In defense of bad-faith negotiation

Since we don’t want to negotiate with pirates, we have no interest in developing a reputation for good faith in dealing with them.

The Somali pirate hostage-taking came out about as well as it could have: the hostage is alive and apparently unharmed while, of the four pirates, three are dead and one&#8212the negotiator&#8212 is in custody.

Mike was right to say that it was important not to pay cash for the captain’s release. But it was equally important not to “pay” in impunity. We really want the message to get out that piracy is a bad idea and piracy involving American victims is a really bad idea.

I’ve heard a tiny bit of grumbling about the arrest of the negotiator. I don’t disapprove of grumbling in principle; we should care not only about good outcomes but about doing things right. But in this case I think the apparent moral problem disappears on analysis.

In general, there’s an obligation of good faith in negotiation, and the persons of negotiators are properly involate. But that is true because, in general, negotiation is A Good Thing, and it’s important to keep the channels of negotiation open. The penalty for messing with negotiators is not to be able to negotiate again, at least for a long time: ask the Iranians about that. A state that violates diplomatic immunity is doing what it can to make war inevitable by making diplomacy impossible.

That’s also the reason why treaties, like other contracts, are to be observed; otherwise, what’s the point of making them? Yes, a country can often get some short-run advantage by breaking a treaty, but at the cost of not being able to negotiate its way out of problems in the future.

But, for the reasons Mike laid out, we don’t want negotiations with pirates and hostage-takers to be possible. We want them not to want to negotiate with us in the future. So arresting the negotiator is just fine with me. So is paying off in counterfeit money, or promising to let the pirate crew escape if the hostages are released and then arresting them just the same. Note that in this case the government has a different set of interests than the company whose ship and crew have been seized. The company wants its people and property back unharmed; the government is properly more concerned with creating disincentives for future piracy.


1. Captain Phillips, who twice tried to escape, seems to have figured out that the one thing the pirates didn’t want to do was kill him. Still, it took enormous courage; you can’t always count on pirates, or other counterparties, doing what it’s in their rational interest to do.

2. The next time some Republican tells you that public-sector employment is by definition “unproductive,” remember that those SEALs draw federal paychecks.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: