HLS Library Book Talk | Taiwan and International Human Rights: A Story of Transformation
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HLS Library Book Talk | Taiwan and International Human Rights: A Story of Transformation

October 13, 2019


SPEAKER 1: Hello, everyone. [NON-ENGLISH SPEECH]
My name is [INAUDIBLE].. On behalf of the Harvard
Law School Library, I would like to welcome
you to today’s Book Talk inside liberation of the
recent publication Taiwan and International Human Rights– A Story of Transformation. Before we get started, I
have a few announcements. The Law School
[INAUDIBLE] is here today in the outside the
corridor to sell copies and to take orders for a
discounted price of the book. I would like to thank
the dean’s office for sponsoring today’s lunch. Finally, I would
like to remind you that today’s talk
is being recorded and will be available about
two weeks after today’s talk on the Law School’s
YouTube channel. Thank you. And now I will turn
the microphone over to Professor Alford, who will
introduce today’s speakers. WILLIAM ALFORD: Thank
you, [INAUDIBLE].. So I want first to thank
[INAUDIBLE] and others at the Harvard Law
School Library. I begin no project
on China or Taiwan or anything else without first
consulting with [INAUDIBLE].. And our librarians are amazing. I still believe, even
in the age of Google, that the library is the
heart of the Law School. So I want to thank Jonathan
Zittrain, June Casey, Jennifer Allison, Rachel Parker, and
everyone else who helped make this event possible. So our program for today, first,
I will introduce our speakers, then I want to provide a
short substantive introduction to our book, which is
here, this weighty tome. And then we’ll hear
from our commentators. And then the co-authors we’ll
have an opportunity to respond. And finally, we’ll open up for
questions with the audience. I’m aware that some people will
need to leave for a 1:00 class. But don’t worry about that. So just by way of
introduction, so our three commentators
are one each from the US, from PRC, and from Taiwan. From the US is Professor
Steve Goldstein, and Steve is the Sophia
Smith Professor Emeritus of Government at
Smith College, where he taught from 1968 to 2016. He looks too young for
that to be true, but it is. He directs the Taiwan
studies workshop at the Harvard Fairbanks Center. He’s written widely
on many subjects, including China-Taiwan
interaction, and he’s been a visiting faculty
member at the US Naval War College, at Columbia University,
at Tufts, and elsewhere. Sitting next to Steve, in the
middle between Steve and Jerry Cohen, is Chen Yu-Jie. Yu-Jie is a graduate LLM and
SJD from National Juncture University in Taiwan,
and then from NYU here in the United States,
where our former colleague Ryan Goodman was her
principal supervisor. She’s written widely on human
rights issues about Taiwan, and as well about social
credit in the PRC. Sitting at the far end is Zhou
Dan, our third commentator, and he is currently
a doctoral student here at Harvard Law School. Before that, he graduated
from [INAUDIBLE] University and Tsinghua
University in China, also did his LLM
here at Harvard, who’s a very accomplished
lawyer in Tsinghua before coming to
the United States. Very active in
LGBT rights issues. Our co-editors, quickly to
introduce them, my co-editors, Justice Lo Chang-fa. Justice Lo has completed,
on September 30, an eight year term as a justice
of the Constitutional Court in Taiwan. Unlike some other
countries, there are term limits, something
we might learn about here. [LAUGHTER] He was dean of National
Taiwan University Law School, a very successful dean. He launched three new
journals during his deanship, and promoted studies of trade
and bioethics and health law. He is an enormously accomplished
award-winning author, responsible for 13 books
and over 100 articles, and a graduate,
we’re proud to say, of Harvard Law School,
both SJD and LLM. And finally, needing
no introduction, but let me do it
anyway, is Jerome Cohen. We like to refer to Jerry
as the founding emperor, the [INAUDIBLE] of our East
Asian legal studies program. Jerry has graduated from Yale
College and Yale Law School. He clerked for Justices Earl
Warren and Felix Frankfurter, practiced at Covington
as US prosecutor, and really established the
field of Chinese legal studies here in the United States. For the last 19 years, I
guess it is– or I’m sorry, 29 years– he’s been
in exile at NYU, but we still think of him always
as a part of the Harvard Law School faculty. So let me turn now to the
book itself substantively and just offer a few remarks. So when I first went
to Taiwan in 1975, it was a very different place. I should say I went
to Taiwan thanks to Jerry Cohen,
who, although I was a mere student not yet
at Harvard Law School, facilitated by going. And it’s one of the
many things that Jerry has done for literally thousands
of students over the years. And it’s a great honor now to be
known as the Jerome A. and Joan L. Cohen professor. Maybe we could just all applaud
Jerry and Joan for a second. [APPLAUSE] So when I say that Taiwan was
