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Negotiating with biases: how culture and human rights variables alter the negotiation framework with North Korea

2009; Taylor & Francis; Volume: 21; Issue: 2 Linguagem: Inglês

10.1080/10163270902913970

1941-4641

Jasper Kim,

Korean Peninsula Historical and Political Studies

Abstract This paper examines the cultural and human rights gaps in understanding that have impeded negotiations with North Korea due to culturally based negotiation biases within the context of East–West cross-border negotiations—a term the author refers to as a “barbarian bias”—that is linked to the human rights issue, as promulgated in such examples as the North Korean Human Rights Act (the Act). While the Act represented a good faith effort to improve the internal human rights conditions of North Korea, the foreseeable net effect of such legislation was the DPRK's reinforced notion of a hostile international community against it, led most notably, in North Korea's view, by the United States. In effect, North Korea holds the view that human rights may vary depending on culture (i.e. a view based on the theory of “cultural relativism” rather than “universalism”). Perhaps for this reason, North Korea's past negotiation behavior reflects the belief that the implementation of the human rights issue through offshore legislation, vis-à-vis the North Korean Human Rights Act, into its domestic framework is one variant of a “barbarian bias” in which the DPRK, in its own subjective view, is being unilaterally told (rather than asked through mutual cooperation), how and to what degree, human rights issues should be treated in its own sovereign territory. Such human rights and culturally based variables represent a notable impediment as they relate to negotiations with North Korea, which has not fully been considered in the relevant literature. Acknowledgements This work was supported by an Ewha Womans University Research Grant. Notes 1. One of the more referred to examples of such post-Korean War U.S.–DPRK tensions occurred on January 23, 1968. At that time, four North Korean gunboats and two MiG jet fighters attacked and captured the U.S. ship USS Pueblo near Wonsan, a few miles off the Korean peninsula. The Pueblo was accused of spy operations in the East Sea relating to DPRK activity, and was based in Yokosuka, Japan. The capture of the Pueblo by North Korea exemplifies the apparently tense nature of its relations and military operations relating to the United States. In addition, other less-publicized DPRK attempts to intercept U.S. spy planes have been cited since the 1968 Pueblo incident. 2. The armistice was signed on July 27, 1953. Military commanders from China and North Korea signed the agreement on one side, with the U.S.-led United Nations Command signing on behalf of the international community. South Korea was not a signatory. The armistice was only intended as a temporary measure. Major components of the armistice include (i) a suspension of open hostilities; (ii) a 2.4 mile demilitarized zone (“DMZ” zone); and (iii) a procedure for the transfer of prisoners of war. 3. The Act was affirmed and amended by the passage of the North Korean Human Rights Reauthorization Act (HR 5834), “to promote respect for the fundamental human rights of North Korea, and for other purposes.” HR 4011 (full text) http://www.northkoreanrefugees.com/hr4011.pdf. 4. The Clinton administration (1993–2000), unlike the George W. Bush administration, entered into bilateral talks with North Korea. The 1994 Agreed Framework, which was in part a result of such bilateral talks, also could not have happened without the DPRK leadership also endorsing such bilateral dialogue. Robert Scalapino, North Korea at a Crossroads (Stanford, CA: Hoover Institution on War, Revolution and Peace, Stanford University, 1997), 16–18; Younghwan Kihl, “North Korea's Political Problem: The Regime Survival Strategy,” The Economics of Korean Reunification 2, no. 2 (1997): 82–97. 5. As evidenced, increasing pressure has been placed on the DPRK leadership linked to human rights issues with the establishment of the North Korean Human Rights special envoy pursuant to the North Korean Human Rights Act. U.S. President George W. Bush addressed this very issue by mentioning this special envoy appointment on June 10, 2005 during the ROK–U.S. summit meeting between the two leaders and also attended by a journalist from Chosun Ilbo (a large South Korean newspaper) at the White House. Another example of the Bush administration addressing this issue came in the form of the “North Korean Human Rights Conference” held on July 19, 2005. This was a concrete measure that the Bush administration took in an effort to improve the human rights conditions of North Koreans following the passage of the Act in 2004. The U.S. position seems to be to compel the closed North Korean society to transform itself into a more open and democratic society. 