maintain positive relationships. Negotiators often have
significant discretion to help counterparts whom they like and to
block counterparts whom they dislike. By maintaining good rela-
tions with all, one can often find a compromise solution. More-
over, if one can disagree without being disagreeable, it builds re-
spect and makes a friendly opposing party more interested in, and
willing to find, a compromise or be helpful in the next interaction.
2.
“We know you are a friend”: Chinese diplomats were fond of try-
ing to split individual negotiators from the U.S. position using
this approach. Through complements, speaking Chinese, or using
the prized “we know you are a friend of China,” they would of-
ten attempt flattery to gain information about the status of posi-
tions in Washington and to help them determine which pressure
points to push in Beijing, Washington, or other foreign capitals.
Any government can do this, but I was surprised to the extent at
which Chinese negotiators did this, including with me directly.
A good negotiator can use this idea of flattering the other side as
more reasonable or more favorable to his advantage. For example,
I often used the tactic to elicit further information about Chinese
positions so long as I was careful not to reveal more about U.S.
positions than planned or authorized.
In a negotiation environment where the negotiators claim to
have a special bond of friendship or trust, it is also possible to use
 Oft Used Negotiation Tactics and Diplomatic Responses  31

your “favored” status to feed misinformation to an opposing nego-

tiator. Feeding of misinformation can cause the opposing party to
waste time and energy on an unproductive route or disorient them
from the key issues of dispute. But like many of the Trumpian
tactics criticized here, feeding of misinformation is a tactic that
one cannot use very often, because it is likely to be discovered
eventually and undermine the very situation of trust that created
the opportunity for deploying the misinformation tactic in the
first place.
3.
Be helpful internationally to distract from repression at home:
Some of the best negotiators I worked with at the UN Human
Rights Council were from states with their own human rights
challenges. Diplomats from the Maldives, Rwanda, Ethiopia, Tur-
key, and other states with blemished human rights records often
went the extra mile to be helpful to the United States and other
Western countries. The more difficult the topic, the more help-
ful some of these diplomats and their delegations would be. Their
help made it more likely that the United States would value coop-
eration with the state and not wish to jeopardize it by criticizing its
human rights practices. In the period from 2012 to 2015, Turkey
was a particularly adept player in using this tool. The Turks joined
the United States as a partner in more “core groups”1 at the HRC
than any other country, making it harder for the United States to
criticize Turkish repression of Kurds, its limitations on free expres-
sion, and other human rights foibles. For example, Turkey was a
member of the core group with the United States, Sweden, Tu-
nisia, Nigeria, and others on the discussion of Internet freedom.
Such a position ensured that Turkey’s practices related to Internet
shutdowns were not singled out for criticism. Of interest, this type
of cooperation in the HRC continued into the Trump administra-
tion, even after Trump’s withdrawal from the HRC and his falling
out with President Erdogan. It is likely Turkey continued to coop-
erate with the United States because the cooperation served its in-
terests and succeeded in shielding Turkey from some international
criticism.

1. A “core group” is a group of states, usually representing several of the five United
Nations regions, who band together to introduce a resolution or to advance a particular the-
matic position. Among the issues on which Turkey and the United States shared a core group
in 2013–­2016 were Internet freedom, Syria, and countering violent extremism.
32  The Art of Getting More Back in Diplomacy

4.
“Credibility of the institution requires it”: This is an HRC-­specific
variation on the Fisher and Ury recommendation that parties iden-
tify objective criteria by which to evaluate the terms in their ne-
gotiations. I frequently used this argument in the Human Rights
Council to differentiate between criticizing a delegation and criti-
cizing a situation of human rights abuse in the country. This argu-
ably neutral standard takes the personality out of the discussion
and just suggests that the credibility of the institution demands
a strong or specific response to human rights violations on the
ground. A negotiator using this tactic might ask, “What kind of
voice on human rights can the United Nations have if its Human
Rights Council does not condemn the massive violations going on
in ____________?”
This tactic can help states to justify a position that they want
to take, or that they think is right. For example, a regional group
often rallies behind other members of its regional group to prevent
criticism of the state in the HRC. But diplomats from the same
region as a country facing such criticism could agree to criticize the
state at issue because “the credibility of the HRC requires it.” In
many cases, African states preferred to address themselves serious
human rights violations by an African state and propose a resolu-
tion of their own, rather than have the resolution on a human
rights challenge in Africa be tabled by those from another region.
This desire to “police one’s own human rights situations” was a sig-
nificant trend during my years at the HRC, especially in Africa as a
result of an African Union that was increasingly active on difficult
human rights situations on the continent.
5.
“Lawyer it up”: A signature manifestation of this tactic is using
legal references and citations to confuse or obfuscate a situation so
that others do not understand or are embarrassed to admit they do
not understand the underlying legal points. In discussions of eco-
nomic rights, a variation of this tactic involves using economists
to obscure debate or intimidate noneconomists from objecting.
In fact, any specialist can be used in this way in negotiations. In
my experience at the United Nations, the United States and other
P5 countries are the only delegations with a panoply of lawyers
analyzing the implications of resolutions, and their legal analysis
is often too much for the handful of attorneys who are deployed
across the rest of the UN landscape. Similarly, the opportunity to
make a topic so complex that people lose sight of the issue being
 Oft Used Negotiation Tactics and Diplomatic Responses  33

debated and tend to defer or doubt a single expert is one of the

reasons for the proliferation of expert witnesses in tort litigation
cases in the United States.
When parties are talking, they usually are not fighting: In a busi-
6.
ness negotiation, it often pays to walk out of negotiations or cut
them short if they seem not to be bearing fruit. However, in my
experience with international political actors, most countries that
are seriously engaged in negotiations do not exacerbate or intensify
aggressive behavior outside the negotiation room while they are
pursuing a negotiated agreement in good faith. It is true that in the
Syria negotiations I observed, the war continued regardless of talks
in Geneva. And negotiations are frequently a stalling tactic. But it
is rare that a party initiates new conflict while at the negotiating
table. Even the North Koreans, who may have used negotiations as
a way to stall for time to improve their nuclear programs, did not
initiate conflict during any round of the Six-­Party Talks. Rather,
they often used missile launches or threats of conflict as a bargain-
ing chip to give them something to negotiate away. Similarly, Lib-
yan expansionist General Khalifa Haftar has not initiated a new
attack while engaged in negotiations (although he did launch his
first attack on the Oil Crescent in September 2016 immediately
after military talks between his forces and Western generals).
Walking out of a negotiation: Walking away from a deal is always
7.
possible but to walk away from a negotiation risks that you will
not get back to a deal originally contemplated. When the cost of
not getting back to a deal is just money, it is possible to pursue
greater brinksmanship and targets of opportunity. In international
political negotiations, walking away from a negotiation is far
riskier and in general not recommended. One can certainly pause
a negotiation for strategic or substantive impact. I have walked
out of particular negotiation sessions, especially as a way of ex-
pressing that the position taken by your negotiating counterpart
is unreasonable, sometimes with excellent results. Like a buyer in
a market, this is one way of illustrating your bottom-­line position.
Moreover, in commercial negotiations this is a useful tactic—­there
are usually other parties who can substitute for a current nego-
tiation partner to procure the items sought or to engage in the
business transaction under discussion. But the structure of the in-
ternational system and the unique prerogatives of states and their
sovereignty indicate that when a door is shut entirely to negotia-
34  The Art of Getting More Back in Diplomacy

tions with a given state, the cost and opportunity to reopen it may
be very high and the losses as a result of not negotiating can be
catastrophic.
But for the many reasons mentioned elsewhere, it is unwise to
walk away from an international political negotiation altogether.
The approach, stated frequently by Trump National Security Ad-
visor John Bolton, that negotiations with the United States are a
reward for good behavior is a dangerous approach, employed with
negative results in case studies from Iran to North Korea. As noted
above, while recalcitrant actors are engaged in talks, they rarely
expand their dangerous activities and often reel back aggressive
activities.. At the same time, failure to be engaged in discussions
deprives the United States of valuable information and commu-
nication channels. Of course, it is reasonable to withhold higher
and higher levels of negotiators until groundwork is laid or as a
“reward” for good behavior, but to terminate all channels for ne-
gotiation is, in my experience, an unwise and counterproductive
negotiation approach on the public international stage.

Now that we have outlined some key theories, tools, and tactics likely to be
deployed in multiparty international negotiations, let us look at how these
tools have been used in practice based on a range of case studies from North
Korea to Libya and the United Nations.
Chapter 4

DPRK, Denuclearization Discussions, and

BATNAs (Best Alternative to a Negotiated
Agreement)

In negotiating with North Korea about its nuclear program, the parties faced
complex questions about the others’ goals, motivations, and alternatives. The
negotiation process that became known as the Six-­Party Talks on the North
Korean nuclear issue lasted for six formal rounds, from 2003 to 2009. I was
a participant in these talks, both as a note taker while at the U.S. Embassy
Beijing and later as an advisor while working for the North Korea Unit in
the U.S. Department of State in Washington, D.C. The Six-­Party Talks pro-
vide an excellent example of international, multiparty political negotiation,
particularly an interest-­based negotiation where negotiators need to explore
mutual interest in an effort to overcome distrust and find mutual benefit.
They also provide an important background to the ongoing threat of nuclear
conflict with the DPRK, which is one of the most important current secu-
rity situations and which will be discussed in detail in chapter 13.

A Case Study in Interest-­Based Negotiations

Looking at the Six-­Party Talks as an interest-­based negotiation of the kind

Fisher and Ury speak about, we can begin by analyzing the goals, or inter-
ests, that the United States, North Korea, and the many other parties with
interests in the North Korean nuclear issue had related to the outcome of
those talks. North Korea’s goals included:

35
36  The Art of Getting More Back in Diplomacy

• Security guarantees that it would not be invaded or attacked by

the United States, South Korea, or any other country;
• Survival of its totalitarian regime and its leaders’ way of life built
on the country’s people and resources;
• International respect and legitimacy, especially from the United
States;
• Normalization of relations with the United States and the interna-
tional community;
• Economic enrichment of the regime and its elite followers;
• Economic development of the country and improvement of the
standard of living of its people.

In addition to these goals related to the outcome of talks, the DPRK also
had goals related to the process of the talks, which included:

• Developing channels to speak directly to the United States as an

equal;
• Appearing on the world stage as a “normal” international actor,
rather than the pariah state that the DPRK was often portrayed to
be; and
• Delaying the international community’s inspection of DPRK
nuclear programs until it could further refine its nuclear weapons
and delivery systems.

With respect to this last point, it is not clear if that was a goal of the DPRK
throughout the six-­year process of the Six-­Party Talks or if it only became a
goal at a later stage in the negotiations.
The goals of the United States were far narrower than the DPRK’s and
focused almost entirely on security concerns for the United States and its
allies related to North Korea not advancing or using its nuclear or missile
program. Among its goals were:

• Security from nuclear weapons (for itself, its allies, and the world);
• Security from attack on its allies (South Korea and Japan) using
missiles or conventional weapons;
• Preventing the proliferation of nuclear weapons, technology, and
material;
• Humanitarian concerns related to the safety of its own citizens,
the treatment of North Koreans, and, especially for Japan, safety
and accountability for Japanese citizens abducted by the DPRK.
 DPRK, Denuclearization Discussions, and BATNAs  37

Finally, in 2008 as now, negotiations over North Korea’s threats to its

neighbors and the world were a significant playground in which regional
and global powers exercised authority and battled for influence on the
world stage. Countries like China wanted to demonstrate their leadership
and their ability to host major political negotiations. Russia and Japan
wanted to demonstrate their relevance and ability to influence the direc-
tion of security in Northeast Asia. Many in the United States, China, and
Russia saw the North Korean nuclear issue as one match in a game of
triangular power politics that featured varying partnerships and alliance of
interests, as these three powers tried to determine whether the shape of the
post-­Cold War world would involve cooperation between them or com-
petition. In addition, South Korea wanted to orchestrate a future on the
Korean Peninsula that would leave it safe, prosperous, and able to exploit
the low-­cost labor and development needs in the DPRK to enhance its
economic and political power. During the Six-­Party Talks, South Korea’s
government rested in conservative hands, leaving it more likely to follow
the lead of the United States, its alliance partner. But today, as we will see
in chapter 13, the rise of progressive president Moon Jae-­In and a return of
“sunshine” policies toward the DPRK has the Republic of Korea pursuing
peace with the DPRK more aggressively and with a much greater degree of
independence from the United States than was apparent in the Six-­Party
Talks period.

Invent Options for Mutual Gain

In the face of clarity about these interests and their importance, the
United States and its partners sought a basic deal from the DPRK based
on a win-­win premise: North Korea could be persuaded to denuclearize
in exchange for a range of economic benefits and security guarantees.
The United States first tried to deploy this perceived option for mutual
gain during the Agreed Framework period of 1994–­2002. Under the
Agreed Framework, the United States, Japan, and South Korea agreed
to provide certain economic incentives to the DPRK, in exchange for
its adherence to safeguards and inspections of the International Atomic
Energy Agency (IAEA). Specific terms of the pact and consequent agree-
ments required that the DPRK shut down its nuclear reactor at Yong-
byon, abandon construction of other nuclear plants, and seal under safe-
guards by the IAEA all spent fuel that could have been reprocessed to
make plutonium for a nuclear weapon. Through the Korean Peninsula
38  The Art of Getting More Back in Diplomacy

Economic Development Administration (KEDO, whose first director

Stephen Bosworth was the second North Korea envoy under whom I
served as a U.S. diplomat), the DPRK was scheduled to receive two
light-­water nuclear reactors capable of providing vast quantities of the
country’s electrical needs, at a value of nearly $4 billion. In the interim
while the reactors were being built, North Korea was to receive 500,000
tons of heavy fuel oil per year, essentially for free. This deal broke down
when, in 2002 on a trip to Beijing, U.S. Assistant Secretary of State for
East Asian and Pacific Affairs James Kelly learned that the DPRK had
been cheating on its agreement and was attempting to enrich uranium
for a nuclear weapon.1 The United States abandoned the KEDO deal and
rhetoric and sanctions escalated on both sides.
It was in this context that Ambassador Christopher Hill replaced Kelly
as U.S. Assistant Secretary of State for East Asian and Pacific Affairs and as
the lead envoy on North Korea. Hill became the U.S. chair for the Six-­Party
Talks and immediately began working on a new deal to try to dismantle
North Korea’s nuclear programs. It was also at this time that I began to be
involved in the talks. Under Hill as under Kelly, the underlying perceived
win-­win tradeoff remained the same: the United States and other countries
hoped that a combination of economic engagement, sanctions relief, and
security guarantees would persuade the DPRK to abandon its nuclear pro-
grams. However, the political environment in which Hill operated differed
significantly from that in which Kelly and his team confronted the DPRK
over its hidden uranium enrichment program. Kelly came into office early
in the George W. Bush administration. In 2001 and early 2002, the war
against terror, in response to the September 11, 2001, attacks, was the defin-
ing political paradigm for U.S. foreign policy. In early 2002, President Bush
had labeled North Korea, along with Iran and Iraq, part of an “axis of evil.”
Vice President Cheney was among a group of leading conservative advisors
who advanced that policy, with many similarities to the “maximum pres-
sure” campaign of the Trump administration. In this environment, Secretary
of State Colin Powell was largely excluded from key U.S. decision-­making
on North Korea. In one famous incident, Powell announced plans to have
talks with North Korea, only to find himself contradicted by the president
and forced to issue his own reversal during a visit to Washington by ROK
President Kim Dae Jung in March 2001.2

1. Rice, No Higher Honor, chapter 11, Kindle location 2862 of 12657.

2.  “Bush Tells Seoul Talks with North Korea Won’t Resume Now,” New York Times, March
8, 2001.
 DPRK, Denuclearization Discussions, and BATNAs  39

By 2003, the political situation had begun to change. Powell was more
firmly in control of foreign policy issues in the administration and National
Security Adviser Condoleezza Rice had come around to the view that nego-
tiating with the North Koreans was an advisable course of action.3 Cheney
continued to criticize and sometimes attempt to undermine the talks.4 In
general, Ambassador Hill was placed firmly in charge of the delegation and
the negotiation strategy, with a remit from National Security Adviser Rice
and Secretary of State Powell to work with the Chinese and try to negotiate
the denuclearization of North Korea. When Rice took over as secretary of
state in 2004, Hill’s remit strengthened. She authorized him to talk to the
North Koreans, used U.S. power to get the Chinese and Russians to sup-
port multilateral diplomacy aimed at denuclearization, and helped persuade
President Bush to favor negotiations over regime change.5
Under Hill’s lead, North Korea took significant steps to reverse and
curtail its nuclear activities over the course of the 2007 to 2008 period,
in exchange for a range of economic and prestige-­related benefits. Among
them, in 2007, the IAEA confirmed that a 5-­megawatt nuclear reactor at
Yongbyon had been shut down and sealed and North Korea committed
not to transfer nuclear technology or know how to other parties. North
Korea also dismantled other Yongbyon nuclear facilities, permitted inspec-
tion of those facilities and destroyed, in April 2008, the cooling tower for
its Yongbyon nuclear reactor. North Korea did not test a nuclear device after
October 2006 until talks had broken down, when it conducted its second
nuclear test in May 2009. North Korea ultimately reversed its dismantle-
ment of nuclear facilities,6 but the denuclearization undertaken during the

3. Rice, No Higher Honor, chapter 23, Kindle location 5850 of 12657.

4.  See the discussion of Powell and Rice in Cheney’s autobiography, Richard B. Cheney and
Liz Cheney. 2011. In My Time. New York: Simon & Schuster. See also Glenn Kessler, August
30, 2011, “Colin Powell versus Dick Cheney,” Washington Post, available at https://www.
washingtonpost.com/blogs/fact-checker/post/colin-powell-versus-dick-cheney/2011/08/30/
gIQAwYydqJ_blog.html?utm_term=.0011455f829d
5. Rice, No Higher Honor, chapters 38 and 55.
6.  Denuclearization experts admit that nuclear dismantlement is almost never irreversible
and, in fact, the North Koreans later restored the Yongbyon compound to produce plutonium
after denuclearization talks broke down. See, e.g., Simon Denyer, February 22, 2019, “North
Korea’s Yongbyon Nuclear Complex at the Heart of Trump-­Kim Summit,” Washington Post,
available at https://www.washingtonpost.com/world/asia_pacific/north-koreas-yongbyon-
nuclear-complex-at-the-heart-of-trump-kim-summit/2019/02/22/ee99269a-352d-11e9-
8375-e3dcf6b68558_story.html?utm_term=.fae3451e5989; Ploughshares Fund. 2019.
“Begun Is Half Done.” https://www.ploughshares.org/sites/default/files/resources/Begun-is-
Half-Done-2019.pdf
40  The Art of Getting More Back in Diplomacy

peak of negotiation of the Six-­Party Talks at least delayed development of

the North’s nuclear and missile programs and retarded its ability to pose a
threat to the United States and its allies.
At the same time, North Korea began receiving some concrete develop-
ment assistance and sanctions relief. Beginning after the September 2005
Joint Statement, the other five parties agreed to provide the DPRK with one
million tons of heavy fuel oil, and the United States removed the DPRK
from its State Sponsors of Terrorism list with corresponding symbolic sanc-
tions relief. During this same period of time, North Korea also received
significant food aid from the United States, although some U.S. officials
insisted that the food aid was humanitarian in nature and not linked to the
political deal on denuclearization.7
Under an interest-­based theory of negotiations that seeks win-­win solu-
tions, the parties’ interests should have made a deal possible that advanced
both denuclearization of North Korea and its reintegration into the interna-
tional community. North Korea did not require nuclear weapons or long-­
range missiles to protect itself from invasion or the survival of its regime
as long as the United States had no intention of attacking the DPRK. If
North Korea could be convinced that its nuclear program was not really a
“deterrent,”8 protecting it from attack by the United States, it could shift its
focus and effort to other areas, including possible economic development.

As a result, the U.S. denuclearization goal in the Six-­Party Talks of CVID—­the Com-
plete Verifiable and Irreversible Dismantlement of North Korea’s nuclear program—­was never
really attainable. But the dismantlement and freezing of North Korean nuclear and missile
programs were significant steps that at least delayed the day when the DPRK could miniatur-
ize a nuclear device for delivery into U.S. territories or even the mainland, as discussed in
chapter 13.
7.  The United States has not provided food aid to the DPRK since the April 2009 collapse
of the Six-­Party Talks on the nuclear issue, despite varying levels of humanitarian need in the
country and corresponding calls for increased response to the UN and others’ appeals. See
Andrew Natsios, March 7, 2012, “Op/Ed: U.S. Food Aid to North Korea Sends the Wrong
Message,” Washington Post, available at https://www.washingtonpost.com/opinions/us-food-
aid-to-n-korea-sends-the-wrong-messages/2012/03/07/gIQA6MM1zR_story.html?um_
term=.e1d0d197a1ab
8.  North Korea has often argued that its nuclear program was a necessary deterrent and a
measure of ensuring its security. But I observed repeatedly how this position collapsed under
questioning. North Korea’s massive conventional force in close proximity of Seoul was the
major deterrent preventing the United States from launching a preemptive strike against the
DPRK in the period from 2003 to 2008. Even if North Korea had possessed a nuclear weapon
capable of being delivered to the United States, an attempt to use it would have relegated the
entire country to an ash heap (see discussion of Hill-­Kim Kye Gwan conversation, at end of
this chapter).
 DPRK, Denuclearization Discussions, and BATNAs  41

Moreover, from an interest-­based perspective, the international community

could “afford” to give up the sanctions relief, international attention, and
limited economic assistance in the form of food aid or fuel oil provided to
the DPRK. Most importantly, economic development provided a win-­win
opportunity. The outside world would be only too happy to provide eco-
nomic development that could transform North Korea. Under this notion,
North Korea could progress from its status as a state with few development
or employment opportunities, no consumer economy, and a lack of elec-
tricity that left the country embarrassingly dark on nighttime maps of the
globe. Instead it would turn into a developing state with the opportunity
for investment, and policies and development programs that would improve
the economic standing of the regime and the daily lives of its citizens. Trade
benefits also awaited most of the others in the Six-­Party Talks—­certainly
South Korea, China, and Russia, if not Japan and the United States—­should
North Korea open its economy to foreign businesses and development.

Mistaken Assumptions, Misunderstanding of Interests, and BATNAs

So why did the negotiations break down? Several factors are responsible.
First, there was an “ideological interference” in the process of negotiation,
which kept the parties from finding a win-­win outcome. Second, there were
some basic misunderstandings by each side of all the interests of the other
and an unwillingness to communicate about the most important issue of
conflict between the parties: survival or destruction of the North Korean
regime and ruling system. Finally, and relatedly, the parties did not fully
understand each other’s Best Alternative to a Negotiated Agreement, or
BATNA, and Worst Alternative to a Negotiated Agreement, or WATNA.
Thus they repeatedly tried to induce deals that were fatally flawed from the
perspective and logic of the negotiating counterpart.
What does ideological interference mean? Unlike in a market-­based
negotiation, for the United States and Japan, in particular, there was an
ideological opposition to dealing with North Korea that defied a search for
win-­win solutions. In the mindset of officials in the early phase of the Bush
administration, North Korea was part of an axis of evil. According to this
way of thinking, no amount of mutual benefit could make a truly patriotic
American negotiate or, indeed, give concessions to the evil North Korean
regime. As a result, the United States did not even talk with North Korea
about its nuclear and weapons programs for several periods preceding and
even between rounds of the Six-­Party Talks. In many corridors of Washing-
42  The Art of Getting More Back in Diplomacy

ton government agencies, merely allowing North Koreans to conduct direct

negotiations with America was seen as a reward unworthy of the DPRK
police state. Some Japanese politicians may have had a similar abhorrence
to negotiating with the DPRK, especially politicians focused on the case
of abduction of Japanese citizens by North Koreans in the period 1977 to
1983. Ambassador Hill in particular became a target of some of those who
were ideologically opposed to a deal with the North Koreans, in both the
United States and Japan.
On the North Korean side, there was doubtless also an ideological dis-
comfort among some of the regime’s greatest hardliners about negotiating
with South Korea, with Japan, and with the United States. Nonetheless,
under Kim Jong-­Il, the regime’s relative economic weakness and perhaps
a surprising pragmatism seemed to overcome this ideological interference
on the North Korean side. Ideological concerns about not dealing with or
rewarding the DPRK for its pariah state behavior seemed a stronger interfer-
ing factor in the negotiations for some in Japan and the United States than
in the DPRK. Generally put, this is one example of how domestic political
considerations can bias a political negotiation in ways that money cannot
anticipate or adequately address.
Second, U.S. officials overestimated the value to the DPRK of economic
benefits. Of course, in an underdeveloped state with few natural resources,
little developed industry, and almost no trade except for with China, eco-
nomic development was important. The main resources available to the
DPRK were from export of its laborers to neighboring countries, illicit activi-
ties such as counterfeiting and smuggling, and even more dangerous exports,
such as the sale of weapons and even nuclear technologies. Unlike in many
countries, the DPRK was not interested in financial resources to expand the
standard of living of its population or to boost its overall GDP. Rather, finan-
cial resources were, and largely still are, a tool of political power in the DPRK,
enabling the leadership to reward the military, government, and technical
elites needed for running the country and maintaining control. So exactly
while the Six-­Party Talks, like the KEDO project before them, were nego-
tiating to provide the North Koreans with resources to enhance electricity
production or other aspects of a domestic economy, the DPRK was engaged
in bringing in resources through illicit means. One of the most damning ele-
ments of North Korean proliferation was made public in April 2008, when
the CIA released images of a Syrian reactor facility the Israelis had destroyed
some six months earlier, which looked strikingly similar to the North Korean
facilities at Yongbyon. Those who opposed any dealings with North Korea,
much less giving the DPRK economic incentives to denuclearize, found their
 DPRK, Denuclearization Discussions, and BATNAs  43

hand significantly strengthened by evidence that the North was proliferating,

and profiting from proliferation, in the midst of negotiations.
Third, many on the U.S. side, and likely some other delegation members
in the Six-­Party Talks, misunderstood how fragile the North Korean regime
saw itself, and therefore how important one of its interests was, above and
beyond all others. For North Korea, survival of its regime and its leaders’
way of life was its highest priority. In this ranking, there was no close sec-
ond place. The North Korean leaders knew that a “Trojan horse” connected
with development would be the opening up of their society to information.
They feared that the new information and new opportunities would pose a
risk to their way of life. For this very reason, DVDs of South Korean soap
operas were banned in the North, as they might raise doubts in the minds
of the North Korean population about the deprivation the population was
undergoing to protect the regime from imminent threat by South Korea and
its allies. Doubtless, the regime was concerned also that information about
the outside world such as on ROK television might show its citizens how
advanced the economy of Seoul is, raising questions that the regime was not
prepared to address. No North Korean official or leader wanted the mass
of North Korean workers, farmers, and students to ask whether the ongo-
ing sacrifice that had been required by North Korea’s “juche” philosophy
of self-­reliance was worth it. Even a small risk of information crossing into
the DPRK that raised such questions was unacceptable to North Korean
leaders and caused the seemingly “logical” appeal of an offer of economic
assistance to be less persuasive than those Western diplomats who were offer-
ing it realized.
This logic and focus on survival over economic development made per-
fect sense to the DPRK but was more difficult for the United States and its
allies to understand. According to the DPRK’s own logic, it made a correct
judgment to forego economic benefits that it could not control, despite the
avoidable hardship this caused for its people. After all, under the North
Korean logic, it had succeeded in developing nuclear technology even
though no one thought it would be able to do so. Why wasn’t it also possible
to produce its own economic breakthroughs at a later point in development?
One illustration of the North’s correct focus on controlling information
came when I was doing a rotation at the North Korean nuclear facility at
Yongbyon in 2008–­2009. At the time, local cellphones were becoming avail-
able for the first time in North Korea, connected on North Korea’s internal
phone system. Workers were scurrying to determine if they could afford to
buy the phones, and how they would aid in communication with family
and friends, including with those who lived abroad. The DPRK regime was
44  The Art of Getting More Back in Diplomacy

careful so that, even when these cellphones were being made available, the
network did not allow for communication outside the DPRK and did not
include features such as Internet availability.9 Some would say that this was
a case of the regime’s bizarre logic preventing it from enjoying a win-­win
solution in terms of economic development. Rather, I think the Kim Jong Il
regime understood better than did its outside counterparts the fragile basis
on which its regime was established.
In addition, security interests were not seen in the same way in the
West and in the DPRK. For the North Korean leaders, maintaining their
way of life required security. Nevertheless, even security of the territory of
North Korea was only a vehicle toward maintaining the regime’s way of
life, not an end in and of itself. Security protected the territory the regime
relied on. Enhancing security protected the interest of key defense and
military officials who also supported the regime. While the Kim regime,
especially certain elites, wanted respect and international legitimacy, it did
not require those things for its survival. In addition, it was quite willing to
trade off economic interests and the well-­being of its own people, includ-
ing their rights, food, and safety, so long as shortages in any of these areas
never became so dire that they affected the stability and survivability of
the regime.
Given the apparently mutually exchangeable set of interests that
could result in a deal on denuclearization in exchange for development,
why was it not possible for the parties to find a match that would lead
to a denuclearization deal in the Six-­Party Talks? Negotiators explored
many aspects in an interest-­based style much as Fisher and Ury would
recommend.10 However, the interests also did not match up over
another dimension: timing. U.S. provision of economic benefits, sanc-
tions relief, and conferral of international participation or prestige was
a finite good that could be conferred on North Korea, consumed by
it and then exhausted. On the other hand, U.S. security goals would
only be truly achieved through the irreversible dismantlement of North
Korean nuclear and missile facilities. And therein lay the rub. Irreversible
was almost impossible to truly produce. Rather, as long as the techni-
cal expertise for constructing nuclear reactors or uranium enrichment
remained in the minds of North Korean scientists and officials, they

  9.  Even today, North Korean officials who travel abroad often rush to get temporary tele-
phones and SIM cards so that they can take advantage of access to Internet communication as
a way to get information, photos, and social news from family and friends abroad.
10.  Fisher and Ury, Getting to Yes, chapter 6.
 DPRK, Denuclearization Discussions, and BATNAs  45

could always rebuild the facilities and infrastructure needed to restart a

nuclear program. For the DPRK, nothing it had given up was irrevers-
ible. It was only a matter of time before it was recouped.
U.S. officials handling the DPRK nuclear file had a different perspective
on the period of negotiations and its impact. They understood much about
the North Koreans’ goals and logic. However, at the same time, they hoped
for a change in DPRK thinking, in part because of pressure from and expo-
sure to the international community. Ambassador Hill correctly noted that
every day, week, month, or year that went by without any incident of North
Korean aggression or proliferation was, in fact, a success for the United States
and its partners. As a result, he based his negotiation style on the presumption
that, if North Korean efforts were devoted to finding a solution at the nego-
tiation table, they would not be devoting those efforts to their nuclear and
missile programs. Ambassador Hill made a judgment, and a gamble backed
by National Security Adviser and later Secretary of State Rice, that for a small
country with limited resources, it would be challenging for North Korea to
focus on multiple areas at once. Cheating was possible, but unlikely, this
theory postulated, so long as the DPRK seriously thought negotiations could
bring it toward its goals. Even more importantly, Hill judged that China and
Russia would help to guarantee DPRK compliance and to discourage cheat-
ing. Supported by Secretary Rice and ultimately President Bush, the United
States did, in fact, establish a solidarity of purpose in this regard with the
Chinese hosts of the Six-­Party Talks. Together, they believed that the process
of engagement in the Six-­Party Talks could, over time, build trust that ulti-
mately could allow the North Koreans to make a longer-­term commitment
to irreversible dismantlement of their nuclear programs. They also hoped
that the DPRK would find a new more prosperous, confident, and respected
future in the international community so attractive that it would not feel a
need to require nuclear weapons as a security guarantor.
Where did these negotiations fall apart then? I believe this was not a
failure of exploring interest-­based negotiation. Based on broad delegated
authority, U.S. negotiators looked for, and when permitted to speak with
the DPRK, explored, a broad range of possible win-­win solutions across
the range of bilateral and multilateral interests. Rather, even though the
interests were understood, the talks were ultimately doomed by a failure
to understand the other party’s BATNA. North Korea had almost limitless
alternatives to a negotiated agreement, and it knew so. It was valuable for
North Korea to get any measure of enhanced international status, such as
that provided by participation in international negotiations and bilateral
meetings with the United States. It was also valuable for North Korea to get
46  The Art of Getting More Back in Diplomacy

any amount of consumable economic and humanitarian assistance, be it fuel

aid delivered as a direct outcome of the Six-­Party Talks or food aid delivered
on the margins in parallel with the Six-­Party Talks but for humanitarian
reasons. Moreover, the status quo for the past fifty-­plus years had been for
North Korea to live under constant security threat from South Korea, the
United States, and its allies. Maintaining the status quo, therefore, remained
a very good alternative for North Korea to the negotiated agreement. In
effect, it was this alternative (or BATNA) that made it possible for DPRK
negotiators to always reject concessions they deemed threatening to regime
security, because they suffered little to no loss from failure to reach a deal.
They had a very acceptable BATNA if they did absolutely nothing. And per-
haps the North Koreans also calculated that they were continuing to develop
their nuclear and missile programs in secret, particularly through uranium
enrichment. As such, the North Koreans knew that the denuclearization
steps they were agreeing to undertake were “reversible” and their nuclear
deterrent could be restored in relatively short order if desired. In sum, North
Korea had every incentive to try for a deal that fully satisfied its security
demands, which meant not just confidence that the United States would not
attack it but that the Kim family regime would remain secure in its leader-
ship of North Korea. But if such a deal could not be reached, the DPRK
leadership was fine—­in its own unique way of thinking—­with continuing
its isolated struggle with the outside world and allowing the elite to consume
most of the country’s resources while the masses lived in economic and tech-
nological deprivation.
Moreover, because of its nuclear tests and steadily advancing nuclear tech-
nology, the DPRK’s position under the status quo was growing stronger day
by day. Whatever weaknesses the DPRK’s nuclear capabilities involved—­and
they no doubt were numerous—­the country had succeeded in developing
a capable nuclear device. This was true despite isolation, despite sanctions,
and despite pressure. The “cherished sword,” as North Korean propaganda
outlets called the nuclear program, was seen as a valuable deterrent against
U.S. and South Korean aggression. Whereas North Korean negotiators dur-
ing the Agreed Framework period felt that diplomacy was their primary tool
for resolving conflicts, after the country’s 2006 nuclear test, the DPRK felt
that it had options other than diplomacy to compel, coerce, or fall back on.
The existence of a nuclear deterrent, rudimentary as it was, also expanded the
DPRK’s sense of alternatives to a negotiated agreement and made diplomacy
a tool, but not the only tool, in the DPRK toolkit. It is not clear that Ameri-
can negotiators in the period between 2006 and 2009 fully appreciated this
 DPRK, Denuclearization Discussions, and BATNAs  47

change in North Korean thinking or the country’s sense that it had reason-
able options other than negotiating an agreement with the United States. In
fact, it may not have been until 2017 when President Trump threatened fire
and fury on North Korea, that the country again really reassessed its alterna-
tives to a negotiated agreement.
The United States, on the other hand, had few alternatives to a negoti-
ated agreement if it was to live up to its stated policy of not allowing the
DPRK to become a nuclear state. In theory, it could ignore the DPRK’s
nuclear test or accept it as a nuclear state and begin to negotiate limits
on its fissile material or delivery systems using an arms control paradigm.
However, this was politically unpalatable. The United States had publicly
stated a bottom line that it could neither achieve nor retreat from: it was
insisting on rolling back the DPRK nuclear program and compliance with
the Non Proliferation Treaty. At the same time, the United States could
prevent the DPRK from becoming a nuclear state only by taking away its
ability to make nuclear weapons through negotiation or by disarming the
country through military attack and invasion. Participants in the Six-­Party
Talks did not doubt that the United States could reduce North Korean
nuclear facilities to rubble if push came to shove. I recalled one particularly
tense negotiation with the North Koreans in 2008. The U.S. and Chinese
delegations had just completed a bilateral negotiation. After Chinese lead
negotiator Wu Dawei, a chain smoker, left the room, the DPRK’s Kim
Kye Gwan came into the same room for a bilateral meeting, occupying
the same chair in the Diaoyutai State Guesthouse in Beijing, which the
chain-­smoking Wu had just vacated. The DPRK’s Kim began with a long
diatribe about the DPRK’s need for nuclear weapons as a deterrent against
America aggression. Ambassador Hill interrupted Kim with a question:
“So how exactly does this weapon make you safer? If you ever use it against
the United States or its allies, what will be left of your capital is this,” Hill
said, illustrating by pouring the contents of Wu Dawei’s ashtray onto the
table in front of the DPRK negotiator. “You could,” Kim calmly replied
about the threat to reduce Pyongyang to ashes, “but you won’t.” Kim
clearly understood that there was not a true nuclear deterrent to North
Korea’s devices. But he also understood that the United States, and indeed
the world, was unlikely to allow a war to break out again on the Korean
Peninsula as part of an effort to denuclearize the DPRK. He knew that his
BATNA would let him walk away from the Six-­Party Talks much sooner
than Hill and the other parties ever would be able to abandon their mis-
sion to denuclearize North Korea.
48  The Art of Getting More Back in Diplomacy

Did the Paramount Nature of Security and Regime Survivability Mean

There Was No Deal to Be Had?

