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U.S. Department of State

Department Seal Harold Hongju Koh, Assistant Secretary of State for
Democracy, Human Rights and Labor

Remarks, Columbia University Law School
New York City, September 29, 1999

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When I started this job, someone at the State Department pulled me aside and said, "You know, at the State Department they hate four things: political appointees, global issues, professors, and lawyers." So it's a great thrill to have a little bit of time back here in an academic setting, where I feel right at home. Let me start by sending the personal greetings of Secretary of State Madeleine Albright, whom I left literally moments ago in the middle of what has been an absolutely insane schedule at the UN General Assembly. She was surrounded by a gaggle of foreign ministers, but she stepped out from the crowd to ask me to send her fondest congratulations and affection to her illustrious teacher, "the great Lou Henkin."

Now, I know the word "great" is overused these days, but I say the "great Lou Henkin" advisedly, the way I would say "the great Lou Gehrig," "the Great Gatsby," or "the Great Wall of China." There is only one of each of these. And, like these other greats, Lou Henkin is a towering and monumental figure, whose like we will not see again. He is one of the few certifiably great people that I have ever known.

Since I took this job 10 months ago I've traveled to 29 countries: from Belgrade to Beijing, from Istanbul to Jakarta, from Colombia -- not Columbia -- to Kosovo. But let me tell you why I would fly anywhere and why I would change any schedule to tell you what the great Lou Henkin has meant to me and to the millions for whom he has made human rights real.

I first met Lou Henkin 15 years ago in your other building, in the company of Benno Schmidt, who was at that time the dean of this great law school. I was looking for a teaching job at the time and as a recruiting device, Benno decided to show me the outside of Lou's office.

And then by accident, I think, Lou opened the door, looking exactly as he does today. We shook hands, and Benno turned to me with a huge grin on his face, put his hand on my shoulder, and said, "Harold, I know just how you feel. I remember the first time that I met Lou Henkin."

What Lou didn't realize on that day, 15 years ago, was that even though it was the first time we had met in person, it was many years earlier that he had first begun to shape my moral and intellectual universe. I remember reading Foreign Affairs and the Constitution as a law student and seeing a new vista opening from this amazingly clear analysis. It was like a map, with Lou as my cartographer across an intellectual terrain, the law of U.S. foreign policy, that since then engrossed me for most of my career.

As a graduate student studying international relations, I remember reading Lou's great book, How Nations Behave and pausing over a sentence that you may have heard before. "It is probably the case," Lou said, "that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time." That is the sentence that launched a thousand articles about compliance with international law. In my case it has pushed me toward both the intellectual and the political inquiry that I expect will occupy the rest of my days: the study of why nations obey international law.

I remember the first time I saw Lou Henkin in the flesh, not here at Columbia but a few years earlier at the Mayflower Hotel in Washington, DC, where he was running a meeting of the "Third Restatement of Foreign Relations Law " of which he was the reporter. The scene reminded me of Daniel in the lions' den. Lou was standing in a room much like this one, in front of a room filled with Wall Street lawyers, not one, I'm sure, who was billing less than $500 an hour. Lou was listening to their criticism of the wording of Section 712 of the "Restatement of Foreign Relations Law", the controversial expropriation section of that volume. After one particularly savage assault, Lou turned to the speaker and he said -- I think this is a direct quote -- "That may be what your clients pay you to advocate, but that's not the law and I'm not going to say that."

Sound familiar?

That was the moment that I first realized that what makes the great Lou Henkin an American hero is not just his brilliance and his scholarly achievement, but his total incorruptibility and integrity. If Lou says it, it must be right, or presumptively so, not just because there is no one smarter, but because there is no one more honest.

In the 40-plus years that he has graced Penn and then Columbia, his biggest impact for me has been the structure of international human rights law that he has helped to put into place. I don't exaggerate when I say that there is no person in this country or on this planet who has not found some shelter or affirmation in Lou Henkin's ideas.

As your Dean, David Leebron, said in his introduction to the tribute issue of the Columbia Journal of Transnational Law, working with Lou on human rights is like having Madison in the room teaching the Constitution. When it comes to international human rights, he was literally present at the creation. After clerking for Learned Hand and Felix Frankfurter, he moved not to the academy, but to my current institution, the State Department, where he spent time in both the Bureau of European Affairs and the Bureau of UN Affairs, in the process taking time to serve in the UN Legal Department and to be U.S. representative at the convention that eventually drafted the 1951 refugee convention. And so it was that Lou managed to play a key role in two institutions, the U.S. Government and the UN, that were themselves playing a leadership role in the formulation and codification of postwar international law.