6. Na Jeong-ju, “U.S. Planned Attack on Yongbyon in 1994,” Korea Times, April 13, 2009. http://koreatimes.co.kr/www/news/nation/2009/04/116-43091.html. David Usborne, “Pentagon threatens North Korea with War,” The Independent, April 1, 1994. http://www.independent.co.uk/news/world/pentagon-threatens-n-korea-with-war-1367148.html 7. The Yongbyon facility is the DPRK's main nuclear complex, and is therefore the central focus of issues relating to DPRK nuclear inspections by the IAEA and the ongoing Six-Party negotiations to resolve the North Korean nuclear standoff. 8. See generally, President of the United States George W. Bush, State of the Union Address to the United States Congress (January 29, 2002). The other “axis of evil” countries apart from North Korea were Iran and Iraq. State of the Union speech transcript, http://archives.cnn.com/2002/ALLPOLITICS/01/29/bush.speech.txt. 9. As an example of an indicator of political instability within the DPRK regime, Kim Jong Il's brother-in-law Jang Song Taek, was removed from his post as first vice department director of the Central Committee of the Workers’ Party. The post was viewed as the second most powerful within North Korea, subordinate only to Kim Jong Il. See Chang-hyun Jung and Yong-su Jeong, “Power Shift is Reported in North Korea,” JoongAng Daily, April 15, 2004. The apparent power shift resulted from a power struggle with Pak Pong-ju, the DPRK prime minister. 10. The IAEA was created in 1957 in response to concerns relating to the discovery of nuclear energy. The Agency's genesis was U.S. President Eisenhower's “Atoms for Peace” address to the General Assembly of the United Nations on December 8, 1953. These ideas helped to shape the IAEA Statute, which 81 nations unanimously approved in October 1956. The Statute outlines the three objectives of the Agency's work—nuclear verification and security, safety and technology transfer. See IAEA, History of the IAEA, at http://www.iaea.org/About/history.html. 11. Sang-hun Choe, “North Korea Activity Stirs Fears of a Missile Test,” The New York Times, February 3, 2009, http://www.nytimes.com/2009/02/04/world/asia/04nkorea.html?scp=3&sq=north%20korea&st=cse. 12. CNN, ‘‘N. Korea Warns Against Intercepting ‘Satellite’ Launch,’’ CNN.com, March, 9, 2009. http://edition.cnn.com/2009/WORLD/asispcf/03/08/nkorea.launch/. 13. North Korea agreed to rejoin the Six-Party Talks in a surprise diplomatic breakthrough three weeks after the regime conducted its first known atomic test. 14. For discussion of the human rights issue as a tool of security policy by the United States, see Nicole Halett, “Politicizing U.S. Refugee Policy toward North Korea,” Yale Journal of International Affairs 1, no. 2 (Winter/Spring 2006): 72–84. 15. BBC News, “U.S. accepts six N. Korean refugees,” BBC News online, May 7, 2006, http://news.bbc.co.uk/1/hi/world/asia-pacific/4981294.stm. 16. See http://www.pon.harvard.edu/research/projects/hnp.php3. 17. Scott Snyder, Negotiating on the Edge: North Korean Negotiating Behavior (Washington D.C.: United States Institute of Peace Press, 1999); Richard Saccone, Negotiating with North Korea (Elizabeth, NJ: Hollym International Corp., 2003). 18. Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In (NewYork: Penguin Books, 1981). 19. Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In (NewYork: Penguin Books, 1981). 20. Roger Fisher and William Ury, Getting to Yes: Negotiating Agreement Without Giving In (NewYork: Penguin Books, 1981)., 22–3. 21. The term “barbarian” has historically been used by almost every major region in the world against other regions in a vicious game of “insiders” versus “outsiders.” For instance, the Romans used the term “barbarian” to those not belonging to the Roman Empire, including Goths and Huns. The Iliad, is thought to have used the term “barbarophonoi” (a derivation of barbarian) to refer to foreigners and those who spoke any language other than Greek, or those who spoke Greek poorly, while the Persians saw all non-Persian cultures as being “barbaric,” such as the Greeks, Romans, and Arabs. Asia is also not immune to feelings of cultural superiority over others. The Han Chinese viewed other non-Chinese cultures as being foreign and thus inferior, such as the Tatars, Turks, Mongols, Manchu, Koreans, and Japanese. Moreover, the Japanese referred to