Another possibility why the Six-­Party Talks failed is that the interests and
bottom lines of the parties were mutually incompatible in this negotiation.
The United States’ interest in the negotiations focused on North Korea giv-
ing up its nuclear technology, facilities, fuel, and the potential for creating
nuclear weapons and long-­range missiles that could strike the United States
or its allies. The U.S. goal was a different kind of security. In the U.S think-
ing, security was achieved by making the United States and its allies safe
from North Korean threats. Since nuclear issues were at the core of the Six-­
Party Talks, security for the United States and its allies meant denucleariza-
tion, sometimes identified as the complete, verifiable, irreversible dismantle-
ment (CVID) of North Korea’s nuclear programs. CVID could conceivably
make the United States, and its Japanese and South Korean allies, safe from a
DPRK nuclear threat. But, in fact, for South Korea it did nothing to remove
the North Korean conventional threat, which was in some ways larger and
more immediate with Seoul situated so close to the DMZ and DPRK border.
For those in the United States, Japan, and South Korea who sought promises
from the DPRK that would result in their total security, denuclearization was
only a first step. For many, nothing short of disarmament would truly bring
security. And for others, especially those neoconservatives who continued to
see an interconnected global communist threat from the Cold War surviving
in North Korea, only regime change would bring true security. To a large
extent, I believe the North Koreans recognized this truth as much as, or more
than, the United States negotiators did. And it meant, from a negotiation
theory perspective, that the paramount nature of survival as an indispensable
goal of the DPRK regime inevitably clashed with the paramount importance
that the United States placed on security. Viewing these interests honestly
and candidly, perhaps there never was a deal to be had.
Another factor working against a deal involved domestic interests in each
country focused on demonizing the other. Dictatorships are less subject to
public opinion or the different interagency viewpoints that are common
political considerations in the United States. Because a dictatorship rarely
can tolerate differing viewpoints, interagency differences are also reduced or
eliminated, making it easier to settle on a single cohesive national position.
But in the United States, a full range of views was present in the interagency
and in the composition of the Six-­Party Talks delegations I would man-
age. Within the United States, particularly strong suspicions of North Korea
emanated from the offices of Vice President Dick Cheney and Secretary of
 DPRK, Denuclearization Discussions, and BATNAs  49

Defense Donald Rumsfeld.11 Some negotiation experts consider domestic

interests a wild card that can skew the outcome of an international negotia-
tion. But I would maintain that domestic interests, just like other interests in
a negotiation, are elements and factors that must be considered in interna-
tional negotiations. Ambassador Hill was a particularly active, and candid,
user of the media during his travels for the Six-­Party Talks. Some officials
on his own delegation represented the harder line viewpoint epitomized by
the vice president and the Pentagon, and would report back to Washington
through their own channels faster than official cables from the negotiating
team. To address this back channeling, Hill used the media as a tool to con-
vey his own report immediately after negotiations concluded and directly
to policymakers, so long as they owned a TV.12 In the long term, the public
attention Ambassador Hill’s media profile generated caused resentment in
some parts of the Pentagon and the vice president’s office, even reinforc-
ing interagency efforts to undermine denuclearization talks.13 In the United
States, North Korea formed a kind of threat that was easy to demonize and
easy to make into an enemy, whether real or in the Hollywood versions.14
These examples of domestic difference of opinion in the United States illus-
trate the importance of taking differing viewpoints within a country into
account, especially in a democracy. Among the tools in a political negotia-
tor’s toolkit, the media is sometimes an underutilized one.15
In conclusion, the discussions of the Six-­Party Talks were a missed oppor-
tunity. The United States and its allies predicted that economic incentives

11.  See Rice, No Higher Honor, chapter 11, Kindle location 2802 of 12657.
12.  Nigel Quinney and Richard Solomon. 2010. American Negotiating Behavior: Wheeler-­
Dealers, Legal Eagles, Bullies, and Preachers. Washington, DC: U.S. Institutes of Peace, pp.
108–­9 (Christopher Hill) and p. 123, chapter 5 on domestic politics.
13. Rice, No Higher Honor, Kindle, location 12087 of 12657 (Secretary Rice, in discuss-
ing negotiations to seek a verification protocol from the DPRK at the end of the Six-­Party
Talks process noted that Ambassador Hill’s popularity with the media, and a disdain for
repeated interagency meetings with groups suspicious of him made it challenging for her to
give him the broad discretion needed to explore win-­win negotiating opportunities with the
North Koreans. “There was a tendency too in the Washington press corps to attribute every
breakthrough exclusively to Chris [Hill’s] negotiating skill, which would only reinforce the
misguided notion that State was somehow winning a bureaucratic battle against other agen-
cies that opposed the course we were on”).
14.  Team America: World Police of 2004 and The Interview of 2014 are classic examples of
the North Korean bad guy as depicted in American culture and cinema.
15.  At least, using the media was an underused tool for diplomats to report back to poli-
cymakers until President Trump’s penchant for watching Fox News made officials in his own
administration use the media to relay messages that previous administrations would have
received in private.
50  The Art of Getting More Back in Diplomacy

could convince the DPRK to leave its isolation and abandon its “futile”
nuclear deterrent in exchange for greater international respect, statements
of security guarantees, and a more prosperous future for its citizens. While
this calculation of a win-­win outcome was logical from the U.S. negotiators’
perspective, it missed elements of the DPRK’s logic, including elements that
caused the DPRK to be suspicious of economic development as a Trojan
horse to destabilization. As Hill predicted, while North Korea was seriously
engaged at the bargaining table, it was not launching missiles on Seoul or
spreading its nuclear technology to others, especially at this key time in the
war on terror. But in a preview of nuclear conflicts to come in the Trump
administration, North Korean scientists were continuing to develop a covert
nuclear and missile capacity, including uranium enrichment that the DPRK
repeatedly denied until it was revealed to Stanford professor Sigfried Hecker
during Hecker’s 2010 visit to the country.16 The DPRK likely did not pursue
this covert nuclear and missile capacity any more broadly or aggressively dur-
ing the years of Six-­Party Talks than it would have done had there been no
Six-­Party denuclearization discussions underway. But it remains clear that
what the international community was offering, in terms of economic and
other benefits, was not enough to overcome the existential security concerns
of the DPRK. What it wanted, and what it continued to press the Trump
administration for, was a new kind of security relationship with the United
States that would move past the Korean War and into a new era where the
DPRK regime was seen as a permanent fixture controlling its country. The
Kim family regime also wanted to be viewed as an equal to the United States
and all other members of the international community.

16.  Sigfried Hecker. Winter 2010. “Lessons Learned from the North Korea Nuclear Cri-
sis.” Daedalus.
Chapter 5

Libya and the Negotiation for a

Unity Government
Local Power Outlasts the Ivory Tower

In 2016–­2017 discussions on unifying Libya’s government, Libyan strong-

man General Khalifa Haftar should have been an easy negotiating counter-
part for the United States. A Libyan general under dictator Moammar Qad-
dhafi, Haftar later fell out of favor with Qaddhafi and was exiled to Chad
and the Congo, where he was reportedly rescued by the United States. He
later moved to the United States, where he and his family lived for twenty-­
five years. The United States and Haftar seemed to have a range of common
points that would make negotiation easy: shared experience in the United
States, a joint focus on counterterrorism (a commonality that increased dras-
tically in importance after the 2016 election of Donald Trump to the presi-
dency), frustration over the lack of governance in post-­Qaddhafi Libya, and
mutual suspicion of the Muslim Brotherhood.
On the other side of this negotiation to support Libya’s Government of
National Accord led by Prime Minister Fayez Sarraj was a coalition of West-
ern governments and negotiators, including the United Nations itself. The
United Kingdom, United States, France, Germany, Italy, and the UN Spe-
cial Representative for Libya Martin Kobler repeatedly attempted to exclude
Haftar from the political realm and establish the GNA’s Sarraj as the sole
power in Libya. Haftar remained undeterred by this effort and proceeded
step-­by-­step to combat terrorists and take territory and political power until
the Western and UN-­backed parties sought to include him in direct nego-
tiations. Even after they decided to engage, it took several months for the
United States and Haftar to find a structure for direct negotiations. In a

51
52  The Art of Getting More Back in Diplomacy

series of actions between 2016 and 2018, Haftar apparently and repeatedly
came out on top in negotiations and in his actions on the ground. His suc-
cess can largely be attributed to his clarity about his BATNA, juxtaposed
against the failure by Western officials to see the logic of Haftar’s position,
viewed from his perspective and objectives and in light of his view of the
alternatives.
The idea that an uneducated general like Haftar out-­negotiated a team
of United Nations interlocutors including envoys from many member states
like the United States shows that you do not have to be the smartest, most
educated, or most experienced person in a deal or negotiation to come out
on top. Haftar’s goals were simple: he wanted as much control as he could
get of Libya at the lowest cost in military effort. Haftar initially despised
politicians and negotiations, preferring instead to take power through mili-
tary force. One reason Haftar was able to progress patiently from military
isolation to his goal to be seen as a candidate to lead Libya politically was
his clarity about his BATNA. Haftar learned that he could and should try
to achieve his goals through political negotiation first because it was far less
costly in blood and treasure than a pure military assault.
As a result, Haftar worked hard to win over tribal leaders in places where
he wanted to advance. Starting in the east of Libya, Haftar in February 2014
called for the overthrow of Libya’s Islamist linked Government of National
Congress as a way for him to return from exile to national attention.1 He
used the international focus on defeating terrorists to slowly take territory
under Operation Dignity, which he announced in May 2014. Throughout
2015 and 2016, Haftar established military governance in the areas that
his Libyan National Army (LNA) occupied. In a lengthy assault of Libya’s
second-­largest city, Benghazi, Haftar moved step-­by-­step and neighborhood-­
by-­neighborhood until they had pushed out groups associated with terror-
ism, as well as other Islamist groups linked to Haftar’s political enemies in
February 2016. In September 2016, Haftar launched an attack on the Oil
Crescent region, located between east and west, where most of Libya’s oil
exited from pipelines and was loaded on board tankers bound for Europe or
refined for sale on the international market. Haftar took the facilities from
a group known as the Petroleum Forces Guard, whose leader was widely
seen as corrupt. Rather than keep the oil terminals under LNA control, he
returned them and their wealth to Libya’s National Oil Company. In 2017,
Haftar similarly repelled an assault to retake the Oil Crescent but again

1.  “Khalifa Haftar: The Libyan General with Big Ambitions.” April 8, 2019. BBC News,
available at https://www.bbc.com/news/world-africa-27492354
 Libya and the Negotiation for a Unity Government   53

Figure 1. This is a political map depicting the conflict for territorial control that
accompanied the political negotiations to establish a unified Libyan government in
the period after the revolution to overthrow Qaddhafi. It depicts the military state
of play and control in 2020 when there was a relative stalemate between the UN-­
backed Government of National Accord and the eastern-­backed Libyan National
Army of General Haftar and the House of Representatives.

scored political points by leaving Libya’s economic lifeblood—­oil—­in the

hands of National Oil Company technocrats. Bolstered politically and with
further support of the House of Representatives, located in the east of the
country, Haftar then moved against other cities where terrorists had estab-
lished bases, including Derna, a city of 125,000 that fell to LNA control
in June 2018. At the same time, Haftar’s forces moved across Libya’s desert
and ungoverned south into Jufra and the area near Sebha. Throughout this
move, Haftar took territory militarily when he had to, but he preferred to
54  The Art of Getting More Back in Diplomacy

advance by striking agreements with the local tribes and officials who wel-
comed his forces as military governors.2
Haftar’s cautious, step-­by-­step advance was replicated in his political bar-
gaining with the international community, especially with the United States,
in the period between 2014 and 2018. At the end of the Obama administra-
tion and the first few months of the Trump administration, Haftar refused to
meet GNA Prime Minister Fayez Sarraj. American officials were frustrated
by this, even arguing that it was evidence of why the United States could
not trust the renegade general. But in fact, Haftar was reacting as a logical
bargainer from his perspective. Haftar’s patience, his timeline and his practi-
cal sense of his alternatives illustrate why his negotiation position was logical
and why U.S. expectations that he drastically modify his behavior were not.
First, Haftar was, at age seventy-­four, a patient negotiator as the inter-
national community, including the United Nations, the United States, and
others, urged him to consider joining a civilian government or at least to
work in a unified government structure under civilian control. Rather than
react quickly to those who pressed him to consider joining a unified govern-
ment, Haftar took his time. In part, he was waiting in late 2016 for infor-
mation from the incoming Trump administration in order to calculate his
next move. Advisers on both sides of the Atlantic (and in Cairo, Riyadh, and
Abu Dhabi)3 told Haftar that he would get full-­throated support from the
Trump administration. Motivated by a concern for counterterrorism above
all, Haftar was led to believe that he might soon be anointed with U.S. sup-
port from the Trump administration. If the United States switched sides
from support for the international government to him, Haftar thought there
was little to stand in his way on a march to Tripoli. And if not, he was in no
worse a position vis-­à-­vis the GNA and the international community than if
he moved ahead with political negotiations in late 2016. In this case, uncer-
tainty about the future U.S. position worked in Haftar’s favor.
Haftar’s U.S. interlocutor, Special Envoy for Libya Jonathan Winer, had
2. “Khalifa Haftar, Libya’s Strongest Warlord, Makes a Push for Tripoli.” April 20,
2019. Economist. Jonathan Tossell. January 2020. “Libya’s Haftar and the Fezzan: One Year
On.” CRU Policy Brief. Clingandael Institute. https://www.clingendael.org/sites/default/
files/2020-01/Policy_Brief_Libyas_Haftar_and_the_Fezzan_Jan_2020.pdf
3.  Walid Phares was one of those positioning himself as a Trump envoy to Libya in the
early days of the administration, among others. President Trump’s April 2019 telephone call
to Haftar appears to have fulfilled some of their promises and given Hafter the “green light”
he was looking for to march on Tripoli and try to end the civil war by force. This aspect will be
analyzed in more detail in chapter 12. See also “Trump Praises Libyan General as His Troops
March on U.S. Backed Government in Tripoli,” April 19, 2019, CNN News, available at
https://edition.cnn.com/2019/04/19/politics/us-libya-praise-haftar/index.html
 Libya and the Negotiation for a Unity Government   55

the opposite interest and was pressing for a quick agreement. Winer was one
of the most active policy figures I have ever seen. Tirelessly, Winer would
go through eighteen-­hour days during his visits to Libya or elsewhere in
the region, meeting with every Libyan official on a full range of topics in
an effort to better understand the possibilities for unifying Libya under a
productive and democratic government. But Winer was bound to a political
timetable related to the U.S. election in November 2016 and transition in
January 2017, and that made him and other U.S. policymakers impatient.4
Winer knew that his position would likely expire after the transition. Even
if Democratic candidate Hillary Clinton had won, Winer owed his posi-
tion to his long political connection with Secretary of State John Kerry and
he could not expect to wield the same level of influence over Libya policy
after the election, no matter who prevailed. So when I arrived on the Libya
account in 2016, Winer was interested in quick results and his impatience
showed in the lack of chemistry with Haftar in their meetings. Given his
alternatives to a negotiated agreement, Haftar judged he was better off wait-
ing to hear the position of a future Hillary Clinton or Trump administration
before acting on any inclination to join, or consider joining, a civilian gov-
ernment with GNA Prime Minister Sarraj. Once Trump won the election,
Haftar’s incentive to act before the January change of administrations was
almost nonexistent.
Second, Haftar had good alternatives to negotiating an agreement. Haf-
tar knew that he always had a great PLAN B or a great alternative to a nego-
tiated agreement: he could revert to his military comfort zone and try to
take by force what he did not succeed in getting at the bargaining table. This
led Haftar to pursue a piecemeal approach. Where political negotiations
were useful to his efforts to expand his territory and authority, he employed
them, but always with the fall back option (and threat) of taking what he
wanted by force. Where he could convince local leaders to support him, he
did so peacefully, and then moved in without opposition. For example, in
the Oil Crescent in the fall of 2016, Haftar’s forces took control with mini-
mal conflict and continued to provide the valuable oil resources under the
control of Libya’s National Oil Company. Similarly, in the area around Jufra
and the three airbases at Tamenhint, Brak-­al-­Shati, and Jufra, Haftar slowly
convinced the local tribes to support his forces rather than those affiliated

4. Quinney, American Negotiating Behavior, chapter 3 emphasized that U.S. negotiators

“have a shorter term perspective and are usually driven by domestic considerations to press
ahead rapidly before perceived windows of opportunity close: their sense of urgency manifests
itself in numerous self-­imposed deadlines” (p. 12).
56  The Art of Getting More Back in Diplomacy

with either the Benghazi Defense Brigades (BDB) or Misrata. He took the
three airbases in May-­June of 2017. The territorial gain was not cost free:
dozens of lives were lost when the BDB and GNA Defense Minister Bar-
gathi launched a sneak attack on the Brak al Shati airbase resulting in dozens
of casualties among Haftar’s LNA. But the brutal nature of the attack swung
momentum from local tribes in Haftar’s favor and he took the bases shortly
thereafter with very little resistance. He also allowed the fleeing BDB and
Misratan forces to leave with minimal loss of life, rather than pursue them
and trigger a greater fight. This was again because Haftar realized that he had
great alternatives to fighting. . . . He could take territory with little resistance
by co-­opting the locals. And both they and he knew that he always had the
option of force, even to deploy force to pursue fleeing troops, but in most
cases he chose not to use it.
Ultimately, the general learned to play the politician, both domestically
and with the international community. For example, in May 2018 French
President Macron convened Haftar and Sarraj in Paris—­ one of many
power-­broker meetings convened on Libya, which will be analyzed further
in Part II. In the Macron-­hosted session, Sarraj and Haftar announced elec-
tions would take place on December 10, 2018, in Libya.5 Months later, the
proposed December 2018 elections remain indefinitely postponed and the
leadership deadlock between Haftar and Sarraj continues.6 No U.S., UK,
UN, or Western official has been able to break the deadlock. But Haftar
remains as a leader and his LNA now controls the east and the south and
has essentially surrounded the capital Tripoli, although an attempt to take
Tripoli by force in 2020 was rebuffed In reaching this point, Haftar’s clarity
about his alternatives to a negotiated agreement helped him seize power at
minimal cost and still transform his position from that of military strong-
man to politician with the possibility of leading Libya, either through elec-
tions or, if necessary, through occupation and force.

5.  “Libyan Factions Agree to Hold Elections on 10 December,” May 29, 2018, The Guard-
ian, available at https://www.theguardian.com/world/2018/may/29/macron-hosts-libyan-
factions-in-paris-in-push-to-secure-elections; “Emmanuel Macron Plans Crunch Summit to
Push for Libyan Elections,” May 23, 2018, The Guardian, available at https://www.theguard-
ian.com/world/2018/may/23/emmanuel-macron-plans-summit-to-push-for-libyan-elections
6.  In February 2021, the Libyan Political Dialogue Forum met in Geneva to select a new
interim Prime Minister and Presidency Council to replace Sarraj with a goal of elections to
be held in December, 2021. At the time of publication, the prospect of those elections was
still unclear.
Chapter 6

Creating the First International Monitor on

LGBTI Rights
Asking Too Much or Too Little?

The 2014 negotiations on the issue of LGBTI rights in the United Nations
allow us to examine whether negotiators could have done more sooner to
advance the creation of a permanent UN mechanism to report on discrimi-
nation and violence based on an individual’s sexual orientation or gender
identity (SOGI). Analyzing whether a negotiator got the best possible deal
is always tricky. Hindsight is 20/20. An outsider or Monday morning quar-
terback can always suggest that the outcome would have been better if the
negotiation had been tweaked or different tactics employed. But the cyclical
nature of the UN Human Rights Council (HRC) provides a good venue for
case studies because the same issues are often raised every year or two. In this
way, we can see how outcomes vary from year to year and, with insight on
the tactics that were actually employed in the negotiating rooms, one can
test certain propositions and examine whether an outcome that was reached
later (in this case 2016) might have been achievable earlier (in this case 2014)
had different tactics been employed. In this case, we will see how negotiators
addressing the issue of LGBTI rights in the UN Human Rights Council in
2014 might have been able to create a UN Special Procedure mechanism two
years earlier than they ultimately succeeded in doing in June 2016. This is a
case of “leaving money on the table” or not pressing the position of coun-
terparts adequately before making concessions. We will discuss tactics that
any negotiator can use to ensure that such an error does not happen to you.
In September 2014, the United Nations Human Rights Council debated
how to address the issue of discrimination against LGBTI persons. In the

57
58  The Art of Getting More Back in Diplomacy

HRC, the approaches for addressing a thematic topic of concern are rela-
tively limited to public statements, reporting, or holding recurring discus-
sions and meetings. The strongest mechanisms at the disposal of the HRC
involve creating institutional mechanisms, known as Special Procedures
mandate holders. These unpaid experts carry a UN title, receive funding
for travel, and have support of a UN staff person in the Office of the High
Commissioner for Human Rights (OHCHR), enabling the mandate holder
to research and report on abuses, violations, and trends in the area of human
rights they are assigned to follow. Their authority to undertake these investi-
gations and write reports comes from resolutions of the forty-­seven-­member
UN HRC, and creation of such a mandate holder position can be a hotly
debated issue. Nevertheless, the use of this position and the bully pulpit of
the United Nations can contribute to changes in behavior and international
norms. The resolutions that create Special Procedures mandate holders and
other decisions of the UN Human Rights Council are also a source of cus-
tomary international law and persuasive as a form of soft law. So as the HRC
considered how to respond to the issue of discrimination against LGBTI
persons in 2014, creation of a Special Procedure was one of the key options
on the negotiating table.
The issue of violence and discrimination against LGBTI people based
on SOGI had surfaced in the HRC in June 2011. At that time, a first, his-
toric resolution was passed by a 23–­19 vote with three abstentions (Burkina
Faso, Zambia, and China).1 That resolution, led by South Africa, called for
a report on cases of discrimination and violence against people based on
SOGI. The report issued by the OHCHR as a result of the 2011 resolution
documented a range of abuses, including violent killings of LGBTI people
and state-­sponsored discrimination.2

1.  See UN Human Rights Council Resolution 17/19, June 17, 2011, “Human Rights,
Sexual Orientation And Gender Identity (SOGI).” https://documents-dds-ny.un.org/
doc/UNDOC/GEN/G11/148/76/PDF/G1114876.pdf?OpenElement. [Adopted by a
recorded vote of 23–­19, with three abstentions. The voting was as follows: In favor:
Argentina, Belgium, Brazil, Chile, Cuba, Ecuador, France, Guatemala, Hungary, Japan,
Mauritius, Mexico, Norway, Poland, Republic of Korea, Slovakia, Spain, Switzerland,
Thailand, Ukraine, United Kingdom of Great Britain and Northern Ireland, United
States of America, Uruguay. Against: Angola, Bahrain, Bangladesh, Cameroon, Dji-
bouti, Gabon, Ghana, Jordan, Malaysia, Maldives, Mauritania, Nigeria, Pakistan, Qatar,
Republic of Moldova, Russian Federation, Saudi Arabia, Senegal, Uganda. Abstaining:
Burkina Faso, China, Zambia].
2.  UN Issues First Report on Human Rights of Gay and Lesbian People, UN NEWS,
December 15, 2011, available at https://news.un.org/en/story/2011/12/398432-un-issues-fir​
st-report-human-rights-gay-and-lesbian-people
 Creating the First International Monitor on LGBTI Rights  59

After the 2011 resolution and report, advocates tried to determine how to
present the issue again in the HRC and how to make discrimination against
people based on SOGI a more regular and consistent aspect of international
nondiscrimination standards. Each time the issue came up, some advocates
pressed to create a report that would repeat cyclically or a Special Procedures
mechanism that would allow LGBTI rights to remain on the HRC agenda
without concern about annual renewal and the political changes that might
thwart serious examination of the issue again in later years.3 Organizers
were painfully aware that the vote had been close in 2011 and feared a loss
would somehow legitimize discrimination on the basis of LGBTI rights and
downgrade the emerging domestic legal norms in many countries protect-
ing people from discrimination and violence based on SOGI. Cognizant of
these considerations organizers engaged in a back-­and-­forth debate about
how far to push and how much to ask for to regularize reporting on SOGI-­
based discrimination. A primary goal was to create something permanent
that would report on SOGI-­based violence and discrimination, rather than
to have to revisit the issue every year or two.
In 2011, South Africa had been a leader of the UN resolution on gay
rights in the HRC and in the UN in general. As a strong African voice
3.  The UN Human Rights Council’s Special Procedures include several mechanisms that
are routinely renewed and are termed here permanent mechanisms. These Special Procedures
mechanisms include:

• Commission of Inquiry: Used to document a serious, ongoing human rights situation

and sometimes prepare a record that could be used for an international prosecution
or referral to a higher body like the UN Security Council or International Criminal
Court.
• UN Special Rapporteurs: Typically created under HRC Agenda Items 3 (thematic
issues) or 4 (country situations of concern) to monitor and report on human rights
situations within their thematic or country-­specific mandate.
• UN Independent Experts: Typically created under HRC Agenda Item 10 (Technical
Assistance) to help a country with technical assistance needed to strengthen an aspect
of human rights promotion or protection. Often requested by the country concerned.
Occasionally, independent experts are created under Items 2 and 3 of the Council
agenda for similar purposes, including thematic mandates.
• Intergovernmental Working Groups: Often used to draft documents that might ulti-
mately result in legally binding instruments such as treaties. Working groups meet to
provide political support and expert input in the crafting of such documents and to
determine whether the political consensus exists to encapsulate the topic under discus-
sion into a legally binding instrument, rather than as persuasive but non-binding “soft
law,” such as a UN resolution. “Special Procedures of the UN Human Rights Coun-
cil.” 2020. Website of the Office of the UN High Commissioner for Human Rights.
https://www.ohchr.org/EN/HRBodies/HRC/Pages/SpecialProcedures.aspx
60  The Art of Getting More Back in Diplomacy

supporting LGBTI rights, South Africa’s voice was important, especially

in rebutting claims that gay rights were a “Western invention” being inap-
propriately foisted on a developing world that was not ready for them.
But after the 2011 resolution passed and a series of regional workshops
were held to discuss issues of violence and discrimination against LGBTI
persons, South Africa controversially took a back seat.4 South Africa’s post-­
apartheid constitution was one of the first in the world to protect LGBTI
rights, but its negotiators in the UN decided that after the 2011 vote, they
should no longer play a leadership role on gay rights in the UN, out of
deference to the need to maintain support of others in the African group
with different views.
As a result, a group of Latin American states (Brazil, Chile, Colombia,
and Uruguay) decided to lead as proponents of a new HRC resolution
on LGBTI rights in 2014. It was this group that had to make the deci-
sions about strategy and what to try to propose in creating a permanent
mechanism. The Brazilian-­led “core group” advocated a resolution that
continued the focus on discrimination and opposing violence but ulti-
mately fell short of creating a permanent mechanism, instead settling for a
mere update to the previous 2011 report (HRC Resolution 27/32).5 Why,
if creating a permanent mechanism was a high priority, did the group
settle for creating another one-­off report, which the HRC had already
done in 2011?
In negotiations on the 2014 resolution, allies of Brazil in the BRICS
alignment (Brazil, Russia, India, China, and South Africa) discouraged Brazil
from advocacy to create a permanent mechanism. Whittled down by this

4.  J. Lester Feder. September 8, 2014. “South Africa, Which Once Led on Promoting
LGBT Rights Abroad, Could Become a Roadblock.” Buzzfeed News. https://www.buzzfeed.
com/lesterfeder/south-africa-which-once-led-on-promoting-lgbt-rights-abroad?utm_term=.
qrLb0n0YZ#.gnmmkwkjB
5.  UN Human Rights Council. 2014. “Human Rights, Sexual Orientation and Gender
Identity Resolution.” HRC Resolution 27/32 (Adopted September 26, 2014). https://docu-
ments-dds-ny.un.org/doc/UNDOC/GEN/G14/177/32/PDF/G1417732.pdf?OpenElement
HRC Resolution 27/32 was adopted by a recorded vote of 25–­14, with seven abstentions.
The voting was as follows: In favor: Argentina, Austria, Brazil, Chile, Costa Rica, Cuba, Czech
Republic, Estonia, France, Germany, Ireland, Italy, Japan, Mexico, Montenegro, Peru, Philip-
pines, Republic of Korea, Romania, South Africa, the former Yugoslav Republic of Mace-
donia, United Kingdom of Great Britain and Northern Ireland, United States of America,
Venezuela (Bolivarian Republic of ), Viet Nam Against: Algeria, Botswana, Côte d’Ivoire,
Ethiopia, Gabon, Indonesia, Kenya, Kuwait, Maldives, Morocco, Pakistan, Russian Federa-
tion, Saudi Arabia, United Arab Emirates. Abstaining: Burkina Faso, China, Congo, India,
Kazakhstan, Namibia, Sierra Leone.
 Creating the First International Monitor on LGBTI Rights  61

pressure, in the last week of the September 2014 Council session, the core
group was positioning to submit a draft resolution that merely proposed an
annual report by the OHCHR on violence and discrimination on SOGI.
Puzzled by Brazil’s retreat from a more permanent mechanism or at least a
report, I asked negotiators why they reduced their demand. They said frankly
that they had concerns that China and Russia would vote against the bill.
These risks were legitimate: certain states viewed LGBTI rights so negatively
that they were going to call a vote and vote against a SOGI resolution no
matter what content was included. Still my U.S. colleagues and I explained to
the Brazilians, the resolution had sufficient support to pass by a comfortable
margin even in the face of opposition from China, Russia, and other mem-
bers of the HRC’s so-­called “Like Minded Group.” The Brazilians were not
so sure, citing concerns raised by their BRICS colleagues, especially Russia.
In the end, the watered down resolution passed by an absolute majority and a
comfortable 25–­14 vote with seven abstentions, including four African states
and Brazil’s BRICS friends China and India. Russia voted no.
So what did Brazil get for watering down the content so it was a one-­off
report rather than a repeated reporting cycle authored by an appointee with
long-­term interest in following this aspect of nondiscrimination? Perhaps it
got China and India to abstain rather than vote against the resolution. But
this was not essential to the outcome or even the margin of victory. China
and India abstained but did not support the watered down measure and
the resolution would have passed by a majority even with China and India’s
opposition in the form of a no vote. In addition, China worked with a group
of states from the Organization of Islamic Cooperation to support hostile
amendments to the resolution that would have completely stripped the lan-
guage of SOGI from the text. China also supported a hostile “no-­action”
motion that would have led to the resolution not even being considered.6
So if Brazil got nothing from its BRICS allies, why did it give up
the chance to create a longer-­term mechanism with perpetual reporting
on discrimination based on SOGI in 2014? Did it have to make these
concessions? Apparently not, because when the SOGI issue came back
to the HRC in 2016 with a slightly more hostile group of states serving
as members of the Council, the HRC created a permanent mechanism,
the Independent Expert on SOGI issues, by a nearly identical margin of
6.  “Action on No-­Action Motion on SOGI Resolution.” 2016. Arc International. http://​
arc-international.net/global-advocacy/human-rights-council/32nd-session-of-the-human-ri​
ghts-council/appointing-an-independent-expert-on-sexual-orientation-and-gender-identity​
-an-analysis-of-process-results-and-implications/annex-ii-description-of-the-vote-on-the-sogi​
-resolution/action-on-no-action-motion/
62  The Art of Getting More Back in Diplomacy

23–­18 with six abstentions.7 Again, opposing the Latin pro-­SOGI resolu-
tion were Brazil’s supposed BRICS friends China and Russia, for whom it
had conceded the permanent mechanism in 2014, while India and South
Africa abstained. None of the BRICS countries for whom Brazil signifi-
cantly watered down the 2014 resolution ended up giving any concessions
or benefits in exchange.
So in this case, Brazil’s failure to test the position of its partners and
potential adversaries was a negotiating mistake. The vote margin and voting
behavior of the parties indicates the negotiator gave up too much without
getting anything significant in return. And permanent reporting for a group
of individuals who suffer severe violence and discrimination could have
received more regularized and repeated scrutiny two years earlier, begin-
ning in 2014 rather than 2016. Instead the creation of the UN Indepen-
dent Expert on SOGI issues was delayed out of fear, failure to test stated
positions, and a failure to deploy tools common to multiparty international
negotiations.
As a postscript, it is interesting to note that in July 2019 the SOGI man-
date again came to the HRC for renewal. This time, the mandate passed by
a clear majority of the Council and HRC Resolution 41/18 was adopted
by a 27–­12 majority of the HRC, with seven abstentions.8 Compared with

7. UN Human Rights Council. 2016. “Protection Against Violence and Discrimina-
tion Based on Sexual Orientation and Gender Identity.” HRC Resolution 32/2 (adopted
June 30, 2016). https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/154/15/PDF/
G1615415.pdf?OpenElement. The resolution passed by a vote of 23–­18 with six abstentions.
Results stated in favor: Albania, Belgium, Bolivia, Cuba, Ecuador, El Salvador, France, Geor-
gia, Germany, Latvia, Mexico, Mongolia, Netherlands, Panama, Paraguay, Portugal, Republic
of Korea, Slovenia, Switzerland, the former Yugoslav Republic of Macedonia, United King-
dom of Great Britain and Northern Ireland, Venezuela (Bolivarian Republic of ), Viet Nam.
Against: Algeria, Bangladesh, Burundi, China, Congo, Côte d’Ivoire, Ethiopia, Indonesia,
Kenya, Kyrgyzstan, Maldives, Morocco, Nigeria, Qatar, Russian Federation, Saudi Arabia,
Togo, United Arab Emirates Abstaining: Botswana, Ghana, India, Namibia, Philippines,
South Africa.
8.  UN Human Rights Council. 2019. “Mandate of the Independent Expert on Protec-
tion Against Violence and Discrimination Based on Sexual Orientation and Gender Iden-
tity.” HRC Resolution 41/18 (adopted July 12, 2019). https://documents-dds-ny.un.org/
doc/UNDOC/GEN/G19/221/62/PDF/G1922162.pdf?OpenElement. The Resolution was
adopted by a vote of 27–­12 with three abstentions. In favor: Argentina, Australia, Austria,
Bahamas, Brazil, Bulgaria, Chile, Croatia, Cuba, Czech Republic, Denmark, Fiji, Iceland,
Italy, Japan, Mexico, Nepal, Peru, Philippines, Rwanda, Slovakia, South Africa, Spain, Tunisia
and Ukraine. Opposed: Afghanistan, Bahrain, Bangladesh, China, Egypt, Eritrea, Iraq, Nige-
ria, Pakistan, Qatar, Saudi Arabia, Somalia. Abstentions: India, Angola, Burkina Faso, DRC,
Hungary, Senegal and Togo.
 Creating the First International Monitor on LGBTI Rights  63

2014 and 2016, support for nondiscrimination on SOGI was expanding as

states grappled with this issue domestically. Countries in all regions of the
globe supported the mandate’s renewal, including states from Africa and
the Islamic group, and agreed that the UN should evaluate violence and
discrimination against persons based on their sexual orientation and gender
identity as part of a global assessment of universal standards. This broad-
ening of support helped to overcome an argument of “cultural relativism”
voiced by the Organization of Islamic Cooperation (OIC) as a key reason for
the ten hostile amendments that the group, plus China, offered. Even there,
OIC members Albania and Tunisia refused to agree to the OIC amend-
ments, resulting in the anomalous situation that a group that operates on
consensus offered its amendments in the name of “the OIC except Albania
and Tunisia.”
Moreover, reports authored by the Independent Expert on SOGI have
made substantial contributions to the development of international human
rights norms. By 2020, concepts of multiple and intersectional discrimina-
tion were becoming more common in UN discussions of nondiscrimination
as states and institutions considered how multiple factors, such as being a
gay women of color or a transgender person, contributed to violence and
discrimination based on SOGI. These ideas were popularized in the SOGI
Independent Expert’s 2018 report to the UN General Assembly looking at
multiple and intersecting forms of discrimination in education, health care,
housing, employment, and other services.9 The Independent Expert has also
reported to the HRC on issues of violence and stigmatizing discrimination
based on SOGI and how the use of “conversion therapy” against LGBTI
persons can constitute a form of torture.10
Even as positions toward SOGI softened in most regions of the world,
the positions of Brazil’s friends in the BRICS for whom they made their
2014 concessions remained unchanged or even hardened in opposition to
this global trend. China was the only non-­Islamic country to support hos-
tile amendments to the resolution and to vote against the 2019 mandate
renewal. India, whose Supreme Court decriminalized homosexuality in
2018, abstained in 2019 as it had in 2016.11 Ironically, even Brazil’s delega-

  9.  Report of the Independent Expert on Violence and Discrimination on the Basis of
Sexual Orientation and Gender Identity to the UN General Assembly, July 17, 2019, https://
undocs.org/A/74/181
10.  “Report of the Independent Expert on Protection Against Violence and Discrimina-
tion Based on Sexual Orientation and Gender Identity.” 2020. So-­called conversion therapy,
adopted May 1, 2020. https://undocs.org/A/HRC/44/53
11.  Devirupa Mitra. July 13, 2019. “Despite SC Ruling, India Abstains Again on Vote on
64  The Art of Getting More Back in Diplomacy

tion made clear that its leadership on this issue had limits, based in part on
the election in Brazil of President Jair Bolsinaro, who removed protections
for LGBTI persons from parts of Brazil’s government and threatened gay
rights activists at home and abroad.12 All of these developments illustrate
how Brazil’s willingness to drop the creation of a UN Independent Expert in
2014 was likely a mistake, as Brazil got nothing in return for this concession,
and it appears its BRICS allies were never willing to change position or move
closer to the pro-­LGBTI viewpoint Brazil was articulating.

LGBT Rights at UN.” The Wire. https://thewire.in/diplomacy/india-abstains-again-on-vote​

-expert-lgbt-rights-at-un
12.  Morgan Gstalter. January 2, 2019. “Brazil’s New President Removes LGBT Concerns
from Human Rights Ministry.” The Hill. https://thehill.com/policy/international/human-
rights/423594-brazils-new-president-removes-lgbt-concerns-from-human. Maria Laura
Canineu. March 18, 2019. “For Brazil at the UN, Rights Values Begin at Home.” Human
Rights Watch. https://www.hrw.org/news/2019/03/08/brazil-un-rights-values-begin-home
Chapter 7

Surveillance, Free Expression, and the Right to

Privacy in the Digital Age

Background: UN Approaches to Internet Freedom or Regulation

in the Digital Age

Much as states, individuals, corporations, and societies struggled over how

to think about the intersection between human rights and the ubiquity of
the Internet, UN agencies, funds, and programs also compete over where
and how to address regulation of the Internet. UN technical bodies deal-
ing with telecommunications, spectrum, and intellectual property weighed
in with proposals to regulate the Internet coming from within, and some-
times beyond, their areas of technical competency. On the other hand,
human rights bodies like the UN Human Rights Council (HRC) argued
that the Internet should largely remain unregulated. UNESCO joined in
with its own version of a rights-­based approach. Nongovernmental and
multi-­stakeholder organizations like the Internet Governance Forum tried
to bridge the gap to offer self-­governance proposals created by industry and
the tech community in collaboration with states. The environment was ripe
for multiparty negotiation, and it largely remains so today with states con-
tinuing to disagree about when, how, or whether the UN should have a role
in Internet governance or regulation.
In the first UN Human Rights Council resolution to address these ques-
tions, HRC resolution 20/8 of July 2012 affirmed that: “The same rights
people have offline must also be protected online.”1 This resolution on Inter-

1.  UN Human Rights Council. July 5, 2012. “The Promotion, Protection and Enjoyment of
Human Rights on the Internet.” HRC Resolution 20/8. https://undocs.org/A/HRC/RES/20/8

65
66  The Art of Getting More Back in Diplomacy

net freedom recognized the global and open nature of the Internet as a driv-
ing force in accelerating development and called upon states to promote and
facilitate access to the Internet. Two years later, a follow-­up resolution reaf-
firmed the importance for people to enjoy their rights online and noted that
security justifications for restricting freedom of expression on the Internet
need to meet strict legal justifications. More recently, in 2016, HRC resolu-
tion 32/13 called upon states to refrain from Internet shutdowns because of
their impact in stifling the exercise of human rights online. The 2016 reso-
lution also urged the United Nations to conduct a study on best practices
related to bridging the gender digital divide and advancing access online to
persons with disabilities.2
In the midst of this discussion about Internet regulation and Internet
freedom, the 2013 revelations about widespread U.S. electronic surveillance
made public by National Security Agency contractor Edward Snowden
made the right to privacy online a new cause célèbre in the human rights
community. The Snowden revelations shifted the human rights focus away
from countries that used the Internet to identify and detain dissidents and
victims of those repressive government policies. Instead the human rights
community focused on the U.S. government’s influence over aspects of the
Internet and the related telecommunications environment. In particular,
two partners of the United States—­Brazil and Germany—­led a resolution
in the 2013 United Nations General Assembly on the right to privacy in the
digital age,3 which attacked the United States, albeit indirectly, over its use
of mass surveillance and the resulting interference with privacy. The resolu-
tion asserted that “unlawful or arbitrary surveillance and/or interception of
communications, as well as unlawful or arbitrary collection of personal data,
[are] highly intrusive acts, [that] violate the rights to privacy and to freedom
of expression and may contradict the tenets of a democratic society.”4 The
HRC then picked up the resolution, creating a follow-­on mechanism in the
form of the Special Rapporteur on the Right to Privacy. This chapter will
illustrate key aspects of the Internet freedom negotiations and illustrate les-
sons going forward, especially those related to the group dynamics occurring
as the Internet freedom debate shifted from a focus on free expression to a
focus on privacy rights.

2.  UN Human Rights Council. July 1, 2016. “The Promotion, Protection and Enjoyment
of Human Rights on the Internet.” HRC Resolution 20/16. https://undocs.org/A/HRC/
RES/32/13
3.  UN General Assembly. December 18, 2013. “The Right to Privacy in the Digital Age.”
Resolution 68/137. https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/68/167
4.  UN General Assembly, December 18, 2013.
 Surveillance, Free Expression, and the Right to Privacy  67

The Importance of a Cross-­Regional Core Group

The United States’ first-­ever appointee as ambassador to the HRC was Eileen
Donahoe. Having been a professor in Silicon Valley and married to former
eBay CEO and PayPal chairman John Donahoe, Ambassador Donahoe was
acutely aware of the importance of the Internet and its role as a catalyst
for enjoyment of human rights, especially the freedom of expression. She
also watched with concern the tools used to constrain free expression online
in a range of authoritarian states. Some used old-­fashioned techniques of
arresting and detaining so-­called Internet dissidents for their writings online
about democracy. Others used technology itself as a police tool, seeking out
dissident views online, blocking key search terms through the “Great Chi-
nese Firewall,” and exercising censorship such that even U.S. government
websites were sometimes unavailable.
In this context, Donahoe wanted to advance a resolution on Internet
freedom in the HRC. But she knew that such an action by the United States
would face strong opposition from Russia, China, Egypt, and others who
were deploying these online tactics of policing and repression. As a result,
she cultivated ambassadors to educate them on the U.S. view of Internet
freedom. She arranged to hold an HRC retreat for key ambassadors in Sili-
con Valley, showing them firsthand the free expression and creativity bene-
fits of an open innovation society. She also created the Internet Freedom Fel-
lows program at U.S. Mission Geneva, an exchange program that brought
Internet dissidents, writers, and officials from around the globe to Geneva,
to Washington, and to Silicon Valley to learn more about the importance of
free expression norms and the culture of innovation and openness that was
so important to the Internet’s growth and development.
But most important, she created a cross-­regional core group of states to
lead the campaign for Internet freedom in the HRC. Through personal friend-
ships and professional relationships, she established a core group consisting of
Brazil, Nigeria, Tunisia, Turkey, Sweden, and the United States who jointly
agreed to lead the Internet freedom resolution. Creating collective leadership,
while requiring additional coordination work, can significantly strengthen the
prospects for passage of a UN resolution in the following ways:

1. Cross-­regional core groups expand the ownership of an issue. This

allows the advocates of a resolution to divide the work of lobby-
ing for a resolution, with one or more members of the core group
ensuring that those in its own regional group are educated about
the resolution and lobby the regional group to support it.
68  The Art of Getting More Back in Diplomacy

2. In an environment like the UN Human Rights Council where

only forty-­seven UN states are members and strict two-­term limits
are imposed, it is important to have at least one member of a core
group who is also a member of the Human Rights Council for any
given year. For example, in 2016 when the resolution on Internet
freedom was renewed, Nigeria was the only one of the core group
who was a member. Given the rules of the HRC, it meant Nigeria
was also the only state authorized to vote in favor of the resolution
and to speak in opposition to hostile amendments at key times.
3. Having a cross-­regional group makes it difficult for opponents to
brand the issue as purely a case of U.S. hegemony or Western val-
ues being imposed on others. In the case of the Internet, it also
made it impossible for opponents to brand this as a “U.S. versus
Russia” or “U.S. versus China” discussion. By the time I was de-
parting from Geneva in 2016, newer U.S. officials were referring
to the Internet freedom resolution as the “Swedish resolution” be-
cause of Sweden’s role as coordinator of the core group. These offi-
cials were so new as to be completely unaware of the past U.S. role
in shaping the core group. And the resolution passed by consen-
sus three consecutive times with this group leadership before the
Trump administration pulled the United States out of the Human
Rights Council.
4. Fourth, an underappreciated benefit of a core group is that it
builds capacity among collegial states for future initiatives and ne-
gotiations. Some states may be reluctant to lead a resolution by
themselves initially but after working together in a core group, it
can strengthen their confidence to do so in future.
5. In light of the fact that the Internet regulation discussion was taking
place in a range of UN technical agencies, most of whom were head-
quartered in Geneva, having a core group allowed the lead actors to
seek some coherence across the range of UN and multiparty venues
where the Internet was being discussed. For example, the Internet
freedom core group included Tunisia, host of an important World
Summit on the Information Society; Brazil, host of an important
2014 multi-­stakeholder meeting, Netmundial; and Sweden, whose
foreign minister Carl Bildt was an outspoken advocate of a free and
open Internet. Despite differences among the core group members
on some Internet governance issues, their shared mission in sponsor-
ing the Internet freedom resolution allowed them to overcome these
differences. The bonds forged from working together also helped to
 Surveillance, Free Expression, and the Right to Privacy  69

build resiliency against later challenges, such as those that developed

when the Internet freedom dispute evolved into one about the right
to privacy in the digital age.

The core principle resulting from the Internet freedom resolutions was
that “rights people have offline must also be protected online.” A relatively
simple idea, it has proven durable enough to survive over a decade and has
been applied broadly in several human rights domains. Most obviously, the
concept is applicable to freedom of expression with the idea that online cen-
sorship must follow the same long-­standing and internationally recognized
rules that would apply in the censorship of a print newspaper, book, or radio
or TV broadcast. This has prevented an attempt by some governments to
disguise censorship as technical regulation and has shown such efforts for
what they are—­content-­based restrictions that almost always violate inter-
nationally agreed rights.
But the principle that rights apply the same online as offline extends
beyond freedom of expression. For groups that form online and have mem-
bers, for example, the principles of freedom of association should apply
equally online and offline. On issues of discrimination, hate speech, and
racism, discriminatory acts should be equally punished online as they are
offline. And the balance between free expression and other rights should be
respected equally online as offline. But when it came to the right of privacy,
recognized as a qualified right under international law, the U.S. position
became a bit of a thorn in the side. The United States found its cherished
principle that rights apply online the same as they do offline in conflict with
Edward Snowden’s 2013 revelations of mass surveillance programs in the
United States, which raised to the fore important new issues of the right to
privacy in the digital age.

Privacy in the Digital Age

The resolution on the right to privacy in the digital age was a unique experi-
ence where the United States, the United Kingdom, and their allies Canada,
Australia, and New Zealand were at a relative disadvantage in the distribu-
tion and allocation of power in the United Nations on an important human
rights issue. As leaders of the resolution on privacy and the digital age, Ger-
many and Brazil formed a powerful bloc and the focus of their criticism
was behavior by the United States and the United Kingdom in the realm
of surveillance, which Brazil and Germany considered to violate interna-
70  The Art of Getting More Back in Diplomacy

tional norms. Press reports of the United States overhearing conversations of

Brazilian president Dilma Roussef and German chancellor Angela Merkel5
made the German and Brazilian leadership especially strong—­those delega-
tions knew that they could reach back to their respective capitals and, when
necessary, get the attention of their very highest policymakers to assist in
lobbying for positions favorable to the German and Brazilian draft. More-
over, the issue split these Anglophone countries from the European and
Latin American regional groups—­the UN’s regional groups most likely to
advocate for human rights protections.
Even without the handful of largely German-­speaking states who joined
them, the Brazilians and Germans constituted a formidable core group.
Many of the lessons of Ambassador Donahoe’s work to create a strong core
group on the Internet freedom resolution were employed by the Brazilians
(fellow Internet freedom core group members) in advocacy for the resolu-
tion on privacy in the digital age. Brazil’s strengths came in many forms—­its
leadership role in Latin America, in the developing world bloc known as
the G-­77, and in the BRICS (a coalition of Brazil, Russia, India, China,
and South Africa that often resisted the power of the United States and
Western Europe). Moreover, Brazil added to its core group Mexico, the
other strongest country in Latin America and the one state that could have
possibly sided with the United States and produced some division within
Latin America. Brazil coupled this strength with Germany, the EU’s stron-
gest voice. Germany was embedded at the center of the Western European
grouping and held the HRC presidency at the time. The Western Europe
group is comprised of the EU and a collection of non-­EU Western states
called JUSCANZ.6 Along with Brazil, Germany, and Mexico, the other core
group members for the resolution were Norway, and the German-­speaking
states of Switzerland and Liechtenstein. By including these states in the core
group, the United States and United Kingdom would face challenges in
the EU, in WEOG, and even in JUSCANZ, so that they could not count
5.  See, e.g., Alison Smale. Oct. 23, 2013. “Anger Growing Among Allies on U.S. Spying.”
New York Times; “Stung By the NSA’s Reach, Brazil and Germany Prepare for Closer Ties.”
August 13, 2015. Deutsche Welle.
6.  JUSCANZ is an acronym from the original members of this group (Japan, the United
States, Canada, Australia, and New Zealand) but has now become known as the UN body
to which all non-­EU members of the UN’s WEOG group belong, and in addition to which
Japan and the ROK are members. JUSCANZ is occasionally spelled JUSCANNZ in recogni-
tion of the core membership in the group of Switzerland and Norway, the largest Western
European countries who are not members of the EU (up to the point of Brexit at least). The
group is an ad hoc body whose membership can change depending on the issue. It is not a
policy coordination body, unlike the European Union.
 Surveillance, Free Expression, and the Right to Privacy  71

on support even among their most natural core allies if they attempted to
defuse or limit the scope of the right to privacy resolution. Thus, from the
very start, the right to privacy issue had a strong core group, and without
even discussing the substance of their idea, the resolution’s sponsors had suf-
ficient power to guarantee passage of almost any text addressing the topic.
Even so, and perhaps because of this apparent overwhelming advantage,
the group made mistakes in negotiation practice that weakened their hand.
First, perhaps because of the strength of their core group, they did not seek
true cross-­regional support. No African or Asian state was brought into the
group as a supporter, nor did they have support in the UN’s 5th regional
group, Eastern Europe. Second, and perhaps more importantly, they com-
mitted a major error in how they handled their draft text. The group kept
their text secret, refusing to discuss or share it with other states until almost
the opening of negotiations. This meant that the many states in Asia and
Africa were unaware of the resolution’s content. Even if they supported the
principles of the resolution, they were ignorant of its language and could not
be brought on board as early supporters.
Control of the draft of a resolution is seen as a key source of power in
negotiations.7 As drafters of the resolution, a core group has this key source
of power and can set the agenda for the negotiation by controlling what
language goes into the draft. By “controlling the pen,” the core group can
add or reject suggestions made by other delegations, leaving other parties in
a take-­it-­or-­leave-­it posture if their proposals were not accepted. When pro-
ducing its text, the core group relied significantly on the draft resolution on
privacy in the digital age, which had already been passed by the UN General
Assembly’s Third Committee, resolution 68/167. The General Assembly text
had passed by consensus after language was agreed to that reflected some
concerns of other states. But Brazil and Germany tried to overplay their
hand in the Human Rights Council. They reasserted only the language that
they liked from the General Assembly resolution while deleting all the bal-
ancing text. When the text was unveiled so late—­literally table dropped at
the time of the first informal negotiation—­American negotiators pointed
out this “cherry picking” of only parts of the UNGA resolution text. The
U.S. approach won sympathy from several Asian and African states who also
had been kept out of the drafting until the first open negotiation and viewed
as unfair the late tabling of a draft resolution that chose selectively from the
UNGA resolution.
Moreover, the Germans and Brazilians focused some of their rhetoric on

7. Salacuse, The Global Negotiator, p. 40.

72  The Art of Getting More Back in Diplomacy

the governing principle of the Internet freedom resolution—­that the enjoy-

ment of human rights should be the same online as offline. Using this per-
spective, they argued for the concept of protecting privacy in the digital age
and sought to hoist the Americans on their own petard. At first glance, the
analogy was a strong one: if people enjoyed a right to privacy in their corre-
spondence and homes, it seemed that governmental opening of their emails
would clearly be an online infringement.
Ironically, the Germans and Brazilians tried to take the HRC resolution
further than they had in the General Assembly and further than the resolu-
tion on Internet freedom had gone before. They wanted to address compli-
cated issues on surveillance. For example, they wanted to declare that collec-
tion of metadata (the web of who communicates with whom via email, text
messaging, Facebook friending, and other digital communication) violated
the right to privacy. However, this argument faced a problem in the analogy
with the offline world. In almost every state in the United Nations, postal
services began as a government function. That meant that the government
had always been aware of the addresses of those who were receiving mail and
even those who were writing to others. How else could that most ubiquitous
of government employees—­the mail carrier—­deliver the mail? Similarly, in
many states, telecommunications ministries controlled telephone connec-
tions. This again raised problems with the core argument of the Brazilians
and Germans: the idea that government collection of metadata in the form
of who was communicating with whom gave the government a new way
of infringing privacy in the online world that it did not have in the offline
world.
Finally, the very groupings that made the Brazilians appear so powerful
as a proponent of the resolution also worked to their detriment. Brazil was
insistent that the resolution focus only on infringements of privacy online
that could be seen as a result of surveillance by the United States and United
Kingdom. It made this choice because it did not want to create opposition
from its powerful allies in the BRICS grouping, including Russia and China,
who use surveillance to jail Internet dissidents and to close organizations for
the content of their work, especially those who advocate domestic reforms or
democratization. Thus throughout the negotiations there was intense silence
about the actual damage caused by any violations of the right to privacy in
the digital age other than those created by the United States’ and United
Kingdom’s electronic surveillance programs.
In the end, these weaknesses in approach caused the privacy in the digital
age core group to compromise. They removed key language on the digital
age from aspects of the resolution, added back in deleted paragraphs from
 Surveillance, Free Expression, and the Right to Privacy  73

the UN General Assembly resolution that had balanced the concepts they
emphasized, and allowed the concepts to be broadened so that they focused
on all aspects of the right to privacy, not just those related to surveillance.
The United States and the United Kingdom joined consensus on the mea-
sure, which is today used to address all aspects of privacy rights online, to
include issues related to sexual health and LGBTI rights, as well as ques-
tions of surveillance and online policing of Internet dissidents and nongov-
ernmental organizations. The passage of a more balanced, rights respecting
resolution on privacy in the digital age resulted in a healing of the divisions
between advocates for the two different HRC resolutions seeking an open
Internet. Today, most members of the Internet freedom and privacy in the
digital age core groups work together to advocate for an open, rights respect-
ing Internet in the HRC and in other technical agencies where the pressure
for regulation of the Internet remains oppressive.
Chapter 8

Sudan
Giving Respect and Salvaging Compromise from the
Worst Alternatives to a Negotiated Agreement

Sudan’s human rights violations under the regime of Omar al-Bashir pre-
sented one of the most serious human rights situations in the world. Espe-
cially in the run-­up to al-Bashir’s indictment by the International Criminal
Court in 2009 on charges of war crimes and crimes against humanity,1 the
international community struggled to adequately address this barbarity.
Sudan had been criticized by the UN Human Rights Council (HRC) under
its Item 4 for the most serious situations of human rights concern from
2006–­2009. The ongoing systematic attack of the al-Bashir regime against
rebels in South Kordofan and Blue Nile, and the government-­supported
attack against the people of Darfur, produced a human rights situation that
governments outside Africa and on the continent could no longer ignore.
The African Union also used strong language condemning Sudan’s human
rights abuses against its own people. Before 2009, a series of HRC resolu-
tions condemned Sudan and appointed Dr. Sima Samar, a medical doctor
from Afghanistan, as the special rapporteur to highlight human rights prob-
lems in Sudan. Then in 2009, Sudan’s resolution was moved from Item 4 to
Item 10, which dealt with technical assistance to countries for their human
rights efforts. Dr. Samar was replaced by a series of independent experts who
had shorter terms of focus on Sudan and less-­detailed knowledge, resulting
in progressively less and less detailed criticism of the country’s human rights
situation. International NGOs and some European member states of the

1.  The Prosecutor v. Omar Hassan Ahmad Al-Bashir, 2019, ICC 02/02–­01/09, available
on the website of the International Criminal Court at https://www.icc-cpi.int/darfur/albashir

75
76  The Art of Getting More Back in Diplomacy

UN began to accuse the HRC of treating Sudan too softly, but at the same
time none of them were able to negotiate a more satisfactory description of
the Sudanese regime’s abuses into UN language.
In the HRC, the African group traditionally defended its own mem-
bers and would usually line up its thirteen (out of forty-­seven) votes in the
HRC unanimously to support any African state being criticized. African
diplomats felt pressure to maintain solidarity with Sudan to protect it from
excessive international pressure on its human rights record, even though
many states, particularly in western and southern Africa, expressed serious
concern about the Sudanese regime’s mistreatment of its own people. The
pressure for united resistance to criticism of an African state by the inter-
national community was not just based on ideological approaches or theo-
retical solidarity. It was also a very practical concern for African delegations
who knew their human rights situations could also change due to political
changes on the continent and, indeed, in their own domestic politics. A
feeling of “there but for the grace of god go I” motivated African states to
resist efforts by those outside the African continent, largely Europeans and
North Americans, to impose resolutions of the international community
onto African human rights situations. Rather the African group preferred
to police its own situations and approaches to human rights problems
on the continent, ideally through African institutions. Close cooperation
among African diplomats also led them to see their counterparts as human
beings. This also held true for diplomats from Sudan, many of whom
were longtime professional diplomats and lawyers whose technical work
earned the respect of colleagues, even if those colleagues disagreed with
the human rights abuses of the al-Bashir regime that the Sudanese profes-
sionals were defending.
This was the situation when I arrived in Geneva at the end of 2013.
While Sudan had relied on the pressure of the African group to get out
from under the scrutiny of Item 4, it could not escape a human rights situ-
ation that was horrific and increasingly attracting negative public attention.
Systematic human rights violations were continuing in Darfur. Media pub-
licized the flogging of a Muslim woman who converted to Christianity and
was charged with apostasy. As if in scenes from The Hunger Games films,
planes of the Sudanese air force were caught on film bombing civilian hos-
pitals in the Nuba mountains. And just as the HRC session in September
2013 was ending with the adoption of an Item 10 resolution on Sudan’s
human rights situation, the government opened fire on peaceful protesters
at Khartoum University and elsewhere in the capital city, many protesting
vast increases in prices of fuel and other commodities. No objective observer
 Sudan  77

could see this as an improving situation. Incredibly, in response to this situ-

ation, Sudan overreached. The approach backfired.

Damaging Package Deals by Taking Too Hard of a Line

For Sudan, its most important redline at the UN HRC had been to avoid
criticism under the “condemnatory” Item 4 of the HRC’s agenda. Having
its human rights addressed under Item 4 left Sudanese officials with the
feeling of being “unfairly” labeled as among the world’s worst violators of
human rights and with no reason to cooperate with the Council. But since
2009, Sudan and the United States had agreed to treat Sudan’s situation
under Item 10, so long as Sudan agreed that the HRC resolution would
include accurate factual language critical of its human rights record.2 In this
environment, it was surprising that in 2014 Sudan pushed so hard to escape
the Council’s consideration altogether, rather than to accept the deal it had
achieved to have its situation addressed as one needing technical assistance.
Perhaps because of its negotiators’ relative inexperience with multilateral
negotiations or perhaps because of a sense or relatively unequal bargaining
power, Sudan repeatedly made the mistake of taking too hard of a line with
the United States.
In 2014, just as the human rights situation was reaching a nadir and
as the process of negotiating its resolution for the September HRC session
was beginning, Sudan went on the offensive. It circulated a diplomatic note
in Washington, New York, Geneva, and many African capitals proclaim-
ing the advances it had made in human rights and “national dialogue” and
insisting that the time had come for Sudan to “graduate” and be removed
from the UN Human Rights Council’s agenda altogether. In discussion with
Sudanese negotiators later, they said that this was merely an opening gambit
on their part. But their counterpart in these negotiations was an American
lawyer used to the zero-­sum environment of financial settlement in legal
cases. Instead of letting Sudan shift the playing field with its talk of hav-
ing no resolution, the U.S. ambassador announced—­without consultation
with African delegations about his chance of success—­that the United States
would be introducing the Sudan resolution that year under Item 4. In so
doing, he explained that Sudan’s record since the previous Council session,

2.  Focusing on the factual basis for criticism was what Fisher and Ury would term an
“objective criteria” for resolving differences during the negotiation. Fisher and Ury, Getting
to Yes, chapter 5.
78  The Art of Getting More Back in Diplomacy

including the government’s decision to fire on peaceful demonstrators just

as the 2013 Item 10 resolution was being finalized, made it impossible to
consider that the situation had improved or remained the same. To reflect
the reality of the worsening situation, the resolution would be introduced
under Item 4, and if Sudan or the Africans did not like it, they were welcome
to introduce their own resolution, he said.
Initially, Sudan did just that, posturing as if it would introduce its own
separate resolution under Item 10 on technical assistance. But as soon as it
did so, Sudan’s overreaching gambit of trying to claim that it had “gradu-
ated” and needed no resolution was lost. For the United States, it was facing
the best of all possible worlds. Either it would end up negotiating an Item
10 resolution with Sudan, as it had in the previous years, or it might prevail
on its proposal to shift the situation back to Item 4. Because some delega-
tions at the HRC valued consensus over consistency in their voting pattern,
it was possible that on a close vote, both the Item 10 resolution sponsored
by Sudan and the Item 4 resolution sponsored by the United States would
succeed. This was true, even though the U.S. gambit of tabling an Item 4
resolution was uncertain. It had no sure vote count of success under Item 4
and many swing voters in Asia and Latin America expressed concern about
the move back to Item 4 only a few years after the Council had unanimously
agreed to shift from Item 4 to Item 10. But, for the settlement-­minded U.S.
ambassador, the only way to deal with Sudan’s claim that there would be no
resolution was to up the ante and press back that the resolution’s condemna-
tory nature would be increased to Item 4, despite past compromises under
Item 10.

Sudan’s BATNA and How to Adjust It

The above example illustrates classic negotiation theory and posturing while
trying to change the other side’s BATNA. Sudan initially tried to restructure
the playing field of alternatives through its public statements. It viewed, or
at least tried to frame, the range of possible options as:

1) No resolution on its human rights

2) Ending a mandate for an independent expert looking at its human
rights
3) Continuing with the status quo Item 10 mandate

In this case, Sudan tried to shift the spectrum of options so that its bottom-­
line acceptable outcome (continuation of the status quo) became the worst
 Sudan  79

of three choices on a spectrum in which all other choices would represent

for Sudan strong successes. Sudan also tried to portray a series of options in
which the middle one—­which psychology indicates is the one most often
chosen3—­was the goal it sought to achieve in the negotiations.
The Americans quickly saw they needed to change Sudan’s view of the
possible options, as well as changing the spectrum of alternatives. As a result,
by announcing the United States’ intention to raise the situation of Sudan
under Item 4, the United States introduced a new spectrum of possible alter-
natives, changing the BATNA for both parties (and introducing for Sudan
a new WATNA—­Worst Alternative to a Negotiated Agreement). The new
options were:

1) A resolution condemning Sudan under Item 4 with a mandate

holder
2) A strengthened mandate holder under Item 10
3) Continuation of the current mandate under Item 10

Again this spectrum established a range of options where all three choices pre-
sented “wins” for the U.S. delegation, with the middle choice representing the
U.S. view of the most desirable likely option. Note that in both Sudan’s spec-
trum of choices and the U.S. spectrum, there was one option in common—­
continuing with the status quo item 10 for the mandate. Had Sudan seized
on that choice early, rather than pushing for more, it might have walked away
with that result and be seen by all parties as a win-­win outcome.

Sudanese Overreaching and Return to Interest-­Based Negotiation in

Search of Win-­Win Options

In fact, however, the Americans’ gambit worked and seemed to force a

reevaluation by Sudan. After the dueling threat of no resolution or an Item
4 resolution was announced and bandied about publicly, I worked behind
the scenes with Sudanese experts to come up with a resolution under Item
10 that accurately reflected the factual situation on the ground and that both
Khartoum and Washington could live with. The Sudanese negotiators and I
reached this point by following a pattern of exchange—­taking note of some
positive element of Sudan’s claimed human rights improvement in exchange

3.  Nicholas Christenfeld. 1995. “Choices from Identical Options.” SAGE Journals. http://
journals.sagepub.com/doi/abs/10.1111/j.1467-9280.1995.tb00304.x; “People Prefer the
Middle Option.” April 30, 2012. British Psychological Society’s Research Digest.
80  The Art of Getting More Back in Diplomacy

for every “negative” mention of a fact that constituted the Sudanese govern-
ment’s violation of human rights. Then a visiting Sudanese minister arrived
in Geneva in order to claim credit for having negotiated the deal, which was
reaching its final contours and keeping Sudan under the Item 10 on “techni-
cal assistance.” The minister raised new objections to language that experts
had already agreed upon. The minister used the negotiating ploy that “until
everything is agreed, nothing is agreed.” This undermined both Sudan’s bot-
tom line of staying off Item 4 and ignored the fact that the United States
had already agreed to take note of positive developments in Sudan. The first
time he tried this tactic, I walked out of the room, noting that there was no
point in all our previous negotiations if he was going to come in and revisit
every issue, so he did not need the benefit of my experience on what had
happened up to his arrival. When he persisted, the result was reversion to a
previous draft text that gave Sudan less positive credit for its human rights
improvements. At the end of the day, Sudan was stuck with a harsher Item
10 resolution than it could have negotiated at the start of the session, had it
merely settled for continuing the status quo.

Treating Your Adversaries with Respect and as Human Beings

As we discussed above, respect for one’s negotiating adversary is a tool that a

negotiator can give without cost to one’s national position and whose value is
often underestimated. In negotiations with Sudan, the relationship of the two
countries, in which the United States had for years justifiably imposed sanc-
tions on the Khartoum regime, made respect a particularly powerful tool.
In the negotiations over Sudan’s HRC resolution in 2014–­2016, Sudan
elected to negotiate its human rights resolution directly with the United
States, rather than through the African group. While the African group ulti-
mately sponsored the text that was agreed bilaterally, the dynamic made it
clear that the Sudanese delegation was seeking the respect and equality that
could be inferred from negotiating directly with the United States.
This meant that treating Sudanese diplomats with respect was a key
bargaining tool that I could offer and one that significantly improved our
negotiating dynamics. At the beginning of our negotiating interactions, the
Sudanese often would start negotiation sessions on a weekend afternoon
and drag them on through the evening, knowing that the Americans would
grow impatient and want to be home on the weekends. In response to these
approaches, I was polite but firm, refusing to engage in the weekend negoti-
ating sessions. But instead of doing so rudely, I issued a corresponding invi-
 Sudan  81

tation for the following workday, often to pick up negotiations over lunch
or coffee. The process of invitations gradually grew with an exchange of
Sudanese dates or chocolate being a key measure of how the atmospherics
would carry forward in a given negotiating session.
The Sudanese also believed, mistakenly, that working well with me as a
person meant a change in the U.S. position toward their country. This was
illustrated once through a discussion about Sudan’s press strategy. Sudan
believed that its controlled press indicated a government view and it issued a
press item in 2014 that criticized American diplomats in New York for being
too tough on Khartoum. Why are you not more like the U.S. delegation in
Geneva, the article asked? I explained to my Sudanese counterparts that,
while I appreciated the sentiment that they were trying to convey, noth-
ing could have been worse for Geneva diplomats than an impression that
the Sudanese government liked them or was softer on them than American
diplomats based in New York. They also learned a lesson in the power of the
media shortly thereafter. In an early meeting on Sudan in 2015, I showed
other potential Western partners a video of a Sudanese air force plane straf-
ing a civilian hospital run by Doctors without Borders in the Nuba Moun-
tains, killing dozens. The media impression was a powerful one and Sudan
had no response to the footage, claiming only that the plane at issue was not
the government’s, even though no rebel or private force had a plane capable
of producing that type or airstrike or damage of that magnitude. This did
not change our friendly personal interactions, but it drove home the point
that, no matter any positive personal interactions, all of us were advocates
for the position of our governments. The United States could not accept the
kind of wanton killing and disregard for international human rights and
humanitarian law depicted in the video.

Finding a Solution through Compromise on Words

Nonetheless, positive interactions, goodwill, and mutual respect that I

established with Sudan’s delegation from the 2014 negotiations carried over
into the substantive interactions on the 2015 resolution. Sudanese counter-
parts had some redlines that they were instructed to object to as offensive
to the government and its sovereignty: “monitoring” of their human rights
situation, blaming violations only on the government rather than the rebels
whom they were fighting in areas like South Kordofan and Blue Nile, claims
of “excessive force” or disproportionate response. And in a reminder that all
governments have their own interagency power dynamics, they seemed truly
82  The Art of Getting More Back in Diplomacy

scared of specific mentions that would criticize Sudan’s powerful National

Intelligence and Security Services (NISS).
To disarm the conversation and lower tensions about these topics that
were beyond the authority and redlines of my foreign ministry counterparts,
I used a tactic that works best when negotiating about words. I emphasized
that the United States was most concerned that the resolution accurately
reflected the facts of the human rights situation in Sudan, and that we had
some flexibility about the words used to reflect them. So, for example, we
came to an understanding early on that the United States would insist on a
certain number of references to human rights facts that were extremely chal-
lenging for Sudan and offensive to its ideas of sovereignty. But rather than
repeatedly insisting on words that offended them (especially during a nego-
tiation in the Sudanese embassy no doubt bugged by the aforementioned
officials of the NISS), we agreed to be flexible on the language. In effect,
we knew that we were talking about violations by Sudan and its security
officials, but we agreed to call them something else. Originally using the
Shakespearean phrase “a rose by any other name will smell as sweet,” I would
say that the United States would insist on a “flower” in this or that para-
graph, which my counterpart knew was code for a mention of government
or security agency responsibility for a human rights violation. I delighted
when she picked up the tool and turned it to her advantage, insisting that
we no longer talk about adding “flowers” to the text, but instead that we add
mentions of a “stinky fish” to represent the language or names Sudan found
objectionable. We followed this approach and ultimately found compromise
on a significant mention of “stinky fish”—­such as the bombing of civil-
ians, the shooting of unarmed protesters, national security laws that violated
international norms, and the monitoring that the international community
so strongly insisted upon and that Sudan so fervently rejected.4
This negotiation illustrates the importance of seeking win-­win compro-
mise on language and how to “avoid the nasty words, but get the content
addressed” as outlined in chapter 3’s list of negotiating tactics. Agreement
ultimately became possible by working around offensive words and concepts
while remaining true to the underlying substance. As a result, the Human

4.  The ensuing resolution, HRC Resolution 30/22, referred specifically to each of these
types of human rights violations in paras. 10–­16 and 22–­23, and included a mandate for the
independent expert to “assess, verify, and report” on the human rights situation in Sudan.
See UN Human Rights Council. 2015. “Technical Assistance and Capacity-­Building to
Improve Human Rights in the Sudan.” HRC Resolution 30/22 (adopted October 2, 2015).
https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/233/12/PDF/G1523312.
pdf?OpenElement
 Sudan  83

Rights Council ultimately passed a 2014 resolution that clearly stated the
international community’s condemnation of aerial bombardment of civil-
ians, of the shooting of protesters, and of the ongoing abuses in Darfur and
the “Two Areas” of Blue Nile and South Kordofan States. The resolution also
strengthened the mandate of an independent expert to monitor and report
on these situations.

Ratifying the Bilateral Agreement across the Broader Membership

Finally, this case study illustrates the potential challenge in getting capitals
and a broad, membership-­based group like the UN to ratify an agreement
reached bilaterally. First, the ratification by capitals differed for Sudan and
for the United States. On the U.S. side, we remained in close touch with our
capital throughout the negotiations. Redlines usually were well established
ahead of time and American negotiators knew where they had flexibility
and where they did not. Occasionally an ambassador or a negotiator would
seek to renegotiate a redline or explain why it was not going to work. But
close consultation throughout the negotiation process allowed the United
States to have a common position and to avoid the problem of moving the
goalposts. In the U.S. Department of State, officials handling Africa were
especially interested in working with the HRC to accomplish U.S. policy
goals. As a result, special envoys like Ambassador Donald Booth (Sudan and
South Sudan) and Tom Perriello (for the Great Lakes region) frequently vis-
ited Geneva to both inform and lobby member states about U.S. positions.
It was still possible that some domestic pressure from politicians or NGOs
would result in an effort to change the U.S. bottom line. But at least in the
U.S. government, it was well understood that such a late change would be
nearly impossible to pull off.
On Sudan’s side, the ratification process was used as a chance to get “one
more bite at the apple.” In each year that I worked with Sudanese officials to
negotiate a resolution, Sudanese officials would come to Geneva from Khar-
toum late in the negotiation process and seek to change a few key terms that
had already been agreed. In the case illustrated above, a minister arrived and
engaged in brinksmanship which nearly scuttled a deal. The minister later
came back. But after observing this insistence on renegotiation by an official
arriving from the capital late in the process over three successive years, I real-
ized that this was not only a tactic but was a required performance for the
Sudanese. The minister could not sell the final deal to his own government
84  The Art of Getting More Back in Diplomacy

for ratification until he had personally tried to get a better deal, even if that
meant undoing work that had already been agreed upon.
In addition to ratifying a deal with capitals, each side had to ratify its
position with other HRC member states. For Sudan, this meant working
with the African group, which typically took the position that it would sup-
port the “state concerned” on any HRC resolution. Historically in the UN,
the African group has taken bloc positions on country-­specific resolutions,
usually in defense of an African member state. This meant that all thirteen
of the group’s votes would follow the position of the bloc. But when no
common position could be reached, as happened on some egregious cases
of human rights abuse, such as in Sudan and Eritrea, there would be no
common African group position. This meant each African voting member
of the HRC could vote according to its own national position or conscience.
What was unique about Sudan’s decision to negotiate bilaterally with the
United States is that Sudan gave up its support network in the African group
in order to have more control over the tradeoffs made in the resolution in
its name. Sudan also recognized that its interests in cooperation with the
United States diverged from the African group’s interests somewhat, but that
it would not lose the group’s support because of the group’s tendency in mul-
tilateral human rights negotiations to defer to the country concerned. Just
as with the visiting Sudanese minister, the African group sometimes used its
“ratification” as a chance to try to get another bite at the apple and change
terms of the already reached bilateral agreement. This was especially true
for Sudan’s powerful neighbor Egypt. But the United States rarely accepted
last-­minute changes requested by the African group. When we did accept
a late change, it was accompanied by a countervailing tit-­for-­tat change to
improve the text in a direction that Washington requested.
U.S. ratification with its own European partners was sometimes more
difficult. Diplomats in Brussels, London, and Oslo double-­checked and
second-­guessed every edit and compromise on the Sudan text to ensure that
too much was not being given over to those they saw as the “Butchers of
Khartoum.” There was no guarantee that European colleagues would sup-
port the outcome reached in bilateral negotiations. As a result, the United
States had to maintain parallel consultations, especially with UK, Norwe-
gian, and EU negotiators, throughout the period of bilateral negotiations
with Sudan. In general, European negotiators would reach the same conclu-
sion as their American counterparts about what was advisable as content of
the resolution, or at least on what was attainable. At the end of the day, col-
leagues realized that they could not get the votes for a more stringent criti-
 Sudan  85

cism of Sudan, but this did not stop some delegations from voicing on the
floor of the HRC their displeasure about certain contents in the bilaterally
negotiated agreements about Sudan, or for that matter other resolutions.5

Conclusion

From a multiparty negotiations perspective, negotiations with Sudan illus-

trate the importance of having a system for bringing all of the various inter-
ests together at the end of a negotiation so it can be ratified. Vesting the
power of negotiations in a single party on either side of an international
negotiation can work if the key participants are included, but the possibility
that parties in broader penumbras of the interest group will try to spoil the
deal is always present in multiparty negotiations, especially in international
fora. The risks of error are higher if there is a disparity of power and experi-
ence between the parties, and Sudan’s attempt at overreaching in 2014 is one
example of the way in which a negotiation can get waylaid on its path to suc-
cess. Nonetheless, negotiations with Sudan at the UN Human Rights Coun-
cil illustrate that good diplomats can usually find compromise if they work
in an environment of respect and good faith, even when the domestic politi-
cal environments and the value-­based perspectives on a topic like human
rights are as different as they were between Sudan and the United States.
Interestingly, some of the Sudanese diplomats involved in these discussions
joined the side of protesters who ultimately overthrew Omar al-­Bashir’s dic-
tatorship in April 2019, and they are now working to help Sudan in its chal-
lenging transition to becoming a country that better respects human rights
and the rule of law.