Since then, his contributions to international humanitarian law, particularly in the area of refugees, his central role regarding ratification of treaties, his unparalleled command of both public international law and constitutional law, and his creation of the field of the law of U.S. foreign policy, have made him single-handedly one of the most influential human rights NGOs in this world. I often tease Lou Henkin by telling him that he's like the Forrest Gump of international human rights -- not intellectually, of course. Because in the 20 years that I've now worked in these fields, there is no important issue on which Lou has not spoken. There is no important event at which he has not appeared, and there is no critical issue on which he's not taken a stand. And although he has supposedly "retired," he has used the additional time he has freed up not to withdraw, but to play an even more active role, as a teacher, as a mentor, and as a sponsor to another generation of law students.

How many people, after all, do you know who 10 years after their retirement become the founding director of the Human Rights Institute at their law school, or who, 11 years after retirement, with a little help from their friends, comes out with a leading case book on human rights, to go along with the leading text on public international law, the law of U.S. foreign policy, along with a few restatements of foreign relations law, about 12 volumes of the American Journal of International Law, and a couple sets of Hague Lectures?

As I've gotten to know Lou better over the years, I've also learned he is not one of those people who loves human rights but can't stand human beings. The number of people worldwide who have been touched by his clarity of thought is matched only by the number who have been blessed by his personal kindness.

When I think of Lou, I often think of him walking with Justice Harry Blackmun in matching cardigan sweaters through the meadows at Aspen, talking with passion and emotion about the death penalty, race discrimination, and the right of privacy. This is a man of achievement who reaches out to the underdog. He's beloved not just by the famous, like Madeleine Albright and Harry Blackmun, but also by the unknown and the unnoticed.

Why else was it that when I was a young minority law professor, the first professor who invited me to speak on a scholarly panel was the great Lou Henkin? Why was it that when Lou's name was recently proposed as the U.S. member to the UN Human Rights Committee, he was elected by acclamation, not just because of his towering academic reputation, but also because most of the members of the African delegations could recall a personal kindness that Lou had paid to them while they were students in New York. Why else has this great scholar of international law come out of the academy time and again to provide legal advice to the Lawyers Committee on Human Rights, to teach judges about international human rights law, to sign briefs and affidavits in support of refugees, to file briefs on behalf of death row inmates and detained aliens?

How could it be otherwise when you are married to Alice, a woman and lawyer whose lifelong commitment to justice and society matches Lou's own? And if you want to see what love is, sometimes you ought to watch, when the sun is setting over Wye Plantation, to watch the two of them walking arm in arm, talking about international human rights. They're what we Koreans call mensches devoted lawyers and spouses who when the sun sets on the Sabbath set their timers, close their law books, read the Torah, and remind themselves that in the end the greatest truths lie in love and not in the ideas of fallible human beings.

The Dean has asked me to come here today not just to praise Lou but also to appraise the state of his most famous offspring, namely, international human rights law. In the 50 years since Lou started working on that subject, we've seen the community of nations come together in almost unprecedented ways to codify that law. Numerous internationally recognized instruments, many of them carrying Lou's fingerprints, now protect human rights law. But as we all know, the codification of norms has not prevented millions daily from being subjected to gross human rights abuse.

Let me suggest that in Lou's lifetime the glass has gone from being nearly empty to at least partly full. The "human rights paradigm," as you could call it, has evolved through four overlapping, but identifiable phases.

First, in the wake of the Holocaust, the paradigmatic human rights violation was genocide. To prevent future genocides, global human rights policy focused on standard-setting, to some extent with Nuremberg and Tokyo on accountability and on institution building. But the focus of the first period was on universalization of norms: I call this the age of "universalization."

These efforts have in many respects succeeded. International human rights law has won nearly universal acceptance from nations around the globe and has been formalized through many instruments. Although in practice abuses continue, no one seriously questions the notion of the universality of international human rights norms.