Europeans visiting their island-nation, such as the Portuguese, as being barbarians (nanban).Many cultures, including individuals and various organizations from such cultures, from “East” to “West,” have at some point in their history taken a “holier than thou” approach to people, societies, and methodologies unlike their own, no matter how historically rich or advanced the culture, country, and history. Moreover, harboring this sense of bias has been used by both sides of the negotiating world—the West with the East, as well as the East with the West.According to Black's Law Dictionary, one definition of “negotiation” is a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter. And according to the Merriam-Webster Dictionary, the definition of “barbarian” is a Latin term that is described as “of or relating to a land, culture, or people alien and usually believed to be inferior to another land, culture, or people lacking refinement, learning, or artistic or literary culture.” When one or more parties holds the view that one side is not sophisticated, is different or alien, this leads to what is here referred to as a “barbarian bias” within the context of negotiations with North Korea and the six-way nuclear nonproliferation talks. 22. Kevin Avruch, Culture and Conflict Resolution (Washington, D.C.: Institute Peace Press, 1998). 23. Wendi L. Adair, Jeanne M. Brett, Tetsushi Okumura, and Masako Taylor, “Getting What You Want: The Role of Culture in Predicting the Effectiveness of Informational and Relational Persuasive Strategies in Conflict Resolution,” IACM Meetings Paper (2007). 24. Raymond A. Friedman, Mara Okelans, and Se Hyung Oh, “Choosing Your Words Carefully: Managing ‘Face’ During On-Line Dispute Resolution,” IACM Meetings Paper (2007). 25. Mark Young, “Sharks, Saints, and Samurai: The Power of Ethics in Negotiations,” Negotiation Journal 14, no. 2 (April 2008), 145–55. 26. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People, 2nd ed. (New York: Penguin Press, 2006). 27. Avinash K. Dixit and Barry J. Nalebuff, Thinking Strategically: The Competitive Edge in Business, Politics, and Everday Life (New York: W.W. Norton & Co., 1991). 28. Edward Yui-tim Wong, “The Chinese at Work: Collectivism or Individualism?,” Lingnan University Working Paper Series, Hong Kong Institute of Business Studies, No. 040-001 (February 2001), http://www.library.ln.edu.hkletext/hkibs/hkws_0040.pdf. 29. In contrast to the Persians, another example of a slightly different connotation behind the term “compromise” can be seen with the North Koreans, who “do not view compromise as a weakness … [but] will not allow their compromise to appear as a weakness.” Saccone, Negotiating with North Korea, 36. 30. Fisher and Ury, Getting to Yes. 31. Roger Fisher and Scott Brown, Getting Together: Building Relationships as We Negotiate (New York: Penguin Press, 1989). 32. Roger Fisher and Scott Brown, Getting Together: Building Relationships as We Negotiate (New York: Penguin Press, 1989)., 24–5. 33. Jay Folberg, Dwight Golann, Lisa Kloppenberg, and Thomas Stipanovich, Resolving Disputes: Theory Practice and Law (New York: Aspen Publishers, 2005), 27. 34. R. J. Rummel, The Conflict Helix, as cited in Folberg et al., Resolving Disputes, 28–9. 35. Because a negotiation is by definition a “consensual bargaining process … [between] parties,” when one combines a negotiation process with the notion, however rational or irrational, that such negotiations may be occurring with or against “barbarians,” then the process is destined to fail more than succeed from its very inception. This represents a potentially significant deadweight cost to the related parties involved within the context of the Six-Party Talks relating to North Korea's nuclear nonproliferation, impeding a good faith negotiation process that attempts to create value by mitigating partisan perceptions. Robert H. Mnookin, Scott R. R. Peppet, and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes (Cambridge: Belknap Press, 2004); Shell, Bargaining for Advantage. 36. Fisher and Ury, Getting to Yes. 37. Soo-am Kim, “Human Rights in North Korea: An International Issue or a Sovereign Matter?” East Asian Review 14, no. 3 (Autumn 2002): 29–33. 38. As evidence that the DPRK's collapse theory is not completely unfounded, it was reported that ‘[a] team of government and outside experts convened by the Central Intelligence Agency concluded in 1997 that North Korea's economy was deteriorating so rapidly that the government of Kim Jong Il was likely to collapse within five years’ See Mark Mazzetti, “ ‘Collapse’ theory tilted U.S. policy on N. Korea,” International Herald Tribune, October 27, 2006, 28–9. 