5.  See, e.g., UN Human Rights Council Webcast Archives. 2015. Video. Geneva: October
2, 2015, under Item 10, Sudan, including statements by the European Union and the United
Kingdom.
Chapter 9

Waking the Sleeping Dragon

Overplaying the Hand on Human Rights
Negotiations with China

American negotiators also fared poorly in negotiations with China that pre-
ceded a resolution on China’s human rights at the March 2004 session of
the UN Commission on Human Rights in Geneva. China’s human rights
situation was a contentious topic in Sino-­American relations and in the
international community dating back to the June 4, 1989, killing of student
protestors at and around Tiananmen Square. Hundreds, if not thousands,
of peaceful protesters were killed as the Chinese government sent military
forces to suppress the protests and arrest some ten thousand of its own citi-
zens.1 For the decade after Tiananmen, China’s human rights policy became
an issue of debate in the international community and in several Western
countries, including the United States. Tiananmen also symbolized the Chi-
nese Communist Party’s harsh opposition to political dissent, enforced by
the intelligence, security, and judicial arms of the government. Criticism of
China’s opposition to dissent and the way this opposition was enforced was
a central element of international, and some domestic, criticism of China’s
human rights policies. American critics of China’s human rights policies
focused on annual congressional debates about whether the United States
should grant China Most Favored Nation trading status. Internationally,
the United States and others voiced concerns about China’s human rights

1. John Kamm. June 3, 2009. “Remarks to the Commonwealth Club of San Fran-
cisco, ‘How Tiananmen Changed China.’” The Dui Hua Foundation. http://duihua.org/
wp/?page_id=2520

87
88  The Art of Getting More Back in Diplomacy

through resolutions in the UN Commission on Human Rights (CHR) in

Geneva. These resolutions were raised in several years, from 1999 until the
Commission was replaced in 2006 by the UN Human Rights Council.
In the years just before and while I was in China, the United States began
trying a different approach.2 U.S. diplomats worked with Chinese officials
to see if China would make actual, concrete improvements in its human
rights policies and implementation, perhaps in lieu of the U.S. raising a res-
olution critical of China’s human rights at the UN in Geneva. This effort at
cooperation, rather than confrontation, as the Chinese called it served both
parties’ interests. For China, it avoided the public humiliation of a sanction-
ing resolution in the United Nations. “Saving face” is so important to China
that the government, prodded by those who valued the U.S.-­China relation-
ship and by those who sought a more balanced legal and security environ-
ment in China, was prepared to make concrete concessions rather than face
public censure in the United Nations. China even went so far as to permit a
$12 million rule of law assistance program to operate in the country, which
I helped administer.3 Funds went to U.S. academic and nongovernmental
institutions in the United States who then provided training on topics such
as reform of criminal law and administrative detention, the adversary system
in criminal procedure, women’s rights, and environmental litigation. In the
United States, this cooperative approach allowed a focus on concrete results

2.  See, e.g., Lorne Craner. January 29, 2004. “Remarks by U.S. Assistant Secretary for
Democracy and Human Rights Lorne Craner, ‘A Comprehensive Human Rights Strategy for
China,’ Delivered at the Carnegie Endowment for International Peace.” https://2001-2009.
state.gov/g/drl/rls/rm/28693.htm
3.  Craner, “A Comprehensive Human Rights Strategy for China.” (“Through a congressio-
nal appropriation, the State Department is catalyzing long-­term efforts to lay the foundation
for the rule of law, greater public participation and a robust civil society. We are supporting
programs to foster the development of the legal and democratic institutions that will hopefully
serve as a means to check human rights abuses in China. The programs we support address
some of our most serious human rights concerns, including the right to due process of law, the
harassment and detention of criminal defense lawyers, and lack of judicial independence. We
are supporting efforts to help non-­governmental organizations become effective advocates for
their communities and the disenfranchised, such as workers suffering under sweatshop-­like
conditions and those living with HIV/AIDS. The State Department is also backing programs
to give citizens a greater voice in governance by improving public participation through elec-
tions and public hearings. The judicial and legal reform projects we support aim to establish
the rule of law in China. I am proud to say that in the last three years, the amount of funding
available for rule of law programs in China has grown more than fivefold, from $2 million to
over $12 million. In fact, the U.S. government funds more projects to promote democracy,
human rights and the rule of law in China than any other foreign government or international
aid agency in the world.”)
 Waking the Sleeping Dragon  89

in the improvement of human rights rather than a mere “naming and sham-
ing” through reports, UN resolutions, and public statements. For human
rights victims in China, as well as for Chinese officials brave enough to
advocate reforms, it allowed an environment where China could admit its
need for external help to improve aspects of its domestic criminal, legal, and
security systems. The program of legal assistance was a way to test whether,
as one U.S. participant put it, China’s system had grown strong enough to
tolerate dissent.
Sometimes this cooperative approach worked. But in other years the
negotiations broke down and the United States pressed forward with rais-
ing the resolution on the situation of human rights in China in the United
Nations Commission on Human Rights. This chapter tells one story of
United States’ overreaching in these human rights negotiations in 2004,
resulting in the loss of a compromise, leaving one human rights champion
languishing in prison, and damaging prospects for future cooperation on
human rights and the rule of law.
By 2004, a pattern of positive momentum had been established in nego-
tiations to avoid the resolution critical of China at the UN Commission on
Human Rights. In 2002 and 2003, for example, China released political
prisoners, abolished forms of detention such as reeducation through labor,
and agreed to permit scrutiny of its domestic conditions by international
monitors like the United Nations Special Rapporteur on Torture. Several
Tibetan political prisoners were released as part of these negotiations, as
were others, like China Democracy Party cofounder Xu Wenli.4 As a result,
negotiators for both sides approached the 2004 negotiations optimistic that
a deal could be found. As had happened in previous years, China began
slowly, offering in January and February to release political prisoners ahead
of the March UN CHR session. Preliminary negotiations led to incremen-
tal progress and the tentative outlines of an agreement. As a first gesture of
goodwill, China Democracy Party cofounder Wang Youcai was released on
medical parole to the United States on March 4, 2004.
In the course of negotiations, the United States repeatedly requested
that a second political prisoner be released, Uighur businesswoman Rebiya
Kadeer, who had been detained while preparing to meet a visiting U.S. con-
gressional delegation. China was reluctant. Ms. Kadeer had been a Chinese
official who ran afoul of the powerful provincial head of the Xinjiang Uighur
Autonomous Region, Wang Lequan. For the central government to release

4.  Mickey Spiegel. December 6, 2003. “China’s Game with Political Prisoners, Op/Ed.”
International Herald Tribune.
90  The Art of Getting More Back in Diplomacy

Ms. Kadeer, it felt it would lose domestic political capital with the power-
ful governor and would take a risk that her release might lead to further
activism in Xinjiang by the restive Uighur minority. Nonetheless, efforts
were made to enable Kadeer’s release and Beijing awaited final word from
Washington to seal the deal.
With time running short before the conclusion of the UN Commis-
sion on Human Rights, a young Deputy Assistant Secretary of State for
East Asia and Pacific Affairs was sent to China to work with U.S. ambassa-
dor Clark “Sandy” Randt to finalize a deal. The Deputy Assistant Secretary
was not experienced in these negotiations. He wanted to demonstrate to
his constituents in human rights groups and among the defense establish-
ment in Washington that he could hold a tough line with the Chinese. He
recommended, and his mentor Deputy Secretary of State Richard Armitage
ultimately accepted, that China had not done enough on human rights that
year and the deal should be scrapped.5 Chinese officials were told this in late
March 2004. Viewing this as the United States “shifting the goalposts,” they
were angry. One of the forms of retaliation Beijing instituted was to ban a
young human rights officer from the U.S. embassy from coming to the Chi-
nese foreign ministry to discuss human rights for the period of a year. That
banned officer was me.

Analysis: Why Did Negotiators Pass up a Win-­Win Agreement?

What Can Be Learned from This?

To some extent, U.S. negotiators in the China human rights case erred
in rejecting what previously had been a win-­win process of negotiation in
which concrete improvements in China’s human rights and releases of politi-
cal prisoners were made by China in exchange for a U.S. agreement not to
publicly embarrass China through a resolution critical of the country in
the United Nations. By passing up a deal that would have released another
prisoner in exchange for foregoing a symbolic resolution, U.S. negotiators
may have missed a chance to get concrete improvements. They may also
have played to emotion or domestic pressure. Another more rational reason
for rejecting the win-­win deal was a feeling that China had not lived up to
promises made in the previous year. Assistant Secretary of State for Human

5.  See, e.g., Randall Schriver. 2009. “Testimony Before House Foreign Affairs Committee,
Subcommittee on Oversight, June 16, 2009.” http://project2049.net/documents/uigher_tes-
timony_of_randall_schriver.pdf
 Waking the Sleeping Dragon  91

Rights Lorne Craner indicated publicly a few months before the deal broke
down that the United States was concerned about China’s “backsliding” on
commitments made the previous year.6
But was anything achieved by going ahead with the China resolution on
human rights in the UN instead of striking an agreement? Arguably not. At
the United Nations, the United States did advance a resolution on China’s
human rights. As in past years, the resolution failed in spectacular fashion. In
the end, China blocked the resolution raised by the United States from even
being considered, using a procedural maneuver called a no-­action motion so
that the March 2004 session of the UN Commission on Human Rights did
not even vote on the resolution.7 Advocates of the decision to press ahead
with the UN resolution argued that just filing the resolution, even if it was
not considered, “kept up the pressure” on China and brought some solace
to Chinese human rights activists that the international community stood
with them in their struggle to improve human rights. The release of a few
political prisoners was insignificant, they argued, because tens of other dis-
sidents would be detained, even if a few were released as the “revolving door”
of China’s prison system continued to spin. But the United States did not
really seem to value this symbolic criticism.
And by ignoring a potential deal, real harm came to individuals as a
result. For one, Kadeer had to spend another year in jail until her release
on March 17, 2005.8 Chinese officials released Kadeer to my custody and

6.  Craner, “A Comprehensive Human Rights Strategy for China.” (“During the December
2002 Human Rights Dialogue, we were pleased when China made several commitments, and
we viewed it as incremental but important progress. Since then, I have traveled to China twice
to discuss the status of these commitments and our human rights concerns. For example,
China agreed to host visits by the UN Special Rapporteurs on Torture and Religious Free-
dom, as well as the UN Working Group on Arbitrary Detention. We believe that these kinds
of interactions would help to integrate China into the international human rights regime,
enabling medium-­term improvements in due process, extra-­judicial sentencing, religious free-
dom, and the practice of torture. It was on this basis that we decided to forego offering a reso-
lution on China at last year’s UN Commission on Human Rights in Geneva. . . . As a result
of our concern about backsliding across a range of key human rights issues, the United States
is seriously considering sponsoring a resolution on the human rights situation in China at the
commission this spring, a decision which will be made at the highest levels of our Govern-
ment. If China expects to be a fully-­accepted member of the international community, China
must live up to international human rights norms, and they can begin by fulfilling the pledges
they made more than a year ago.”)
7.  “Commission on Human Rights Adopts Resolutions.” UN Press Release HR/CN/931
(April 23, 1999); Elizabeth Olson. April 24, 1999. “China Escapes Censure in Vote by UN
Human Rights Agency.” New York Times.
8.  “Rebiya Kadeer’s Release Part of China’s Hostage Diplomacy.” March 18, 2005. Radio
92  The Art of Getting More Back in Diplomacy

I flew her to the United States, to a future of both freedom and exile. On
the flight, we discussed the difficult choices that would face her: whether
to speak out about her situation or whether to remain silent in the hopes
that China would improve treatment of Uighurs and release other political
prisoners in the future.
In addition, what China saw as the United States “shifting the goalposts”
caused it to rethink its strategy of compromise. Beijing decreased its will-
ingness to (1) release political prisoners and (2) take U.S. threats of action
on Chinese human rights in multilateral venues seriously. Kadeer’s ultimate
release in March 2005 was a turning point in China’s view of the costs and
benefits of releasing political prisoners. Prior to Kadeer’s release, China saw
cooperation on global issues such as counterterrorism and even human rights
as strengthening its place as a responsible stakeholder in the UN system.
Those Chinese dissidents who were released as a result of international com-
promise and flown to exile in the United States were essentially quiet. After
an initial media splash, the dozens of Tibetans and handful of Han Chinese
democracy activists who were released from prison into exile in the United
States in the five years after the September 11, 2001, attacks essentially
faded from public and media attention. Not so with Kadeer, who founded
Free Asia. Some reports highlighted that Kadeeer’s release took place days ahead of Secretary of
State Condoleezza Rice’s visit to China, but it was also days ahead of the opening of the 2005
session of the UN Commission. See Elise Labott. 2005. “U.S. Drops China Rights Censure—­
Mar 17, 2005.” CNN.com. http://edition.cnn.com/2005/WORLD/asiapcf/03/17/china.
humanrights. Citing “important and significant steps” by China to improve its human rights
record, the U.S. Department of State has said it will not introduce a resolution condemning
Beijing this year at the UN Human Rights Commission. Deputy department spokesman
Adam Ereli said on Thursday that while “persistent systemic problems” remain, the Chi-
nese government has taken action to increase religious freedoms and allow more leniency for
political prisoners. Those steps include allowing political prisoners the same rights to sentence
reductions and parole as other prisoners, Ereli said. He also pointed to Beijing’s agreement to
visits by the UN Special Rapporteurs on Torture and Religious Intolerance and the UN High
Commissioner for Human Rights. The Chinese government has also agreed to host the U.S.
Committee on Religious Freedom. China has also begun to allow family churches to operate
in their homes without registering with the government, Ereli said. “Taken together, these are
important steps that get at some of the structural issues concerning human rights in China as
well as noteworthy steps in the reduction of the number of prisoners,” he said. He cited the
release of Rebiya Kadeer, a Uighur businesswoman who was detained in August 1999 and
sentenced to eight years in prison on espionage charges when she sent newspaper clips to her
husband in the United States. The State Department has been pushing China for Kadeer’s
release. She was released Thursday on medical parole. A senior State Department official
added that out of fifty-­eight high-­profile cases of political prisoners that the United States was
following, twenty have been released early, thirty-­three have received reduced sentences and
five are being considered for early release or reduced sentences this year.
 Waking the Sleeping Dragon  93

a movement based on her experience in Xinjiang that joined with disparate

Uighur actors to be known as the Uighur American Association. Associates
of Kadeer’s within these groups called for improved treatment of Uighurs in
China, while others made more extreme or direct calls for independence of
“East Turkestan,” as they called the Xinjiang region. Kadeer’s vocal advocacy
for Uighur rights exacerbated China’s fear that a released prisoner would be
used to strike at China’s core interests and even to foment terrorism in Xinji-
ang. To China, it didn’t really matter if Kadeer advocated for using peaceful
means or for violence in the pursuit of independence. Leaders of China’s
Communist Party and security systems saw Kadeer’s platform in the United
States as promoting the “three evils” of terrorism, “splittism,” and religious
extremism, all of which it saw emanating from Xinjiang.9 This made China
much more cautious about future prisoner releases because Kadeer for the
first time made the cost of such a release much higher.
Second, China began to see U.S. threats of UN action as a paper tiger.
It saw what happened when a resolution was raised: the resolution never
passed and sometimes was not even heard on its merits because of China’s
raising of a no-­action motion. This failure of UN CHR action helped China
realize that the dangers of a UN resolution about its human rights situation
were limited. Of course, China would prefer not to have the negative pub-
licity and reminders of human rights problems dating back to Tiananmen
paraded in front of the world, regardless of the resolution’s ultimate success
or failure. But a series of Chinese successes in defeating the resolution cul-
minating in 2004 left it less concerned about the damage to its reputation
that might have resulted.
The 2004 negotiations marked the last time that the United States
effectively raised the threat and tabled a UN resolution on the situation
of China’s human rights. In 2005, as noted, the United States struck a
deal allowing for Kadeer’ s release, along with several commitments for
“systemic” improvements in human rights. These improvements included
9.  One of the demands raised by the United States in negotiations was to put an end to
“strike hard” campaigns in China, resulting in large-­scale arrests, including of Uighurs. These
strike hard campaigns were a more lenient precursor to the mass incarceration of Uighurs in
reeducation and labor camps that began in 2017. Ironically, one of the main systemic reforms
that U.S. negotiators saw advanced in 2003 was a decision to abolish custody and repa-
triation, one form of reeducation through labor. See “Strike Hard Campaigns in Xinjiang,”
December 28, 2013, China Daily, available at http://www.chinadaily.com.cn/china/2013-
12/28/content_17202294.htm. See also Sheena Chestnut Greitens, Myunghee Lee, and Emir
Yazici. Winter 2019/2020. “Counterterrorism and Preventive Repression: China’s Changing
Strategy in Xinjiang.” International Security 44 (3). https://www.mitpressjournals.org/doi/
pdf/10.1162/isec_a_00368
94  The Art of Getting More Back in Diplomacy

Beijing permitting monitoring visits by the UN Special Rapporteur

against Torture and the U.S. Commission on International Religious
Freedom, as well as a public statement about China not discriminating
against Christian “house” churches. And in 2006, the United States did
not even demand concessions of China in exchange when it decided not
to raise an anti-­China motion at the commission’s successor, the new UN
Human Rights Council. The U.S. administration decided that the new
UN Human Rights Council did not yet have the credibility required for
the United States to actively engage and use the forum for criticism of
others on the world stage. The 2006 decision particularly puzzled and
delighted Chinese officials, who had previously offered huge concessions
on human rights to avoid a UN resolution, and who now saw the United
States refusing to table the resolution because U.S. officials believed that
the UN’s preeminent body for addressing human rights did not have suf-
ficient credibility. The 2006 end of this cycle of negotiations was in many
ways a final lost opportunity to extract concessions from China on human
rights, and essentially ended a process that had been a win-­win negotia-
tion. To this day, the process has not fully resumed.
This stalemate situation over China’s human rights continued for years.
In fact, not until I joined the U.S. delegation at the UN Human Rights
Council did joint action critical of China’s human rights again take place
in Geneva. In 2016, a dozen countries issued a joint statement critical
of Chinese human rights abuses, including extraterritorial actions such
as kidnapping of booksellers from Hong Kong and forcing them to face
charges in the mainland.10 At the same HRC session, Canada and other
UN member states hosted the Dalai Lama to speak at an event on Nobel
Peace laureates and human rights, which again seriously angered the Chi-
nese delegation. China was so angered by the prospect of the Dalai Lama
appearing at the United Nations that it called UN Secretary General Ban
Ki-­Moon and threatened financial and political retaliation if the UN
allowed the event with the Dalai Lama to be held on the UN grounds.
UN officials ultimately relented and the panel discussion with Nobel lau-
reates (including the Dalai Lama, 2011 Yemeni Nobel Laureate Tawakkal
Karman, and a representative of Iranian laureate Shirin Ebadi) was moved

10.  UN Human Rights Council Joint Statement. 2016. “March 10, 2016, Item 2 Joint
Statement on Human Rights Situation in China.” https://geneva.usmission.gov/2016/03/10/
item-2-joint-statement-human-rights-situation-in-china/
 Waking the Sleeping Dragon  95

to the next-­door Graduate Institute of Geneva.11 Thus, even though China

claimed to no longer be concerned about criticism of its human rights
record at the United Nations, it stopped using tactics of negotiation or
cooperation to find win-­win solutions at the HRC.
Ironically, in 2018, the idea of win-­win cooperation also took on a
new twist at the UN Human Rights Council. China offered a resolution
of its own at the March 2018 37th UN Human Rights Council session
focused on the value of win-­win cooperation in human rights. Perhaps as
an attempt to preempt any negative action on Chinese human rights or
show that China has “arrived” as a power whose human rights could not be
criticized, China proposed and the HRC ultimately passed this resolution,
which drew on the widespread but somewhat controversial phrase from
Xi Jinping’s publications. Opponents argued that the draft resolution was
flawed in that it undermined the importance of a state’s responsibility to
protect citizens from human rights violations. They also claimed that the
resolution ignored the situation of human rights victims and emphasized
cooperation between and among states rather than the responsibilities of
states to cooperate with the UN Human Rights Council’s special procedures
mechanisms or with independent judicial bodies and human rights arbiters
or ombudsman. Opponents also noted the irony that a resolution focused
on the principle of win-­win cooperation was so divisive as to be impossible
to pass by consensus.
Also in 2018, the mass detention of Uighurs was raised in China’s
appearance before the Committee for the Elimination of Racial Discrimina-
tion (CERD) and in China’s November review under the HRC’s Universal
Periodic Review mechanism. But these relatively limited criticisms came in
the context of processes to which all UN member states are subject. In July
2019, twenty-­two states offered a joint statement at the UN Human Rights
Council condemning the surveillance and detention policies in Xinjiang,
while thirty-­seven states offered praise for China’s policies in Xinjiang.12

11.  See “U.S. Mission Geneva, March 11, 2016 Side Event of the UN Human Rights
Council.” 2016. Facebook. https://www.facebook.com/usmissiongeneva/photos/his-holiness-
the-dalai-lama-participates-in-a-side-event-of-the-un-human-rights-/10153728017638876/
12.  The twenty-­two states criticizing China’s policies in Xinjiang were largely from the
Western European and Others Group (WEOG) and the European Union. Some thirty-­
seven states signed a joint statement supportive of Chinese policies. Compare Patrick Good-
enough. 2019. “China Thanks 36 Countries, Half of Them Islamic States, for Praising Its
Uighur Policies.” CNS News, July 15, 2019. https://www.cnsnews.com/news/article/patrick-
goodenough/china-thanks-37-countries-including-islamic-states-praising-its. “UN: Unprec-
96  The Art of Getting More Back in Diplomacy

To date, no negotiations have resumed to find a possible win-­win path

forward on human rights between the United States and China. And in an
environment of increasing hostility over trade, intellectual property, mass
detention of Uighurs in Xinjiang, and strategic military confrontation, it
appears that the opportunity to resume the win-­win cooperation of improv-
ing China’s rule of law adherence at the same time as it reformed its interna-
tional human rights reputation has now past.

edented Joint Call for China to End Xinjiang Abuses, 22 Countries Decry Mass Detention,
Seek Monitoring.” 2019. Human Rights Watch. https://www.hrw.org/news/2019/07/10/
un-unprecedented-joint-call-china-end-xinjiang-abuses. This process of dueling pro and anti-
China joint statements has since become a regular, annual activity with the number of states
endorsing China’s statement regularly larger than those signing the anti-China statement.
P a rt I I

Multiparty International Negotiations

and Structural Factors
Chapter 10

Participants, Observers, and Guarantors

Is Anyone Truly Neutral?

Multiparty international negotiations carry with them their own dynam-

ics not only for the parties most closely involved with the issue but also
for other actors who choose to use multiparty international negotiations to
enhance their own positions. Typically, those actors for whom the issue is
most central remain at the heart of the negotiations and others are brought
in or insert themselves as observers, guarantors, mediators, or even to put
pressure on one or the other side to make a deal. The role that a party plays
in a multiparty negotiation has a significant influence on the type of nego-
tiating tactic and approach that will work best. The latter part of this book
will analyze how to use the specific roles that different parties seek to have
in a multiparty international negotiation to get more back for your state or
client. In so doing, we will also look at the specific characteristics and roles of
multiparty negotiations, both inside and outside a formal multilateral (e.g.,
UN-­type) setting.
In this chapter, we define the types of roles that different actors may play
during a multiparty international negotiation. Subsequent chapters then
expand on specific characteristics of multiparty negotiations to look at their
unique aspects and how a negotiator can take advantage of some of those
aspects to maximize results for the state or client he or she is serving.
Multiparty negotiations can find a negotiator (or the state that the nego-
tiator represents) in several different roles. We focus on the roles of direct
participant, indirect participant, observer, and guarantor. Direct partici-
pants are those whose interests are so central that the negotiation and an
agreement cannot be reached without addressing these concerns. Indirect
participants may also have interests affected by a negotiation, but their

99
100  The Art of Getting More Back in Diplomacy

interests are not as central to the negotiation as those of direct participants.

The interests of indirect participants could be resolved in a parallel forum
and need not be resolved at the same time and in the same forum as the
issues of the direct participants. Observers are just that, parties outside the
negotiation who are observing, rather than trying to achieve a specific goal
for themselves in the negotiation. Some observers are also mediators, provid-
ing good offices,1 but not all play that role. In multilateral negotiations, such
as in the United Nations, it is more common that a member state, or even a
part of the United Nations itself, plays the role of mediator. Fourth, we will
look at a particularly important role for some negotiation participants in
multiparty talks, the role of the guarantor. Guarantors are defined as parties
whose participation in the negotiation arises because of the real or perceived
influence that the guarantor can bring over one of the direct participants.
A guarantor state is one whose power allows it to enforce or help enforce
a deal, convincing, cajoling, or otherwise persuading one or more direct
participants into taking a certain action.2 Occasionally, guarantors also use
their powers to undo or block a deal, which can convert them into spoilers.
The role a state plays in a negotiation can shift over time. This shift in
role can result in changes in the environment, in deception about a party’s
true interests, in variation of its level of commitment to its initial goals, and
in changes to the party’s prioritization of its initial and subsequent goals.
Negotiation participants—­–­including states and even the United States—­
are often confused about the role they are playing at any given time. The lack
of clarity about one’s role in a negotiation is often a symptom of a lack of
unified policy direction by the state or a reflection of competing interests. It
manifests itself most often in dispute over the instructions a state is provid-
ing to its negotiators. Especially when considering the negotiation instruc-

1.  See, e.g., Theresa Whitfield. February 2010. “External Actors in Mediation.” Centre
for Humanitarian Dialogue Practice Series. Geneva. https://www.hdcentre.org/wp-content/
uploads/2016/08/35Externalactorsinmediation-MPS-February-2010.pdf. (Role of states as
mediators and importance of getting all external actors to a conflict generally united in sup-
port of the mediation).
2.  In their study of the use of power-­sharing arrangements at the end of civil wars, Hartzell
and Hoddie define guarantors as “[t]hird parties . . . called upon to guarantee that groups
will be protected, terms will be fulfilled, and promises will be kept.” Caroline Hartzell and
Matthew Hoddie. April 2003. “Institutionalizing Peace: Power Sharing and Post-­Civil War
Conflict Management.” Anerican Journal of Political Science 47 (2): 318–­32. Citing Barbara
Walter. 1997. “The Critical Barrier to Civil War Settlement.” International Organization 51
(3) 335, 340. Hartzell and Hoddie also hypothesize that a guarantor can protect security
interests of former warring parties, convincing them to rely on democratic institutions which
the actor might otherwise find distrustful.
 Participants, Observers, and Guarantors  101

tions and guidance that a capital provides to its negotiators, determining the
role a state will and should play in a multiparty negotiation can result in a
negotiation within the negotiation.
In modern international conflicts, conceptual boundaries that previ-
ously separated negotiation participants from mediators and guarantors
are merging and shifting. Today, for example, a country like Saudi Arabia
or the United Arab Emirates may offer itself as a mediator over conflict in
Libya or Yemen even though it has clear political interests in the success
of certain participants and in the outcomes. The number of truly disinter-
ested mediators is shrinking. Even the United Nations, who should be the
ideal disinterested mediator, finds itself biased by its institutional goals. In
Libya, for example, the UN was so invested in the success of the Decem-
ber 2015 Libyan Political Agreement it brokered that it lost sight that its
UN-­backed government lacked public support and failed to provide any
form of basic services to the Libyan people. So, the government had to be
replaced in February 2021.
Thus our current chapter seeks to clarify the roles of parties, based largely
on their proximity to the issues under negotiation, so that students and ana-
lysts of negotiations can separate the position of biased would-­be mediators
from their roles as participants, indirect participants, or guarantors in a nego-
tiation. Once you identify the role each party is playing, you can place your
client in a position that maximizes his or her leverage.3 For example, chapter
12 talks about how to use proxies to advance your interests in a multiparty
negotiation in the United Nations—­something Glendon and Crump might
characterize as “cooperative relations between parties on the same side.”4
The following chart offers illustrations of the different types of actors based
on four multiparty negotiations that are key case studies of this book: the

3.  One of the more thoughtful articles on multiparty negotiation dynamics, “Towards
a Paradigm of Multi-­Party Negotiation,” by Glendon and Crump, identifies five types of
relationships in a multiparty negotiation: 1) primary party relations; 2) cooperative relations
between parties on the same side; 3) noncooperative relations inside a single party not behav-
ing in a unitary way; 4) third-­party relations; and 5) relations that provide support to a single
party. These relationships cover some of the functions of direct participants, indirect partici-
pants, observers, and guarantors but not all, nor do they consider the importance of establish-
ing roles so one can influence the type of relationships one has with other participants. A. Ian
Glendon and Larry Crump. 2003. “Towards a Paradigm of Multiparty Negotiation.” Inter-
national Negotiation 8 (2): 197–­234. doi:10.1163/157180603322576112. While it is clearly
valuable to classify other parties in a negotiation as friend or foe, as Glendon and Crump do,
our focus rests with how to use different roles in a negotiation process to maximize leverage
for yourself and your client.
4.  Glendon and Crump, “Towards a Paradigm of Multiparty Negotiation.”
102  The Art of Getting More Back in Diplomacy

Table 1. Negotiation Roles in Four Multiparty Case Studies

Based on party’s proximity of interests and centrality to resolve conflict
DPRK 6PT Libya after
Role Oslo Accords 2003–­9 DPRK 2017–­20 Qaddhafi
Direct Israel, Palestinian DPRK, USA, DPRK, USA Libyans (GNA,
Participant Authority China, ROK Haftar/LNA,
Other Libyan
Stakeholders)
Indirect Palestinian’s Arab Japan, Russia China, ROK Egypt, UAE,
Participant supporters, Qatar, Turkey
USA
Observer USA All 6PT states UN, P3+Italy,
EU, Libya’s
Neighbors
Host or Prior Mediator: Host: China Mediator: ROK UN, France, UAE,
Mediator Norway Hosts: Vietnam, Italy (minimal
Singapore success)
Guarantor USA for both USA for ROK, China, ROK Egypt/UAE for
sides China for Haftar/LNA;
DPRK USA/UK for
GNA

1997–­1999 talks between Israel and the Palestinians over implementation of

the Oslo Accords; the Six-­Party Talks on the North Korea nuclear issue from
2006–­2010; the subsequent Trump-­Kim negotiations over North Korea’s
nuclear program during the 2017–­2020 period; and the talks attempting to
reach a unified government in Libya from 2015 through 2020. We will briefly
consider each of the types of actors across these four case studies, along with
some additional examples, to help understand key characteristics of each of
the roles that actors can and should play in these types of negotiations.

Israel-­Palestinian Negotiations and Implementation of the Oslo Accords

In the Israel-­Palestinian negotiations I observed to implement the Oslo

Accords, the roles were fairly straightforward. The Oslo negotiations over
troop and territory exchanges and political representation had been com-
pleted in 1993 and 1995,5 with Norway playing a key role as mediator and

5.  Oslo I, known as the Declaration of Principles, was a result of secret Israeli and Pal-
 Participants, Observers, and Guarantors  103

convener. When I arrived on the scene as a junior diplomat at the U.S.

embassy in Tel Aviv in 1997, the discussions underway focused on imple-
mentation, in particular implementation of certain economic agreements
documented as annexes to the Israeli-­Palestinian Interim Agreement.6 Sev-
eral working groups had been established to implement different provisions
of the accords. I participated in support of the United States as an observer
in two of these groups—­those seeking to establish, respectively, an airport
and a seaport in the Gaza Strip. In the Oslo negotiations, one of the prin-
ciples resulting in a deal was an exchange of economic opportunity for guar-
antees of security.
As direct participants, the Israeli negotiators aimed to ensure control
of security in both the airport and the seaport. For the Palestinians, their
objective was primarily to achieve a connection for direct links to the out-
side world for purposes of trade and transportation. In this negotiation, the
Palestinians’ indirect supporters included other Arab states, particularly in
the Gulf region, who were potential trade partners or travel destinations.
But these parties were not very influential in the implementation phase and
were not present in the formal negotiations. They did, however, wield some
influence over the negotiations, but not always a constructive influence. For
example, the Palestinians’ Arab state allies did not use their influence to
press for a win-­win deal in the Oslo implementation talks. But some of
them did use their roles as indirect participants in the negotiations to play
the spoiler. For example, some Arab state allies discouraged the Palestinian
Authority negotiators from striking a deal that might benefit the Palestinian
economy because such a deal might also leave the Israelis looking reasonable
in the eyes of the international community.7 These outside actors preferred

estinian negotiations in 1992–­1993 in the Norwegian capital, while Oslo II, known as the
Israeli-­Palestinian Interim Agreement, was announced in 1995 and focused on Israeli with-
drawals from Palestinian territories and the process of Palestinian Authority government
formation. See “Oslo Accords Fast Facts.” September 3, 2013. CNN. https://edition.cnn.
com/2013/09/03/world/meast/oslo-accords-fast-facts/index.html
6.  See, e.g., Israeli Ministry of Foreign Affairs. February 10, 1999. “The Israeli-­Palestinian
Interim Agreement on the West Bank and the Gaza Strip.” https://mfa.gov.il/mfa/foreign-
policy/peace/guide/pages/the%20israeli-palestinian%20interim%20agreement%20-%20
annex%20iii.aspx. These agreements were later elaborated in the Sharm El Sheikh Memo-
randum of 1999.
7. In other contexts I have observed, Saudi and Egyptian representatives also blocked
Palestinian-­Israeli compromise. For example, in late March 2014, when the HRC President
was selecting a candidate for Special Rapporteur for the Palestinian Territories, Palestinian
officials agreed to the appointment of Indonesia’s Makarim Wibisono, but Saudi and Egyp-
104  The Art of Getting More Back in Diplomacy

to encourage the Palestinians to hold out for extreme positions, and given
their indirect role in the outcomes, they really suffered no losses if a deal on
implementation could not be reached. This is a classic example of how an
indirect participant can play a role that is destructive, to the point of becom-
ing a spoiler.
The United States was, however, present at each round of negotiations.
Given the United States’ formal role as an observer, both parties often pos-
tured and pleaded in efforts to draw the country into the negotiations more
directly, either as a mediator or even as a guarantor of behavior of one or the
other side to press for an agreement on terms more favorable to them. In her
memoirs, Condoleezza Rice expresses surprise over this phenomenon where
Israelis and Palestinians would offer lengthy explanations or grandstand for
the sole benefit of the American observer:

Negotiating with the Palestinians and the Israelis was no easier. Every
encounter seemed to produce either a history lesson or a lecture about
some UN resolution. One of my aides, seeing my frustration, noted
that Israelis are among the most legalistic people on Earth; after all,
the Torah is mostly about keeping the law, he said. I asked how this
explained the Palestinians’ behavior. “They are cousins,” he answered.8

In one negotiation where I was an observer, the Palestinian captain lead-

ing the seaport negotiations dramatically “abandoned ship” and threatened
to walk out as the lead Palestinian negotiator. This was as much for my
benefit as a U.S. observer as for any real impact it might have, and it was
aimed at winning sympathy to his side about the perceived unfairness of the
situation and excessive Israeli leverage. But I found that if I walked away
from the negotiations, perhaps not returning after a coffee break for more
than an hour, the parties would talk constructively in my absence and could
often make progress.
My supervisor during the Oslo implementation period, Jeffrey Feltman,
would ultimately go on to serve as Under Secretary General for Political
Affairs at the United Nations. When I was working for him, Jeff served
as observer in the Israeli-­Palestinian talks aimed at construction of an air-
tian diplomats blocked the choice and pressured Palestinians to do the same. Tovah Lazaroff.
March 29, 2014. “UNHRC Delays Appointing New Special Rapporteur to Replace Falk.”
Jerusalem Post. Wibisono was ultimately appointed only after a delay in the process and Pales-
tinian officials speaking more strongly in favor of their own position.
8. Rice, No Higher Honor, chapter 14, Kindle location 3794 of 12657.
 Participants, Observers, and Guarantors  105

port and of allowing for Israel-­Palestinian trade to expand across the then-­
passable Gaza border. Sadly, these efforts were ultimately for naught. Follow-
ing terrorist attacks in which a Palestinian suicide bomber passed from Gaza
through a joint trade industrial park to enter Israel and kill several people at
a crowded Jerusalem market, the effort at joint trade was ended. Even the
runway at the Gaza Airport was bulldozed, and today Gaza remains even
more isolated as Hamas’ political takeover has furthered the political and
economic blockade of the strip. This sad outcome shows that observers may
have goals in a negotiation, such as to make progress on joint trade, but it
is often easier for spoilers to block progress than for any party to advance
negotiations, or in this case, their implementation.

Six-­Party Talks on the North Korean Nuclear Issue

In the Six-­Party Talks on North Korean denuclearization, complexities

between roles and the shifting of roles between parties is also easily illus-
trated. Determining which parties are direct participants and which are
indirect participants often depends, as do most things, on your perspective.
In this case, North Korea was no doubt the direct subject at the center of
the negotiation and without whom no negotiation could otherwise con-
tinue. No matter your perspective, North Korea would have to be defined
as a direct participant. The North Koreans were the sole party able to truly
implement any agreement on denuclearization and its denuclearization was
the primary goal of the talks.
Even though all six of the parties participated in each round of talks, it
would not be accurate to consider all of them direct participants. There was
a significant difference in the extent of involvement and influence among
the DPRK, ROK, China, Russia, Japan, and the United States. For example,
Russia sometimes participated in the talks only through its local ambassador
in Beijing.
Historically, the United States was the other main participant in denu-
clearization talks with North Korea from the time of the Clinton admin-
istration’s bilateral talks with the DPRK. The tradeoffs that North Korea
wanted in order to consider denuclearization included a web of security and
economic guarantees that brought five additional parties to the table: the
United States, China, South Korea, Japan, and Russia. From North Korea’s
perspective, the direct participants were itself and the United States. The
DPRK had engaged in a series of bilateral talks with the United States about
106  The Art of Getting More Back in Diplomacy

its denuclearization during the Clinton administration, and one of its pri-
mary goals was to attain the degree of international respect (and in its eyes
legitimacy) that could be inferred from seeing the North Koreans as direct
negotiation partners of the United States.9 Moreover, many of the bilateral
talks that were most influential to moving the Six-­Party Talks forward were
between the DPRK and the United States.
Because these two parties’ participation was indispensable to the talks, I
would define them as the direct participants. Indeed, in periods where either
the United States or the DPRK refused to come to the negotiating table dur-
ing the six rounds of the Six-­Party Talks, no talks took place.
But many of the security guarantees North Korea was seeking have
antecedents dating back to the Korean War. During that war, North Korea
(today’s DPRK) and South Korea (today’s ROK) were clearly direct par-
ticipants, and the United States and China quickly joined into the war on
each of the opposing sides. While the four parties, all signatories of the
Korean War Armistice (to this day, there still is no peace treaty), would be
considered direct participants in the negotiations over the end of the Korean
War, should all four also be considered direct participants in the subsequent
denuclearization talks?

Other Definitions of Direct Participants?