In the second phase, the Cold War, the genocide norm began to recede and the human rights paradigm shifted to reflect Cold War realities. The focal point of global concern shifted from mass murder to the plight of individual dissidents and prisoners of conscience. We can think of this as the period of Amnesty International, Sakharov, and Sharansky, when response mechanisms began to focus more insistently upon human rights monitoring and advocacy. Norms became institutionalized, not just through intergovernmental institutional mechanisms, but also through national and regional mechanisms. It is during this period that the State Department human rights bureau that I now serve came into place, as well as institutionalization on the non-governmental side of the human rights equation. It was during this period of "institutionalization" that we saw the dramatic growth of non-governmental organizations, such as the Lawyers Committee, on whose board Lou sits, and the Human Rights Watch, on whose board Alice Henkin sits.

Then a third phase began with the end of the Cold War. As ideology became a less salient factor, Francis Fukayama famously declared that we had reached the end of history. But as we know, the history did not end. Instead, the focal point shifted from ideology to identity, and we saw a horrific renewal of ethnic conflict and refugee outflows. The paradigm violation became group and ethnic conflict, and the search for solutions shifted toward preventive diplomacy, sanctions, and the development of what I call "transnational networks:" governments, intergovernmental organizations, NGO's, and courageous individuals, what I call "transnational norm entrepreneurs," like Aung San Su Kyi, the Dalai Lama, Jose Ramos Horta, Bishop Belo, and others, who sought to operationalize the norms of international human rights law.

So if the first phase was the phase of universalization, if the second phase was the phase of institutionalization, the third phase has been one of "operationalization" of human rights law, an era in which various mechanisms for enforcement of human rights norms have grown more robust and been supplemented by transnational public and private networks.

Today, 10 years after the Cold War, we are now entering a fourth phase, which I call the "age of globalization." It is a complex phase of history in which all of the elements that I have described are now simultaneously present. We live in a world in which the threat of genocide has not been dispelled, in which dissidents remain imprisoned, in which ethnic and group conflict continues to rage. We now have unwieldy response mechanisms that now involve intergovernmental institutions trying to apply international norms, transnational networks, new tools of accountability and monitoring and, where necessary, diplomacy backed by force, followed -- as we saw in Kosovo and East Timor -- with mechanisms of force backed by diplomacy.

In this world, conflict has few boundaries. Disputes escalate rapidly. Groups are regularly pitted against groups and in such situations, no one is safe from human rights abuses, be they relief workers, NGO workers, doctors, nuns, journalists, or children.

As recent events have demonstrated, massive abuses of human rights, including intentional targeting of civilians, have increasingly become viewed as an effective means of carrying out this kind of international struggle. We saw it in Bosnia, where civilians were raped and shot en masse, in Rwanda, or today in recent months in Sierra Leone, in Kosovo, or most recently in East Timor, where militias have killed and looted, hacking civilians to death on the very doorstep of the UN compound.

So this is where we stand on the brink of the millennium. In fundamental ways the human rights community is coming of age, but it is doing so with a maturity that gives it a sense of how large remain the problems that still loom.

Even if we have by no means managed to end human rights abuses, the good news, I think, is that we have at least started to develop a tool kit for addressing the situation. Since joining the State Department I have gained a much deeper appreciation of just how complex it is to institutionalize and operationalize norms through massive bureaucratic structures. When I was an academic, it was easy to stand outside the system, to criticize it and talk about what "the world community" should do. But now I view the global human rights community a little bit like the dog that walks on two legs. It is amazing that a human rights response happens at all. Seeing how hard it is to get even one human rights bureaucracy, the U.S. State Department, to act, I am even more amazed when I see how difficult it is to foster interventions involving the cooperation of scores of governments in a world in which every problem is complex and urgent, in which resources are always scarce, and information is never perfect.

So where do we go from here? Some people say the U.S. Government has no human rights policy. In my time in this position, I have tried to argue that we do. That policy has four parts.

First, we have tell the truth about human rights conditions, however painful or unwelcome that truth might be to foreign governments or even to our own government. Lou Henkin is famous for saying, "In the cathedral of human rights, the U.S. is like a flying buttress. We support that structure, but only from the outside." The fact that we have failed to ratify so many key human rights conventions, like the Convention on the Elimination of Discrimination Against Women, the Covenant on Economic, Social, and Cultural Rights, and the American Convention on Human Rights, remains to me a continuing embarrassment. We need to do more to bring our national standards, and especially the standards of our several states, into line with international standards. For although we're proud of our domestic human rights record, we have not fully internalized human rights norms into our domestic law. We have to do more to assure that our asylum policies, our police system, our prison system, and our criminal justice system are second to none in meeting international standards.