39. Marcus Noland, “The (Non)Impact of UN Sanctions on North Korea,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1322486. For a discussion on the extent of how the DPRK's view that its military prowess is a function of the state's survival, see Nicholas Eberstadt, The End of North Korea (Washington, D.C.: AEI Press, 1999), 19; For a paper giving a more international relations perspective relating to a U.S.-led pre-emptive military and/or paramilitary strike against the DPRK, see Brendan M. Howe and Jasper Kim, “Legality, Legitimacy and Justifications for Military Action Against North Korea,” Journal of International Law & Policy 11, no. 2 (Spring 2005): 229–58. 40. Yong ho Kim, “Warrior or Shopkeeper? North Korean Negotiating Behavior Toward South Korea and the U.S.,” East Asian Review 14, no. 2 (Summer 2002): 63–88. 41. Hofstede's data from his groundbreaking 1980 survey was derived from employee surveys relating to IBM subsidiaries in various countries, noting that such nations differed in terms of the four areas of primary dimensions: power distance, uncertainty avoidance, individualism, and masculinity. Geert Hofstede, “Motivation, Leadership,and Organization: Do American Theories Apply Abroad?” Organizational Dynamics 9, no. 1 (1980): 42–63. Among the very wealthiest surveyed nations, a negative correlation was found between individualism and economic growth (although no such correlation was found among all 40 surveyed countries). 42. Geert Hofstede, C.M. Bond, and C.L. Luk, “Individual Perceptions of Organizational Cultures: A Methodological Treatise on Levels of Analysis,” Organization Studies 14, no. 4 (1993): 4–13. 43. Geert Hofstede and M.H Bond, “The Confucius Connection: From Cultural Roots to Economic Growth,” Organizational Dynamics 16 no. 4 (1988): 4–21. For clarity, MAS is defined as the “differential in distribution of roles between genders.” See http://www.geert-hofstede.com/hofstede_china.shtml. 44. Which side—the individual-based society (the United States) or collective-based nations (North Korea)—holds the “correct” view in terms of negotiations is not at issue here. However, what is at issue is the cross-cultural negotiation polemic of using one side's perspective—albeit the United States or DPRK—as the “benchmark” value system on which the entire negotiation process is based. East-West negotiators, especially between the DPRK and United States, must be acutely aware of “biased benchmarking”—inappropriately superimposing one's own particular cultural values and belief systems onto their counterparts. As at least one common negotiation “interest,” every party in the Six-Party Talks is sitting at the same negotiation table, at the same time, relating to the same potential transaction, for the same purpose (to receive some sort of benefit)—such factors should suffice to bridge the gap between the parties; the common objective being sustainable peace and security on the Korean peninsula. 45. Fisher and Ury, Getting to Yes. 46. The Korean yangban represented an elite class in Korean society primarily during the Joseon Dynasty period (1392–1910). In effect, the yangban were touted as the elite of Korean society. In the strictest sense of the term, yangban referred to government officials or officeholders who had passed the civil service examinations that tested knowledge of the Confucian classics and their neo-Confucian interpreters. They were the Korean counterparts of the scholar-officials, or mandarins, of imperial China. The term yangban, originally had two connotations: civil and military officials. Strictly speaking, a yangban lineage was one that consistently combined examination success with appointments to government office over a period of some generations. During the Joseon period, examination candidates had to show several generations of such ancestry on both sides to be admitted to the civil service examinations. Merchants, artisans, entertainers, and monks were traditionally forbidden to sit for such civil service examinations. Often, one yangban family would marry with another to ensure their family's high social status into the next generation. In modern day Korea, the equivalent of yangban would be people in occupations, such as lawyers, diplomats, and academics (the former two positions due to the fact that a rigorous state examination must be passed and the latter due to its scholarly nature). 47. On a similar note, current Korean president Lee Myung-bak in the Joseon Dynasty may have been viewed as part of the merchant class, given his background as a senior executive with the Hyundai Group. 