The North Korean view that the armistice defined the key participants also
is a useful framework for evaluating the extent of other parties’ interests and
their proximity to the primary goal of the negotiation: the denucleariza-
tion of the Korean Peninsula. I would classify South Korea as an indirect
participant in the talks although it could be argued that South Korea was a
direct participant for some purposes. At one point, South Korea had been
a direct participant in denuclearization talks, when North and South Korea
had reached the 1991 Joint Declaration on Denuclearization of the Korean
Peninsula. But as time went on, it was possible for U.S.-DPRK talks to

9.  The United States and North Korea previously had direct negotiations on the nuclear
issue. The United States in 1994 entered into the agreed framework, which sought to end the
DPRK’s nuclear programs in exchange for heavy fuel and construction of two light water reac-
tors in North Korea. Clinton administration Secretary of State Madeleine Albright explained
that a primary motivation for DPRK ruler Kim Jong Il to participate in denuclearization talks
was his desire to be seen as having the legitimacy and stature to sit across the table from the
United States in the 1990s. “Interview: Madeleine Albright.” March 27, 2003. Frontline. PBS.
org. http://www.pbs.org/wgbh/pages/frontline/shows/kim/interviews/albright.html
 Participants, Observers, and Guarantors  107

proceed without the ROK’s participation and Seoul was often briefed before
and after consultations between the North Koreans and the United States.
As a result of these changing circumstances, I would classify South Korea
under this framework as an interested indirect participant.
In the case of South Korea, deciding whether it is a direct or indirect
participant is not merely an academic exercise. Much of the political debate
today in the ROK about the U.S.-­ROK alliance and even which domestic
political party a Korean citizen supports focuses on the degree to which
South Korea directly participates in determining the future of the Korean
Peninsula. Critics of the ROK government who participated in the Six-­Party
Talks said that the ROK position was too passive, a critique also aired today
by those who object to Seoul paying a greater percentage of the costs of U.S.
Forces Korea stationed on the peninsula. Moreover, North Korea frequently
criticizes Seoul as being an indirect player, incapable of making its own secu-
rity decisions without permission from the United States.
China, too, could be argued to be a direct participant given its role in
the Korean War Armistice, but during the period when I was observing
these talks Beijing primarily served as a guarantor of North Korean behavior.
China also used its role as host of the Six-­Party Talks for its own purposes,
to strengthen its bilateral relationships with the United States, South Korea,
and Japan and to enhance its international reputation as a responsible actor
in the international community. In part because of the importance it gave to
its role as host of the Six-­Party Talks, China refused to veto a series of UN
resolutions sanctioning North Korea over its nuclear and missile tests. The
extent to which China used its convening power as “host” of the Six-­Party
Talks and the impact of such convening power on Beijing’s international
reputation will get further detailed attention in chapter 11. From my per-
spective, while China may have wanted to appear as a mediator in the Six-­
Party Talks, its interests in the discussion were too direct for it to have the
level of impartiality required of a mediator. As an indirect participant and
host, China retained influence on the outcome, gained international promi-
nence, and scored points with its American and South Korean coparticipants
for making efforts to contain the North Koreans. In this way, China could
be seen as a guarantor of the North Koreans’ behavior. But because China
had sufficient interests of its own separate from the main goal of denuclear-
ization, I would consider Beijing an indirect and interested participant that
sometimes acted as a guarantor.
The final two participants in the Six-­Party Talks—­Japan and Russia—­
joined the discussions in part for parity. Having three on a “side” (U.S.-­
ROK-­Japan and DPRK-­China-­Russia) provided balance at some points of
108  The Art of Getting More Back in Diplomacy

the negotiations. Group dynamics were important: Russia could ensure that
China was not “selling out” the DPRK for China’s own interests in improv-
ing relations with the West, for example, and helped to soothe DPRK para-
noia in that regard. Russia brought deep expertise in denuclearization in
the UN system but rarely participated directly in the talks. As chair of a
working group on regional issues, Russia seemed content to observe and
ensure that its interests were not being disregarded, as well as to be included
in any regional structures that might emerge from a Korean peace agree-
ment. In some Six-­Party rounds, Moscow was represented solely by its local
ambassador in Beijing. But it contributed, as a P5 member and a wealthy
energy exporter, to the economic assistance for fuel oil compensation for
the DPRK’s denuclearization. It was also a positive player in communicat-
ing international standards of nonproliferation to Pyongyang. Russia was
clearly an indirect participant in these aspects of the talks, but it could also
be considered a guarantor, given its primary purpose to influence the North
Koreans to further denuclearize.
Finally, Japan’s role was the most complicated in the Six-­Party Talks.
Japan cannot be considered a direct participant because it was not essen-
tial for achieving the denuclearization of the DPRK. The DPRK sometimes
underscored this indirect role for Japan in a pique by refusing to hold bilat-
eral talks with the Japanese delegation. Japan had significant interests in the
negotiation and made significant financial contributions to the compensa-
tion that was designed to elicit North Korean denuclearization. But Japan’s
interests in the talks extended beyond the nuclear field.
Like the ROK, Japan was a significant target of North Korean hostility.
DPRK missile launches often headed to the Sea of Japan, demonstrating
an ability to reach and threaten Japan. This conventional threat was just as
real as any nuclear threat might be in the future. Japanese citizens had also
been victimized by a DPRK spate of abductions in the late 1970s and early
1980s. A campaign to find out about the abductees’ whereabouts and return
them safely to Japan if they were still alive was a strong domestic political
topic on the right wing in Japan. This issue sometimes gave Japan aspects
of a spoiler, willing to sacrifice progress on the DPRK nuclear issue unless
sufficient progress was made on this important, but parochial and largely
bilateral, issue of abductions.
Again, among the ROK-­Japan-­U.S. trio, group dynamics played a sig-
nificant role. For Japan, when the DPRK froze it out of bilateral talks, its
U.S. and ROK partners could help by raising the abductions issue in the
course of their bilateral meetings with the DPRK. Group meetings before
and after U.S.-­DPRK or U.S.-­ROK bilaterals also helped the other parties
 Participants, Observers, and Guarantors  109

to be sure that negotiations and their positions were synchronized. Japan, in

particular, feared that the others might “sell out” its interests in the abduc-
tions issue to strike a deal or make progress on denuclearization without
it. Moreover, for political reasons, the U.S. administration did not want to
be seen as “rewarding” the DPRK with direct talks and therefore wanted
to frame the discussions as multilateral ones, including U.S. allies in Seoul
and Tokyo. While bilateral talks often took place during the rounds of the
Six-­Party Talks, it was an important limit on North Korea’s ability to gain
international respect and legitimacy from the United States that they were
not always rewarded with such bilateral meetings. Finally, group dynamics
and trust issues within the United States internal political structure were also
important factors for having the U.S.-­ROK-­Japan trio operate as a group.
Within the U.S. administration during the Bush years, there was deep skep-
ticism that Ambassador Hill and the State Department negotiators might
be too soft on the DPRK in their efforts to strike a deal. Those more con-
servative voices in the Pentagon and the Office of the Vice President relied
in part on the presence of Japan to serve as a check on progress proceeding
too quickly and to make sure that interests in comprehensive verifiable and
irreversible denuclearization were protected. This is just one example of the
competing interests that can be at stake between and among the parties and
why Japan was not a disinterested observer, but either an indirect participant
or at times a spoiler in the talks.
Finally, it is worth noting that the United Nations had no role in the
Six-­Party Talks, and no party was a true mediator. In early 1992, North
Korea entered into a comprehensive safeguards agreement with the United
Nations under the Non-­Proliferation Treaty allowing the IAEA to conduct
inspections of nuclear sites. On occasion, the topic of return by the IAEA
inspectors to the Yongbyon nuclear facility was discussed in the Six-­Party
Talks and even requested by the United States. But the days of those direct,
or even UN mediated talks, were over by 2003 when the Six-­Party Talks
began. Unlike the Libyan example, the United Nations was not, in any way,
a participant in talks on DPRK denuclearization. This essentially remains
true for North Korea even at present.
Chapter 11

Host or Matchmaker?
Using Convening Power as a Vehicle for
Mediation, Influencing Counterparts, and
Controlling Outcomes

Chapter 10’s analysis of whether participants in a multiparty negotiation

are direct participants, indirect participants, observers, or guarantors is
important for analyzing the options to influence a negotiation as a media-
tor or other broker. An important part of a negotiator’s toolkit can involve
restructuring the relationships between direct participants, indirect partici-
pants, and mediators, especially if you see that your state or client is being
moved to the periphery of a multiparty negotiation. Even when a party is
not directly involved, it can use the offer to host negotiations and related
convening power to influence a negotiation’s outcome and become a more
central player than its direct interests might otherwise suggest.
The power to bring parties in dispute around the negotiating table is
a strong source of power in any negotiation. A judge or mediator who
brings economic disputants together for settlement talks or for negotiations
to resolve a financial dispute clearly wields power and authority, derived
largely from his independence. This potential source of “soft power” is avail-
able to countries regardless of size, interests, and extent of involvement in
a given dispute or conflict. In fact, it is often better that a mediator not be
a superpower, influential neighbor, or other interested party. The United
Nations is often looked to as the convening power of choice. But anti-­UN
sentiment and failure of the UN to play this role has led to an expansion of
state efforts to serve as conveners and mediators, including strong contribu-
tions to global peace from Norway, Switzerland, and others. International

111
112  The Art of Getting More Back in Diplomacy

guidelines for mediators indicate the importance of mediators maintaining

neutrality in efforts to convene disputing parties, be this in the economic or
political realm.1
Multiparty international political negotiations offer an opportunity for
participants in a negotiation to use convening power not only to mediate
but also to advance their goals in the negotiation. One of the reasons we
have focused on the different roles a party can have in a multiparty negotia-
tion is to avoid confusion between a truly neutral mediator and the kinds of
guarantors, direct, and indirect parties who might seek to advance their own
interests through the use of convening power. Conducting this analysis and
determining how neutral your host is in a meeting can be another key tool
in a negotiator’s toolkit. At the same time, properly using convening power
can offer the host a range of advantages, depending on the goals of the party
offering to host a meeting. These include:

• Setting the agenda for the participants;

• Creating an opportunity for third-­party mediation;
• Earning goodwill and reciprocal gratitude from direct participants;
• Allowing observation and surveillance of the talks and planning
sessions;
• Controlling allies and proxies while boxing out competitors; and
• Influencing outcome documents by controlling the pen.

By and large, these advantages can accrue to any party hosting a negotiation
session, be they a member state, an international organization, or a private
company or client.
In this chapter we will look in detail at the North Korea and Libyan
examples to analyze how some parties used convening power to their advan-
tage and how others failed to do so. On North Korea, we will look briefly at
the differences between how Beijing exercised convening power during the
2003–­2009 Six-­Party Talks, and how the ROK has tried to exercise a bro-
kering role in the 2018–­2020 nuclear summitry between President Trump
and Chairman Kim over North Korea’s nuclear program. On Libya, we will
look at how the United Nations alternately won and lost the confidence
of key negotiating parties in its bid to serve as the convening power, open-
ing the door to a confusing mix of hosts and conveners, each of whom

1.  See, e.g., “A Guide to Mediation: Enabling Peace Processes in Violent Conflict.” 2008.
Centre for Humanitarian Dialogue. http://www.hdcentre.org/wp-content/uploads/2016/08/
83Guidedelamediation-February-2008.pdf
 Host or Matchmaker?  113

sought to influence participants, control proxies, or advance its own role.

The chapter will conclude with a few observations on the role of online and
distance technologies as they relate to convening power, especially during
the COVID-­19 pandemic when travel and face-­to-­face meetings have been
made more difficult by public health control measures.

Hosting Six-­Party Talks on North Korea:

A Pillar of Chinese Foreign Policy

China originally gained significant international and bilateral prestige and

credibility as the convener of the Six-­Party Talks on the North Korean
nuclear issue beginning in 2003. At this time, there was a significant debate
about whether China, as a rising power, would seek to change the existing
international order or would be a “responsible stakeholder” within the exist-
ing structures.2 One of the primary ways that China demonstrated to the
world that it could be a responsible stakeholder was through its convening
power, exercised as the host of the Six-­Party Talks.
China moved to host the talks in 2003 as it became clear that the admin-
istration of President George W. Bush was taking a tougher position on
North Korea’s development of nuclear weapons. Talks had been ongoing
about North Korea’s nuclear program for years in various formats: the four-­
party talks; bilateral and trilateral talks including the United States, ROK,
and DPRK about the Korean Peninsula Energy Development Organza-
tion (KEDO) and its mission to provide light-­water reactors to the DPRK;
and even bilateral U.S.-­DPRK talks about constraining the DPRK’s mis-
sile program at the end of the Clinton administration. After the September
11 attacks, tension about the DPRK’s developing nuclear and missile pro-
grams became more pronounced, especially with President Bush labeling the
DPRK as part of an axis of evil in his 2002 State of the Union address. At
about this time, Beijing began efforts to improve its international reputation
and maximize its influence on North Korea with many of the other North-
east Asian powers and the United States. A primary tool in China’s toolbox
to advance this effort was for Beijing to serve as host and convener of what
came to be known as the Six-­Party Talks.
First, as convener, Beijing could help to determine who were the rel-

2.  Robert Zoellick. September 21, 2005. “Whither China: From Membership to Respon-
sibility? Remarks of the U.S. Deputy Secretary of State to National Committee on U.S.-­China
Relations, New York City.” https://2001-2009.state.gov/s/d/former/zoellick/rem/53682.htm
114  The Art of Getting More Back in Diplomacy

evant parties to discuss the issue and how and when should they sit down
to meet. The Six-­Party format produced a relative balance between a “com-
munist” bloc of China, Russia, and the DPRK that often looked to ensure
North Korea was being treated fairly and an “allied” block of the United
States, Japan, and South Korea that looked to move forward on denucle-
arization and to contain the DPRK security threat. But far more than this
macro-­level control over the negotiations, Beijing’s convening power also let
it exercise micro-­level control. It could determine the schedule of bilateral
meetings that filled the majority of the time during which Six-­Party negotia-
tions were convened. This could allow China, for example, to consolidate
a position between itself and the DPRK first, before floating that position
with members of the allied bloc. Sometimes it helped China to marginal-
ize or minimize the influence of a rival like Japan. China often denied or
delayed opportunities for Japan and DPRK bilateral meetings because of a
perception that Japan was pushing too hard on the issue of abducted Japa-
nese citizens for political purposes and as a distraction from the focus on the
DPRK’s denuclearization.
Second, as host, China had access to the schedules and locations of the
participants in all delegations dealing with the North Korean nuclear issue.
By holding the DPRK nuclear talks in Bejing, it quite literally made it easier
for China to overhear, and thereby know, what each of the delegations was
saying and thinking about the DPRK situation. This was true not only for
the plenary negotiations but also for more private interactions like bilat-
eral meetings and planning sessions, where delegations may speak in a more
unguarded fashion about their bottom lines, interests, and BATNAs. In
countries that use electronic surveillance, one should not underestimate the
comfort that a government or its security services can derive from listening
in and discovering or confirming views about other parties’ positions.
Third, China used its convening power to advance its own interests con-
cerning the DPRK. This meant balancing its neighborly and traditional sup-
port for the DPRK as a socialist brethren country with China’s national inter-
ests in regional stability and global interests in nonproliferation of nuclear
weapons. In 2003, when the Six-­Party Talks began, China was focused on
its economic reforms and export-­led growth. China wanted stability above
all in its international affairs so that it could focus on export-­led growth, and
the DPRK’s unpredictable steps toward gaining nuclear weapons disrupted
China’s goal of having a stable regional environment.
Fourth, China’s work on the DPRK talks helped to improve its rela-
tions with the international community generally, and specifically with
other Asian countries. As we discussed above, during this time period Chi-
 Host or Matchmaker?  115

na’s economic and trade relations with Asia were expanding exponentially.3
China’s export growth saw it selling significant volumes across Asia and, in
some cases, importing raw materials and other natural resources to fuel this
manufacturing boom. With South Korea and Japan, the trade relationship
was even more complex.4 South Korea and Japan were investors in China’s
manufacturing-­led, export economy. While these Asian allies were skeptical
of China’s communist and control-­oriented political system, they were also
attracted to its huge market, resources, and low-­cost labor. China used the
Six-­Party Talks to show the ROK and Japan that it had a pragmatic, develop-
ment focused side to its international political philosophy. China did not let
ideological affinity for North Korea overcome practical economic benefits of
an improving relationship with traditional rivals in Seoul and Tokyo. This
led to a booming trade relationship, even though some aspects of politics
remained tense, especially when enmities with Japan resurfaced over offi-
cial government visits to the Yasukuni Shrine, which memorialized Japan’s
World War II-­era leaders.
But most important, the convening power China exercised in the Six-­
Party Talks was part of China’s grand strategy to use the North Korean
nuclear issue to improve its relations with the United States. China posi-
tioned itself as a partner to the United States in dealing with the threat the
DPRK posed to the international security order. China organized bilateral
meetings during the Six-­Party Talks so that the first bilateral was almost
always between China and the United States. China’s Six-­Party Talks’ envoy
Wu Dawei would hear the U.S. position toward North Korea and then
3.  See OECD. March 20–­21, 2011. “China’s Emergence as a Market Economy: Achieve-
ments and Challenges.” OECD Contribution to the China Development Forum, Beijing.
http://www.oecd.org/governance/public-finance/47408845.pdf
4.  In 2005, the ROK aimed for a future trade volume with China of $100 million. Young-­
rok Cheong. 2009. “Presentation by Seoul National University Professor Cheong Young-­
Rok.” KEIA Conference on Dynamic Forces on the Korean Peninsula. http://keia.org/sites/
default/files/publications/09.Cheong.pdf. By 2012, China-­ROK trade had grown to $215
billion per year and trade-­reliant South Korea’s economy was heavily dependent on China
as a partner. Shannon Tiezi. June 2, 2015. “It’s Official: China, South Korea Sign Free Trade
Agreement.” The Diplomat. doi: https://thediplomat.com/2015/06/its-official-china-south-
korea-sign-free-trade-agreement/ Japan-­China trade was a higher volume and also increas-
ing rapidly. Official statistics show that in 2006 Japan-­China trade had crossed the $200
billion threshold. Japanese Ministry of Foreign Affairs. 2006. “Japan-­China Relations, Basic
Data.” https://www.mofa.go.jp/region/asia-paci/china/data.html. As early as 2003, the Bank
of Japan recognized this trend was having a significant influence on bilateral relations. See
Hitoshi Sasaki and Yuko Koga. August 2003. “Trade Between Japan and China: Dramatic
Expansion and Structural Changes.” https://www.boj.or.jp/en/research/wps_rev/ec/data/
rkt03e03.pdf
116  The Art of Getting More Back in Diplomacy

shape that message in delivering it to the DPRK delegation. China often

tried to play matchmaker, drawing the United States and DPRK closer by
the way it organized the meeting and relayed messages.
In an environment where China could have been seen as a strategic com-
petitor, China aimed to convince the United States that it could be counted
on as a “responsible stakeholder” in the international community.5 Mediat-
ing between North Korea and the other members of the Six-­Party Talks was
one way China showed the United States that it could be a responsible part-
ner, not only a rising competitor. When China’s own international behavior
threatened international nonproliferation norms—­for example when Chi-
nese firms sold technology to Iran and other sanctioned governments in
violation of sanctions—­China often returned to its role as a host of the Six-­
Party Talks to convince the United States of its overall positive, or benign,
intentions.
For all the success China found from its hosting of the Six-­Party Talks
on the DPRK nuclear issue, ten years later many in China criticize this
approach as a failure. North Korea retains and has expanded its nuclear arse-
nal. It appears to have used the time granted it during the Six-­Party Talks era
to refine a covert uranium enrichment program.
Since 2018, China’s leadership on the North Korean issue has taken
something of a back seat to the ROK, which effectively replaced China as
mediator and matchmaker between North Korea and the United States.
ROK President Moon Jae-­In from 2018–­2019 became the most important
host and mediator pressing for peace on the Korean Peninsula. Motivated by
a desire to improve relations between North and South, Moon led a complex
effort to draw North Korea to attend the Pyeongchang Winter Olympics
and participate in a series of summits with himself and with U.S. President
Donald Trump, a phenomenon we will examine in more detail in chapter
14. For present purposes, it is sufficient to note that the role of a convener
is not necessarily a permanent one, and maintaining convening power can
require significant expenditure of effort, resources, and time. Expectations of
other parties also can burden the party who is a convener and the convener
might find itself being influenced as much by the participants as it is doing
the influencing. As the shift between China and the ROK in hosting North
Korean peace efforts reveals, agreement about who is host and who is par-
ticipant is a two-­way street. North Korea used shifting allegiances and even
willingness to be hosted for discussions on Korean Peninsula peace and secu-
rity as an intentional part of its strategy. As will be discussed in more detail

5. Zoellick, Whither China Remarks.

 Host or Matchmaker?  117

in chapter 13, Kim Jong Un was largely successful in playing China and the
ROK off one another in his effort to see which of them could best deliver
the most important negotiating partner for the DPRK: the United States.

Outsiders in the Libyan Civil War: Letting Proxies Battle or Conveners

Seeking a Solution?

The multiplicity of outside actors who sought to host and influence par-
ties and negotiations aimed at encouraging Libya to form a unified govern-
ment after the ouster of Qaddhafi was a veritable musical chairs. From the
2015 Libyan Political Agreement, through four years of implementation,
up to the summer 2019 siege of Tripoli and the military stalemate between
eastern and western Libyan authorities, Libya has been a playground for
outside actors to use Libyan parties to advance their own interests. The par-
ties involved range from Libya’s neighbors (Egypt, Tunisia, and Algeria) to
leading Middle East powers fighting a proxy war over their views of political
Islam (Turkey and Qatar versus Saudi Arabia and the United Arab Emir-
ates), to European powers and the United States, who largely used the UN
Mission and UN-­backed Government of National Accord to advance their
own economic and political interests. I will use the frameworks and the dif-
ferent roles for multiparty international political negotiations outlined in
chapter 10 to analyze how the different actors used the Libyan situation to
advance their own interests and consider which approaches were most suc-
cessful. Whether outside actors were motivated by self-­interest or thought
they were advocating what was best for Libya, the victims of more than
five years of infighting, posturing, and manipulation are largely the Libyan
people, who continue to face a country torn by political divisions and who
must live with constant insecurity, shortages, and suppressed opportunities
because of the proxy war being fought in their names.

Efforts to Forge a Unified Libya: Getting Enough Parties in Line to

Deliver a Capable Government

In Libya’s effort to form a unity government and implement provisions of

the 2015 Libyan Political Agreement, negotiations among international par-
ties reflected their roles and links to different parties within the country.
For some, like the UAE, Egypt, Qatar, and Turkey, the Libyan conflict was
a venue in which to fight a proxy war concerning issues of ideology and
118  The Art of Getting More Back in Diplomacy

Islam that were much broader than Libya’s political issues, and many aspects
of their conflict took place outside of Libya’s borders. For others, typically
those in Western countries who supported the UN-­backed Government
of National Accord (GNA) led by Fayez Sarraj, their interests were more
indirect, placing them less as guarantors of any particular party’s behavior
but as significant potential guarantors and donors in support of an overall
agreement. Unfortunately for ordinary Libyans, the indirect nature of their
interests also meant that the United States, France, Italy, and others were
unlikely to shed too much blood or treasure to resolve the Libyan conflict
for the parties, or to force the other feuding international actors to “get in
line” behind a single solution. This—­coupled with the weakness of Libyan
institutions and the deep political divisions within the country—led to a
significant governance vacuum and a failure to establish a single unified
government in Libya to replace the transitional governing provisions of the
2015 Libyan Political Agreement.
Given the complicated mixture of domestic and external factors and
interests involved in the Libyan negotiations, identifying the roles of direct
and indirect participants among the domestic and international actors in
post-­Qaddhafi Libya merits some background discussion. The direct par-
ticipants were those in Libya’s dueling governments—­the Western and UN-­
backed Government of National Accord (headed by PM Fayez Sarraj), the
Eastern House of Representatives and its nominally aligned military leader
Khalifa Haftar backed by Egypt and the UAE, and the Qatar and Turkey-­
backed Government of National Salvation, most prominently led by defunct
General National Congress (GNC) leader Khalifa Ghweil and Libya’s Mufti
Gheriyani. Most of the international parties were indirect participants and
even guarantors because of their roles in arming or financially and politi-
cally supporting some of the direct participants. Among these, many inter-
national players attempted to pass themselves off as conveners, and even
neutral mediators, for helping the Libyans achieve a new political direction
or settlement to replace the LPA.

Key Domestic Libyan Actors

For a negotiator to maneuver in this environment, it is important to under-

stand better each of the main domestic actors and to appreciate their perspec-
tives and their interests, especially as those interests relate to counterterrorism
and political Islam. The Islamist-­aligned National Salvation Government
briefly controlled Libya’s government after elections in 2012 and again in
 Host or Matchmaker?  119

2014. This government was supported by a range of Islamist political par-

ties and militias, some of whom got their financial support from Qatar and
Turkey. The largest such party was the Muslim Brotherhood-­aligned Justice
and Construction Party (JCP). During Qaddhafi’s time in Libya, the Mus-
lim Brotherhood was the most organized opposition to the dictator. After
Qaddhafi’s fall, the Muslim Brotherhood in Libya had significant grassroots
experience and organizing power, which led it to be a strong political and
electoral force. In 2012, the Muslim Brotherhood-­aligned JCP fared well in
Libya’s first elections and worked to pass a law in 2013 that banned former
Qaddhafi-­era officials from participating in the government. Qatar’s govern-
ment and significant wealthy individuals in Turkey provided financial back-
ing to many of the political forces aligned with this Government of National
Congress. Most of these Islamist forces ended up aligned behind NSG Prime
Minister Khalifa Ghweil, who had some control of Tripoli in 2014–­2015,
a period when Islamist militias grew in power and influence. Ghweil was
evicted from Tripoli in summer 2017 by forces loyal to the Government of
National Accord and he has periodically mounted efforts to come back and
retake parts of the capital ever since.
Until March 2021, the United Nations-­recognized government was the
Government of National Accord (GNA), led by a nine-­member Presidency
Council. The GNA was created as a result of UN-­led negotiations in Libya
and Morocco, which resulted in the December 2015 Libyan Political Agree-
ment (LPA). The LPA authorized the creation of the Presidency Council,
led by Prime Minister Fayez Sarraj, which seated itself in Tripoli in April
2016 and has exercised executive power for the nation since that time. The
GNA has, in fits and starts, assumed control of the mechanisms of govern-
ment and tried to subdue the militias governing Tripoli, ultimately ousting
Ghweil and establishing a cease-­fire in March 2017. The GNA has been a
main partner of the United States in counterterrorism, authorizing the air
strikes and equipping the Misratan ground forces who combined to push
Daesh out of Sirte, a city located between Tripoli and Benghazi and the
hometown of former dictator Mohamed Qaddhafi.
Finally, Libyan National Army General Khalifa Haftar’s eastern forces were
aligned with a parallel government structure established as a result of elections
of a House of Representatives (HOR), which was recognized internationally
during the period 2014–­2015. The eastern government was created by a vote
of the House of Representatives in Tobruk, near the Egypt-­Libya border in
September 2014. Led by so-­called Prime Minister Abdullah al-­Thinni, this
eastern government set up executive ministries in the eastern city of al Beyda
and received financial support from Russia, which allowed it to print currency
120  The Art of Getting More Back in Diplomacy

and issue a budget. Egypt and the UAE provided political and other support
to the al-­Thinni government and provided military support to Khalifa Haf-
tar and his Libyan National Army. The al-­Thinni government and the HOR
were reluctant to cede authority to the new executive in Tripoli, repeatedly
blocking formation of a true national government as anticipated by the LPA,
failing to produce a quorum to approve GNA decisions, and otherwise acting
as a spoiler. Throughout much of the post-­Qaddhafi period, General Haftar’s
LNA controlled parts of Libya, instituting a system of military mayors and
governors when they have taken territory. Following an April 2019 telephone
call with President Trump,6 Haftar’s forces marched on Libya’s capital Tripoli,
the last remaining stronghold of the GNA. After initial successes, Islamist-­
aligned militia forces from the city of Misrata—­many of whom had aided the
United States in its efforts to cleanse Daesh from Libya—­rallied to the GNA’s
defense and a military stalemate held in 2020 with Haftar’s forces essentially
encircling Tripoli but unable to enter the city.

International Players and Their Roles

The analytical points I wish to draw from the Libya negotiation have as much
to do with the framing of a negotiation environment among the various par-
ties as with the actual content of the negotiations themselves. In part, this
is because the competing domestic and international parties spent so much
time fighting a proxy war in Libya over their differing quests for power that
it is hard to have an interest-­based analysis of the conflict. True, for the UAE,
Egypt, Turkey, and Qatar, part of the proxy war within Libya was a battle
over ideological views of the Muslim Brotherhood and the role of political
Islam. But even that was a largely binary discussion with limited opportu-
nity for compromise or creating value. The international community, par-
ticularly the UN, had some role in and responsibility for this failure to bring
the parties into an effective negotiating environment. Constantly fighting
Libyan parties hardly needed an excuse to squabble, but international actors
who encouraged dispute among their proxies made the problem even worse.
As a result, the rest of this chapter will look at the positions and interests of
each of the main international players in Libya and see how their competing
efforts to serve as guarantors of a certain outcome undermined, rather than

6.  Ryan Browne. April 19, 2019. “Trump Praises Libyan General as His Troops March on
US Backed Government in Tripoli.” CNN.com. https://edition.cnn.com/2019/04/19/poli-
tics/us-libya-praise-haftar/index.html
 Host or Matchmaker?  121

facilitated, successful negotiations among Libya’s power brokers. It remains

unclear whether the Government of National Unity (formed in 2021 as this
book went to press) will suffer the same fate.

Egypt and UAE’s Interests

Egypt is the outside party that has expressed the most significant interests
in Libya. A neighboring country that relies on stability in Libya to prevent
terrorists from crossing the border, Egypt also has strong economic interests
in Libya given that tens of thousands of Egyptians were guest workers in
eastern Libya during the Qaddhafi era. Egypt unhesitatingly backed HOR
speaker Agila Saleh Issa and LNA general Haftar in their governance efforts
and their counterterrorism operations. In some cases, Egypt may have pro-
vided direct air support to Haftar’s forces as well as consistent intelligence
about the location of alleged terrorist groups. Like Haftar, Egypt in the post-­
Morsi era took a dim view of political Islam and considered many actors
from a Muslim Brotherhood background in Libya as supporters of terrorism
or terrorist fighters themselves. In that way, Haftar and Issa were not just
Egyptian proxies in Libya but they shared a view of the policy solutions for
Libya’s troubles that made them natural allies.
The UAE had a similarly dim view of political Islam and offered strong
military and financial support to Haftar to help him achieve his counter-
terrorism objective. The UAE provided air support to Haftar’s operations
and funded many of his weapons purchases, if it did not provide the weap-
ons to him directly. Both Egypt and the UAE shared Haftar’s ideological
opposition to the Muslim Brotherhood and his view that all Brotherhood-­
associated forces were terrorists or supporters of terrorists, including some
representatives of the UN-­backed Presidency Council governing Libya. In
June 2017, the eastern government in Libya joined the UAE, Saudi Arabia,
and others in severing relations with Qatar. In this way, the eastern govern-
ment was a true proxy for some of the UAE’s most significant domestic
and international objectives and it used the eastern government and Haftar’s
forces as a vehicle for carrying out a kinetic battle against the Qatar-­backed
forces of political Islam in Libya, in addition to supporting them politically.
Because Egypt and the UAE exhibited so much influence over Haftar,
they could be seen as guarantors of Haftar’s behavior. As one example of
this influence, the two governments pushed Haftar to join direct talks with
Sarraj, which finally took place for the first time on May 2–­3, 2017, in Abu
Dhabi and again on July 25, 2017, in Paris.
122  The Art of Getting More Back in Diplomacy

Turkey’s and Qatar’s Interests

Qatar and Turkey allied themselves with post-­Qaddhafi political forces in

Libya who came from a Muslim Brotherhood background and had an activ-
ist view of the role of political Islam in Libya’s political future. This was
especially true for a Salafist political party called Watan that was launched by
former Libyan Islamic Fighting Group member turned millionaire investor
Abdelhakim Belhadj.7 Along with his allies, Belhadj, who today owns the
Libyan Wings airline, a major television station, and numerous others busi-
ness, is a primary Turkish funder of Libyan political parties from this ideo-
logical perspective. Belhadj also is the financial supporter for certain Tripoli
militias, to whom the Turks and Qataris also provided money for weapons.
Together they empower these militia allies on the ground, including not
only some of Tripoli’s strongest militias but also some of the Islamist-­backed
militia fighters in Benghazi and Misrata. On the economic front, some ana-
lysts have also claimed that Turkey and Qatar wielded significant influence
over the governor of Libya’s central bank and that the central bank often
gave favorable lines of credit to businessmen and militia supporters affiliated
with Qatar and Turkey’s brand of political Islam. In this way, the Libyan
actors affiliated with Qatar and Turkey act in more of a proxy relationship.
This should also mean that Qatar and Turkey could be important external
guarantors of the behavior of key Libyan actors under a new Libyan Political
Agreement.

Western Actors

In the West, the United States, the United Kingdom, France, and Italy have
offered indirect support to the UN-­backed GNA but each outside power
again has its own interests. For the European parties, especially Italy, stop-
ping the flow of migration from sub-­Saharan Africa through Libya to Europe
was of paramount concern. A government at least sufficiently functional to
accomplish this goal was an important outcome of political reconciliation
talks for Europe and especially Italy. France has interests in counterterrorism
across Libya’s Southern borders, which led it to cooperate in certain military
aspects with General Haftar. France also appears to have attempted to take

7.  Cameron Glenn. August 8, 2017. “Libya’s Islamists: Who They Are and What They
Want.” Wilson Center. https://www.wilsoncenter.org/article/libyas-islamists-who-they-are​
-and-what-they-want
 Host or Matchmaker?  123

a leadership role as convener based on the involvement of French President

Macron in the July 25, 2017, Paris meeting. Italy too had direct economic
interests, not least in oil and gas, as well as in support of certain members of
the GNA Presidency Council who provided lucrative business opportunities
to Italian firms.
While the United States and United Kingdom were in a somewhat more
neutral position with fewer direct economic interests, neither government
was willing to exert the necessary commitment to play a role as a convener
or mediator. The two countries are therefore classified as interested observ-
ers, with the United States having played a role in the country in 2016
by bombing terrorist locations and supporting GNA troops to remove al-­
Qaeda from the city of Sirte, its last major stronghold in the country. But
neither the United States nor the United Kingdom took on a greater role to
exert pressure on the GNA for a particular outcome, although they prob-
ably had sufficient leverage to do so if necessary or desired. Legacies of the
past, including the murder of former U.S. ambassador J. Christopher Ste-
vens in Benghazi on September 11, 2012, played a role in limiting U.S.
involvement.8

Other International Actors

Libya’s neighbors—­notably Sudan, Algeria, and Tunisia—­had various,

often competing interests in supporting certain players within Libya. Alge-
ria had a strong interest in containing the terrorist threat to it that came
from its one thousand-­mile desert border with Libya across which terror-
ists, smugglers, and other forces could easily pass, sometimes influencing
political interests among Libya’s competing groups.9 Tunisia also had an
interest, largely based on its status as Libya’s neighbor. Tunis wanted to
avoid the dangerous return of thousands of poor, young Tunisians who
served as hired terrorist fighters in Libya. At the same time, it wanted

8.  My primary experience working with Ambassador Stevens was during 2010–­2012, in
my role supporting the task force led by Ambassador Bill Taylor, which sought to mobilize
financial resources for countries emerging from the Arab Spring. Libyans I worked with in
2016–­2017 continued to remember Ambassador Stevens fondly and saw his interest in their
country and his death as symbolic of the hopes and challenges of better U.S.-­Libyan relations.
9.  See Yacine Bouhane. August 28, 2014. “Op/Ed: Algeria’s Role in Solving the Libya Crisis.”
https://www.washingtoninstitute.org/policy-analysis/view/algerias-role-in-solving-the-libya-
crisis; “Interests of Neighboring States in Libya’s Civil War.” The Maghreb and Orient Courier,
2015 final edition.
124  The Art of Getting More Back in Diplomacy

Libya to attain sufficient stability that the many thousand Libyans who
took refuge in Tunisia after the ouster of Qaddhafi could return home.
Regional groups like the African Union, Arab League, and European
Union offered their help as conveners or coordinating bodies but without
the requisite influence or heft to drive any kind of negotiations process.
This left primarily the United Nations as a potential neutral mediator.
Unfortunately, both Martin Kobler—­the SRSG until 2017—­and Ghassan
Salame—­who took on the task in summer 2017—­were too weak to pull
the competing international or domestic players together in an effective
negotiating process. After Salame fell ill, acting SRSG Williams convened
Libyan military parties in Geneva, resulting in the selection of an interim
prime minister in March 2021.

Efforts to Convene a Push toward Unity Government

A proliferation of actors and conveners who have used Libya as a playground

to push forward their own supporters, and along with them their own inter-
ests in this oil-­rich but essentially ungoverned swath of North Africa. Nei-
ther the Libyans themselves nor other potential convening powers knew
what process would continue from day to day and when or where talks
would occur, and under the leadership of which country.
From 2016 to 2018, the U.S. and European actors at least nominally
followed the lead of the UN Special Representative, but even among those
parties, Italy and France frequently scheduled competing meetings. In 2017,
Italy brought legislative leaders to Rome to try to work out a power shar-
ing agreement, while France brought the contenders for executive power
to Paris (along with the recently announced new Special Representative
Ghassan Salame, who was teaching in Paris).10 France’s efforts to convene
a meeting were aimed at boosting the role and stature of Salame as the UN
Secretary General’s Special Representative, as well as ensuring that French
troops deployed in countries near Libya’s southern border received coopera-
tion from the authorities in Tripoli. At the same time, Italy’s efforts aimed
at ensuring the continued flow of pure Libyan crude oil across the Mediter-
ranean. Italy was also motivated, along with the rest of the European Union,
to stem the flow of African migrants who continued to arrive unwelcome

10. Frederica Saini Fasanotti and Ben Fishman. October 31, 2018. “How France and
Italy’s Rivalry Is Hurting Libya.” Foreign Affairs.
 Host or Matchmaker?  125

on Italian shores and to stop the human tragedy of the hundreds who died
attempting the voyage.
Rather than a unified approach toward Libya’s future, international players
competed over which of them would be seen as the international statesman that
could “solve” the Libya problem. The P3 sometimes worked in concert with
Italy to discuss Libyan affairs.11 In other cases, the P3+Italy expanded its reach to
try to include “regional actors,” but again it was not consistent in setting a lineup
for these negotiations. At one point, the United States, United Kingdom, Egypt,
and UAE convened several discussions. At other times, the P3 added Libya’s
North African neighbors (Algeria, Tunisia, and Egypt) to the mix. Despite a
brief period of high-­level activity in 2017–­2018, the United Nations did little to
bring order to the chaos of meetings, mediators, and conveners.
Throughout early 2017, Italy, Russia, and even the United States tried to
convene a meeting between Haftar and Sarraj. In January, Russia brought
its aircraft carrier into the Mediterranean as a show of support and offered
Haftar a visit on board,12 as President Putin tried to expand his influence in
Libya and serve as a thorn in the U.S. side in the region.13 Italy convened
leaders of two moderately influential legislative bodies, the HOR and State
Council, in April 2017 in Rome, in part because it could not get Sarraj and
Haftar to attend in person.14 Some of these efforts may have been motivated
by a desire to help Libya but they were also motivated by a desire to increase
their own roles as convener of Libya’s internal political discussions. On the
U.S. side, the history of Ambassador Stevens’ death in Benghazi left the
United States reluctant to get too involved in brokering a deal among Liby-
ans.15 As a result, no outsider pushed effectively for the political compromise

11.  “Libyan Officials Meet in London in Hopes of Economic Stabilization.” October 31,
2016. Libya Gazette. https://www.arraedlg.com/libyan-officials-meet-in-london-in-hopes-of​
-economic-stabilization
12.  “East Libya Strongman Visits Russian Aircraft Carrier in Mediterranean: RIA.” Janu-
ary 11, 2017. Reuters. https://www.reuters.com/article/us-libya-russia-haftar/east-libya-stron​
gman-visits-russian-aircraft-carrier-in-mediterranean-ria-idUSKBN14V1T2
13.  Lincoln Pigman and Kyle Orton. September 14, 2017. “Inside Putin’s Libyan Power
Play.” Foreign Policy.
14.  Alessandro Pagano Dritto. April 23, 2017. “Libya’s HOR’s Ageela Saleh and State
Council’s Abdul Rahman Sewehli Met in Rome, Italy, for the First Time.” Between Libya And
Italy. https://betweenlibyaanditaly.wordpress.com/2017/04/23/6950/
15.  On April 20, 2017, President Trump told a press conference that the United States
would not be heavily involved in solving the Libyan crisis. Glenn Thursh. April 20, 2017. “No
U.S. Military Role in Libya, Trump Says, Rejecting Italy’s Pleas.” New York Times. https://
www.nytimes.com/2017/04/20/us/politics/trump-italy-prime-minister-paolo-gentiloni.html
126  The Art of Getting More Back in Diplomacy

necessary to produce an agreement between Sarraj and Haftar. But the many
interested participants and spoilers spent significant political capital trying
to enhance the position of their own proxies and their own supporters inside
Libya.

Convening Power as a Way to Empower Proxies

Among those competing for influence, Egypt and the UAE seemed the most
successful in convening the parties, in part because of their closer contacts
to Haftar, who was most often the recalcitrant party or the one least willing
to join in an international political negotiation. Neither Egypt nor the UAE
could be considered neutral power brokers or mediators because both were
intimately involved in offering political and military support to Haftar and
the LNA in the effort to eradicate terrorism in Libya. Yet precisely because of
their roles as guarantors—­influential parties in the negotiation with an abil-
ity to put pressure on one or multiple direct participants—­Egypt tried and
the UAE ultimately succeeded in carrying off this power broker’s meeting,
but it took almost three years to do so. In the lengthy period of time that the
parties tried and failed to initiate political compromise among the Libyans,
General Haftar’s confidence grew, and by 2019 he attempted to unify the
country by force with a military march on Tripoli.
Throughout much of 2016, Egypt had been playing the role of spoiler
in efforts to bring together the Libyan political leaders. A strong backer of
LNA General Khalifa Haftar, it preferred to see Haftar’s LNA forces make
advances on the ground and in their attacks on terrorist and Islamist groups,
regardless of the impact on Libya’s future as a democracy or a unified state.
Egypt’s approach was consistent with its own domestic anti-­Islamist cam-
paign as well as its political and security interest in having Haftar secure east-
ern Libya as a buffer zone against insecurity and potentially a place where
Egyptian guest workers could return for work and income. Following the
formula that the convening party could earn a greater role in influencing
the political process inside Libya, Egypt in 2017 tried to convene a power
broker’s meeting and tried specifically to get Sarraj and Haftar to meet and
discuss Libya’s future across the east-­west divide in the country. On February
13–­14, 2017, Sarraj, Haftar, and Speaker of the Libyan HOR Agila Salah
Issa all traveled to Cairo and met with Egyptian officials, headed by the
Egyptian Armed Forces chief of staff General Mahmoud Hegazy. While all
 Host or Matchmaker?  127

three parties were present in Cairo at the same time, Haftar refused to meet
Sarraj in person. This embarrassed and angered the Egyptians, who had pre-
pared a “Cairo Communique” that summarized commonly agreed proposals
for minor amendment to the Libyan Political Agreement. Cairo issued the
communique after what it called “indirect” talks among the leaders, but it
was clearly unhappy that its effort to convene a Libyan power brokers meet-
ing and to gain prestige on the international stage had been rebuffed.
When, in early May 2017, Prime Minister Sarraj and General Haftar
met face-­to-­face in Abu Dhabi, rather than in Egypt, the Egyptians were
furious. Their efforts to brand themselves as the leading international force
capable of resolving the Libyan political stalemate were damaged. But the
Emiratis succeeded in bringing Haftar to the table for a two-­hour meeting
aimed at coming up with amendments to the LPA that would give Haftar
and the army a sufficient role to bring him back into the political fold,
rather than remaining at odds, and in conflict, with Sarraj and his Misratan
military allies. Why did the UAE succeed where so many others had failed?
On one hand, the UAE succeeded and Egypt was able to host proximity
talks because of the military influence they wielded over General Haftar.
Prime Minister Sarraj was never the problem. Reports out of the Cairo prox-
imity talks indicated that Sarraj was willing to meet Haftar, but it was the
general who declined a meeting in Cairo. With Haftar not meeting Sarraj
in Egypt, it provided greater prominence to Egypt’s ally and proxy in Libya,
HOR Speaker Agila Issa Saleh. When the UAE successfully convened the
parties a few weeks later, it was no surprise that the HOR speaker was not
included.
The UAE succeeded in convening actual talks largely because its influ-
ence with Haftar was more direct than Cairo’s influence, but also because the
UAE did not have to overcome Libya’s historical suspicions of a neighboring
power that has often interfered in Libya’s affairs. On the question of its mili-
tary influence, the UAE provided Haftar a huge proportion of his military
and economic support, dating back to 2014.16 This backing included air
support in the form of bombing raids against alleged terrorists.17 This gave
the UAE the leverage to convene a meeting where others failed. In this case,
16.  “UAE Provided Military Aid for Haftar, Says Libyan Politician.” April 27, 2017. Mid-
dle East Eye. https://www.middleeasteye.net/news/uae-provided-military-aid-haftar-says-liby​
an-politician
17.  Jared Malsin. May 9, 2017. “U.S.-­Made Airplanes Deployed in Libya’s Civil War, in
Defiance of U.N.” Time. http://time.com/4746914/libya-civil-war-airplanes-haftar-uae/
128  The Art of Getting More Back in Diplomacy

the meeting was not really a means of enhancing the convener’s power but
of demonstrating it to other parties, including other indirect parties like the
West and Cairo, who hoped to similarly place themselves in the convener’s
role. As the conflict continued, the UAE continued to successfully manage
its proxies in eastern Libya, including Haftar, in part through convening
negotiations. For example, in November 2019, the UAE brought Haftar
to Abu Dhabi to consolidate his position vis-­à-­vis the civilian forces of the
government in eastern Libya.
Other parties were less successful in stemming the outbreak of conflict.
Italy tried again to convene a peace process in November 2018 but was
quickly rebuffed. Italy’s prime minister hosted an international conference
in Palermo aimed at setting a new path to peace. Sarraj, Haftar, Egypt, Tuni-
sia, Qatar, and Turkey attended, but the Turkish delegation pulled out when
Haftar demanded Turkey be excluded from a discussion among the key par-
ties. After a year of steady gains on the ground by Haftar forces through-
out 2019, in January 2020 Turkey overtly entered the Libyan conflict by
sending ground troops and increasing armament to back the GNA. Among
the weapons sent by Turkey were armed drones, used—­Turkey claimed—­to
counter the increasing deployment by the United Arab Emirates of air bom-
bardment using manned aircraft as well as unmanned drone attacks. At least
one alleged UAE-­backed bombing by Haftar’s LNA killed an old man and
three children at an equestrian school outside of Tripoli in October 2019.
In stopping the escalation of violence, the UN and Europeans expressed
public statements of opposition and condolence. But leadership in terms of
convening power was nowhere to be seen.

Conveners So Focused on Own Interests, Libya’s People Are Victims

In the framing of these negotiations, where are the interests of the Libyan
people? Why did none of the international actors working on Libya—­
including the United Nations—­pay significant attention to the needs of the
Libyan people, including basics such as physical security, economic develop-
ment, or governance? Libyans were known to say they wanted the revolution
to give them liberty, but after the revolution all they wanted was security,
electricity, and liquidity. Focused on a supposed role as a mediator of politi-
cal compromise, the United Nations did little to address these problems.
The United States and United Kingdom convened an economic dialogue
among officials of the Central Bank of Libya, the Ministry of Finance, and
the National Oil Company, among others, to try to ensure that funds that
 Host or Matchmaker?  129

went to the central government flowed to municipalities and regions and

that development programs got underway. But even these efforts failed to
provide the most basic solutions to Libya’s economic problems, such as its
huge black market exchange rate or the fact that, even though most Liby-
ans had a monthly salary deposited into their bank accounts by the state,
very few of them could actually go to the bank and withdraw their money
because of massive liquidity shortages. And Libyan leaders did not encour-
age too much outside involvement or transparency, in part because of the
massive opportunities for corruption that a government post provided.
Behind all these problems lay the fact that the UN-­installed government
provided little leadership for its cabinet agencies and ministries. The GNA
suffered from a lack of institutional management, which resulted in it pro-
viding little actual governance. As I observed while serving for the United
States in its Libya External Office based in Tunis, Libyan citizens got little
from the national government amidst the squabbling and interests of these
multiple factions. Security seemed anecdotally better in areas under the
control of the LNA, including in Benghazi. By most accounts, 2018 saw
Haftar’s Libya National Army extend and cement administrative control in
many parts of Libya’s south and east, bringing governance and adminis-
trative improvements, which were still hard to find in the parts of Libya
under the de facto administration of Sarraj and the GNA. But none of the
international players competing for influence in Libya spent significant time
focused on the needs of the Libyan people, at significant cost to the Libyan
economy and Libyan lives. This is probably why the political stalemate in
the country extended from 2015 until the formation of the March 2021
interim government.

Technology as a Tool, and Obstacle, to Convening Powers

in the Age of COVID

The outbreak of the coronavirus in early 2020 effectively put a hold on efforts
to host in-­person peace negotiations, be they concerning North Korea, the
Middle East, or other international problems. This situation in part led
UN Secretary General Guterres to call for a global cease-­fire in response to
COVID, stating that our common global fight should be against the coro-
navirus pandemic and not with each other.18 The global call was heeded for

18.  See, e.g., United Nations. April 3, 2020. “UN Secretary General Reiterates Call for
Global Ceasefires.” https://www.un.org/press/en/2020/sgsm20032.doc.htm; United Nations.
130  The Art of Getting More Back in Diplomacy

a few months before conflict parties essentially returned to business as usual

in many parts of the world, regardless of the extent of coronavirus outbreak.
Given pressure to move some forms of negotiation to online platforms
and spaces, it is useful to reflect how those platforms affect convening power
in negotiations, and how most of the tools available in the offline world
remain accessible to good negotiators using online platforms.
First of all, organizers seeking to convene peace negotiations using tech-
nology can have the same advantages in controlling the agenda, drafting
outcome documents, and managing an online platform as they can in host-
ing an in-­person meeting. An organizer is expected to create the agenda and
oversee the outcome of a meeting, even when the discussion takes place
online. Online negotiations usually require more focus than those that take
place offline and may also require more patience. In-­person negotiations
often feature some period of emotional outbreak, or letting off steam, such
as the outbursts between Palestinian and Israeli seaport negotiators described
in chapter 10. Online platforms are usually less conducive to such shows of
emotion and therefore sometimes require more detailed preparation. But
once an online negotiation begins, parties are typically able to focus on the
negotiation and hold back on peripheral or emotional issues.
Second, the ability to have informal interactions is limited online in
comparison with in-­person negotiations. In-­person negotiations allow sig-
nificant opportunities for a host to use breaks, coffee, meals, and social out-
ings before and after the negotiation session as a tool to break the ice and
create good atmosphere among the negotiating parties. A convener can and
should use atmospherics to help bring parties closer. In the offline world,
China spent significant time hosting banquets, providing coffee, and using
the marginal meetings and breaks to allow participants to break the ice and
establish relationships in the Six-­Party Talks. In my experience, Chinese dip-
lomats are particularly skilled at using these social opportunities and sight-
seeing tours to advance their negotiation objective, while Western partici-
pants sometimes see these activities as peripheral and press to more quickly
“get to the point.” A skilled negotiator should see these opportunities for
informal interaction as a key chance to gain information about other parties’
positions, styles, and BATNA. Moreover, the skilled use of breaks is also a
way for a convener or host to control the emotional dynamics of a meeting
and keep the discussion headed in the direction that he or she wants, or con-
versely, to allow emotional outbursts to derail a discussion that is not consis-

July 1, 2020. “Security Council Backs Long-­Delayed Call to Support SG Call for Humanitar-
ian Ceasefires.” https://news.un.org/en/story/2020/07/1067552
 Host or Matchmaker?  131

tent with the host’s interests. Creating opportunities for informal discussion
and breaks is harder in the online space, but not impossible, as activities like
virtual happy hours have made clear.
Security is an obvious difference between online and offline meetings.
Online meetings are more easily monitored using electronic surveillance
and the well-­publicized stories of security lapses on various online platforms
make this problem even more serious. Since offline meetings can also be
subject to surveillance, parties often proceed and assume some security risk,
having little other choice when an in-­person meeting is not possible.
Finally, online meetings have some advantages. For delegates who are
introverted or reluctant to speak, the “Chat” function on many online plat-
forms can allow ideas to come out without the pressure of speaking publicly.
Similarly, for delegates who require instruction, the ability to multitask and
communicate with their political leaders during an online negotiation but
out of sight of the other participants can sometimes increase the robust par-
ticipation of such delegations.
In sum, technology is unlikely to allow online negotiation to replace in-­
person negotiation any time soon. But in general the same tactics that one
would use as a participant—­or a convener—­of an in-­person meeting can
also be deployed in an online session.
Chapter 12

Combatting Genocide with a Little Help from

My Friends
Empowering Partners

In multiparty negotiations, one tactic that often produces great results in

an international setting involves working with and through other parties.
Especially in a United Nations or other formal multilateral setting, working
in coordination with others allows opportunities for tactical maneuvering
and deployment of soft power. The idea of a core group leading an issue,
as opposed to a single sponsor or party, can cut away political and regional
rivalries. Group dynamics are always an issue in the UN. The support of
a cross-­regional core group in advocating for a position can significantly
strengthen the effort and can also press other member states to decide their
positions in a negotiation based on the merits, rather than purely a regional
approach to the negotiation. Leading a UN negotiation with the support of
a cross-­regional core group (typically one member from each of the UN’s
five regional groups) can also provide benefit by allowing a member of each
regional group to advocate for a position from within.
This chapter will focus on two case studies in which the United States
empowered partners in the effort to combat mass atrocities. First, we will
discuss the violence against civilians in South Sudan that took place begin-
ning in December 2013 and that culminated in action at the UN Human
Rights Council (HRC) in the summers of 2015 and 2016. Second, we will
look at the HRC action on Burundi in late 2015 and how cooperation by
a cross-­regional group of partners, including particularly brave African and
Latin American partners, allowed the council to hold its first-­ever special
session aimed at preventing an atrocity before it occurred.

133
134  The Art of Getting More Back in Diplomacy

South Sudan

In December 2013, a civil war broke out between supporters of South

Sudan’s president Salva Kiir and the country’s former first vice president,
Riek Machar. The war quickly took on an ethnic tone with supporters of the
Dinka-­dominated government targeting Nuer ethnic groups aligned with
Machar and vice versa. By mid-­2014, international observers were warn-
ing of the risk of an all-­out ethnic conflict. More than two million South
Sudanese were internally displaced with another 1.5 million remain refu-
gees outside the country.1 More than one hundred thousand took refuge
in UN compounds in South Sudan and government soldiers and officials
attempted to enter those compounds to pursue civilians. As of March 2016,
one UN official estimated that fifty thousand people had been killed in the
conflict.2 Untold numbers of targeted killings and cases of sexual violence
have occurred. As the June 2015 session of the UN Human Rights Council
approached, it was clear that the human rights consequences of the political
violence were staggering. UNICEF reported in June 2015 that as many as
129 children were killed in a three-­week period the previous month. “Survi-
vors report that boys have been castrated and left to bleed to death. . . . Girls
as young as 8 have been gang raped and murdered. . . . Children have been
tied together before their attackers slit their throats. . . . Others have been
thrown into burning buildings.”3
Beginning shortly after the conflict erupted in March 2013, a cross-­
regional group of diplomats had been watching the conflict in mounting
horror and pledged to do something about it. In 2014, the African Group in
the HRC stymied efforts to create an independent investigation into South
Sudan, noting that the African Union’s first-­ever Commission of Inquiry
(COI) was underway, headed by former Nigerian president Obasanjo. Presi-
dent Obasanjo came to a special panel of the UN Human Rights Council
in September 2014 and placed the blame for the violence squarely on the
country’s political leaders. He warned that the conflict had taken on an eth-
nic dimension and that there was a risk of genocide. Despite Obasanjo’s

1.  United Nations. 2017. “Report of the Commission on Human Rights in South Sudan.”
UN Document A/HRC/34/63, March 6, 2017. https://ap.ohchr.org/documents/dpage_e.
aspx?si=A/HRC/34/63
2.  Fleur Launspach. March 3, 2016. “ÚN: Tens of Thousands Killed in South Sudan War.”
Al Jazeera.
3. UNICEF Executive Director Anthony Lake. June 17, 2015. “Unspeakable Vio-
lence Against Children in South Sudan—­UNICEF Chief.” https://www.unicef.org/media/
media_82319.html
 Combatting Genocide with a Little Help from My Friends  135

strong remarks calling for accountability, the AU COI’s report was blocked
from public release and regional and international action to do something
to stop the killings or establish accountability appeared stymied. The HRC
refocused attention on the need for independent action from outside the
region. A broad support group was formed of representatives from the
European Union and its member states, plus Norway, Switzerland, Mexico,
Paraguay, North Macedonia, Montenegro, Albania, Japan, South Korea,
Australia, and New Zealand, hosted by the United States. The group heard
reports about the situation in South Sudan from experts from the Office
of the High Commissioner for Human Rights and special envoys work-
ing on the issues, including U.S. ambassadors Donald Booth and Susan
Page. The group worked to determine how it might create an additional
monitoring body to document the widespread human rights abuses that had
occurred and call for accountability. Rather than sit back and watch a few
states with strong interests in East Africa decide the response for the entire
United Nations, the group became empowered. Ultimately, a core group
of four member states—­Albania, Paraguay, the United Kingdom, and the
United States—­was selected to take the matter forward into the HRC, while
the remaining states continued to network with civil society, advocate with
other delegations, and remain updated on developments in the region as
part of an extended core group.
The presence of Albania and Paraguay in this core group was particularly
important. In 2015, both countries’ permanent representatives served as vice
presidents of the HRC. While the crisis in South Sudan was far from their
territories and not a preoccupation of their peoples, their presence in the core
group signified that these governments were putting their credibility, and
the credibility of their roles as vice presidents of the HRC, behind the push
to establish a special procedures mechanism in South Sudan. Albania’s and
Paraguay’s national histories also gave them credibility: they had experienced
human rights issues and conflict in their own countries. Finally, their pres-
ence made it difficult to label the core group as an imperialist or anti-­Africa
effort. The South Sudan government had already attempted that—­blaming
the U.S.-­U.K.-­Norway troika of donor states for providing inadequate sup-
port to postindependence South Sudan after it became independent in
2011. Finally, Albania could reach into the UN’s Organization of Islamic
Conference and the HRC’s Eastern Europe Group, while Paraguay could
help communicate with and deliver support from colleagues in the impor-
tant swing Group of Latin American and Caribbean States (GRULAC).
Negotiations of a resolution at the UN Human Rights Council, and
indeed most any UN body, take place through “informal consultations.” In
136  The Art of Getting More Back in Diplomacy

these discussions, experts from the member state delegations typically read
through the proposed text in a meeting chaired by the core sponsor, or in
this case, the core group. Because the extended core group had participants
who were extremely well-­informed about the situation in South Sudan and
the history of delays to allow the AU COI report to address the topic, they
were well-­prepared to respond to arguments for yet another delay in favor
of actions by the regional body. Briefed about the facts, ambassadors from
states like Portugal took the floor to condemn the killings documented in
the UNICEF report. Even those from outside the extended core group,
states as diverse as Botswana and the Maldives, expressed serious concern
about the loss of life and the lack of a credible regional response taking
place in South Sudan, echoing the call that the credibility of the UN and its
Human Rights Council would be damaged if an atrocity of this magnitude
could occur without a response. The European Union, as well as a group
of female ambassadors from a range of states, expressed concern about the
extent of sexual violence documented in recent reports by the Secretary
General’s Special Representative for Violence Against Women. A similar
type of specialization of argument emerged from the core group. Albania’s
permanent representative and expert, both of whom were female, empha-
sized the horrific allegations of sexual violence. Paraguayan expert Jorge
Brizuela, who chaired the informal sessions, focused his advocacy on South
Sudan’s humanitarian situation.
Amid facts so damning, the debate about the text of the language was
relatively simple. Like the case study of the negotiation on Sudan discussed
previously, South Sudan’s position centered on avoiding creation of a moni-
toring mechanism. Initially the core group tabled a draft resolution under
the council’s agenda Item 4 proposing the creation of the HRC’s strongest
type of monitoring mechanism, a Commission of Inquiry. South Sudan
said it could not accept the creation of a mandate of any kind, whereas the
core group held firm that the situation in South Sudan was so serious that
it should be addressed by an investigative commission under Item 4. The
core group emphasized that human rights violations on the scale of those
in South Sudan could not be addressed credibly as a matter of “technical
assistance” under the council’s agenda Item 10. With an apparent impasse
reached, it became necessary to convene large negotiation sessions between
the African Group ambassadors, chaired by South Africa, on one side, and
the four states of the core group on the other. Initially, the African ambas-
sadors tried to uphold African unity in support of South Sudan. But the
South Sudan position was unreasonable. At one point, South Sudan charge
d’affaires John Cheikh Awol argued that it was the United Nations’ fault that
 Combatting Genocide with a Little Help from My Friends  137

South Sudanese soldiers and government officials attacked a UN protection

of civilians site where thousands of South Sudanese had fled from the vio-
lence, because the UN had “violated its status of forces agreement” with the
government. At this point, even African ambassadors became enraged, with
the Algerian ambassador and previous African Group chair telling the South
Sudanese “you don’t get to talk anymore.” The South Africans and Algerians
worked with the core group to have the resolution text document the facts
of South Sudan’s atrocities, but still urged, on behalf of South Sudan, that
the parties find a compromise and perhaps shift the resolution to rarely used
Item 2. African and core group officials at that point gave South Sudan a
choice: either it could accept a Commission of Inquiry-­like investigation
and the core group would shift the resolution to Item 2, or South Sudan
could file a competing resolution that opted to make the investigatory
mechanism something less than a Commission of Inquiry and face the vote
of the entire Human Rights Council on the competing alternatives. African
Group leaders wanted merely to avoid the specter of an Item 4 resolution.
But to their (and most other negotiators’) surprise, South Sudan failed to
file a competing resolution by the deadline. Then faced with a choice about
whether it wanted the investigative mechanism to be created by the council
to be a single person or a three-­person panel, the South Sudanese chose a
three-­person panel, essentially conceding to the creation of a Commission
of Inquiry in everything but name. African states were also satisfied that the
council’s credibility had been upheld and only a few outliers, led by Egypt,
objected because they did not like the idea of an additional Item 4 resolution
being advanced about an African state.
On March 23, 2016, HRC resolution 31/20 passed without a vote. The
resolution created a three-­member Commission on Human Rights in South
Sudan “(a) To monitor and report on the situation of human rights in South
Sudan and make recommendations for its improvement; (b) To assess past
reports on the situation of human rights since December 2013 in order to
establish a factual basis for transitional justice and reconciliation; (c) To pro-
vide guidance on transitional justice, accountability, reconciliation and heal-
ing. . . .”4 African states Ghana and Senegal even joined as cosponsors. On
June 14, the HRC president appointed Yasmin Sooka, Kenneth R. Scott,
and Godfrey M. Musila to serve as the three members of the commission,

4.  UN Human Rights Council. March 23, 2016. “The Situation of Human Rights in
South Sudan.” HRC Resolution 31/20 (Adopted March 23, 2016). UN General Assem-
bly. https://documents-dds-ny.un.org/doc/UNDOC/GEN/G16/086/91/PDF/G1608691.
pdf?OpenElement
138  The Art of Getting More Back in Diplomacy

with Ms. Sooka as its chair. The commission made two trips to South Sudan
and continued to document the horrific abuses and violations on both sides,
leading to an additional special session of the HRC in late 2016 to publicize
the situation and their response. It continues its important work to this day.
Among the lessons that can be drawn from the South Sudan example are
the benefits of establishing a broad, cross-­regional core group and empow-
ering as many states as possible to support your position. Unlike a two-­
party negotiation, when decisions are made by multiple parties, compromise
tends to dilute the results because multiple interests are at stake. But in the
South Sudan case, the early empowerment and buy-­in of many states led to
a stronger and more durable result. This was especially important because
in 2016 when the resolution was adopted, neither the United States nor the
United Kingdom was a member of the Human Rights Council. As a result,
Paraguay and Albania had to be prepared to defend the resolution on the
floor of the council and against any procedural challenges. And while the
horrific violence in South Sudan continues, it is at least being documented
professionally, setting the stage for possible future transitional justice mea-
sures as a result of the HRC’s strong resolution 31/20.

Burundi

The issue of atrocity prevention was particularly important to me in my dip-

lomatic career. From 2010 to 2012, I worked for the Undersecretary of State
for Human Rights and Democracy who was tasked by Secretary of State
Hillary Clinton to represent the State Department in the planning to cre-
ate an Atrocities Prevention Board. The brainchild of Samantha Power, the
National Security Council senior director, the Atrocities Prevention Board
(APB) aimed to harness a whole-­of-­government approach to identify and
intervene to prevent situations of potential mass atrocities before they could
occur. I was assigned to chair a State Department task force charged with
looking at the results of President Obama’s Presidential Study Directive-­10
on Atrocity Prevention. Atrocity prevention theory argues that most con-
flicts follow a cycle of acceleration and exacerbation that transforms clashes
or violent incidents into continued clashes and then cycles of recrimination
that turn into mass atrocity. Similarly, the theory posits that actors in the
international community who understand and can identify this cycle could,
with appropriate political will, intervene to prevent the outbreak of violence
from escalating into an atrocity—­even if they cannot prevent the outbreak
of the conflict itself.
 Combatting Genocide with a Little Help from My Friends  139

With a team of more than thirty-­five experts from across the State Depart-
ment and USAID, and in cooperation with the intelligence community and
other colleagues, our APB task force prepared materials explaining the APB’s
goal and theories for the public launch of the board by President Obama at
the U.S. Holocaust Memorial Museum on April 23, 2012. The task force I
chaired prepared the launch and continued to analyze steps to implement
the board’s mission: we discerned lists of warning signs for mass atrocity,
catalogued tools to deploy as interventions to prevent atrocity from occurring
and escalating, and documented public and private ways of communicating
these interventions for use in training U.S. diplomats, NGO aid workers,
and officials in other governments. Public statements and attention high-
lighting the possibility that an atrocity could be underway was deemed by the
task force as one of the most important tools for deterring those who might
undertake or order an atrocity, and convincing them to change course.
The Human Rights Council had an opportunity to deploy some of
the lessons learned by the Atrocities Prevention Board in the 2015 case of
Burundi. Burundi was on everyone’s “Watch List” for atrocity prevention
ever since President Nkurunziza insisted in April that he was going to stay
in office for an unconstitutional third term and a coup attempt to force him
out of office was suppressed. In late 2015, government officials in Burundi
began making public statements and motivating forces that appeared to be
a return to the environment that allowed the mass genocide of thousands
of Hutus and Tutsis in Rwanda and Burundi in the 1990s. Comments like
we have to “finish the work” and “take those people out” coming from the
mouths of Burundi’s leaders, including its president of the senate, hearkened
back to other inciting statements, like those from Nazi Germany, Srebrenica,
and even Libya’s Qaddhafi who threatened to “hunt down” those involved in
the revolution against him “like rats.”
Up to that time, no single country had taken a lead in the HRC on the
issue of atrocity prevention. Armenia was a leader in an annual resolution on
prevention of genocide, along with a group of states including Rwanda and
Hungary. But this was a politically charged resolution, which often became
a political football between the Turks and Armenians. Hungary too had led
discussions of atrocity prevention, including several at which I spoke, but
the rise of Viktor Orban had led Hungary to be seen as a somewhat ques-
tionable leading state on human rights issues. Rwanda was clearly biased
and potentially implicated in the violence in its neighboring state. Australia,
the Netherlands, and Rwanda had formed a cross-­regional group called the
Friends of the Responsibility to Protect. But those states were not prepared
to take country-­specific action, afraid of tarnishing the general brand of
140  The Art of Getting More Back in Diplomacy

the R2P Friends group. Traditionally, the European Union had been the
most active entity within the council on Burundi. The EU, led by Belgium,
sponsored previous joint statements on Burundi and had worked on the
situation when an independent expert was appointed to help improve the
country’s judicial system nearly a decade previously. But none of those par-
ties appeared ready to take any action against Burundi prior to the end of
2015, a date both real (because of the amount of violence in Burundi and
the president’s extra-­constitutional stay in power) and symbolic (because in
2016 Burundi would take a seat on the HRC as a member and this was
the last chance to emphasize the violations being committed and seek to
encourage the UN General Assembly to replace Burundi, or to convince the
delegation to resign its seat out of embarrassment).
The week of December 7 two important events independently took place
that resulted in the HRC determining to hold a special session to focus on
Burundi. First, the United States decided it would lead a call for a special
session so long as the session took place before the end of 2015, given that
the United States was rotating off the council and would not be a voting
member in 2016. In a working-­level briefing on Burundi (much like the
extended core group meetings on South Sudan discussed above), Ghana-
ian deputy permanent representative Ebenezer Appreku announced that his
delegation was prepared to sign onto a call for a special session. This decision
was important, in fact momentous, for two reasons. First, no African state
had ever before signed onto a call for a special session to be held on another
African state. In the meeting, attended by many swing states in Eastern and
Western Europe, Appreku delivered passionate remarks on why it was inap-
propriate for African governments to stand by silently without acting in the
face of the Burundi government’s action against its own civilians. Second,
many European Union member states had announced that they were not
prepared to take action on Burundi prior to the end of the year unless Afri-
can states joined the call. Under the rules of the Human Rights Council,
sixteen of the council’s forty-­seven member states must sign a call for a spe-
cial session. Ghana’s announcement broke the logjam, but on the morning
of December 11, I still had received the signatures of only fourteen member
states calling for a special session. Given the upcoming Christmas and New
Year holidays, Washington had decided that if we did not succeed in hold-
ing the special session before December 18, we would have to wait until the
following year. That would make the situation challenging because member-
ship on the Human Rights Council would change in 2016. In addition to
the United States rotating off the council, African states had elected Burundi
to rotate onto the council. As a member of the council in 2017, Burundi
 Combatting Genocide with a Little Help from My Friends  141

could exercise its voting power as one of only forty-­seven members to trade
influence and try to prevent a special session from happening.
With the clock ticking, my ambassador had arranged to host that day at
lunch several ambassadors from the HRC member states and key observers
in the Group of Latin American and Caribbean States. During the lunch, we
outlined the case for action on Burundi, explained the thinking of Ghana in
its willingness to support the call, and urged the Latin American delegations
to take action. As dessert was being served, none had agreed to sign onto the
statement, and I made the candid point that we were desperate. We were
two signatures short of the sixteen needed for a special session. The Republic
of Korea, usually a reliable vote, wanted to avoid signing the call because
its ambassador had just been named to serve as the council’s president for
2016. At this point, Ambassador Martelli of El Salvador stepped forward.
His country had seen the horrors of human rights abuses in its own history,
he said. If ownership from Latin America was needed to bring this special
session about, he would sign. Colombia’s ambassador was also willing to
sign, but as a nonmember would not influence the needed count. Argentina,
which had just completed an election establishing a new government, agreed
to call for instructions as soon as business opened in Buenos Aires. Mexico
agreed to do the same. As the lunch finished, I received a text message from
the Korean expert: if we still lacked one signature at close of business, Seoul
would sign on. This meant the sixteen signatures required for holding the
special session were assured. And as the business day opened in the West-
ern Hemisphere, both Mexico’s government and the new Argentine foreign
minister, UN veteran Suzanne Malcorra, authorized their governments to
sign, bringing the total number of member states demanding a special ses-
sion on Burundi to eighteen. The letter was filed with the HRC secretariat
at close of business December 11, 2015.
This demand for a special session could not have been more timely. On
the weekend of December 12, the actions of Burundi officials turned from
rhetoric to violence. Nearly ninety people were killed in that one week-
end alone in a series of coordinated, ethnically charged attacks.5 Many were
young boys who had been shot execution style, with their hands tied behind
their backs. Government-­affiliated militias were implicated as responsible,
according to eyewitnesses.
On December 17, the twenty-­fourth special session of the HRC was
held focusing on the human rights situation in Burundi. The country’s lead-

5.  Jessica Elgot. December 12, 2015. “Burundi: 87 Killed in Worst Violence Since April
Coup Attempt.” The Guardian.
142  The Art of Getting More Back in Diplomacy

ing opposition human rights figure, Pierre Claver Mbonipa, received special
permission from the Belgian government to travel to Geneva and participate
in the session, even though he was still in the process of claiming political
asylum. Mbonipa testified about how his son and son-­in-­law had both been
killed by pro-­regime forces as a result of the protests against Nkurunziza’s
unconstitutional third term, and he addressed delegates with his neck heav-
ily bandaged because he had been shot in the face weeks earlier in an assassi-
nation attempt. Nonetheless, his vivid description of the politically charged
nature of the violence and the sacrifices of Burundi’s civilian population
in the face of mounting risks of atrocity were highly persuasive. The coun-
cil unanimously passed a resolution on preventing the deterioration of the
human rights situation in Burundi. This was the council’s first-­ever resolu-
tion on atrocity prevention and it ordered that a mission of existing inde-
pendent experts urgently be dispatched to draw attention to the violence in
the country and to try to stop the deteriorating rights situation.
Had the end of year gambit not worked, it is possible that the HRC
would have held a special session the following year, but it was unlikely
to have been as effective or to have passed a resolution by as strong a vote
margin as that passed in the 2015 session, for two reasons. First, Burundi’s
rotation onto the council almost guaranteed some “No” votes against any
resolution, including Burundi’s own. Finally, midway through 2016 Ghana’s
Appreku died of a heart attack and his impassioned voice for Africans tak-
ing responsibility for African affairs was lost forever. Appreku’s bravery on
behalf of Ghana helped to empower others to be willing to direct criticism
toward an impending atrocity. He was joined in his bravery by the Salva-
doran ambassador, who made the call that action was necessary, even when
his other colleagues from Latin America were unwilling to sign their names
to the task.6 Such examples show that the actions of individuals can make
a significant difference to the outcome of negotiations, even when taken by
representatives of small and medium-­sized states in large multilateral venues
like the United Nations.

6.  Interestingly, Martelli’s decision to sign the call for a special session was the first in a
series of leadership actions he took on behalf of his tiny Salvadoran delegation. As a result,
later in 2016, he was elected president of the Human Rights Council, representing all GRU-
LAC states.
Chapter 13

North Korea Back Again

A Victory for Trumpian Negotiation or a
Defeat for Everyone?

The table was set, literally. Chefs prepared a luncheon of foie gras, snow fish,
and candied ginseng to serve on the table of ceramic plates, crystal glass, and
the finest silver inside the Metropole Hotel, where Kim Jong Un and Don-
ald Trump were to celebrate their success at the Hanoi Summit.1 According
to a schedule for February 28, 2019, already distributed to journalists and
the public, the luncheon was to be followed by the signing ceremony for a
U.S.-­DPRK agreement that would be a significant step in North Korea’s
denuclearization and that would bring the world closer to ending one of the
last vestiges of the Cold War.
So what went wrong? When White House spokeswoman Sarah Sanders
told the press corps in Hanoi that the luncheon was canceled, confusion and
pandemonium ensued. A spokesperson for South Korean president Moon
Jae In, whose tireless mediation efforts had brought the two participants to
this second summit and who hoped that the meeting would give him the
green light for continued efforts at improving economic ties between Seoul
and Pyongyang, candidly told the world that the ROK government had no
idea what was going on either. Later President Trump explained in a press

1.  Siobhain O’Grady. February 28, 2019. “A Shared Dinner, a Canceled Lunch: What
Trump and Kim Did—­and Didn’t—­Eat in Vietnam.” New York Times; Ju-­min Park and
James Pearson. February 28, 2019. “Inside the Dying Moments of the Trump-­Kim Summit
at a Hanoi Hotel.” Reuters.

143
144  The Art of Getting More Back in Diplomacy

conference that the DPRK’s denuclearization offer and demand for sanc-
tions relief was just not good enough and “sometimes you have to walk.”2
Walking away is a tried and true tactic in negotiations over money and
one that Trump had used dozens, perhaps hundreds, of times before in real
estate and other deals. He had also used it previously with Kim Jong Un,
announcing in May 2018 that their planned Singapore Summit had to be
postponed because of inadequate progress in preparations.3 In the case of
postponing the Singapore Summit, Trump was walking away because North
Korea had stalled his lead nuclear negotiators, insulted his vice president and
national security adviser, and was holding out to negotiate any denuclear-
ization concessions with him personally. Trump’s gambit worked that first
time, as North Korea increased its willingness to negotiate in preparation for
the Singapore Summit, and the Singapore meeting was rescheduled for June.
As he had done before, the president found that by walking away, his nego-
tiation counterpart improved its offer and he got more of what he wanted.
The lesson he took: brinksmanship allowed him to proceed as a victorious
dealmaker, rather than a failed aspirant.
As anyone knows who has shopped in a market in the non-­Western world
with no fixed prices, walking away can be a successful tactic to determine
the other side’s bottom line in a price negotiation. If a potential buyer walks
away from a carpet or souvenir vendor, merchants from Tianjin to Tunis
will chase the buyer down and say “okay, okay.” This usually indicates their
agreement to take the last price offered and close the deal. Similarly, the per-
son walking away can feel they held their bottom line and got a fair deal by
refusing to pay too much. Hence the president’s statement that “sometimes
you have to walk” reflected a tried and true negotiating tactic.
In a more formal sense, walking away sharpens a negotiating counter-
part’s sense of their BATNA (Best Alternative to a Negotiated Agreement).
When your negotiating counterpart demonstrates they are prepared to
walk away, one literally sees a deal slipping away and has to assess whether
any deal is better than the alternatives. That is a real world example of
deploying the BATNA theory. The negotiator facing a walkout must
immediately assess whether the alternative to a negotiated agreement really
is better than striking a deal, even an imperfect one. How much would
they lose by the loss of an agreement? Was there a risk that the loss of the
2.  Julian Borger. March 1, 2019. “Vietnam Summit: North Korea and US Offer Differ-
ing Reasons for Failure of Talks.” The Guardian. https://www.theguardian.com/world/2019/
feb/28/vietnam-summittrump-and-kim-play-down-hopes-of-quick-results-nuclear-talks
3.  Mark Landler. May 24, 2018. “Trump Pulls Out of North Korea Summit Meeting with
Kim Jong Un.” New York Times.
 North Korea Back Again  145

process meant that no agreement would ever be forthcoming? Or should

the party who threated or actually walked away try to go back? Put in our
marketplace example, the customer might have to ask: is it really worth
leaving this country without that souvenir in an argument over $10? Simi-
larly, the shopkeeper must ask herself: if I am making a profit, even a small
one, should I take the deal now before this customer does not make the
purchase or buys it from someone else?
In a marketplace and even a real estate deal, the possibility of an alter-
native negotiating partner affects one’s BATNA. A potential purchaser can
simply try another vendor to see if the same item can be purchased for a
better price. Similarly, the shop keeper can wait for another customer hop-
ing to make more profit from the sale of the same item. But in interna-
tional negotiations over political issues, alternative suppliers are not always
an option. With respect to denuclearization negotiations, only the DPRK
can strike a deal with Washington to give up its nuclear devices. Guarantors
and indirect parties like China, Russia, and South Korea can offer their good
offices as mediators but they cannot offer up the nuclear devices. Similarly,
the DPRK appears cognizant that it cannot get a peace agreement or the
security guarantees it is seeking from anyone besides the United States. In
this, as in many multiparty political negotiations, alternate suppliers do not
exist. So the BATNA calculation a party makes when it decides it is “time to
walk” is increasingly important.
At the end of this chapter, we will consider whether the 2020 elections
functioned as a kind of alternative supplier for the United States in its nego-
tiations with the DPRK, or with other parties such as Iran. Did the DPRK
have any incentive to strike a deal with the Trump administration before the
elections given the risk a different president would be elected? Before the
2016 U.S. election, candidates from both parties had taken strong positions
that partisan differences stop at the nation’s edge, allowing some certainty
that the United States would have continuity in foreign policy regardless of
election outcomes. But the Trump administration’s reversal of many Obama
foreign affairs actions made it increasingly likely that this reliability in U.S.
foreign policy is under threat. Other countries may begin to treat U.S. elec-
tions like alternate suppliers as they assess their BATNA in negotiations
with the United States. Just like President Trump failed to uphold the Iran
nuclear deal, the Paris climate change deal, and many trade commitments of
previous administrations, so the North Koreans must have asked themselves
whether it was worth signing a deal with President Trump in the run-­up to
elections when a subsequent U.S. president might not honor the deal. In
considering alternatives to a negotiated agreement, a wise DPRK negotiator
146  The Art of Getting More Back in Diplomacy

must take into account waiting for a future U.S. administration as among
those alternatives.