very different when it first went 44 years ago,
let me give you a quick illustration or two. As soon as I moved in with the
family with which I was living, Taiwanese family, the husband
came with a stack of magazines from the Chinese
mainland and said, keep these under your bed,
because if the police come and they find them in
your room, you’ll simply get deported back to the US. If they find them in my
room, I’ll get sent to Ludao. Ludao, Green Island
was a place where political prisoners were sent. Censorship was enormous. My copy of Time
magazine would come. If there were a picture
in it of Chairman Mao, it would be stamped gongfei,
you know, commie bandit. And other articles
were just cut out. So you’d hold up the
magazine and there’d be part of a page missing. When we raised this
question, myself and a group of other
student leaders, with government officials, we
were told, well, 98% of content isn’t censored, so why are
you so bothered about 2%? But Taiwan has changed
massively, as we try to document in this book. It has vibrant civil
society, opposition party, primaries within different
parties, universities in which a range
of views are hotly, powerfully contested, more media
than one knows what to do with, and just a very open
and pluralistic society. To be sure, much
more needs still to be done, as in every country. Death penalty, in particular,
is one issue that stands out in need of further progress. But to note the
accomplishments that we’ll be speaking about today, and
indeed to celebrate them, is important. And I would stress is
not to mean that one is an enemy of the PRC. Rather, I think that what
we found and documented in this book is an
example of what’s possible in a society that,
at least in significant part– significant, but
not exclusive part– is of Chinese heritage. So I think that our
book– and here, again, I want to thank Justice Lo,
without whom the book would not have come into existence. The book itself bears
out what I’m saying about openness and pluralism. The book is diverse in
many different respects. Let me just give you
a few quick examples. Authors include individuals
with doctorates from Harvard, National Taiwan University,
Berkeley, Chicago, Columbia, Heidelberg, London School
of Economics, NYU, U Penn, SOAS in London, Vienna
Warwick, Yale Law School, and other places. It’s quite a range of authors. We have authors from Taiwan,
from the PRC, from the US, from Austria, and
from other countries, include legal academics,
judges, activists, medical school professors,
business school professors, and others. 14 of our authors are women. And it’s really
Pan-Blue Pan-Green in terms of Taiwan politics. There are people from
across the spectrum. And indeed, I wore my Pan-Blue
Pan-Green necktie today. Show the spirit. But most importantly, the
book itself is a testament to the pluralism I mentioned. If you go into it, you
will see, on almost every important
issue, a broad range of different perspectives. So you will see, for
example, some people who see the government’s
engagement with the body of international human
rights law as reflective of what’s best about
Taiwan society, kind of an idealistic set of
motivations driving it. You will see other
people who say the government is totally
cynical and instrumental, isn’t totally
sincere about this, and really, is
trying to position itself as distinct from
the Chinese mainland. And that’s what accounts
for some of the progress in human rights. You’ll see other authors
who say, you know, the government really isn’t
the prime driver here. It’s civil society
in Taiwan that has led the development
of these rights and that deserves the credit
for pushing them further. And you’ll find
yet other authors who aren’t interested in
those kind of debates, and instead are trying to
engage world-class thinkers, like Jeremy Waldron,
for example, in talking about what rights might mean. I could say a lot
more, but I want to stop here and turn
to our commentators. Again, finally, just
to thank Justice Lo and thank Nancy
Hearst from the Fung Library at Harvard for their
role in making this possible. So I think we’ll turn first to
Professor Goldstein, and then Dr. Chen Yu-Jie, and then Zhou
Dan, each to offer comments. Thank you. [APPLAUSE] STEVEN GOLDSTEIN: Bill
mentioned that I had taught at Smith for 48 years. I can even go further
back, and 58 years ago, I was put on the waiting
list for Harvard Law School. [LAUGHTER] I enrolled at Columbia,
and every morning I would go down and
check my mailbox, and the letter never came
until about a month ago– [LAUGHTER] –when I was finally asked to
come to Harvard Law School. [LAUGHTER] So I’m honored to be here. It took a long time. But as a friend
of mine once said, Harvard recognizes quality. [LAUGHTER] As a political
scientist, the story of Taiwan over the
last three decades has been the story
of democratization, but democratization
and also the morphing of rule by law, mostly martial
law, into the rule of law. And the democratization
has, I think, obscured that very
significant change. And because, basically,
democratization recommend– democratization reflected
elections, political parties, free association. But underneath all
