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0:01
GERALD NEUMAN: My name is Gerald Neuman, and I am the co-director with Tyler Giannini of the Human Rights Program here at Harvard Law School.
0:13
And I want to welcome you all-- our students, our alumni, our other distinguished guests-- to this conference that we're holding this afternoon to celebrate 30 years of the Human Rights Program here at Harvard Law School.
0:34
To a large degree, we are celebrating the work of Henry Steiner who was the first director of the program, led the program for 20 years and set a path that we have tried to stay true to, a path of critical engagement with the theory and practice of human rights.
1:08
It's involved skills training for future human rights lawyers, support for scholarship, workshops, and conferences, starting graduates in careers, but always in a spirit of critical reflection on human rights law and what it does in the world.
1:38
After Henry retired the program was carried on offers by Ryan Goodman, then Jim Cavallaro, and Tyler, and then me.
1:57
And we want to celebrate these 30 years by doing what we do, by being substantive, and that is the goal of the afternoon.
2:14
I'd also like to just take this occasion to announce a human rights innovation that is coming to Harvard Law School that is not strictly part of the Human Rights Program but that should be of interest to this audience.
2:29
Of course the work of the program, and especially its academic side, would not be possible without the generosity of donors who are committed to the cause of human rights.
2:39
One of our key sources of support has been the late Robert Henigson, class of '55, and his wife Phyllis Henigson.
2:50
I'm sure that some of the audience has begun their human rights careers with the support of the Henigson fellowships that HRP is gratefully able to award.
3:03
Shortly before he passed away this year, Robert and Phyllis Henigson endowed a new professorial chair in human rights.
3:12
When it becomes fully operational, it will enable HLS to invite, for one semester each year, a professor, judge, or advocate who comes from and works within a developing country and who engages with human rights issues.
3:29
These visitors should greatly enrich and diversify human rights education here at Harvard Law School.
3:38
I'm very happy to say that the title of this chair will be the Henry J. Steiner Visiting Professorship in Human Rights. [APPLAUSE]
3:58
That is a very fitting tribute to the vision of human rights education that Henry championed in his leadership of the Human Rights Program and that we have tried to carry on in his wake.
4:14
So now I want to turn to the main lunch event by introducing the person who I prefer to refer to as Harold Hongju Koh, class of 1980. He's had a number of other titles.
4:35
Currently he's the Sterling Professor of International Law, at dare I say it, Yale Law School.
4:46
He has recently served as legal adviser in the State Department. Before that, he was head of the Human Rights Bureau in the State Department.
4:58
Harold and I go back to the class of 1980 here at Harvard Law School. And interestingly enough, Harold and I first met when the managing editor of the law review, one John Roberts, assigned us the task of reading galley proofs against one another.
5:21
I'm not sure if that phrase means anything to you. It just dates us to the age when law reviews were type set.
5:31
But we hit it off immediately, and since then Harold I have fought a number of battles, sometimes against the government, sometimes within the government.
5:46
And we even won sometimes.
5:52
So it therefore gives me extreme pleasure to put you in the capable hands of Dean Harold Koh. [APPLAUSE]
6:12
HAROLD KOH: Thank you, Gerry.
6:15
It's always great to be back here at Harvard.
6:18
Happy 30th birthday to the Human Rights Program.
6:23
Let me start with the famous words of Admiral James Stockdale, who if you recall was the vice presidential candidate for H. Ross Perot in 1992. And in his debate, which was probably the only moment anybody ever heard of him before or since, he started with these words, "Who am I and why am I here?" After all, I didn't graduate from the Human Rights Program. I graduated before 1984. I didn't study human rights at Harvard because there wasn't a course at the time.
6:57
I don't teach at Harvard. My 34-year journey as a human rights lawyer happened primarily at Yale and in the United States government. I was the dean of a rival institution, and I directed a rival human rights program, Yale's Schell Center for Human Rights.
7:17
So why am I here? I can't say no to Gerry Neuman.
7:23
I've never been able to, I don't know why. But I'll say more about this in a moment.
7:29
But I thought what I do, since it is lunch, is to do three things. First talk about the Harvard human rights as a school of thought and then talk about the Harvard Human Rights Program as part of the Harvard School of Human Rights. It's what we academics like to call uninstantiation-- past, present, and future. And then say a few words about where HRP and the human rights movement should be going in the next 30 years and beyond.
8:05
In particular, in calling this the Harvard Human Rights School, I want to talk about what three teachers taught me, Louie Sohn, Henry Steiner, and Gerry Neuman. Harvard Law School brought us together and human rights kept us together and that's why I owe them and the Harvard Law School a tremendous debt. And Henry, congratulations on the visiting professorship.