Beside the Snow Fish: What Was Left on the Table When the United
States Walked Out?

President Trump’s decision to walk away from the Hanoi luncheon table
in February 2019 was an effort to get the North Koreans to change and
improve the offer that was on the negotiating table in a complicated
exchange over denuclearization, sanctions relief, and future steps to improve
relations, including ending the Korean War and opening the door for North
Korea’s reentry into the community of nations. According to participants
and second-­hand accounts of the Hanoi meeting, North Korea had offered
to close a key nuclear production site at its Yongbyon nuclear complex. This
was the same complex I visited many times and where, in 2008, our negotia-
tions resulted in the demolition of the nuclear reactor’s cooling tower as a
visible symbol of the DPRK’s commitment to denuclearization.
But Yongbyon is just one of many sites where fissile material for North
Korea’s nuclear program is produced. With North Korea demanding
removal of all of the UN Security Council resolution sanctions that targeted
its domestic economy, the United States felt it needed more on denuclear-
ization. The UNSC resolutions North Korea wanted to have rescinded—­
totaling five in all—­were the key part of a U.S. maximum pressure campaign
of sanctions during the Trump administration. The resolutions implemented
sanctions measures in response to North Korea’s aggressive steps in 2017 to
test a thermonuclear device and a long-­range missile that could theoreti-
cally become an ICBM-­like delivery vehicle for a nuclear device capable of
striking the United States. According to press and participants, the United
States responded to this demand for major sanctions with a “bigger deal”
and asked for all nuclear facilities in the DPRK to be shut down in exchange
for such widespread sanctions relief.
North Korea had a history of concealing its nuclear production facilities,
as we discussed in chapter 4. In October 2002, U.S. Assistant Secretary of
State James Kelly confronted North Koreans over evidence that it had highly
enriched uranium facilities where nuclear materials were being produced
that could go into a bomb.4 Kelly’s accusations and North Korea’s evasion

4.  David Sanger. October 17, 2002. “North Korea Says It Has a Program on Nuclear
Arms.” New York Times.
 North Korea Back Again  147

and denials began a spiral of confrontation and escalation that was only
eased when the Six-­Party Talks began as a new structure of regular nego-
tiations to promote North Korean denuclearization. In 2008, the Six-­Party
Talks collapsed because of failure to agree on a verification protocol that
would be broad enough for international monitors to inspect and follow-­up
to ensure that all North Korean nuclear programs—­plutonium, tritium, and
uranium enrichment—­would be shut down. In the February 2019 Hanoi
Summit, the United States evidently raised similar evidence about nuclear
sites outside of Yongbyon and production of nuclear fuel beyond the Yong-
byon plutonium reactor. How, the Americans reasoned, could they agree
to remove all sanctions on North Korea if the DPRK was continuing its
nuclear and missile production at sites outside of Yongbyon? In effect, the
money that would be pumped into the DPRK economy by sanctions relief
could potentially be funding these covert efforts by North Korea to increase
its threatening nuclear and missile stockpile, according to U.S. thinking.
So both the luncheon table and the negotiation table were set, but the
parties did not eat and instead returned home largely empty handed. When
President Trump and his advisers decided that “sometimes you have to walk,”
and Hanoi was one of those times, the package that was left on the table
included an offer to close North Korea’s most significant nuclear produc-
tion and research complex and to keep in place a missile and nuclear testing
moratorium in exchange for major relief from UN sanctions for the DPRK
economy. Trump walked away with a smile and a handshake with Kim Jong
Un and the promise that future talks would follow. But in hindsight did the
president of the United States—­the commander in chief and leader of the
free world—­make the right call for protecting the American people?
President Trump’s behavior at the Hanoi Summit was all about adjusting
the North Korean BATNA. By walking away, he was saying that the deal he
had on the table with Kim Jong Un was not good enough. In negotiation
theory language, President Trump was trying to make it clear to North Korea
that it might have to accept its Best Alternative because it might not get a
Negotiated Agreement. But in so doing, he may have miscalculated not only
the North Korean response but his own Worst Alternative to a Negotiated
Agreement or WATNA. It appears that, before walking away, President Trump
did not accurately consider that some steps the DPRK might take—­such as a
resumption of nuclear and missile testing—­might actually be worse for U.S.
national security than a mediocre negotiated agreement. After the summit,
Kim Jong Un pressed ahead quickly to take precisely those steps, and remind
the Americans to reconsider their BATNA as well, lest they end up with the
Worst Alternative to a Negotiated Agreement—­a nuclear armed North Korea
148  The Art of Getting More Back in Diplomacy

unrestrained by a diplomatic process with a perfected ICBM truly capable of

being launched and hitting a U.S. city on the American mainland.

Could Trump Have Been Both Right and Wrong at the Same Time?

According to many aspects of negotiation theory and much of the analysis in

this book, President Trump was right to walk away in Hanoi. First, he was
sending North Korea the clear message that its proposal was not reasonable.
The U.S. negotiators in Hanoi apparently felt that any steps the United
States took to remove the hard-­won international sanctions from its maxi-
mum pressure campaign would never be put in place again. Under this line
of reasoning, UN Security Council veto-­wielding defenders of the DPRK,
Russia and China, would not agree to restore any such sanctions because
of the DPRK’s diplomatic charm offensive waged since the beginning of
2018. In effect, giving up those sanctions, the United States believed, was an
“irreversible” diminution of its maximum pressure. This step was not worth
the dismantlement of one North Korean facility—­that of the Yongbyon
compound. Moreover, the sanctions being rolled back were so significant
that they were more than just half of the UN sanctions resolutions. They
constituted all of the sanctions passed to punish the DPRK for its ICBM
test. By walking, the United States was making it clear to the North that the
deal was too lopsided.
Second, the president was making clear that, in future, more preparatory
work needed to be done at working levels before the leaders got person-
ally involved in trying to strike a deal. Prior to the Hanoi Summit, North
Korean negotiators repeatedly ignored and rejected attempts by Secretary of
State Pompeo and Special Representative Steve Biegun to explore the details
of a U.S.-­DPRK deal such as might be addressed by the leaders in a summit.
This was probably the foremost reason that the Hanoi Summit was breaking
down—­unlike typical summits in the past, North Korean refusal to engage
in preparatory negotiations with Biegun and others meant the summit con-
tent was not adequately prepared. The DPRK felt it could ignore prepara-
tions for the Hanoi Summit with American negotiators because it succeeded
in the past in going “over their heads” and having their leader speak directly
to President Trump. In the Singapore Summit preparations, the DPRK’s
preference for engaging Trump directly seems to have been rewarded: the
outcome document from the Singapore Summit seemed largely one-­sided
and in favor of the DPRK. In the June 12, 2018, Singapore Communique,
the DPRK agreed to “work toward” the complete denuclearization of the
 North Korea Back Again  149

Korean Peninsula, while the United States and DPRK jointly agreed to build
new relations, work toward lasting peace on the Korean Peninsula, and to
resume Korean War remains recovery repatriation.5 When it was revealed
after the summit that President Trump had also agreed to freeze U.S.-­ROK
military exercises on the Korean Peninsula, commentators widely agreed
that the Singapore outcomes were a major win for North Korea.
If the North Koreans hoped that in Hanoi they could again get a better
deal from the president, Trump’s decision to walk away showed them that
they were wrong. For the future, it probably was also the right decision
because it empowered his real negotiators—­Special Representative Steve
Biegun, Secretary of State Mike Pompeo, and their successors in the Biden
administration —­to be able to negotiate details of denuclearization and
“corresponding measures” with their DPRK counterparts. By walking away,
Trump may have hoped that this would make it more possible for experts
to quickly follow-­up on the agreed but ill-­defined goal from Singapore: the
complete denuclearization of the Korean Peninsula. Experts might also be
able to synchronize steps that might lead to a win-­win outcome of complete
denuclearization, complete sanctions relief, and security guarantees like an
end to the Korean War that would open the way for the DPRK to reenter
the international community.
Third, the president appears to have tried a range of negotiating tactics
with Kim Jong Un before he decided to walk away. President Trump cer-
tainly gave the DPRK face and respect by agreeing to meet with Kim Jong
Un. In the Singapore Summit of 2018, the DPRK finally was seen on the
world stage as an equal to the United States. In the months following Sin-
gapore, President Trump continued to give Kim Jong Un respect and tried
to personalize the friendly relations by talking about exchanging “love let-
ters” with the DPRK leader. Trump also tried to avoid negative statements
about Kim Jong Un, going so far as to state that he didn’t believe the DPRK
leader knew of the abusive treatment of American student Otto Wambier.
This marked a complete reversal of the frequent barbs and Twitter jabs the
president had leveled at North Korea during his first year in office, such as
calling the North Korean leader “Rocket Man” and suggesting that Trump’s
nuclear button was bigger than Kim’s.
In addition to its tactical influence on North Korea’s perception of nego-

5.  The White House. June 12, 2018. “Singapore Summit Communique.” https://www.
whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-
states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-sum-
mit/
150  The Art of Getting More Back in Diplomacy

tiations, President Trump’s decision to meet the North Korean leader face-­
to-­face also made the world safer. Trump’s businessman’s confidence and
style of negotiating was a key element in allowing the June 12 Singapore
Summit to take place. His CEO’s mindset made Trump want to be the first
American in the room with Kim Jong Un, and he believed he was the person
to strike a deal and talk the DPRK out of further enhancing its nuclear and
missile programs. Trump’s predecessors, going back to George H. W. Bush,
Bill Clinton, George W. Bush, and Barack Obama, refused to meet with
North Korean leaders because they did not want to reward one of the most
brutal and dictatorial regimes on the planet with a chance to meet the leader
of the free world. Where such summits were explored, for example late in the
Bill Clinton administration, they fell apart in the preparation stage because
the North Koreans would not commit to prerequisites demanded at lower
levels, such as Secretary of State Madeleine Albright’s October 2000 visit
to Pyongyang to meet Kim Jong Il, Kim Jong Un’s father.6 As a result, all
previous efforts to allow for presidential summits between the United States
and North Korea failed.7 Trump’s willingness to meet Kim Jong Un and his
belief that he could judge Kim’s good will and guide the leader on a path
to denuclearization where Kim would “be running his country, his country
would be very rich, his country would be very industrious”8 opened the
possibility of Northeast Asia turning into a region of peace and prosperity.
A final reason that peace on the Korean Peninsula seemed to be draw-
ing near in the second half of 2018 was because Koreans—­rather than the
American president—­were taking huge steps to advance peace on the Korean
Peninsula and denuclearization in North Korea. ROK President Moon Jae
In was the first party to bring Kim Jong Un and Trump together dating back
to his positive response to Kim’s 2018 New Year’s speech and his diplomatic
outreach for the Pyeongchang Winter Olympics. After Moon sent envoys

6.  “Albright Makes Historic Visit to North Korea.” October 23, 2000. The Guardian; Rob-
ert Einhorn. April 20, 2018. Interview with former missile negotiator and U.S. Special Envoy
Robert Einhorn. Interview by Eric Richardson in person, Geneva, Switzerland.
7.  Tessa Berenson. March 8, 2018. “Why Trump’s Predecessors Did Not Meet with North
Korea.” Time. Former presidents Carter and Clinton did visit North Korea after their time
in office had ended. Bill Clinton flew a mission to guarantee the release of journalists who
crossed into the DPRK from China (for which I provided support), whereas Carter traveled
on humanitarian and food-­based missions in his capacity as head of the Carter Center.
8. David Nakamura and Philip Rucker. May 17, 2018. “Trump Offers Reassur-
ance That North Korean Dictator Kim Jong Un Would Remain in Power Under Nuclear
Deal.” Washington Post. https://www.washingtonpost.com/politics/trump-offers-reassur-
ance-that-north-korean-dictator-kim-jong-un-would-remain-in-power-under-nuclear-
deal/2018/05/17/901635e0-59ff-11e8-8836-a4a123c359ab_story.html?utm_term=.
cacc8dba05f2
 North Korea Back Again  151

to North Korea to engage in shuttle diplomacy to prepare a summit, these

envoys reported to Trump at the White House in March 2018 and conveyed
the invitation that Kim Jong Un was prepared to meet Trump in a sum-
mit. While Trump surprisingly and bravely accepted the invitation, ROK
negotiators led by Moon did the leg work. Even after the Singapore Summit
took place, the ROK carried out shuttle diplomacy and held three leadership
summits in the second half of 2018. Moon’s effort was pressing North Korea
to make progress on denuclearization and holding out the practical promise
of economic benefits by starting reforms such as the linking of roads and
railways between North and South.
We have talked in this book about the tactic of working through another
party to achieve your goals as part of a multiparty negotiation. Was Trump
working through Moon in this case? I think not and in fact it may have
been the opposite: Moon was modestly praising Trump and his policy of
maximum pressure for driving the DPRK to the table, when in fact it was
Moon’s involvement that brought in the DPRK and made this largely bilat-
eral negotiation have some of the characteristics of a multiparty one. While
Trump was the figure whom the North Koreans desperately wanted to meet
in a leadership summit, it was Moon who was the puppet master behind the
scenes—­prodding, cajoling, and persuading both parties to hold not one but
two historic summits. We may be able to learn as much from Moon’s nego-
tiating style in this case as we can from either the United States or DPRK.
Moon adopted many of the hallmarks of an interested party who also played
a mediation role. By carrying letters and messages between Chairman Kim
and President Trump, Moon quietly but successfully advanced the process
of drawing the United States and DPRK into talks, even though both sides
knew he had significant political and economic interests—­including those
favoring peace and improving ties to the benefit of ROK businesses. Thus
Moon’s role as an intermediary, as much or more than Trump’s negotiating
brilliance, pushed Kim to the table. And it was Moon and his envoys who
were also working hard to see if he could also persuade Trump to meet Kim.
By doing so, Moon was also seeking to advance the ROK’s interest and
getting President Trump to shift from his 2017 rhetoric about bloody nose
strikes and “Fire and Fury” to go along with a North-­South rapprochement
that would bring the DPRK back into the international community.

Mistakes Were Also Made Ahead of Hanoi: Lessons You Can Learn

So when Trump and Kim agreed to hold a second summit in Hanoi, analysts
believed that the outcome would continue the trend of making the world
152  The Art of Getting More Back in Diplomacy

safer—­finding a formula to sequence the complicated steps of denucleariza-

tion, an end to the Korean War, and security guarantees that would make
the DPRK feel safer and more comfortable abandoning, in whole or in part,
its nuclear program and so-­called deterrent. In fact, that is what the world
expected to hear about in the signing ceremony, before the banquet lun-
cheon in Hanoi was canceled and the parties left with no deal. Analyzing his
behavior more critically, did President Trump make certain mistakes or mis-
calculations that led to the increasingly dangerous situation after the Hanoi
Summit fell through?

Inadequate Preparation

As we have already discussed, the lack of preparation was largely responsible

for the Hanoi Summit breaking down over issues that the parties could and
should have discussed ahead of time. Unlike most summits where “sherpas”
and experts choreograph every move and agree ahead of time on the content
of the agreement to be addressed by the leaders, the Hanoi Summit was no
mere signing ceremony. Key details were kept open for the two-­day discus-
sion between President Trump and DPRK leader Kim Jong Un. The North
Koreans bear significant responsibility for this lack of preparation because
they anticipated getting a better deal from the president and they refused to
have their experts work with U.S. experts to preview and prenegotiate all the
fine points of a possible summit agreement.
President Trump’s CEO-­like negotiating style fed into this mistake. As he
had said many times, he believed that he was the sole person able to strike a
deal with Kim Jong Un and he had little faith in many of the negotiators and
experts working for him. Also Trump’s CEO-­like desire to simplify the situ-
ation was also a significant factor in allowing the leaders to meet in Hanoi
without the content of all elements of their agreement having been arranged
ahead of time. President Trump had little attention or patience for working
through the details, for example of a tedious definition of complete denucle-
arization of the Korean Peninsula. In Singapore, he had taken Kim’s word
that the DPRK leader was committed to this goal without further elabo-
ration. So while President Trump’s sense that simplifying the details may
even have facilitated his first meeting with Kim Jong Un, denuclearization
is complicated. The vague Singapore Summit agreement made it difficult
for those who have to implement it to follow-­up. By the run-­up to Hanoi,
Trump’s advisers were insisting that he had to show progress toward denucle-
arization or he would again be pilloried for having given too much away to
 North Korea Back Again  153

the DPRK. With this general outline agreed, they should have foreseen the
need for detailed preparatory work to close the gap on differing views of
denuclearization and “corresponding measures” that the DPRK would gain
in exchange. In the end, the extent of sanctions relief was the corresponding
measure that soured the deal.
But it was not only the U.S. leader who was not fully prepared for the
Hanoi meeting in February 2019. According to accounts of the breakdown,
the DPRK also appeared unprepared to engage on the issue of complete
denuclearization. When U.S. negotiators raised the issue of sites outside of
Yongbyon as part of a larger deal of complete denuclearization in exchange
for complete sanctions relief, the DPRK did not know how to react. It
appears to have been unable to engage significantly on the details of its other
facilities and nuclear production programs, not to mention chemical, bio-
logical, and other threats. As Condoleezza Rice said in her memoirs, “Only
a fool goes to an important meeting in which the President will be involved
without an agreed text.”9

When You Walk Away, Know How to Get Back

Another complicating factor in the abrupt breakdown of talks in Hanoi stems

from the intersection of the uniquely public nature of the Hanoi Summit
coupled with the cult of personality that surrounds the Kim family regime in
DPRK. North Koreans focus all of their efforts on the leader, his reputation,
and his near infallibility. For Kim Jong Un to publicly travel to Hanoi to
meet with the U.S. president and not return with a deal might be the kind
of slight that the country could not get over. If Kim left Hanoi embarrassed
or weakened internally, he may be unwilling to again take another risk of let-
ting the United States embarrass him publicly in a future summit. And even
if he was willing to take such a risk, the hierarchical nature of the regime and
the cult of the leader’s perfection may be so threatened by the risk of a future
unsuccessful summit that those negotiators further down the North Korean
pecking order who would have to engage in the work to repair channels and
relationships might be powerless to undertake such efforts.
Nor may it be easy for the United States to get back to the table, even if
it wants to offer some concessions. A well-­prepared summit creates processes
of its own. Negotiations that have a regular framework for meetings make it
easier for leaders to meet and work out any issues that may arise and to pre-

9. Rice, No Higher Honor, Kindle location 3795 of 12657.

154  The Art of Getting More Back in Diplomacy

vent leaders from having to address routine questions because the “system”
handles most such queries. Unlike the Six-­Party Talks or other institutional
frameworks, the Singapore and Hanoi Summits were completely isolated
one-­off events. Linked to the lack of preparation, the summit advance work
had no regular system for communication. Restarting talks is relatively easy
between parties who have a regular meeting schedule, offices or embassies in
each other’s capitals, or an established mechanism like the Six-­Party Talks that
ensures future opportunities for negotiation and interaction. But the U.S.-­
DPRK relationship and negotiations have no such foundation. Remember,
for eight months prior to Hanoi, the U.S. special representative had exactly
zero independent meetings with DPRK officials. This suggests that it may be
harder to restart any process after the Hanoi Summit failure than at any other
time in recent memory. As North Korean Vice Foreign Minister Choe Son
Hui threatened on March 15, 2019, the United States may have let a golden
opportunity slip through its fingers and the DPRK may never again be willing
to negotiate with the United States like it did in Hanoi.10
On June 30, 2019, President Trump appeared to have found a creative
way to get back to the negotiating table. During a visit to South Korea, he
made a trip to the DMZ and announced his willingness to meet Kim Jong Un
there. The North accepted and Trump became the first sitting U.S. president
to cross into North Korea, with a brief step across the DMZ before holding a
forty-­five-­minute meeting with Kim Jong Un that resulted in an agreement
to resume working-­level talks on denuclearization in “two or three weeks.”
As summer turned to fall, no new talks were announced, but the DPRK
vocally announced its opposition to renewed U.S.-­ROK military exercises
and a plan to sell advanced fighter jets to the ROK. It also tested short-­range
ballistic missiles, in violation of UN Security Council resolutions.11

Failure to Empower Others

In general, President Trump has emphasized that he doesn’t need regional

experts, negotiators, or even the State Department. “I’m the one who mat-

10.  “We have no intention to make concessions to the U.S. requirements [put forward at
the Hanoi Summit] in any form, much less the desire to conduct such negotiations,” Choe
said in a meeting with foreign ambassadors and press, according to comments carried by
Russia’s TASS News Agency, warning that the United States risked throwing away “a golden
opportunity this time.” Colin Zwirko and Oliver Hotham. March 14, 2019. “North Korea
Has No Intention to Give U.S. Concessions on Denuclearization.” NK News.
11.  John Hudson. July 26, 2019. “North Korean Saber Rattling Dims Euphoria of Trump’s
DMZ Meeting.” Washington Post.
 North Korea Back Again  155

ters,” he said when he came into office, suggesting he did not need profes-
sional diplomats to deliver messages. In this way, President Trump has hardly
ever empowered others to act on his behalf or in support of the United States.
This is perhaps the most disempowering approach to a negotiation possible.
Several candidates could have served as proxies and supporters of
improved relations with the DPRK, if only Trump would have let them.
But rather than empower President Moon in South Korea or the leaders
of China or Russia to deliver a message on his behalf, the president tended
to go it alone internationally. Ironically, the one successful impact of the
president’s decision to walk might have been to empower his own subordi-
nates and successors. Prior to the walkout, Biegun had tried unsuccessfully
to meet with leading DPRK foreign ministry interlocutors.

Be Sure of Your Own WATNA: What if the DPRK

Restarts ICBM Testing?

In walking away, Trump was focused on getting the North Koreans to give
more, but he may have failed to consider perhaps the most important nega-
tive consequences that walking away might have on U.S. security interests. In
considering the United States’ Worst Alternative to a Negotiated Agreement
(WATNA), Trump should have taken more seriously what might happen if
North Korea went back to its more provocative posture as in the past. The
United States appears to have taken it for granted that the DPRK was going
to come back and continue to propose destruction of its Yongbyon facility
and the moratorium on missile and nuclear testing. Following the Singapore
Summit, North Korea largely pressed ahead with steps to begin dismantling
its main nuclear and missile launch facilities and seemed focused on working
with the international community rather than threatening it. The freeze-­
for-­freeze approach by which U.S.-­ROK joint military exercises and DPRK
nuclear and missile tests were both frozen in 2018 significantly lowered ten-
sions and ushered in a six-­month period of intense DPRK-­ROK rapproche-
ment and economic cooperation.
President Trump appears to have undervalued an important element of
his détente with Kim Jong Un—­a North Korean moratorium on missile
and nuclear testing—­and to have miscalculated how costly it might be for
the United States if the DPRK were to reverse this moratorium. According
to U.S. and international experts, North Korea’s biggest gap in its ability to
strike U.S. territory with a nuclear device is its delivery systems—­in this case
its missiles. Testing is an essential part of refining missile technology and the
steps North Korea needs to work on are the miniaturization of a warhead so
156  The Art of Getting More Back in Diplomacy

it can fit on and continue along the proper trajectory of an inflight missile,
and the protection of the reentry vehicle so that the warhead will be pre-
served intact until the missile reaches its desired detonation location on the
other end. A moratorium on testing provides an important element of this
guarantee. Ongoing missile testing can help refine North Korean technol-
ogy and make it even more likely that the DPRK could successfully fire a
nuclear-­tipped Intercontinental Ballistic Missile (ICBM). The more testing
the DPRK does, the better its ability to launch such a weapon and strike a
target in the mainland United States.
After the summit, North Korea wasted no time in exacerbating U.S.
fears and pressing the advantage to make the United States realize the risks
of its miscalculation of the U.S. WATNA. North Korea immediately began
restarting activity at several missile launching sites. Implications of this effort
were not immediately clear: could it be a signal to the United States that the
ICBM program was restarting? On March 15, Vice Foreign Minister Choe
Son Hui offered a clear shot across the U.S. bow. The United States had
thrown away a golden opportunity at the Hanoi Summit and negotiations
with the DPRK might no longer be possible, Choe said at a press conference
in front of diplomats in Pyongyang.12
Moreover, the DPRK ended its moratorium on missile tests. On May
9, the DPRK fired two short-­range missiles that some categorized as
“projectiles” to leave open the possibility that these launches did not
end the missile test moratorium or violate UN sanctions. However, even
after the June 20 Trump-­Kim meeting at the DMZ, the North contin-
ued on this path and left no doubt that the ballistic missile moratorium
was over. On July 25, the DPRK launched two new short-­range bal-
listic missiles into the Sea of Japan. It said this launch was a “warning”
to South Korean “war mongers.” The launch followed Kim Jong Un’s
highly publicized visit to a new submarine facility, framed as a missile
launching option, and the North’s public statements threatening to halt
future talks with the United States because of resumption of U.S.-­ROK
military exercises and possible sales of high-­tech weaponry, including
the F-­35 fighter jet. The DPRK has not yet abrogated Chairman Kim’s
commitments to President Trump not to test another ICBM capable
of hitting the United States, but the trend lines even following positive
summit statements at the DMZ were not encouraging. For example, in
the October 2020 military parade celebrating the seventy-­fifth anniver-

12. Eric Talmadge. March 15, 2019. “DPRK Chairman Kim Rethinking U.S. Talks,
Launch Moratorium.” Associated Press.
 North Korea Back Again  157

sary of the Korean Workers Party founding, the DPRK displayed new
submarine and mobile ballistic missiles, some of which analysts believed
had the enhanced payload space and capacity to launch multiple nuclear
warheads deliverable to the U.S. mainland.

Accounting for Time Horizons, as Well as Substantive Goals

Finally, the Americans may have misestimated the relative time horizons
of the DPRK and the United States and their relative senses of urgency to
strike a deal. To a certain extent, both Kim and Trump focused excessively
on the short term, especially the period of their own political viability. But
the U.S. election cycle, and scandals taking place in the U.S. political envi-
ronment, made President Trump particularly focused on a short-­term goal
of having a North Korea success in his first term in office. For Kim, his
lifetime appointment means that his time horizon is longer than Trump’s.
Compared to most other multiparty negotiations we have analyzed, the two
leaders here can afford to make enemies and pursue short-­term solutions,
while hoping that the negative consequences of their style take effect only
later after they leave office.
In fact, this short-­term perspective may be an additional reason that the
Hanoi walkout should have been anticipated. President Trump’s negotiat-
ing style is an impatient one of major public posturing, quick wins, and
then moving on to the next issue. Such a short-­term approach was ill-­suited
for the longer term, multiparty negotiating process—­even after Trump and
Kim had established a leader’s summit rapport. Building the institutional
trust and cooperative mechanisms of a Northeast Asian peace framework
to follow up on any denuclearization agreement and support an end to the
Korean War is much more complicated than a single summit or closing
a real estate deal. This may be why the illusion of a quick, top-­down win
from DPRK summitry is not likely to bring sustained change on the Korean
Peninsula and the parties’ best next step is to create the kind of institutional
connections that might be advanced by the establishment of liaison offices
and an ongoing negotiations framework.

Conclusion: Mistakes Made All Around

Perhaps the Hanoi Summit was a missed opportunity. Alternatively, perhaps

Kim Jong Un never really intended to denuclearize and was just trying to
158  The Art of Getting More Back in Diplomacy

“milk” the United States and the international community for greater con-
cessions and economic benefits in the Singapore and Hanoi summits. If so,
no deal with North Korea and its current leader is ever likely to stick, and
President Trump was correct to walk away. However, Trump’s failure to con-
sider the U.S. WATNA also left the United States more vulnerable. Instead
of maintaining a win-­win environment where negotiations could resume
at an important, but lower, working level, President Trump focused more
on his image as the only one who could resolve the North Korean nuclear
issue, which probably led him to miscalculate. Some speculate that Trump’s
motivation for entering into negotiations with North Korea in the first place
was a vain desire to pursue the Nobel Peace Prize, something he wanted so
badly that his officials asked the Japanese prime minister to nominate him.13
Much as the Kim family regime cult of personality may make it hard for
the North Korean leader to return to his offer at the Hanoi Summit, the
president’s narrative that only he could negotiate peace with North Korea
and that he should win the Nobel Prize if he achieved it, made it difficult
for President Trump to convincingly walk away from the process as well.
The DPRK believed Trump will always want to come back and it engaged in
activities to adjust his BATNA/WATNA calculation by reestablishing some
of its dismantled capabilities and resuming missile launches to remind the
United States and the region of the threat that it can pose.
As the United States headed into the Biden administration, North Korea
appeared to be the party most prepared to exercise strategic patience. North
Korea has refrained from any discussion with the United States since October
2019, even before the COVID-19 pandemic resulted in closing of the coun-
try’s borders. Stephen Biegun, President Trump’s Special Representative for
North Korea Policy, said that Trump’s surprise June 30, 2019 visit to Panmun-
jom when he stepped across into North Korea was the Trump administration’s
last chance to break the logjam. Likening negotiations about Trump’s visit to
DPRK as a discussion in a souk (Middle Eastern marketplace), Biegun noted
that Trump’s proposal to meet Chairman Kim at Panmunjom was issued on
Twitter and that North Korea responded with a press statement saying the idea
was “interesting” but no substantive discussions followed the brief visit.14 On

13.  House Republicans, Japanese prime minister Shinzo Abe, and ROK president Moon
Jae-­In have made public calls for Trump to be nominated for the Nobel Peace Prize, to which
Trump has responded by saying “Everybody thinks so (that he should win the prize)” but all
he wants is peace for the world. See Emily Cochrane. May 9, 2018. “President Trump a Nobel
Laureate? It’s a Possibility.” New York Times; Jason Lemon. February 9, 2019. “Trump’s Gov-
ernment Asked Japan’s Prime Minister to Nominate Him for Nobel Peace Prize.” Newsweek.
14.  NK News Podcast, Episode 191, July 14, 2021 at 92 minutes to 94 minutes, 30 sec-
 North Korea Back Again  159

October 5, 2019, DPRK and U.S. negotiators met in “working-­level talks” in

Stockholm, Sweden, for a final bid at restarting talks. In only a few hours, it
became clear that DPRK negotiators attended only to see if the United States
was bringing any new approaches to the negotiating table.15 Seeing that it
had nothing new to offer, the DPRK negotiators were the ones to walk away.
They described the talks as “sickening” and unlikely to produce an outcome.
DPRK officials told me this was an intentional “insult” to the United States, as
a reciprocal payback for the insult they felt in having their leader travel all the
way to Hanoi and not walk away with a deal. After Stockholm, DPRK officials
threatened a year-­end deadline for the United States to produce a new offer,
after which time they said the DPRK would pursue a “new path” to negotia-
tions, widely believed to indicate new military tests and provocations, coupled
with a policy of economic self-­reliance and not depending on negotiations
with the United States.
The DPRK appears to have made good on its promise to abandon nego-
tiations with the United States made after the Stockholm talks. After the
failed Stockholm talks, it had no further contact with the Trump adminis-
tration or its negotiators and had no early contacts with the Biden adminis-
tration. The Biden administration’s North Korea policy review suggests that
it is similarly in no hurry to talk to the DPRK. For instance, President Biden
has appointed as his lead negotiator the U.S. ambassador to Indonesia, who
has said he will remain at his post in Jakarta until the North Koreans “pick
up the phone” or otherwise show interest in talks with the United States.16
But the DPRK also refrained from a major military provocation in the form
of a new nuclear or ICBM test. What had been expected as a December
2019 “Christmas gift” never materialized. Why didn’t the DPRK make such
a test? Was this not a way to up the ante for the Trump administration and
change the U.S. BATNA? Perhaps the DPRK exercised restraint because it
realized that, as much as it was embarrassed and angry after Hanoi, it had
few alternatives. Perhaps China discouraged it from following through. Like

onds discussion. https://www.nknews.org/category/north-korea-news-podcast/latest/an-inte​

rview-with-stephen-biegun-nknews-podcast-ep-191/902590
15.  David Sanger. October 5, 2019. “U.S. Nuclear Talks with North Korea Break Down
in Hours.” New York Times; Jung Pak. October 18, 2019. “Why North Korea Walked Away
from Negotiations in Sweden.” Brookings Institution. https://www.brookings.edu/blog/
order-from-chaos/2019/10/18/why-north-korea-walked-away-from-negotiations-in-sweden/
16.  White House Press Briefing, May 21, 2021, Remarks by President Biden and H. E.
Moon Jae In, President of the Republic of Korea. https://www.whitehouse.gov/briefing-room/
speeches-remarks/2021/05/21/remarks-by-president-biden-and-h-e-moon-jae-in-president-
of-the-republic-of-korea-at-press-conference/
160  The Art of Getting More Back in Diplomacy

it or not, the path to improved relations, an end to the Korean War, security
guarantees, and a brighter economic future for Pyongyang inevitably must
lead through Washington. As a result, I assess that at the time of publication,
the DPRK is waiting to see what happens with the Biden administration. If
it pursues negotiations, the DPRK will listen. If not, DPRK officials have
said, they gained time to increase and perfect their military technologies
after the Hanoi Summit. In terms of a BATNA, they are no worse off by
waiting out the U.S. decision, and they may have gained progress and prac-
tice in advancing their military technology in the interim.
Chapter 14

Conclusion
You Can Get More Back . . . Without Giving Up
Your Core Interests

In the preceding chapters, we analyzed a range of frameworks, tactics, and

strategies for Getting More Back in multiparty international negotiations.
Awareness of key frameworks—­such as the roles of direct and indirect par-
ties, mediators, guarantors, and observers—­can help you to communicate
effectively and situationally with the relevant players and to focus your nego-
tiation approaches and outreach. Understanding the tactics and strategies in
your toolbox—­and those that may be used against you—­prepares you to get
the most for your country or client in any negotiation and not to be fooled
by tactics deployed by your counterpart. In this concluding chapter, we will
review the case studies we have analyzed to illustrate these frameworks, tac-
tics, and strategies and consider one additional case—­the ongoing discus-
sion shaping global leadership roles between the United States and China.
In part a bilateral dispute and in part a multiparty discussion, the question
whether a multiparty international negotiation develops over the United
States’ and China’s future leadership roles in world affairs is likely to be part
of one of the most important international negotiations of power in our
lifetimes. We will also explore how the lens of negotiation theory can help
you better understand the underlying political elements of conflicts being
negotiated and how power is exercised in a negotiation, whether or not you
subscribe to the businessman’s negotiating style.