that, equally dramatic has been the emergence of a new
regime of law since the 1980s. One other thing has emerged
since the 1980s that, again, is often obscured by the
big story of democratization on Taiwan, and that is the
change in national identity on the island. Now, national identity
is a very simple term. It simply means, who am I? I’m an American. I’m a Danish refugee. I’m an African-American. It’s a matter of identity, which
is exactly what the word says. That has changed dramatically
over the last three decades. And so what I’d
like to do today is I’d like to take those two
subtexts of democratization in Taiwan, the changing– or the changing nature of the
legal regime, and the changing identity, and try
to put them together to add another dimension
to a very fine book. So first, a little
bit of history. From 1945 to 1949,
Taiwan was occupied by the nationalist government,
which had first accepted the surrender of Japan,
and then established Taiwan as its new capital,
but most importantly, as a bastion from which to
regroup and eventually invade the mainland. Taiwan was to
become the springing off point for the
continuation of the Civil War. When they came to the island,
what the mainland government found was a population
that had lived under Japanese
imperialism for 50 years. They found a population that
was more Japanese than Chinese. Though they were ethnically
Chinese, they spoke Japanese. Many of them had Japanese names. Much of the culture
was Japanese. And for the government and
the Army coming to Taiwan, who had just fought a
horrendous war with the Japanese on the mainland, of which
Taiwan was not a part– in fact, Taiwan was on the
Japanese side– this was a shock. But it was more than a shock. They looked at the
population of Taiwan as Japanese slaves, which
is the term that they used. Japanese slaves that
couldn’t be trusted– that couldn’t be trusted
either to rule themselves, or, most importantly,
couldn’t be trusted to become the foundation
for a renewed China that would invade the mainland. So what the government did,
what this transposed government did, was it established
an authoritarian, military-dominated
political system, and it engaged in a broad
campaign of signification. Taiwan history was not taught. It was forbidden to speak the
Taiwan dialect in the schools. The history of
Taiwan was integrated into Chinese history. The effort was made
to make the population of Taiwan a Chinese population. Democratization changed all that
at the end of the 20th century. I never thought I would
ever say that, by the way. That makes me sound very old,
the end of the 20th century. Anyway– no one got that? [LAUGHTER] Anyway, all of that changed at
the end of the 20th century, 30 odd years ago,
with democratization. And democratization
had two effects. The first effect
of democratization was that it made it possible
for the people of Taiwan, the politicians of Taiwan,
to talk about Taiwan, to talk about Taiwan
history, to talk about the Japanese occupation,
to talk about what they felt was a very distinctive
history that was different from the mainland. Democratization
allowed a second thing. Democratization by
the inauguration of popular
participation developed a kind of civic identity. Now, identity– remember I
said that identity is a way of relating to who you are. You can have an ethnic identity. You can think of
yourself as Chinese. But you can also have
a civil identity. And that is when you
think of yourself as a citizen of a
particular country or of a particular system,
and you identify yourself with that system. And what developed
under democracy was not only a dialogue
about what Taiwan is and who Taiwanese are,
but what also developed was a loyalty to the
political system. The political system was
no longer their system, was no longer the mainlander
system, the Waisheng system. The political system
now became our system, and people began to
identify as Taiwan Ren. That had two effects. One, internationally, Taiwan,
with this new identity, sought some recognition in
the international system as a sovereign
entity, as a state. And the growth in Taiwan
identity had a second effect, and that second effect was
a resistance to efforts by the mainland to entice
Taiwan into joining the mainland as a part of One-China. OK, by now you probably
thought that one of us has come to the wrong meeting. You thought I’d be
talking about law, and here I am talking
about identity. But all of this relates,
and it relates to the book. And I’d like to suggest
that it relates to the book and it relates to
law in three ways. The first way is
discussed in the book by Jacques deLisle,
who teaches down at the University
of Pennsylvania. And that is he
asked the question, why is Taiwan adhering to
international codes when, because it is not
a sovereign state, it cannot be a part
of those codes? And deLisle’s answer is, to me,
very simple and very obvious. It’s a two-fold answer. One, if they adhere
to these codes, they can behave as
if they were a state, even though they’re not, even
though they’re not recognized. They’re only recognized