8:31
I now have a professorship that I would aspire to hold. I mean, who was Jeremiah Smith anyway, I don't know? But Henry Steiner, that's something. So the story begins in 1949. This is the application of my father, the late Kuan Yin Koh for a vaccination to come to the United States of America to study at the Harvard Law School. I found this going through some materials, along with the bill of passage from the steamship the took him from Busan, Korea to San Francisco.
9:12
And from there he made his way across country to become, I think, the first student from Korea ever to study law at Harvard. I don't know that to be true but I think it to be true.
9:25
He later became an LLM, an SJD.
9:31
When the Syngman Rhee government was overthrown he became a South Korean ambassador to the UN. And then the acting minister charge at the Korean embassy in Washington. It was an exciting time for him. The government was then overthrown by a military coup, and he was effectively exiled.
9:54
And then through a bit of fate, Eugene Rostow, the dean of Yale Law School, who was friendly with Walt Rostow, the Deputy National Security Advisor, asked my parents if they would be visiting lecturers at Yale Law School, and I've been there ever since Now my father revered Manley Hudson.
10:19
In his class, Manley Hudson was the great professor. He had been a judge on the Permanent Court of International Justice.
10:28
My father was diligently prepared for class every single day except for the day that I was born where he stayed up all night and came directly to class. And of course, who calls on him that day but Manley Hudson.
10:42
And my father stammers out, "I'm not prepared.
10:46
My wife gave birth to our child last night." And Professor Hudson walked back and forth.
10:54
And then said, "Well, then we will welcome her to the community of scholars." And my father said, "No, no, it's a boy, sir, it's a boy, sir." And they he said, "Well, then, Koh, here is to the Prince of Wales.
11:10
And every day after that when he'd come to class he'd start by saying, "Koh, how's the Prince of Wales?" My would go, "Oh, fine, fine." Now I mentioned this because my father was so excited that he went home and told my mother that I should be named Manley.
11:29
I kid you not.
11:32
My mother intervened and she said, "We don't have $50,000 for the psychotherapy that would be entailed.
11:41
Let's name him instead, Harold." And that's how that came to be. Now when Judge Hudson passed away, he was succeeded as the Bemis professor by the man who became my father's dissertation adviser, Louis B. Sohn. Who later went to Georgia and became known as the brain who walks like a man.
12:03
He's an extraordinary person. He was present at the creation of the entire UN human rights apparatus and was present for an extraordinary transformation in international law when it made its shift from a loose web of customary do no harm state-centric rules, toward a positive law framework built around the central idea of institutions and constitutions, international institutions governed by multilateral treaties that were aspired to organize proactive assaults on a huge array
12:37
of global problems with the goal of designing and promoting human dignity.
12:44
And this was the project of Louis Sohn that became nested here at the Harvard Law School.
12:51
In 1959, my mother got her Ph.D. at Boston University in sociology.
13:00
And that's me, the little one wearing the mortar board. This is a precursor to many mortar board ceremonies in the future.
13:08
On the far left is my brother Howard, about whom I'll say more in a moment, who lives here in Massachusetts.
13:15
And here is the place we started to go to church which I walked by coming in. Harvard Epworth Methodist Church.
13:26
Why do I mention it? Well, my father was a Buddhist when he came as a student, and he studied all the time. And one morning he told me-- he was studying in the stacks of Langdell Library when he heard the bells ringing. And he decided that he would go to the church.
13:49
And he joined Harvard Epworth Methodist Church which is how we became Methodist. My brother became a Methodist.
13:55
They were baptized on the same day. My whole family is now Methodist.
14:00
And when my father wanted to go to the government of Korea and to start a career supporting democracy, Jackson Burns, who was the minister of Harvard Epworth Methodist Church was the person he turned to. And Reverend Jackson Burns said to my dad, "Next Sunday, I'm going to give you a signal, and you and your whole family get up and walk out of the church." And we know what this was about.
14:33
The following Sunday, at a certain point in the service, Jackson Burns gestures to my family. We all get up and walk out.
14:42
And a couple minutes later he came out and gave my father's $3,000, which was from the offering plate, which is what enabled him to go to Korea and fulfill his dream of trying to promote human rights and the rule of law in Korea.
15:00
I mention this because the real Harvard Human Rights Program, the real Harvard Human Rights Program began long, long ago. And it was the graduate program that brought many foreign students to this great university, inspired them with the possibilities of democracy and the rule of law. There's my father on the left. But you see also, Kim Dae-Jung, who went on to become president of Korea, the Nobel Peace Prize winner. Benigno Aquino, who was here at Harvard,
15:34
went back to the Philippines, was gunned down on the tarmac. But today the president of the Philippines is Benigno Aquino Jr. [INAUDIBLE] of Sri Lanka, who studied here, was later killed riding on a bicycle in Colombo. And there are many, many others.
15:56
But when I say that there was a real Harvard Human Rights Program, and that the program that we celebrate today simply put content or intellectual rigor around something that existed long before, I say that with tremendous gratitude for an institution that made so much possible in so many different parts of the world.