48. For a discussion on the human rights issue, see William Maley, “Refugees and forced migration as a security problem,” in Asia's Emerging Regional Order: Reconciling Traditional and Human Security, ed. William T. Tow, Ramesh Thakur, and In-Taek Hyun (Tokyo, New York, and Paris: United Nations University Press, 2000); Kelly Kate Pease and David P. Forsythe, “Human Rights, Humanitarian Intervention, and World Politics,” Human Rights Quarterly 15, no. 2 (1993): 290–314; Denny Roy, “Human Rights and National Security in East Asia,” Issues and Studies 32, no. 2 (1999): 132–51. 49. Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Oxford University Press, 2000), 367. 50. Ann-Belinda Preis, “Human Rights as Cultural Practice: An Anthropological Critique,” Human Rights Quarterly 18, no. 2 (1996): 288–9. 51. See Steiner and Alston, International Human Rights in Context, 366–7. 52. R. Panikkar, “Is the Notion of Human Rights a Western Concept?” Diogenes 30, no. 120 (1982): 75–102. For more about cultural relativism, see also John J. Tilley, “Cultural Relativism,” Human Rights Quarterly 22, no. 2 (2000): 501–47. 53. Louis Henkin, Richard C. Pugh, Oscar Schachter, and Hans Smit, International Law: Cases and Materials (St. Paul, MN: West Publishing Co., 1993), 598. 54. See www.kcna.co.jp/item/2004/200412/news12/12.htm. 55. Detailed related reports concerning North Korea's human rights conditions can be found on the Human Rights Watch website, http://www.hrw.org/legacy/reports/2002/northkorea/#P108_19676. 56. Newnations.com, “North Korea,” newnations.com, January 31, 2005. http://www.newnations.com/archive/2005/February/nk.html. 57. Bloomberg, “North Korea Denounces U.S. for Acting as Human Rights Judge,” Bloomberg.com, December 20, 2004 (citing the Korean Central News Agency, in face of The North Korean Human Rights Act, the North Korean Foreign Ministry turned the tables on the United States instead, bringing up the U.S human rights violations in Iraq after it supposedly began “an illegal war of aggression.”) 58. Brian Lee, “U.S says include rights in talks,” JoongAng Daily, March 29, 2005, http://joongangdaily.joins.com/200503/29/200503292238517809900090309031.html. 59. Brian Lee, “U.S says include rights in talks,” JoongAng Daily, March 29, 2005, http://joongangdaily.joins.com/200503/29/200503292238517809900090309031.html. 60. Korea Herald, “North Korea offers possible olive branch to U.S.,” Korea Herald, February 16, 2009. 61. Article 64 of the DPRK's constitution states that “The State shall effectively guarantee genuine democratic rights and liberties, as well as the material and cultural well-being of its citizens. In the DPRK the rights and freedom of citizens shall be amplified with the consolidation and development of the social system,” while Article 65 provides that “Citizens enjoy equal rights in all spheres of State and public activities.” See DPRK Socialist Constitution, art. 64, 65 (Hereinafter DPRK constitution, http://www.novexcn.com/cdprk_constitution_98.html.). 62. See DPRK constitution:Article 67 (stating that):Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. The State shall guarantee conditions for the free activity of democratic political parties and social organizations.Article 68 (stating that):Citizens have freedom of religious beliefs. This right is granted by approving the construction of religious buildings and the holding of religious ceremonies. No one may use religion as a pretext for drawing in foreign forces or for harming the State and social order.Article 72 (stating that):Citizens are entitled to free medical care, and all persons who are no longer able to work because of old age, illness or a physical disability, the old and children who have no means of support are all entitled to material assistance. This right is ensured by free medical care, an expanding network of hospitals, sanatoria and other medical institutions, State social insurance and other social security systems.Article 73 (stating that):Citizens have the right to education. This right is ensured by an advanced educational system and by the educational measures enacted by the State for the benefit of the people. 63. The 58th Session of the United Nations Commission on Human Rights, Citizens’ Alliance for North Korean Human Rights (NKHR) Document (July 8, 2002), http://www.nkhumanrights.or.kr/newsletter_eng/talbuk_view.html?table=humanity_eng&page=1&no=37&keyfield=&key. 64. The 58th Session of the United Nations Commission on Human Rights, Citizens’ Alliance for North Korean Human Rights (NKHR) Document (July 8, 2002), http://www.nkhumanrights.or.kr/newsletter_eng/talbuk_view.html?table=humanity_eng&page=1&no=37&keyfield=&key.