by 15 countries in the world as a state. But if they behave
according to the code, they’ll look like a state. And the second reason for it
is what they would look like. That is, Taiwan advertises
its democratic nature, advertises its contrasts
with the mainland. And by adhering to these
international treaties and agreements, it contrasts
itself with the mainland and with the rest of the world. Secondly, the identity,
I think, challenges some of the legal norms
that have developed in democratic Taiwan– legal norms such as freedom of
speech, freedom of association. There are people on Taiwan
who are emotionally, or financially, or for
other reasons attached to the mainland, who feel
that Taiwan’s place is with the mainland. They’re in the minority,
and increasingly, they are becoming viewed not
as political advocates, but coming to be
viewed as traitors. For example, the
new party, which is a party that
argues for acceptance of the mainland’s conditions– one country, two systems– is constantly under
investigation. The media is right now– if you think fake news
is the big story here, you should go to Taiwan. The media, the Mainland
Affairs Council, which is the body that manages
relations with the mainland, has basically said that
there is no free speech when it comes to questioning
the sovereignty of Taiwan. So there is that tension. There is that tension
between identity and this new legal regime. Finally, one last thing. The new legal regime,
while it contrasts with identity,
conflicts with identity, also reinforces identity. One of the authors in
this book, Margaret Lewis, has done a lot of work on
the Taiwan legal system. And one of the
points that she makes is an unintended,
perhaps, effect of legal reform on Taiwan
is to reinforce identity. Because this is becoming,
again, our legal system. This is becoming the legal
system that we have developed, and again, this
sense of identity, this sense of separateness. Anyway, I should stop there. And I just would second what
Bill said, that this is a book, I think, worth reading
and worth reflecting on. Thanks. WILLIAM ALFORD: Thank
you very much, Steve. [APPLAUSE] Now Yu-Jie. YU-JIE CHEN: OK. Thank you. Thank you all for being here. I would like to say it’s a
privilege for me to be part of the book project, and
also to work with three academic giants in this field. It’s a privilege as a
Taiwanese to witness and study Taiwan’s story of
transformation, as the book title suggests, and also to
be able to sit here and share this inspiring story
with you today. The story of transformation is
a series of ongoing processes that have lasted for
many, many decades. And in the process of
Taiwan’s transformation, there are many aspects
that are impressive. But what has
probably impressed me the most is the creative
and innovative approach that Taiwanese civil society
and Taiwanese government have taken in this
process, especially in light of the changes that
Taiwan is confronted with, mostly international isolation. So this aspect is also
well-illustrated in the book. Today I’m going
to focus on these, I think, very encouraging
efforts to improve Taiwan’s Human Rights practice. I think it’s important. It’s very crucial to Taiwan’s
continuing enterprise to improve human rights
and the rule of law. It’s also very inspiring. I think it has some useful
lessons for other countries’ experiences, as well. So I want to try to
highlight these aspects in today’s remarks. So Professor Goldstein has
already mentioned isolation. Taiwan indeed cannot
participate in major international organizations or
UN Human Rights Treaty System. But the civil society groups
and activists in Taiwan thought that it would be a huge
loss to Taiwan if it could not make the best use of
International Human Rights Protection. So starting from the late
1990s, after democratization, a number of civil society
groups and activists began to campaign, asking
the Taiwan government to incorporate
International Human Rights standards into domestic
law and enhance international cooperation
on human rights. The civil society
efforts did not really begin to bear fruits until 2009
when the former President Ma Ying-jeou’s
administration and the KMT dominated legislature approved
the ratification of the two major human rights covenants
on civil and political rights, as well as economic,
social, and cultural rights. The two major covenants,
ICCPR and ICECR, were incorporated as
domestic law in 2009. And then following this,
other major human rights treaties have also been included
in Taiwan’s legal system. Since the Taiwan government
cannot go to Geneva to undergo the monitoring of human
rights treaty bodies, which is what other countries
that ratify human rights treaties do. So to ensure government
accountability, the Taiwan government worked
along with civil society groups to design a very unique
human rights treaty review that would take place
in Taipei rather than Geneva. And this has been done
since 2009, periodically, for not only the ICCPR,
but also other human rights treaties such as CEDAW, the
women’s rights and children’s rights, as well as rights of
the people with disability. This periodic treaty