16:20
And you can think of it really as this, a school-- not a program but a school.
16:27
This is, of course, the school of Athens.
16:30
It shows the philosophical school of Athens with Socrates and Plato.
16:36
It is also, importantly, a school of Renaissance painting by Raphael. Which suggests that there are schools that are not located in physical buildings-- schools of thought that are not places but mindsets are ethos, a school of thought often named after its place of origin, a group of people, wherever they live now who share common characteristics of opinion, outlook, philosophy, membership in the same intellectual, artistic, social, or cultural movement.
17:09
And I give, just choose a random example, Red Sox Nation. Not everybody at Harvard is in Red Sox Nation, I'm sad to say. Not every member of Red Sox Nation is at Harvard. That's pretty clear. Here for example is the New Haven chapter of Red Sox Nation, of which I happen to be president.
17:33
The Red Sox remain for a few more weeks, world champions, even though they are 26 and 1/2 games behind.
17:42
So if we think about the broader project, the Harvard School of Human Rights, we can talk about its origins and the role that the program has played within it. And it has roots in the study of international organizations, international humanitarian law, international legal process, transnational legal problems, and how the Human Rights Program whose anniversary we celebrate today.
18:09
I've talked about Louis Sohn. Richard Baxter, who I never had the privilege to study with, was the first to teach the law of war here. He was Judge Advocate during World War II, he became a professor here, president of the American Society of International Law, editor-in-chief of the American Journal, for two years the US judge on the International Court of Justice before he passed away. And the program that now exists, the International Humanitarian
18:37
Law program, which has taken on new manifestations after 9/11, grows out of Richard Baxter.
18:45
Here is, of course, the great Abe Chase, who with his colleagues, wrote "International Legal Process," which of course was based on Hart and Sacks's, The Legal Process.
19:00
And my contribution here was to take that notion, to talk not just about horizontal process but vertical process, and to talk about transnational legal process as an extension of what Abe tried to do.
19:16
I can point you to the many sites. The gist of it is, how is international human rights law enforced?
19:22
Interaction, interpretation, and internalization, a vertical approach which takes norms from the intergovernmental level and brings them down to the domestic level.
19:33
Now there's another strand. And you'll see here a growing Yale-Harvard theme. Milton Katz, who was my torts professor and Kingman Brewster, who was a professor of law here, wrote the book, Law of International Transactions and Relations, before Kingman Brewster went to Yale to become the provost and then its most famous president.
19:57
This is what became, through the work of Henry Steiner, and our beloved colleague, now departed, Detlev Vagts. Transnational Legal Problems, which then divided into two books, Transnational Legal Problems and Transnational Business Problems. Their idea was simple, that 20th century law lived inside a matrix, domestic and international, public and private. Well, Henry and Detlev exploded the matrix. They were just like Neo. They said that in fact, these are
20:31
all transnational legal problems-- the subjects of human rights, which was Henry's interest, international business transactions and trade, which was Detlev's interest, foreign relations law which was both of their interests-- all fit within this category, where all issues are a different position on the spectrum between public and private national and international. So that today, most law, and most of the courses we teach, are in fact, transnational law of the kind that we've described.
21:02
Now, Gerry told me, you have to be substantive here. You can't just tell stories. So I thought I'd bring in a little to bear. Here's Henry, how I first knew him. I didn't take his torts class because I was taking Milton Katz's. But what I learned about Henry's contributions were in five particular areas-- reflection and action, idealism and realism, promoting a dialectic of human rights between the faculty and students, spreading interdisciplinarity, and then spreading the school
21:34
to other parts of the globe.
21:37
It was Henry who said, I think understanding his work in the time of critical legal studies, that we need to understand human rights as both an academic discipline to embed it firmly within the legitimate curriculum of a major law school, and a discourse of power that demands legitimation.
22:01
And it was conceived of as this combination that Gerry has described-- coursework, research, internships, a speaker series, visiting fellowships, conferences, applied research-- for example reports, for and to NGOs-- clinics eventually, and the Harvard Human Rights Journal.
22:21
And in one of his most thoughtful commentaries, he took on the great Lou Henkin, who had written a book called, The Age of Rights.
22:30
In the Harvard Law Review, Henry responded with his article called, "The Youth of Rights." Where while agreeing with the idealistic aspiration of Henkin, he said these are antinomies, dichotomies, and that, in fact, human rights should be seen as both idealism and realism, norms and power, law and politics, reason and desire, abstraction and concreteness, harmony and conflict. And that he, Henry, put himself on the second prong, where Lou placed himself on the other side.