161
162  The Art of Getting More Back in Diplomacy

U.S.-­China Tensions in 2020 and the Missed Opportunity of COVID

As the coronavirus pandemic struck the world early in 2020, Chinese and
American leaders entered into a negotiation of sorts, but one with many
challenging characteristics. The outbreak of the pandemic asserted strong
pressure initially on Beijing and later on Washington to come up with a
response to this nontraditional security threat amid loss of life and economic
strength. It also took place under an intense spotlight of domestic pressure
and international scrutiny. As we have seen in previous case studies, face-­to-­
face discussion among diplomats meeting privately and seeking to identify
common interests and goals in a neutral setting with time to have multiple
rounds of discussion is the preferred setting for a multiparty international
negotiation. By contrast, discussion about how the United States and China
might work together to organize a global response to the pandemic took
place in the worst possible conditions. In person, quiet, face-­to-­face negotia-
tions were impossible in an era of travel bans and under a spotlight with the
whole world wondering how its superpowers would respond.
Moreover, the power dynamics between China and the United States cre-
ated a breeding ground for mistrust and mutual suspicion. For the world at
large, the coronavirus crisis could not have come at a worse time for getting
Beijing and Washington to work together. Brewing conflicts over trade, tech-
nology, economic espionage, human rights, rule of law, and global projec-
tion of economic, political, and military power had been ramping up since
Trump arrived in office. In trade negotiations, Trump heralded his success in
standing up to the Chinese, encouraging greater purchases of soybeans and
other agricultural products and tamping down on Chinese technology com-
panies’ access to U.S. and global markets where Chinese surveillance prac-
tices may violate rule of law standards. For its part, China’s rising power and
confidence under President Xi Jinping had made it more willing to stand up
to U.S. tactics and to use some elements of its rising global power to push
back. On the global stage and especially in the United Nations, China has
claimed that it has played by the rules of the international system . . . and
is winning. In this environment, many Chinese felt the United States was
trying to change the rules of the game once China learned them. From this
perspective, Chinese officials felt the Trump administration unfairly labeled
China a cheater, especially when the Trump administration found China’s
trade practices unfair and initiated new tariffs, bans on Chinese companies
like Huawei, and even threatened to limit access to the United States by
Chinese students. With actors on both sides of the Pacific eager to find
opportunities to blame the other and press advantage against a weakened
 Conclusion  163

adversary, any exploration of positions and interests to find mutual gain or

create value would be challenging.
To make matters worse, preexisting frameworks and established dialogues
where negotiators might have privately worked to find a global solution in
an atmosphere of trust had all been closed down. More than thirty thematic
bilateral dialogues between the United States and China had taken place
to flesh out details of the Bush and Obama administration relationships
with China under Hu Jintao. The dialogues were even organized under an
overarching framework known as the Strategic and Economic Dialogue. But
those dialogues were closed down during the Trump and Xi administrations,
replaced by trade wars and increasing political and military competition.
When contacts did occur, they were either summits between the two leaders
or cabinet-­level negotiations to resolve the trade tensions. Again, this left
little space for professional negotiators. In short, the status of the bilateral
relationship and underlying political dynamics into which the coronavirus
pandemic emerged created a difficult environment to get any negotiation off
the ground involving these two mutually suspicious powers.
As the pandemic spread and public pressure mounted, U.S. and Chi-
nese leaders traded increasingly confrontational public allegations of fault.
In January and early February 2020 when China and South Korea were the
main locations of the virus, Asia mostly battled the virus alone and its gov-
ernments took strong measures in response. The United Nations played a
limited role in organizing what could have been a more conducive environ-
ment for constructive negotiation, but the world mostly watched. In terms
of negotiation roles, the world outside the United States and China was an
interested observer but at most an indirect participant in the crisis. It seems
clear in retrospect that an opportunity for better U.S.-­China coordination
in better conditions was missed. As the disease spread to Europe in February
and the WHO declared a global pandemic on March 11, attention shifted
briefly to a global response. The United States and China worked together
for a short time in March, especially on issues of the global supply chain and
distribution of mostly Chinese-­made protective equipment and pharmaceu-
ticals. But without any party creating organizing principles or a framework
for talks on how assistance could be spread equitably around the world, the
competitive bilateral power dynamics and recriminations of recent trade and
technology wars quickly turned a possible global negotiation into a bilateral
free for all. U.S. attention became focused on getting a sufficient supply of
masks and medicines for its cities and major impacted areas, with little or
no attention to the global nature of the pandemic. China, as the manufac-
turer of most of the suddenly scarce medical supplies, had greater leverage
164  The Art of Getting More Back in Diplomacy

to organize a global discussion. But it also failed to use this leverage and
instead appears to have followed a transactional model of individual com-
panies distributing supplies for financial gain without broad consultation or
principles aimed at benefitting the global environment. As the disease spread
in the United States, public pressure and antagonistic rhetoric against China
mounted, especially coming from the White House and Secretary of State
Pompeo. Any opportunity for holding a constructive negotiation between
Beijing and Washington about how best to defend the international com-
munity from the common threat the virus posed to the health of all had
been lost.
By mid-­March, the United States was clear in blaming China for
causing the virus. President Trump frequently insulted China on Twit-
ter for its handling of the virus response, repeatedly labeling the disease
the “China virus.” Secretary of State Pompeo went so far as to destroy
consensus at the March 2020 G7 leaders’ summit on a statement of
global response because the United States insisted on labeling COVID-
­19 the “Wuhan virus,” which European, Canadian, and Japanese lead-
ers rejected. For its part, China’s “wolf warrior” spokesman at the for-
eign ministry, Zhao Lijian, suggested that it might have been the U.S.
army who brought COVID to Wuhan when it participated in military
sporting games there in 2019. On March 20, he told those who criticize
China’s handling of the virus to “stop wearing Chinese-­made masks and
protective gowns.” The uproar caused a rare public split between posi-
tions of Chinese diplomats, with China’s ambassador in Washington say-
ing in a televised interview that it is “crazy” to spread conspiracy theories
that the United States caused the coronavirus and rather acknowledging
that the virus regrettably originated in China. After failing to resolve
the dispute through a “war of words,” the United States took the dis-
pute to the United Nations, where the Trump administration criticized,
conditioned, and ultimately threatened to withdraw from participation
in and financial support of the World Health Organization, the global
body tasked with advising the world on pandemics and other emerging
health issues. The prospect of the two superpowers leading a multiparty
international negotiation to address the virus was essentially dead, along
with hundreds of thousands of COVID victims.
In this context, let us quickly review the primary tactics and strategies we
have discussed in this book and see how they might apply to the U.S.–­China
dynamic. As a negotiator, you are likely to get more back if you can success-
fully deploy the following tactics outlined in the previous chapters:
 Conclusion  165

• Explore Interests to Better Understand Your and Your Counter-

part’s Positions and Options
• Invent Options for Mutual Gain or Creating Value
• Test Positions Articulated by Counterpart for Seriousness and
Sincerity
• Be Nice While Disagreeing, Unless You Have a Good Reason to
be Nasty
• Avoid Leaving Money, or a Better Deal, on the Table
• Be Careful Not to Overplay Your Hand
• Avoid Falling for Typical Arguments, and Know When or When
Not to Deploy These Arguments around Wording
– We Know You Are Our Friend
– We Have No Such Word in Our Language
– Just a Little Streamlining/Updating
– Focus Internationally to Distract from Domestic Situation
– Credibility of Institution Requires It
– Know When to Obfuscate Using Lawyers or Experts
• Avoid Moving the Goal Posts
• Know When to Walk Away, and How to Get Back if You Do Walk
• Give Respect, Which Often Costs Nothing and Can Earn a Lot
• Negotiate Mostly in Private, Unless You Need to Use the Media
• Use Objective Criteria Rather than Dwelling on Difficult Rhetoric
• Understand Each Party’s Timeframe
• Understand Your Best and Worst Alternatives to a Negotiated
Agreement (BATNA and WATNA) and Learn How to Influence
Your Counterpart’s Perception of His BATNA and WATNA

Among these tools and tactics, we spent significant time thinking about
the BATNA and other alternatives that a negotiator will have. The sense of
whether or not the United States or China have alternatives to dealing with
each other is one of the more central issues in their ongoing power dynamic.
President Trump has frequently proposed that the United States does not
need China and can “go it alone” in the world, achieving its objectives
without interconnectedness to this second-­largest but rising global power.
President Trump may be trying to use negotiator tactics to press China to
reconsider its alternatives and offer concessions to the United States. Ini-
tially, this appears to have enjoyed some success, as China and President Xi
came forward with additional purchases and offered other concessions in
order to reach a Phase 1 trade deal on January 15, 2020. Pursuant to that
166  The Art of Getting More Back in Diplomacy

deal, China agreed to purchase $200 billion more of U.S. goods than it had
in 2017, encompassing four sectors (manufacturing, services, agriculture,
and energy). The discussion ended months of tariffs and recriminating trade
restrictions between the two countries ongoing since March 2018, when the
United States published findings that China was distorting trade under Sec-
tion 301 of the Trade Act and began taking retaliatory measures.
What would be the alternatives to an economically interconnected
China and the United States? If the U.S. threat of a trade war carried on to a
stronger conclusion, how would global growth suffer? Chinese manufactur-
ers need a U.S. market to sell their wares and U.S. consumers have become
accustomed to the low cost and broad range of options for consumer goods
that Chinese manufacturing affords. Some entire sectors of new and mod-
ern products—­including solar panels and, as the world realized during the
coronavirus, medical supplies and pharmaceuticals—­are produced almost
entirely and exclusively in China. Would each country truly decouple and
produce only for its own market? Not to mention how decoupling would
affect our increasingly interconnected online economy, where Chinese
restrictions on content and free expression in what it considers sensitive
areas like human rights, Taiwan, Hong Kong, and Xinjiang threaten to pro-
duce two different World Wide Webs of Internet information, one accessible
behind China’s great firewall and another one beyond. And how would the
United States respond if China called in the over $1 trillion in U.S. debt it
holds? Could a separate and isolated China survive U.S. threats to default
on such a large sum given the already shaky nature of its banking system?
But unlike other adversaries who have sometimes been cowed or intimi-
dated by threatening efforts to change their view of alternatives, China has
a long-­term view of its alternatives, or its own BATNA. As a rising power,
with a huge population of low-­cost labor, China’s timeline is vastly differ-
ent from that of the United States. It has viewed itself able to wait out the
United States, and specifically wait for President Trump’s first term to end,
because of this rising power, elements of which include economic, military,
and diplomatic strength.
The majority of this book’s focus on multiparty international nego-
tiations has emphasized that bullying tactics of a businessman-­ turned-­
international negotiator may not work because of the need to come back to
the same international participants time and again. But the other context in
which bullying tactics may also suffer is when a negotiating adversary has
the strength and long-­term time horizon to wait and outlast bullying tactics.
This may be the case with the U.S.-­China relationship in 2020.
Second, we have seen the importance of analyzing your own country’s
 Conclusion  167

or client’s positions within a negotiation. Are you among the most directly
interested parties, indispensable to a resolution of the agreement? Or, such
as China in the Six-­Party Talks on North Korea, or Egypt in the Libyan con-
flict, are you an interested party who can use tactics such as hosting, mediat-
ing, or even political and military pressure to gain what you want without
participating in every part of the negotiation? Can you use other players
in the negotiation as proxies—­as all sides did in Libya’s postindependence
struggle—­or should you get more involved as a mediator or guarantor of a
certain outcome? And are parties in a negotiation sometimes preforming
just for the purposes of the observer or the media—­as with Israeli and Pales-
tinian negotiators during the efforts to implement the Oslo Accords? When
you are not representing one of the most directly involved parties, we dis-
cussed how a party can still gain leverage and influence by acting as a host,
mediator, or guarantor of the behavior of other parties. Hosts and mediators
often wield outsized influence by controlling the agenda for talks, regulat-
ing the pace and setting of ice-­breakers and informal negotiations, and by
holding the pen for documenting outcomes and agreements. We saw how
convening power carries with it not only benefits but also expectations, and
observed how a host can also be blamed for the breakdown of negotiations,
even though the host often lacks control of all elements that caused the talks
to fail. Most of the tools a host or other mediator can use remain available
with the recent shift to online negotiations, although in-­person meetings
remain a preferable format for addressing multiparty political disputes and
ensuring that all viewpoints, emotions, and interests relevant to resolving
such disputes are thoroughly aired before crafting an agreement.
For the United States and China today, much of their conflict is bilat-
eral. But the process by which they address the coronavirus crisis or other
global issues is a form of multiparty international political negotiation. In
the discussion of how to address coronavirus, the United States and China
are both direct participants, as each is clearly a country strongly impacted
by the virus, albeit on different time scales with China facing the first major
outbreak and the United States among the most impacted beginning in the
summer of 2020. In responding to the crisis—­such as with the provision of
drugs, protective equipment, and a potential vaccine—­both are also directly
and closely involved. Beijing and Washington could play important addi-
tional roles as facilitators, conveners, and hosts of an international process
to guide and direct a global response to the pandemic. But largely because
of their bilateral conflict and the hardline negotiating styles and attitudes
learned as a result of their trade war, they have so far chosen not to play a
constructive role in leading or shaping a global response to coronavirus. And
168  The Art of Getting More Back in Diplomacy

at least the United States has chosen to weaken international institutions,

like the WHO, which might have stepped up to lead a global response in
the absence of leadership from Beijing and Washington. In this way, both
power dynamics and domestic politics have prevented the consensus neces-
sary for a multiparty international negotiation to take place and become
mature enough to help resolve the coronavirus crisis. If an international
negotiation to address COVID does take place in the future, using the lenses
of negotiation theory and power may help us understand the changes that
facilitate such a discussion. The power-­based perceptions of both China and
the United States with respect to their alternatives and options in what, up
to 2020, had been an increasingly interconnected world, will also play a key
role in shaping how they decide to respond.
Third, we discussed the importance of having broad support for one’s
positions in multiparty negotiations, especially in the formation of cross-­
regional “core groups.” We saw how states in the UN often follow their
regional group, unless one state breaks consensus, after which each state
must make its own judgement. For example, Ghana broke consensus of the
African Group in 2015 and called for criticism of Burundi’s human rights
when its president sought an unconstitutional third term in office. This will-
ingness to criticize a fellow African country opened the door for each coun-
try to make its own assessment, rather than the African group reflexively
defending Burundi’s actions. We also saw how states often make mistakes
when they do not try to bring other participants into a negotiation and “go
it alone” based on parochial concerns. This could be true in the Trumpian
approach to North Korea or in Germany and Brazil’s excessive focus on
digital privacy and the perceived political slight caused when “Five Eyes”
countries intercepted their leaders’ communications, rather than following
their national interests to find a balance between counterterror, privacy, free
expression, and human rights concerns. Sometimes leading from behind is
also the most powerful approach in international multiparty negotiations.
Rather than having a large country or former colonial power take the lead
as a public champion of a critical position, it can be much more effective
for those within the region or from the developing world to lead efforts to
resolve an issue. U.S. negotiators could have been more successful by tak-
ing a backseat in the effort to encourage Latin American states to take the
lead on LGBTI rights, or in a modern example, to let Latin America lead
in the handling of the Maduro regime in Venezuela, rather than having the
United States as the public face of such efforts. Leading from behind takes
confidence and a belief that getting a good outcome is more important than
getting public credit for the outcome.
 Conclusion  169

For the U.S.-­China competition in the decade of the 2020s, power

dynamics and absence of those preconditions makes working through
others or leading from behind more challenging. The two countries have
become very outspoken and competitive with one another on most global
questions, making it a challenge for international institutions or regional
powers to lead in problem solving if Washington and Beijing do not take
part. But both states do have allies, proxies, and partners that can help to
advance their points of view in a global discussion, even if not in a formal
negotiation. In the United States, those allies have traditionally included
the free market and democratic states of Europe, Canada, Mexico, Japan,
South Korea, and Australia. China’s allies have traditionally included other
states with a similar worldview historically embedded in communism. More
recently, however, the worldview China takes with its allies has coalesced
around common interests in calling for “noninterference in internal affairs.”
This has given China a broader, more diverse group of authoritarian-­leaning
allies and proxies with like-­minded views including Russia and Pakistan,
plus others like Iran, Egypt, Tanzania, Burundi, Venezuela, and Sri Lanka.
China’s growing wealth has also changed its economic rhetoric in a decid-
edly non-­Marxist direction. Traditionally, Beijing sought to lead the interna-
tional coalition of developing states known as the G77 in efforts to demand
greater wealth and assistance to the developing world. But China’s growth
and need for markets and natural resources has shifted its economic part-
nerships. Programs like its Belt and Road Initiative seek to weave networks
of economic interdependence with potential partners beginning in China’s
Central and Southeast Asian neighbors and extending into Africa, the Indian
subcontinent, and even Europe.
In the domain of economics and power, the United States and China
have already deployed proxies and allies in their competition over 5G tech-
nology, and in particular, the Chinese company Huawei’s role in developing
5G networks. The United States has consistently, and often successfully, per-
suaded traditional allies to ban Huawei and other Chinese-­produced com-
ponents from modern telecommunications systems in the name of national
security.1 The United States and its allies see a risk that sensitive information,
including intellectual property and political information, might be taken by
China through these Huawei-­produced components and used to benefit the
1.  See Lindsay Maizland and Andrew Chatzky. August 6, 2020. “Huawei: China’s Contro-
versial Tech Giant.” CFR Backgrounder. Council on Foreign Relations. https://www.cfr.org/
backgrounder/huawei-chinas-controversial-tech-giant; Justin Sherman. August 12, 2020. “Is
the U.S. Winning Its Campaign Against Huawei?” Lawfare. https://www.lawfareblog.com/
us-winning-its-campaign-against-huawei
170  The Art of Getting More Back in Diplomacy

Chinese state and the Communist Party. India, Singapore, and some others
have also been persuaded of these risks and blocked Huawei-­made com-
ponents, albeit in more of a unilateral action than as part of a negotiation.
China, for its part, is waging an aggressive campaign in support of Hua-
wei, which has persuaded Russia, Hungary, Thailand, and the Philippines,
among others, to use Huawei components. China has expressed frustration
that Huawei is “playing by the rules of free market competition,” and that
Huawei is winning by providing quality components at lower prices. But
experts say Huawei bids are sometimes so far below market rates—­as in the
Netherlands—­that they are only possible due to Chinese government sub-
sidies.2 In both Washington and Beijing, the intensity of their competition
has led both to lead from the front, rather than from behind. Most allies and
potential proxies on either side are playing a secondary role as customers,
although the U.S. campaign against Huawei technology has more recently
led some NATO allies of the United States to publicly condemn Huawei as
a security threat.
Fourth, we analyzed negotiations where words are the currency of a
negotiation, as when the outcome is a resolution in the United Nations. In
such negotiations, wording may allow significant opportunity for creative
thinking. In such negotiations, the true interests of the parties can be less
evident than in a peace negotiation or an agreement over military forces or
arms control. Thus in negotiations over wording it is important to penetrate
beyond the articulated positions of the parties and press to comprehend
underlying interests. By so doing, numerous opportunities for creative win-­
win solutions can be found. For example, did certain African and Middle
Eastern states have an unchangeable cultural objection to the support for
LGBTI rights? Alternatively, could all parties agree that violence and attacks
against any citizen, gay or straight, are unacceptable?
In discussing negotiations over wording, we have also analyzed when it is
important that words convey stark meaning of condemnation—­to highlight
brutal practices, such as war crimes or mass atrocities in Burundi, South
Sudan, and Syria, for example. Similarly, we found that when talking about
delicate subjects—­like the security services’ responsibility for human rights
abuses in Sudan—­it might be necessary to address the cause and responsibil-
ity for violations in reference to other documents in order to find an agree-
ment. Slogans and catch phrases can also sometimes take on larger-­than-­life
meaning. The idea that citizens in the digital age “should enjoy the same
rights online that they have offline,” for example, was deployed to hoist the

2.  See Maizland and Chatzky.

 Conclusion  171

United States on its own petard in discussions of the right to privacy in the
digital age. Further, in other negotiations in the UN Human Rights Coun-
cil, we also observed how the responsibility of being members of the UN’s
foremost body to promote and protect human rights motivated states that
might not be thought of as progressive to speak out in favor of the rights of
other citizens and victims. Examples I witnessed of African diplomats from
Ghana, Somalia, Ethiopia, and non-­African El Salvador taking such stands
were especially compelling. States can sometimes be motivated by the call
that the “credibility of the institution” requires action, particularly action
that protects the rights and lives of innocent civilians.
Neither China nor the United States appears to be deploying these tac-
tics in their negotiations over dominance of global institutions and stan-
dards. President Trump’s Twitter feed, Secretary of State Pompeo’s public
pronouncements, and the “Wolf Warrior” tone of Chinese public diplomacy
have left little space for such nuanced uses of language. These tactics remain
more appropriately deployed in technical negotiations over contracts, agree-
ments, and UN resolutions.
Fifth, we looked at several examples of best and worst practices to inform
your negotiating style. In addition to providing tools for the toolkit, these
offered illustrations of what not to do. For example, American negotiators
handling human rights with China knew that the Chinese preferred private
discussion of human rights challenges to the kind of Twitter diplomacy more
popular today. In negotiating over the release of human rights prisoners,
Americans learned the hard way not to overplay their hands and the costs of
making China feel inured to public criticism. We also looked at cases where
negotiators accepted stated positions of their counterparts without putting
them to the test. In the context of the UN Human Rights Council, this may
have meant that action on LGBTI rights was delayed longer than necessary
because of the desire of some leaders of the developing world to maintain
regional or political solidarity.
Sixth, we have looked at several case studies that refine the concepts of
BATNA and WATNA. I believe this tool is so powerful that its deployment
should not just be limited to negotiations, but that it can be used to help
analyze and improve conflict prevention in a range of potential political
crises and scenarios. When a dictator is considering unleashing atrocity on
his own people—­as in South Sudan or Burundi, for example—­making clear
to him the consequences and alternatives to his action can be essential in
preventing such a horror. Similarly, it is sometimes necessary to offer a nego-
tiating counterpart an off-­ramp to strike a deal. Thus we saw that deploying
respect in the real world of diplomacy is almost always a cost-­free way to cre-
172  The Art of Getting More Back in Diplomacy

ate value and find win-­win solutions. Using the BATNA/WATNA calcula-
tion can help to sharpen the choices not only for a dictator but also for those
parties seeking to prevent violent behavior. Is it truly the best alternative to
acquiesce to a campaign of murder like Asad waged in Syria—­especially if
you factor in the human cost of sustained internal conflict and the post-
conflict cost of dealing with a rogue state like Syria that now believes it can
survive any conflict or pressure placed on it from the outside world?
Finally, former President Trump has come in for particularly close scru-
tiny of the strengths and weaknesses of his CEO approach to negotiation,
stereotyped by the Art of the Deal. President Trump’s approach shows how
to deploy many tactics of a good negotiator: don’t leave money on the table,
never be afraid to walk away, test the position of your counterpart. But the
weakness of such a zero-­sum approach has also been demonstrated, and in
particular how destructive it can be in the domain of international multi-
party negotiations. We highlighted how, in a recurring context of multiparty
negotiations, a party cannot afford sharp tactics aimed at short-­term gain
because one will have to come back to the same parties time and again for
future negotiations. Unlike a real estate deal, the costs of brinksmanship are
just too high, as they threaten not only the outcome of the deal at hand but
the relationships and systems that are important for reaching agreement on
the next deal and future topics that may be far more significant than the
issue at hand. As the United States struggles with the aftermath of Trump’s
decision to walk away from a partial deal at the Hanoi Summit with North
Korean leader Kim Jong Un, will we find a path that makes the region and
the world safer? Or will we continue to face the greatest nuclear threat to the
world since the Cuban Missile Crisis as a result of the mercurial personalities
who one day exchange “love letters” and engage in summitry, but the next
day threaten rhetoric that could engulf the world’s most prosperous region
in a nuclear conflict?
Negotiations are a chance to have a unique view into the domain of
foreign policy where power is exercised. My experience has been that nego-
tiation theory and the quest by a good negotiator to find win-­win solutions
leads a diplomat to consider all sources of power and all issues of interest
to his counterpart or counterparts. Sometimes these are obvious sources of
hard power, such as the military resources at issue on the Korean Peninsula.
But in many cases a counterpart has multiple interests, some of which are
easier for a superpower like the United States to satisfy than for many other
actors in the international arena. To do so, it requires deftly using the dif-
ferent negotiating styles, tools, and positions in a multiparty negotiation.
And often good negotiation requires using the tools of soft power. For the
 Conclusion  173

United States, it has often gained benefit, and sometimes increased its own
soft power, through the use of such tools in negotiation. Giving a counter-
part respect or prestige, offering to host a meeting in the United States, tak-
ing advantage of the cultural popularity of U.S. music and cinema, offering
trade access to popularize Coca-­Cola or Levis, or even giving the credibility
that comes with a meeting with the leader of the free world are all tools of
diplomacy uniquely available to the United States and American negotia-
tors. Unfortunately, my concern is that the Trump administration too often
disregarded these soft power benefits for the win-­lose viewpoint embodied
in The Art of the Deal. Far from making America great again, this short-­
sighted negotiation style may be accelerating American decline. By unneces-
sarily pressing the advantage and turning allies into enemies, this style has
given competitors like a rising China the upper hand across the world, be it
in soft power, political relationships, or even in President Trump’s supposed
specialty of commerce and trade negotiations.
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U.S. Concessions on Denuclearization.” NK News. March 14.
Index

accountability, 37, 75n1, 135, 137 Best Alternative to a Negotiated Agree-

See also Commission of Inquiry; ment. See BATNA
International Criminal Court Biegun, Stephen (U.S. Special Repre-
African Group, 60, 76, 80, 84, 134, sentative for North Korea Policy),
136–­37, 168 148–­49, 155, 158–­59
See also United Nations: regional Bodde, Peter (U.S. Ambassador to
groups Libya), 18
African Union (AU), 32, 75, 124, 134–­ Bolton, John (U.S. National Security
35 Adviser), 21, 34
Albania, 62–­63, 135–­36, 138 Bolsinaro, Jair (Brazilian President), 64
al-­Bashir, Omar (former Sudanese ruler), Booth, Donald (U.S. Special Envoy for
22, 75–­76, 85 Sudan and South Sudan), 83,
Albright, Madeleine (U.S. Secretary of 135
State), 26, 106, 150 Bosworth, Stephen (U.S. Special Repre-
Algeria, 117, 123, 125, 137 sentative for North Korea Policy),
The Art of the Deal, 1, 7, 172–­73 18, 38
Atrocities Prevention Board, 138 Botswana, 60, 62, 136
atrocity prevention, 133, 136–­39, 142, Brazil, 6, 58, 60–­64, 66–­72, 168
170–­71 Burundi, 133, 138–­42, 168–­71
hate speech as an element, 139
See also Atrocities Prevention Board Cheney, Richard “Dick” (U.S. Vice
Australia, 62, 69, 70, 135, 139, 169 President), 38–­39, 48
China, 1, 2, 9, 67–­68, 89–­96, 102, 155,
BATNA (Best Alternative to a Negoti- 161–­73
ated Agreement), 7, 14–­15, 130, BRICS grouping, 60–­62, 70–72
144–­45, 165–­66, 171–­72 conflict with the United States,
Libyan General Khalifa Haftar, 52 25n11, 37, 96, 161–­171, 173
North Korea (DPRK), 35, 41, 46–­47, human rights negotiations with
145–­47, 158 United States, 5, 19–­20, 87–­96
Sudan, 78–­79 like-­minded group (LMG) member-
Benghazi, 56, 119, 122–­23, 125, 129 ship, 20–­61

183
184  Index

China (continued) coronavirus, 129–­30, 162, 163, 164,

negotiating tactics, 30, 130, 165, 167, 166, 167–­68
171 See also COVID-­19
North Korea (DPRK), 9, 41–­42, 102, COVID-­19, 25n10, 113, 129, 162,
105–­8, 148, 167 164, 168
guarantor for, 45, 102, 145 See also coronavirus
host of Six Party Talks, 37, 102, Cuba, 20, 58n1, 60n5, 62n7, 62n8
107, 113–­17, 130, 167 See also Cuban Missile Crisis
prisoner releases 89–­96 Cuban Missile Crisis, 9, 172
Rebiya Kadeer, 89–­93 CVID (complete, verifiable, irreversible
Xu Wenli, 89 dismantlement) of North Korea’s
Wang Youcai, 89 nuclear programs, 39n6, 48
SOGI resolutions, 58, 61–­63 “complete denuclearization” (of the
2004 negotiations in UN Commis- Korean Peninsula), 148–­49, 152–­
sion on Human Rights, 20, 53
89–­93 complete, verifiable, irreversible disman-
win-­win cooperation, 16, 95 tlement of North Korea’s nuclear
Choe Son-­Hui (DPRK nuclear negotia- programs. See CVID (complete,
tor), 23, 154, 156 verifiable, irreversible dismantle-
Clinton, Hillary (U.S. Secretary of ment) of North Korea’s nuclear
State), 25, 55, 138 programs
Clinton, Bill (William Jefferson, U.S.
President), 105–­6, 113, 150 Dalai Lama, 19, 94–­95
convening power, 56, 103, 107, 111–­16, direct participants, 3, 4, 7, 25, 70, 99–­
124–­31, 136, 167 106, 108, 111, 118, 167
COVID, 129–­31 domestic interests, 17, 18, 20, 22, 28,
empower proxies, 126–­28 55n4
focused on own interests, 128–­29 impact on Africa negotiations, 28, 76,
core group, 21, 70–­72, 133, 135–­38, 83, 86
140 impact on China-­US negotiations,
Brazil, 60–­61 90, 162, 168
cross-­regional, 67–­69, 71, 133, 138, impact on DPRK negotiations, 42,
168 48–­9, 107–­8
definition, 31n1 impact on Libya, 56, 126
Internet freedom, 67–­68, 70, 73 domestic politics, 76, 168
privacy, 70–­72, 73 domestic pressures, 83, 90, 162
SOGI, 60–­61 Donahoe, Eileen (U.S. Ambassador to
South Sudan, 21, 135–­38 HRC), 67, 70
Turkey, 31, 31n1
United States, 31, 31n1 Eastern European Group (EEG), 71, 135
See also negotiation tactics; resolution See also United Nations: regional
sponsor groups
Commission of Inquiry (COI), 59n3 Egypt, 29–­30, 67, 103–­4, 137
African Union COI, 134–­36 Libya, 4, 102, 117–­21, 125–­28, 167
HRC Commission on Human Rights in Like Minded Group, 20, 169
in South Sudan, 136, 137–­38 on Sudan, 84
 Index  185

Eritrea, 6, 62n8, 84 human rights

Ethiopia, 6, 31, 60n5, 171 Burundi, 139–­141, 168
European Union (EU), 2, 8, 70, 75, 84, China, 5, 9, 18–­20, 87–­96, 162, 166,
85, 95n12, 140, 164 171
Libya, 102, 117, 122, 124–­25 defenders, 29
South Sudan, 135–­36 international standards and experts,
16, 58, 59n3, 63, 168
Fisher, Roger: Getting to Yes, 6, 13, 32, negotiations, 23, 28, 31–­3, 80, 84,
35, 44, 77n2 171
France, 15, 58n1, 60n5 See also negotiation tactics
in Libya, 51, 56, 102, 118, 122–­24 online, 65–­66, 69, 72
Franklin, Benjamin, 15 South Sudan, 134–­37
Sudan, 8, 17–­18, 46, 75–­85, 170
gay rights, 59, 60, 64 Human Rights Council. See UN Human
Germany, 51, 66, 69–­71, 139, 168 Rights Council
Getting More Back, 1–­3, 8, 10, 78, 99, Hungary, 139, 170
161, 164
Ghana, 137, 140–­42, 168, 171 IAEA. See International Atomic Energy
giving up too much, 62, 184, 144, 152 Association
Government of National Accord (GNA) independent experts, 6, 17, 28, 59n3,
of Libya, 51, 53–­56, 102, 117–­20, 63–­4, 75, 78, 82n4, 83, 140, 142
122–­23, 128–­29 India, 60–­63, 70, 169–­70
Group of Latin American and Caribbean indirect participants, 4, 7, 99–­109, 111–­
States. See GRULAC 12, 118, 122, 128, 161, 163
GRULAC (Group of Latin American definition of, 3, 99–­100, 102
and Caribbean States), 70, 135, See also indirect parties; indirect
141, 142n6 role
See also United Nations: regional indirect parties, 112, 128, 145, 161
groups indirect role, 104, 108
guarantors, 3–­4, 7, 99–­102, 104, 107–­ interest-­based negotiations, 28, 35, 40–­
8, 111–­12, 118–­22, 126, 146, 161, 41, 44–­45, 79, 120, 165
167 common interests, 6, 162, 169–­70
competing and divergent interests, 84,
Hanoi Summit (Kim-­Trump), 21, 143, 109, 120, 128
146–­49, 151–­54, 156–­59, 172 interests as related to negotiation role,
Haftar, Khalifa (Libyan general), 51–­57, 7, 88, 99–­102, 106–­9, 114, 118,
102, 118–­22, 125–­28 121–­23, 138, 151
clarity on BATNA, 52, 55 International Atomic Energy Association
restraint and co-­option as a negotia- (IAEA), 37, 39, 109
tion tool, 33, 52–­57 International Criminal Court, 59, 75
relations with foreign powers, 54–­55, Internet freedom, 31n1, 39, 65–­70,
121–­22, 125–­28 72–­73
Hill, Christopher (U.S. Ambassador and development of Internet, 67
North Korea Special Envoy), 18, Internet governance, 65, 68
38–­39, 42, 45, 47, 49–­50, 109 See also human rights: online; Internet
HRC. See UN Human Rights Council regulation
186  Index

Internet regulation, 66, 68 Like Minded Group, 20, 169

Iran, 9, 24–­25, 25n10, 34, 38, 44, 116, logical strongmen, 7, 51, 56
145, 169
Israel, 3, 9, 24, 42, 102–­5, 130, 167 Maldives, 31, 136
Italy, 51, 102, 118, 122–­26, 128 maximum pressure, 38, 146, 148, 151
media, use in negotiations, 8, 49, 81,
Japan, 70, 102, 135, 156, 158, 164, 169 92, 165, 167
Six-­Party Talks on North Korea, 3, mediators, 4
36–­37, 41–­42, 48, 102, 105, Merkel, Angela (German Chancellor), 70
107–­9, 114–­14 Mexico, 70, 135, 141, 169
Montenegro, 60n5, 135
Kadeer, Rebiya, 89–­93
Kelly, James A. (U.S. North Korea nego- NATO, 8, 170
tiator), 38, 48, 146 negotiation tactics, 5, 13, 18, 28–­33,
Kerry, John (U.S. Secretary of State), 55 82–­83, 99, 165, 167, 172
Kim Jong-­Il, 42, 44, 106n9, 150 asking too little, 57
Kim Jong-­Un (DPRK leader), 23, 117, being friendly, 30, 165
154–­57 bullying tactics, 1–­2, 4, 8–­10, 31,
family regime, 42, 44, 46, 50, 157 166, 172
Hanoi summit, 21, 72, 143, 147–­48, controlling the pen, 23, 71, 112,
151–­54, 172 167
Singapore summit, 144, 150–­51 empowering and working through
Trump meetings/negotiations, 9–­10, partners, 7, 21, 68, 133, 142,
18, 102, 147–­51 151–­52, 154–­55, 169
Kim Kye-­Gwan (DPRK nuclear negotia- expanding ownership and sup-
tor), 40n8, 47 porting specialization with a
Kosovo, 26 cross-­regional core group, 31n1,
67–­68, 71, 133, 138
leading from behind, 168, 169, 170 See also core group
empowering others, 7, 21, 133, 135, keep them talking, 33
138 lawyer it up, 32, 165
LGBTI rights, 6, 59, 60, 61, 73, 170 moving the goal posts, 7, 18–­20, 83,
See also gay rights; SOGI (Sexual Ori- 90, 92
entation and Gender Identity) negotiations about wording, 17, 27–­
Libya, 1, 7, 18–­19, 34, 51–­56, 121–­129 30, 77, 82, 165, 170
Egypt’s role in, 4, 121–­29 See also Sudan: characterizing facts
Misrata’s role in, 56, 119, 120, 122, or fault
127 online tactics, 131
Muslim Brotherhood, 51, 119–­122 preparation, 21–­22
pawn in proxy war, 4, 101 102, 117, test positions articulated, 5–­6, 57, 62,
120–­24, 125–­29 165, 171–­72
UN role, 112, 118–­19, 124–­29 toolkit of negotiation tactics, 13, 21,
Libya External Office, U.S. State 25, 27–­34, 161, 165
Department, 18, 19, 129 updating and streamlining, 29, 165
Libyan National Army (LNA), 52, 53, 56, walking away, 2, 7, 33–­34, 47, 79–­
102, 119, 120, 121, 126, 128, 129 80, 104, 159, 161–­62, 165, 172
 Index  187

walking out of Hanoi summit, 144–­ note taker, 23–­24

49, 153–­55, 157–­58 observer of other delegations, 24
Netherlands, 139, 170 writer/lawyer, 23–­24
neutrality, 4, 112, 118, 123, 124, 139 Roussef, Dilma (Brazilian President), 70
neutral or objective criteria, 28, 32 Russia, 9, 10, 20, 26, 169
neutral setting, 162 BRICS 60, 62, 70, 72
New Zealand, 69, 70n6, 135 in DPRK, 37, 39, 41, 45, 102, 105,
North Atlantic Treaty Organization. See 107–­8, 114, 145, 148, 154–­55
NATO in Libya, 119, 125
North Macedonia, 135 Rwanda, 31, 139
Norway, 70, 84, 102, 103, 111, 135
Sarraj, Fayez (Libyan GNA leader), 51,
observers, 3, 4, 7, 99–­102, 103–­5, 111, 54–­56, 118–­19, 121, 125–­27,
123, 161, 167 128–­29
disinterested, 76, 109 Saudi Arabia, 37, 39, 41, 45, 101,
interested, 163 103n7, 117, 121
states of the HRC, 146 Sexual Orientation and Gender Identity.
See also direct participants; indirect See SOGI
participants; mediators Singapore Summit (Kim-­Trump), 102,
Oslo Accords, 3, 84, 102, 103, 104, 167 144, 148–­49, 150–­52, 154–­55,
overreaching, 5, 77–­79, 85, 89 158, 170
Six Party Talks (6PT), 23, 33, 35–­38,
Page, Susan (U.S. Ambassador to South 40, 102, 105–­9, 112, 130, 147
Sudan), 135 case study of benefits of hosting, 102,
Palestinian Authority, 3, 9, 102, 104–­5, 107, 113–­16, 167
130, 167 See also North Korea: host of Six Party
Paraguay, 135, 136, 138 Talks
Perriello, Tom (U.S. Special Envoy for Snowden, Edward, 66, 69
Africa Great Lakes Region), 83 SOGI (Sexual Orientation and Gender
Powell, Colin (U.S. Secretary of State), Identity), 14, 57–­59, 61–­63, 170
38, 39 See also gay rights; LGBTI rights
privacy in the digital age, 21, 66, 69, South Sudan, 21 83, 134–­38, 140,
70–­72, 73, 170–­71 170–­71
See also privacy rights; right to privacy negotiation of 2016 HRC resolution,
privacy rights, 66, 73 135–­37
Putin, Vladimir, 125 See also atrocity prevention
special procedures, 58, 59, 59n3, 95,
Qatar, 102, 117–­22, 128 135
See also independent experts; Special
resolution sponsor, 78 Rapporteur; UN Human Rights
Rice, Condoleezza (U.S. Secretary of Council: special procedures
State), 20n7, 24, 25n11, 39, 45, Special Rapporteur, 59n3, 66, 75, 89,
49n13, 92, 104, 153 94, 103n7
right to privacy, 66, 69, 71, 72, 73, 171 See also UN Human Rights Council:
roles on a negotiation team, 22–­25 special rapporteur
head of delegation, 22–­25 Spoilers, 100, 103–­5, 108–­9, 120, 126
188  Index

Stevens, J. Christopher (U.S. Ambassa- Item 3, 59

dor to Libya), 123, 125 Item 4, 59, 75–­80, 136–­37 (see also
Sudan, 8, 17, 75–­85, 123, 136, 170 special rapporteurs)
characterizing facts or fault 17, 77, Item 10, 59, 75–­80, 136–­37 (see also
82 independent experts)
Sweden, 31, 67–­68, 158 See also technical assistance
Switzerland, 70, 111, 135 special procedures, 58, 59, 95, 135
Syria, 31, 33, 42, 170, 172 defined, 59n3
special rapporteurs, 66, 75, 89, 94,
technical assistance, 59n3, 75, 77, 78, 103n7
80, 136 special session, 133, 138, 140–­42
time frame/time horizons, 2, 8, 17, 19, US withdrawal from under Trump
33, 45, 54, 55n4, 157, 165–­66 Administration, 31, 68
Tunisia, 30–­31, 62–­63, 67–­68, 117, UNICEF (UN Children’s Education
123–­25, 128 Fund), 134, 136
Turkey, 31, 67, 102, 117–­19, 122, 128, United Arab Emirates (UAE), 101, 102,
139 117, 118, 120, 121, 125–­28
Trump, Donald, 34, 38, 49n15, 50–­51, United Kingdom of Great Britain and
55, 102, 116, 163–­66 Northern Ireland (UK), 56, 84,
DPRK summits, 5, 9–­10, 18–­19, 21, 135, 138
102, 112, 143–­52, 154 Libya, 122–­23, 125, 128
Europe/NATO defense talks, 8 privacy in the digital age, 69–­73
Libya, 54, 120, 126 voting behavior in United Nations,
negotiating style, 5, 9–­10, 18–­19, 21, 58, 60, 62
102, 112, 143, 152, 154 war with U.S. colonies, 15
See also The Art of the Deal United Nations
trust, 14n2, 30–­31, 35, 45, 54, 100, regional groups, 20, 32, 67, 70, 71,
109, 157, 162–­63 124, 133, 168
UN Security Council, 59n3, 146, 148,
Uighurs, 20, 89, 90, 92–­93, 95–­96 154
UN Commission on Human Rights Ury, William: Getting to Yes, 6, 13, 32,
(CHR), 20, 87–­94 35, 44, 77n2
UNESCO (United Nations Educational,
Scientific and Cultural Organiza- Venezuela, 168–­69
tion), 65
UN General Assembly (UNGA), 63, 66, WATNA (Worst Alternative to a Negoti-
71–­73, 140 ated Agreement), 15, 41, 79, 147,
UN Human Rights Council, 6, 8, 16, 155–­58, 165, 171–­72
18, 29, 29, 31–­32, 57–­63, 65–­73, WEOG (Western European and Others
75–­85, 133–­42, 171 Group), 70, 95
credibility, 32, 94, 135–­35, 137, 165, See also United Nations: regional
171 groups
independent experts, 6, 17, 28, 63–­ Western European and Others Group.
64, 75, 78, 82n4, 83, 140, 142 See WEOG
Item 2 (of HRC agenda), 59, 136–­ win-­lose negotiations, 2, 173
37 See also distributive negotiations
 Index  189

win-­win negotiations World Health Organization (WHO),

creating options for mutual gain, 164, 168
2–­3, 6, 9, 13, 15–­6, 45, 170, Worst Alternative to a Negotiated Agree-
172 ment. See WATNA
failure of logic, 50 Wu Dawei (Chinese VFM), 47, 115
use by Xi Jinping, 16, 95
with China, 90, 94–­96 Wang Youcai, 89
with North Korea, 37–­41, 44–­45,
149, 158 Xi Jinping (Chinese President), 10, 16,
with Palestinians, 103 95, 162–­65
with Sudan, 79–­80, 82 Xinjiang, 89, 90, 93, 95, 96, 166
See also integrative negotiations Xinjiang Uighur Autonomous Region,
Winer, Jonathan (U.S. Special Envoy for 89
Libya), 18, 54–­55 Xu Wenli, 89