review is really unprecedented in the world. It invites in renowned
human rights experts such as Professors Jerry Cohen,
Philip Alston, and Manfred Novak to come to Taipei to
conduct an independent review of Taiwan government’s
performance in accordance with the treaty obligations
it has signed on to. Since it’s taken
place in Taipei, it really allows many NGOs that
cannot afford to go to Geneva to take part in this
process in Taipei. It also allows huge numbers
of government officials to participate in the dialogues
with the international experts. After the review, the
international experts would issue concluding
observations and recommendations to point
out what’s still lacking in Taiwan’s rights protection. And the Taiwan government
should improve accordingly in the next four or five
years until the next review. So what I describe is a
process that’s self-initiated, self-established by
the Taiwan government, as well as local stakeholders. From a social legal point
of view, these processes, these reviews serve as, I think,
education and internalization processes for both
non-governmental actors and the government. So government
officials are exposed to international human rights
discussion during the process of writing national human
rights reports and the dialogues with international
human rights experts. These processes also
add to the toolkit of domestic
nongovernmental actors and help them express
their critique clearly to the government, and
also adds legitimacy to their demands
to the government. It’s also important to point
out that these processes serve as institutional platforms
for the local NGOs to have regular
institutionalized dialogues with the government actors to
sort out human rights problems. Of course, really, it
goes without saying, like any other
country in the world, there’s still so
much room to improve for the Taiwan government. For example, Taiwan cannot take
part in the International Human Rights Regime. So it’s been really
slow to incorporate international standards. It has also not established
in accordance with the Paris principle to establish an
independent National Human Rights Commission. Having said that, I
think, to a large extent, Taiwan’s story is very
positive, and indeed is a shot in the arm for the
International Legal System, especially given
today’s developments and democratic
backsliding, as well as many still ongoing human
rights abuses around the world. There are several things that
can be noted of this story. First of all, Taiwan’s
democratization and continuing improvement
in human rights and the rule of law is essentially a
domestic endeavor, not something imposed
by the United States or other Western countries. The pursuit of
international Human Rights has been an initiative and owned
by domestic stakeholders who see the value of international
protection and cooperation and, therefore, draw
upon global resources to help them achieve their
goals and vision of Taiwan. Human rights in today’s
world can no longer be considered merely
foreign interference with domestic affairs,
as often claimed by authoritarian countries. Instead, human rights
monitoring should be welcome for the betterment
of the country’s future. The second thing I
would like to note is Taiwan, after so many decades
of international isolation, instead of adopting
a victim mentality and feel bitter about
international isolation, Taiwan has truly turned
a vise into a virtue by showing its adaptability
and creativity that’s required to make improvements in
the face of serious challenges. Indeed, transformation requires
a flexible, innovative, and forward-looking mindset that
is open to changes in culture, social, and political conditions
in the pursuit of a better world. I’ll stop here. Thank you very much. WILLIAM ALFORD:
Thank you, Yu-jie. [APPLAUSE] JEROME COHEN: You did great. WILLIAM ALFORD: Thank
you, and Zhou Dan is our last of the commentators. DAN ZHOU: First of
all, it’s absolutely a pleasure to be here
to give some commentary on this marvelous book. So I congratulate the three
editors putting together this unprecedented book. The book is truly
a tour de force, literally and figuratively. Literally, it is a forceful
work covering every aspect of international human rights
issues and its interplay with Taiwan, ranging
from transition justice through voluntary [INAUDIBLE]
with international treaties to protection. Figuratively, the
book demonstrates that human rights are not hollow
hope, but a force of liberty, equality, fairness, and justice. While this book is
topically comprehensive, I’m not attempting to be a
comprehensive in offering commentary. I will focus on two aspects
relative to the book. One is transformation,
the other cross-straight. Let me start with
the first point. As the subtitle of
the book suggests, Taiwan human rights
story is transformative. It is transformative because it
tells how the people of Taiwan have turned a great idea
into a lived experience. Moreover, it is
transformative in that it has debunked the myths that
the Chinese people are not fit for democracy and
human rights commitments. As the book convincingly