23:08
And what Henry said is, we need, "to portray the human rights movement in all its contradictions and incompleteness-- fundamental but often irrelevant, powerful, and often impotent, pacific, but often conflictual, essential but always insufficient." And we should avoid a portrait where, "noble norms overshadow ignoble events, giving us undo comfort about what the human rights movement has achieved." Now at the time, Henry was in deep dialogue
23:40
with his friends, Mort Horowitz, Roberto Unger, Duncan Kennedy. You see their influence in his discussion with them.
23:51
But he was also deeply involved with an interdisciplinary movement here at Harvard Law School, which had become so expansive that Henry argued that human rights should be conceived as an interdisciplinary field that ranges from anthropology to economic development, political theory, ethnic conflict, health care, terrorism, and conflict resolution, which led him along with Philip Alston, to create a new international human rights book called, Law, Politics, and Morals, which extended deeply
24:27
into the work of other cultures with the goal, he said, of training, criticizing, and provoking.
24:34
And that book is an extraordinarily rich interdisciplinary volume.
24:39
It's now in its fourth edition. It was actually the project that led Henry away from transnational legal problems, but then that created space for me to come in. And so I've earned all the magnificent royalties, Henry you've missed out on, which about to about $25, maybe $26.
24:57
Now there was a wonderful moment, which is at the same time, the Human Rights Program at the law school began to drive, or inspire the creation of other human rights programs elsewhere at Harvard, principally the Carr Center at the Kennedy School, which has had extraordinary leadership. Samantha Power, now ambassador to the UN. Michael Ignatieff who has returned.
25:25
And my dear friends, Kathryn Sikkink, who is here today, and Doug Johnson, who really, by their work combined the notion of theory and action.
25:38
And an inter-faculty university committee started to try to unite and coordinate the activities of the different human rights programs, not just HRP, the Carr Center, but also FXB, the School of Public Health, and members from other parts of Harvard.
25:57
I mention this because I was talking about my brother, Howard, on the far left. Here he is today.
26:03
I mention him because he's going to be your newest professor in November. He went on to become Assistant Secretary for Health and Human Services, the highest public health official in the United States. He had been commissioner of public health for Massachusetts and the associate dean of the Harvard School for Public Health. He will now be, starting in November, the Professor of Public Health Leadership at the public health school with joint appointments in the Kennedy
26:31
School and the business school. So he is a beneficiary of what Henry began.
26:39
And then there were the dialectic of combining student engagement with faculty initiatives to produce a productive dielectric, top down and bottom up influences-- the journal, the conferences, and then the advocates who went on to provide clinical work. And as Makau Mutua, one of your most illustrious graduates has said, "There's no important institution across the globe that hasn't been inhabited by someone who's been touched by your program." To get just some examples, Koen Lenaerts,
27:11
who was in the same constitutional law class, I think, as Gerry and me. Now the Vice President of European Court of Human Rights. Julianne Collcutt, Advocate General at the European Court of Justice; Anthony Lester, the leading human rights lawyer in the UK; Sang-Hyun Song, the Korean president of the International Criminal Court, all got their training here.
27:34
And at other schools, particularly at my own, we have tried to do the same. The Schell Center has developed-- I won't say who went first-- but cradle to grave human rights education through scholarship, training, five clinics, we sometimes and people like Nick Robinson here to Harvard for postgraduate training.
27:57
But this was founded by Drew Days. I was the second director and now Paul Kahn and Jim Silk have continued on.
28:05
And it started with a case, the Haitian refugee case, which started from our clinic.
28:13
And this is where my old friend, Gerry Neuman came back into the picture.
28:18
So here we are on the Harvard Law Review in 1979. Do you recognize them?
28:26
There's Gerry, next to his old friend, John Roberts.
28:32
Here's professor David Wilkins, looking much the same as he looks now.
28:45
Here I am. We were brought together by John Roberts.
28:51
I think you could say that bringing me and Gerry together was the best thing that John Roberts ever did for human rights.
29:03
I'm not kidding.
29:06
But the funny story which Gerry refuses to mention is that we were supposed to read back these galleys.
29:14
And John assigns us to read the first half. I didn't know who Gerry was, he lived off campus with his wife Carol.
29:22
I went over there, and what I thought would be about 45 minutes, turned into a four-hour meeting. Because Gerry, unlike other people, actually cared what the article said. And at each footnote he would say, "Do they really mean that?" And I think, hey Gerry we're just supposed to like, proofread this thing. And finally at the end when I left, he said, "Too bad I didn't know how long it was going to take because if I had known I would have made some cookies."
29:54
So the next day, and David and Gerry remember this well, I came in. The assignment from John Roberts, managing editor, proofread with Neuman the second half of the exact same article.
30:08
And when I got to his apartment and he opened the door, I smelled cookies in the background being baked. And as you know, I can't resist that. So after that, Gerry and I were close friends forever.
30:24
Why do I mention this? Because when we did the Haitian refugee case Gerry was teaching immigration law at Columbia. If you're interested to read it, this has now become something of a cottage industry by Brandt Goldstein-- the book, Something of the Court, now a civil procedure documentary companion.