Second, we need to stand on principle and continue to articulate basic, fundamental rights and freedoms, and to protect them as we can.

Third, we need to be consistent and take consistent positions with regard to the past, present and future abuses. With regard to the past, we need to promote principles of accountability and reconciliation. To do that, we do need to continue working toward the development of an effective and independent international criminal court. We need a court that is strong enough to bring to justice violators of human rights and humanitarian law, while at the same time ensuring that that court will safeguard the legitimate role of national judicial systems and won't become a vehicle for frivolous and politically motivated charges. If such a court can be created and if the U.S. can join it, it will be a critical part of our tool kit for deterring gross abuses and for insuring that those who do commit atrocities do not do so with impunity. To stop ongoing abuses, we should use an inside/outside approach with those countries with whom we have diplomatic relations that combines strategies of internal persuasion with techniques of external sanction and pressure.

To prevent future abuses, we need to promote early warning, preventive diplomacy, and tools of societal reconciliation. I'm not advocating an open-ended commitment to humanitarian intervention without limiting standards or principles. But as Secretary Albright has repeatedly said, as President Clinton said at the General Assembly earlier this week, supported by the views of Secretary-General Annan, there are moments when collective military intervention is appropriate and feasible, and at times, sadly, when it is the only way to halt or prevent the mass slaughter of innocents or other large-scale human rights calamities.

Fourth and finally, our human rights policy must recognize that no government can promote human rights alone. We have to build partnerships and strategies of partnership between human rights advocates, corporations, labor unions, international financial institution, and other organizations. We cannot allow dichotomies to be created between business and human rights, between labor and human rights, when in fact their interests are often coincident. The U.S. Government cannot afford to be isolated from the NGO community, the media, or the academy. To make progress we have to work together and challenge each other to come up with more creative solutions.

When I joined the State Department, my students at Yale gave me a going-away present, a set of calligraphy scrolls that, in Chinese characters, bore of one of my favorite sayings: "Theory without practice is as lifeless as practice without theory is thoughtless." In the academic world, a lot of energy goes into the development of theoretical approaches that fail any reality check. On the other hand, in the bureaucracy, critically important decisions are regularly made with too little thought, too little attention to lessons of the past.

What Lou Henkin has done over his career is to find that perfect balance between the practical and the theoretical, between the ivory tower and Foggy Bottom. He has succeeded in large part because he is the epitome of the citizen lawyer, dedicated to public service, always ready to serve when his country calls, whether it was to fight in World war II, to be the advisor to the U.S delegation on the Law of the Sea, or, as he has recently graciously agreed to do, to serve as a member of the UN Human Rights Committee.

So as we dedicate this chair to him today, let me challenge those of you in the room to join Lou Henkin in this ideal of public service.

My bureau at the State Department has many dedicated public servants who have placed their careers on hold for a few years to serve their country. Too few of them come from the NGO community or from the academic specialists whom we consider to be human rights experts. In human rights, far more than in other fields, the line between private practice and government service seems like a chasm. I do not know why that's the case, but I can only observe that Lou's own government service never limited his capacity to criticize U.S. foreign policy. In fact, I think it is clear that his time in government has only enhanced and given greater meaning to his ability to see farther and deeper than the rest of us.

So my message is simple: we need a human rights policy that tells the truth, that stands on principle, that takes a consistent position toward the past present and future, and that fosters partnerships to deal with emerging human rights problems. We need more Lou Henkins and I would ask you to please be one of them.

In closing, let me say, that if we have the courage to be principled without being rigid, to be consistent without blindly adhering to the past, and to be humble while still being hopeful, we can build on Lou's remarkable legacy and make real progress toward the goals that he has laid out for us.

The Reverend Martin Luther King once said, "The moral arc of the universe is long, but it arcs toward justice." What the great Lou Henkin taught us is that it arcs toward human rights as well.

In his dedication to How Nations Behave, Lou Henkin describes his father in the words of the Psalms. He said, "My father was a man who all his days loved law, sought peace and pursued it."

It is my honor today to celebrate a professorship that makes timeless a man who is already immortal. May the Louis Henkin Professorship of Human and Constitutional Rights stand into the next millennium and beyond as a tribute by this law school to a great man who all his days loved law, sought peace and pursued it.

Thank you very much.

[end of document]

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