shows, Taiwan experience has proven that a
Chinese civilization can be commensurate with
democratic governance and universal aspirations
for mutual and equal respect and dignity, fairness
and accountability while it can preserve its
indigenous or idiosyncratic traits in a delicate
and proud fashion. More importantly, the
Taiwan human rights story is transformative
because it is vividly illustrative of how a
dictatorship has been transformed into a
democratic regime which recognizes and enforces
universally accepted human rights covenants. In other words, it is
a journey of authority which used to be premised
upon the Mandate of Heaven and illiberalism
has metamorphosed into one built upon
the mandate of people, as well as the mandate of human
rights oriented commitments. The Taiwan story
has figuratively– sorry, has figuratively,
more provincially in the era when authoritarian has on the
rise and the democracy is under threat in the world. And in the age when the
[INAUDIBLE] and the [INAUDIBLE] titles of practical signs
displayed in bookstores in the United States are
how democracies die and how democracy ends. However, this book, of
course, is not another piece raising the same grim question. On the contrary, this book
provides evidence for hope that respectful fight for
enforcement of human rights helps democratic governance
to survive and thrive. To be sure, human rights
as a universal value is new human history. But as the aspiration for and
a dedication to human rights defense, who we
are as human beings living on the face of the
earth in this century. Of course, when I was
reading this book, the ancient questions kept
arising, home or non-home? State or non-state? Hospitality or hostility? These questions have never
been settled at any time in human history, even now. I do not assume all the Chinese
people all over the world now can arrive at any sense– or any [? concensus ?] on any
of these old hard questions. However, Taiwan’s
story demonstrates that human rights work has
generated positive outcomes even in a society
with deep roots in Confucius tradition and
a military dictatorship. Furthermore, the
Taiwan experience has dispelled
pessimistic skepticism by assuring that human
rights work has strengthened and will be
strengthening democracy. Of course, just like
any other jurisdictions, the road in Taiwan
and at the road Taiwan has taken in recognition
and realization of human rights has been tumultuous and arduous. However, pursuit
of human rights has been a process of seeking home. For many people in Taiwan,
the ideal of human rights has become a guiding
star above the ocean currents propelled by local,
regional, and global wings. Rather than a
patch of land, home is where human rights
lead, especially in contemporary times. Speaking of home, I go
on to discuss briefly the second point,
cross-straight. Here, the words
straight are homonyms. Straight, Taiwan straight,
and straight people. In recent years, one of the
most significant human rights breakthroughs in Taiwan
is legal recognition of same-sex marriage. Taiwan is the first
Asian society which has legalized same-sex marriage. This achievement has
crossed the boundaries of the straight-only marital
and domestic institutions. For LGBT people in
Taiwan, same-sex marriage is home to their loving and
flourishing relationships, and home where
democratization of the most intimate and fundamental
institutions has ever occurred. This progress inevitably brings
cross-straight questions. How will Taiwan authorities
allow same-sex marriage between one from Taiwan and as
the other from mainland China? Will the government of the
People’s Republic of China recognize same-sex marriage
performed in Taiwan? I do not know the
answers at this moment. I do not venture to
make predictions. But I’m convinced that
only relentless pursuit of human rights can
help cross the straight. Thank you. [APPLAUSE] WILLIAM ALFORD: Thank
you very much, Zhou Dan. Very, very thoughtful. I think we turn
now to Justice Lo and then to Professor Cohen to
see if they have any responses, and then we’ll open
up for questions. JEROME COHEN: That’s a joke. CHANG-FA LO: Thank you very
much for the introduction, and also for offering
us the opportunity to present the book. It’s always good to
be back to the school. It’s home of mine in the US. So with that, I’d like
to make some remarks on what had been commented
by our three distinguished scholars on our book. Talking about identity,
well, definitely the movement of promoting identity in
Taiwan is somewhat related to the enhancement of human
rights protection in Taiwan. A lot of people who are
in favor of strengthening the identity, our identity,
are also in very strong support of human rights protection. So they are definitely
closely linked. But we also have to bear in mind
that, in Taiwan, it is, though very small, still a
divided society in terms of people’s political beliefs. And those people
who are more or less in favor of ultimate unification
with China, many of them also are in very strong
in support of human rights protection and promote
them very forcefully. So bear this in mind, that there