30:46
But the story that they don't tell is that on one night, we got a stay from the Second Circuit and the responsive brief was due the next day at noon. We had 24 hours to write the brief. And I was on vacation. I drove to New York.
31:04
We worked all night. I had worked previously several nights, all night.
31:10
The brief was at 29 pages. It was five in the morning. We had seven hours to cut it.
31:17
I literally could not keep my eyes open. And the students were around me saying, what do we do? What do we do? And I said there's only one person I would trust to get this right and cut it down. That's Gerry. And I called Gerry and I said-- it was five in the morning. I called Gerry at five the morning and I said, "Can you come down here and cut four pages from this brief? Because we've got to file it at noon." And you know Gerry said, "I'm coming," at which point
31:46
I collapsed, slept under a bench for a couple hours. And Gerry woke me up. It was just after an operation. Gerry woke me up and said, "We're down to 25 and a quarter. Check and make sure whether you're OK with it." And then he left.
32:03
So Gerry couldn't say no to me and that's why I can't say no to him.
32:10
Now, not to say I didn't do anything for Gerry. He gave me the cookies. He helped me with the brief. But I've got him interested in ET, extraterritoriality.
32:24
It was from his work on our case that he wrote the landmark brief about extraterritorial application of US law that led to his book, Strangers to the Constitution, his great article on anomalous zones, his more recent work on extraterritorial application of human rights treaties.
32:43
And it's also the thing that made, I think, Gerry become part of the advocacy community, which I think he might not have been inclined to do necessarily as a pure scholar.
32:54
But that's what makes him the ideal person now to lead this program.
32:58
So that's what these professors have been doing and that's what this program has been doing. Conceptualizing and operationalizing a simple idea that all persons have irreducible human rights, highlighting what Katherine and her co-authors called in a recent important book, the persistent power of human rights, and using law to save lives, both those of clients and of the people who helped them. Because by becoming human rights lawyers, their lives are deeply enriched.
33:30
So that's the anniversary and this occasion for celebration.
33:35
But anniversaries are more than that. These are occasions for renewing vows.
33:40
That's Gerry on the left. That's me on the right.
33:44
Schools are products of their time. We live in a different era now. It's well accepted that we live in an era of interdisciplinary, theory and practice, scholarship and clinical activities.
33:56
That our legal curriculum blends public and private, domestic and international.
34:03
And we have normative commitments in the academy to uphold human rights and the rule of law, not just talk about neutral rules of process.
34:11
And I should point out that Harvard is not alone. I won't go through them, but these are my colleagues at Yale who are very much dedicated to the same set of activities. I point only to my sister, Jean Koh Peters, who like me was here at Harvard and then went to Yale.
34:28
Now there was the old New Haven School of International Law, pioneered by Myers McDougal and Harold Laswell.
34:36
There were others who imbibed Oscar Schachter, Gene Rostow when he returned from the government, Kingman Brewster to the extent to which he continued to pursue academic inquiry. It enlisted famous scholars from all over-- Michael Reisman, my colleague who continues to carry the mantle at Yale; Ros Higgins, who was at the London School of Economics and then on the International Court of Justice; and then people ranging from John Norton Moore on the right to Dick Falk and Burns Weston on the left.
35:12
What I point out here is simply that the Harvard School was in many ways the target of the New Haven school-- Both the Harvard School of political science, Henry Kissinger's political realism, as well as the formal school that was being operated and argued for during the '50s. Laswell and McDougal converted the inside of legal realism into a framework of inquiry and tried to develop a functional critique of international law in terms of social ends that shall conceive
35:47
of the legal order as a process and not a condition. They argued that the political realists had underestimated the role of rules and legal processes and overemphasized the importance of power. And they urged instead, to think of international law as a process of authoritative decision-making, dedicated to promoting a policy oriented jurisprudence, a set of normative values, especially global order and human dignity.
36:14
Now, my project-- and I have certainly have not been alone in this-- is to urge the creation of a new New Haven School of International Law. Here are some of the members of that school, spread out now among different institutions.
36:33
You can read their work.
36:35
Here are some others, Jenny Martinez, Melissa Waters, Janet Levitt. We focus on promoting transnational lawmaking through dialogues, trickle-down lawmaking, promoting pluralism, attaching public duties to private conduct. Here are some others, [INAUDIBLE] who works in environmental area. Robert [? Adiar. ?] We ask what are the purposive goals of the new global order. And the goal of public law, transactional public law, is not simply to reflect the parochial interests of states
37:06
but to build a more enlightened global system.
37:10
The goal is not just process but substance. It's not just analytic; it's transformative. The belief that better process can generate better norms can reconstruct state interests, and thus it fits in with the construction of a school of international law. The notion is that the goal is constitutive, not simply to change behavior but to change minds.
37:34
Now the Human Rights Program here and the New Haven school share a number of commitments. And let me just go through them. We are partners in this, I think, not rivals.
37:47
A commitment, obviously, to theory and interdisciplinarity-- interdisciplinary is now a critical part of every part of law and legal education, not just domestic law.
38:00
Transnationalism-- I teach a course now, transnational law, which focuses on transnational legal process and substance. I think that's present at most schools. A commitment to process-- this is Paul Berman of George Washington Law School, another member of this school of thought.
38:21
And my own suggestion recently is to take on those, some of them based here, who have coined the phrase lawfare-- lawfare as a substitute for war. As if this is some illegitimate use of law. I think the opposite. I think that lawfare is human rights advocacy, crystallizing a legal norm, finding a forum, finding assets, allies, and adversaries; linking the human rights issue to other issues like economic issues; and finding remedies and relief; and that the same process leads
39:01
to regime building strategies to create human rights, coalitions. I see here Mike Stein from the disabilities community who has done such pioneering work, moving us from knowledge to networks to norms to law-declaring fora, to other kinds of internalization strategies, to create bodies of law and legal regimes for human rights they didn't previously exist, which is part of a commitment to normativity-- not just studying positive theory in isolation from normative ends.
39:36
And again, I attribute this to Henry Steiner. He wasn't just interested in knowing what was going on, he was interested in his students making the world better, and the link to the constructivist debate in international relations theory-- compliance, not just how nations behave, but how, and why they behave and how it creates interest.
40:01
And finally, the commitment to reflection and action-- my dad liked to say theory without practice is as lifeless as practice without theory is thoughtless, that law schools can improve public policy. Indeed, that is our mission.
40:17
And that increasingly, through blogs and other kinds of writing, public commentary, activism, clinics, transnational public law litigation, like the Haitian litigation, what the civil rights movement did to energize public law advocacy in scholarship and to bring the advocacy and scholarly communities together, 9/11 did to energize transnational public law advocacy and scholarship.
40:40
And for the future, we have many issues. We talk about Whither, the human rights program. We have a framework of 20th century laws but 21st century challenges, just to name a few-- cyberspace, the environment, global disease, food security, technologies, and reproductive technologies. The links are manifest-- the equality movement, the democracy movement; the demilitarization movement; the corporate responsibility movement, particularly as it's now affecting universities;
41:18
the environmental movement; the information revolution; the technology revolution; and the public health movement.
41:29
We focus on three issues with regard to law and globalization. First, the law of globalization, to what extent is globalization now its own subject?
41:39
The law as a form of globalization, just like the globalization of culture and commerce.
41:45
But most fundamentally, law in globalization, the role that law can play, particularly human rights law in the normative practice of promoting the process of humane globalization.
41:58
From my perspective, I think our goal is to rethink the agenda, to see international law, not just an obstacle or straight jacket on state interests or as a threat to national security, but as a creative medium, in the same way as Louis Sohn saw it, but with a different group of players, public and private-- and as McDougal and Laswell saw it, to advance the goals of an enlightened system dedicated to world public order and the promotion of human dignity.
42:28
We had the four freedoms. A lot of you have been watching Ken Burns, The Roosevelts.
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Franklin Roosevelt framed the four freedoms, which were themselves the blueprint for a series of positive law instruments-- freedom of speech and religion, the international covenant on civil and political rights, freedom from want, the coming of economic, social, and cultural rights, freedom from fear.
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And that these are only partly implemented, particularly the economic, social, and cultural rights covenant, what Cass Sunstein, your colleague has called America's second bill of rights.
43:05
Eleanor Roosevelt worked to get these into the universal declaration, which her colleague, Mary Ann Glendon has written about.
43:14
We should be thinking about whether, in the 21st century, we should be focusing, not on these four freedoms, but on five-- freedom from conflict, and the regulation of those resources that fuel it, freedom from tyranny. And here is where an important human rights paper from your program talked about the right of political participation-- freedom from discrimination, particularly LGBT rights and the rights of the disabled; freedom from poverty, which of course also breeds terrorism; and then
43:45
freedom from disease and the right to health, another important paper from the human rights program in its early years.
43:52
I mention that because my brother and I have a mission, to talk about tobacco control as a human rights issue, and to ask the question, is there a human right to avoid preventable, non-communicable disease caused by tobacco addiction and promoted by under-regulated private production and consumption?
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Think about this. A billion people will die from tobacco.
44:23
And all anyone is talking about right now is ebola, which has killed several thousand people. Not that ebola is not important.
44:33
Think about this.
44:34
Joseph Kony captures children, uses them to kill other children, and kills them. And we call him a war criminal.
44:46
And people market cigarettes that are designed to addict children for them to become addicted, cancerous, and die, and then, in the name of commerce, to addict more children.
45:03
And we don't think of that as a human rights issue. In fact this is a subject of intense debate in international arbitration forums where the tobacco companies are determined to make this question about interference with property.
45:20
I told my brother when we left the government, let's do this. Let's do this.
45:27
So we're doing it. We're trying it.
45:30
So where does the human rights program go? Henry put it well in a paper he wrote some time ago. "There will never be a final triumph that secures the basic human rights ideals. We know that but there will always be new challenges." In the end, the P that matters most is perseverance.
45:48
How do we persevere? How do we use process to harness politics to promote better policies that are based on principle?
45:56
How do we not give up?
46:00
So who am I? Why am I here? I guess I have to be here, because my past is your past.
46:08
My project is your project. My future, I think is your future. But most fundamentally, because I got to get those cookies. And of course, I still can't say no to Gerry Neuman. Thank you very much and I'm glad to be here. [APPLAUSE]
46:40
Gerry asked me to take questions so you know what my answer to that was, of course. Yeah. Any questions?
46:53
WOMAN: What kind of cookies did you bake?
46:56
HAROLD KOH: Chocolate chip.
46:59
I mean, those were the days. Gerry didn't even have an electric coffee grinder.
47:06
Gerry would put it in an old fashioned mill and grinder it for like 25 minutes.
47:13
He remembers that.
47:17
He still has that grinder.
47:21
WOMAN: Thanks for a really terrific talk. So thank you very much.
47:28
So two questions, one is, tell us a little more about we're you're going with your project.
47:36
What are the steps you all will be taking? And then second, talk about a project that is my project but yours as well, I think shared by many in this room, and that is what going to do accountability for Bush administration officials that engaged in torture.
47:54
HAROLD KOH: So number one, well, my brother has-- as you know, this is 50 years since the Surgeon General's report which conclusively established the link between tobacco and cancer.
48:15
And over time that has only been further proven.
48:24
The efforts to regulate by law have led to the Master Settlement Agreement, which was a major state lawsuit. The charging of major tobacco companies as a RICO, Racketeer Influenced Corrupt Organization.
48:42
And it's led to a fair amount of consolidation of the industry through antitrust.
48:49
Well, one thing that has happened on a very large scale is the filing by the major tobacco companies of arbitration cases under various bilateral investment treaties against countries who would try to regulate packaging of tobacco products. Australia has of the most aggressive laws, but so too does Uruguay.
49:15
And the Obama administration signed but did not ratify the Framework Convention on Tobacco Control, and has moved slowly with regard to such issues as whether to regulate tobacco advertising and particularly whether to regulate e-cigarettes which could be viewed as a gateway mechanism for addicting people.
49:41
It's very clear that these arbitrations are going to be pivotal.
49:48
And so I'm involved with a number of those because they are generally styled not as human rights issues. In fact he's the irony. The human rights issue is on the side, or at least the way they are framed up, is on the side of the companies protesting interference with their commercial speech.
50:06
And what they claim is that government regulation is the problem. Human rights is always against the government, and what's happening is the government is interfering with their right to manage their property. That's a violation of fair and equitable treatment. In some cases they claim it's expropriation.
50:25
Now let's face it, the government of Uruguay is massively outmatched in financial terms, vis-a-vis Philip Morris.
50:34
Because Phillip Morris has a guaranteed income from a bunch of addicted people and its mission is addicting more people.
50:42
Now here's one of their remarkable claims-- to have plain packaging, in which 80% of the package tells people that they could die from smoking cigarettes is an over exercise of regulatory power.
51:02
So if you put it in terms of communicable disease, suppose we had a live threat that a virus coming in would addict people in such a way that over the period of time a billion people would die. Couldn't the government as an emergency matter impose public health regulations?
51:20
Advertise all over the place?
51:23
Interfere with the speech of those who are lying about it?
51:27
They of course could. Does the fact that this is a non-communicable disease mean that they can't do that? Now these issues are going to be fought out-- by the way, the companies are forum shopping like crazy.
51:40
They are filed under the most favorable bits. They filed under the Swiss bit. They file a WTO action on behalf of the Ukraine.
51:51
As you may have noticed, the Ukraine is worried about other things, but the action that they filed at the WTO is about this, paid for by the tobacco companies. And my brother said to me something quite poignant, which is, "We've won this on the science. We're getting killed on the law." And, as often happens, many lawyers are bought up by the companies.
52:15
We saw that in a case like Barcelona Traction. So I told my brother, you know, can't buy me, can't buy my brother's love.
52:24
So they won't.
52:28
On the-- what was the second part or your--
52:33
WOMAN: Torture. HAROLD KOH: Torture.
52:37
So, the complicated part of this was that the Obama administration sent this to an independent counsel, John Durham. And he said, no prosecutions.
52:51
John Brennan, for whom I have great regard, went to the CIA, and is obviously under tremendous pressure.
52:58
He's now got into a huge battle with the Senate Select Committee on intelligence They've agreed to release the [INAUDIBLE] report which chronicles these abuses.
53:10
And even now they're fighting about the redactions. It's amazing actually. So step number one, get the [INAUDIBLE] report out.
53:20
A lot of people say fire Brennan. I think that's a terrible idea. Brennan, I think, is genuinely committed to reform.
53:28
For my tastes, he's gone a little bit overboard in defending his agency. But once the report is out, I think they'll be new momentum for accountability.
53:39
Remember at the beginning demonstration, Senator Leahy had call for Truth and Reconciliation Commission and that was rejected in favor of prosecutions, which of course has yielded nothing.
53:52
So one problem was that this administration, your graduate, President Obama, has been terrible on transparency.
54:03
For example, my view was that to make transparent statements wins you credibility if you think you're acting lawfully. So therefore, why keep things a secret?
54:14
So for example, when Awlaki was killed the whole world know knew the United States had done it. Awlaki was an extremely dangerous guy. We acknowledged the killing of Bin Laden and distinguished that killing from other killings. As it is, they refused to reveal the opinion.
54:36
Then they revealed the redacted version of the opinion. It was only because someone who's on the faculty here came up for a judicial appointment that was finally released. They're still fighting over the redactions.
54:50
Judge Jon Newman of the Second Circuit has completely whacked them on this issue. Now they won't even give him long index. What are they achieving other than delegitimizing their positions?
55:03
I think generally on legal views they've done a very poor job. So for example, my take-- your colleague Jack Goldsmith wrote a thing joined by my colleague Bruce Ackerman attacking Obama's position on ISOL.
55:18
To which I say, bungled? Clearly. Illegal? Really?
55:26
You know, I think there's a very strong case that there is sufficient authority. And now yesterday, Obama got authority to train and equip. He's got two [INAUDIBLE], which nobody likes, but they haven't been repealed. He's not doing it on Article 2 power. If you read Goldsmith's Op Ed which appeared there, it's very clear that Goldsmith and Ackerman wrote their Op Eds, thinking that the administration would rely on Article 2 power. Instead they relied on [INAUDIBLE].
55:53
So they threw something at the end, to which some people logically said, you know, if Bruce Ackerman really believes this he should call for Obama to be impeached.
56:03
And the crazy thing about this is this is the imperial presidency? It's a manifestation of extraordinary presidential weakness by someone, who I think most people believe believes in the rule of law, but doesn't seem to know how to manage the roll out of legal arguments. So it's too bad. It's too bad. It's very hard to do this well. I mean, I experienced this in the government myself.
56:26
But on drones, for example, we should have moved from articulation of standards by speeches, which is as far as we got, to number two, greater transparency, number three, standard setting, and number four, consultation with Congress and our allies to try to embed them in positive law instruments rather than classified instruments. And we're a long way from that. On accountability, I could not agree more. But the administration's not over, although in a month or so, it might
56:53
be depending on what happens, so it's a tough situation.
57:01
[APPLAUSE]
57:10
MARTHA MINOW: Well, and thank you Dean Koh for being here and for doing all the work that you've done to advance human rights in and out of government service. We're very, very grateful. Can we have another round of applause? [APPLAUSE] I do have to confess. We were recently together and someone made a name tag for Harold Koh that said, Harold Koh, Harvard Law School, which I liked a lot. I thought that was a great name tag. So it is my great pleasure just to give a word
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or two of welcome and congratulations.
57:40
30 years is an accomplishment. 30 years means maturity. 30 years means it's not gone away. Human rights, the human rights program, the first and most robust law school based human rights program, right here, launched by Henry Steiner. Henry Steiner's vision and his passion and his commitment that this be a place of honest critique, not just cheerleading, is in the DNA of this organization. So can we just have a round of applause for Henry Steiner? [APPLAUSE]
58:18
Henry was kind enough to ask me to be one of the advisers to this program when it started. And I think that that deeply affected my own life, my own career, the work that I've done. It certainly taught me a lot as this program continues to do. And its combination of critique and activism I think is magic.
58:39
So I don't want to take any more time from what I know are going to be some great panels. The first one coming up is human rights advocacy across the generations.
58:47
And it's fabulous to see the names of the people who I remember and other people who I want to meet. And then after that, the second panel on the next stage of UN treaty bodies. This is a very important set of questions and you have on that panel some people who really know what they're talking about. Human rights, once upon a time was just a phrase. And then it a movement, then it became law, then it became actually something that people talk about at dinner tables,
59:16
people talk about in refugee camps, people have made real. And it is with the hope that the next 30 years will involve much more on the real side, but also continued critique here. Three cheers, and three cheers for the leaders, right now. And I just want to say salute.
59:39
[APPLAUSE]
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