are very wide range of people having very different
political beliefs or in support of human
rights protection in Taiwan, is first point. Another point is about
Taiwan versus mainland China. One point that is constantly
missing in a lot of discussion is the fortunate aspect of the
KMT government having brought the Constitution to Taiwan. Although the Constitution
was drafted in China, in mainland, it is like
a very big wind coat and not suitable for a
small island, so there must be some modifications. But Chapter 2 in this
constitution is very– should I put it this way– advanced drafted. It can accommodate
newly developed ideas, newly developed types
of human rights. So we are very fortunate to
have this Constitution be in place in Taiwan,
especially Chapter 2, which is the fundamental right of
the people in our constitution. So this is another point. Yet another point is about
our adherence to international human rights treaties. In addition to probably
the original idea of promoting our identity
at its intervention level, to make some kind of
advertisement of our progress in human rights feud,
in addition to all this, perhaps we also have to
see the genuine effort made by a lot of people
who might not be having such background
in mind, a propaganda background in mind. For instance, we have invited– as mentioned by Yu-Jie– invited international
expert to conduct external reviews
of our performance, and they are very critical. And they sought– perhaps there
are some positive aspects, but still a lot of
areas that we should put more effort to improve. Actually, this book was the
product, an indirect product, of that external review. Jerry came to Taipei to
participate the second review that was two years ago. And after that, he went
to [INAUDIBLE] University to deliver a talk. At that talk, he mentioned that
perhaps there could be a book to tell the story of Taiwan. Taiwan has much to share
with the rest of the world. So this is part of our
exercise to genuinely improve the human rights situation with
external criticisms to help us. And also– perhaps this is not
very common practice in other jurisdictions– our legislator enacted
implementation laws of the human rights covenant. We have already enacted three
implementation legislation to incorporate,
literally incorporate, international human rights
treaties into our legal system. This is another point. Yet another point is that
human rights treaties have become a very
important element to support our constitutional decisions. When we had– well,
we have 15 judges in our Constitutional Court. We constantly debate. We conduct deliberation sessions
three half days each week. We constantly debate
on various issues. And a lot of time, some of us– basically me– would have
to persuade my colleagues to accept a certain
standard of protection based on the international
standards, based on international treaties, based
on the general comments issued by the United Nations. So this are very useful tool for
us to help our interpretation. And our method is to– not to directly adopt
international treaties as our constitutional
content, but to introduce the content of international
human rights treaties and be injected into our
constitutional provision to shed light on the provisions
so as to make our constitution a living constitution. So this is another
very important aspect of international
human rights treaties to us and to our
constitutional system. Another point is
about Confucianism that was mentioned by Zhou Dan. There could be–
well, in our book, you can find different
views about Confucianism, about the role of
Confucianism in the protection of human rights. But I would put it this way. There are positive, and
possibly negative aspect, of Confucianism in the process
of human rights protection. The positive– the negative
aspect is that these– there tend to be some kind
of hierarchy between people under the Confucius concept. Father must like father. Son must like son. Husband must like husband. And wife must act like wife. So there is some hierarchy. Its structure is there. And these, perhaps,
prevent people becoming more critical on the
structure, on the situation, on the hierarchical
relationship between people. And also, the Confucianism
tends to teach people to be moderate, to be
milder, not to be so radical. So this, perhaps,
also prolong or delay the development of democracy. But at least the milder
concept, the moderate concept, help us to move in a
step-by-step, very stable, looking forward steps. For instance, if we
look at the transition, the past several
decades, we do not have– we didn’t have any
real sacrifice because of the promotion. Well, there could be
one or two, not really many sacrifice because of the
promotion of human rights. So this, perhaps,
is also a background that we can bear in mind. The last point is about
the Constitutional Court, which relates to what Zhou
Dan had just mentioned about the same-sex marriage. Our society is
still very divided concerning same-sex marriage. Just a small story, when we
were conducting our deliberation in last several months, we
had very intensive debate about how to dispose this case. All of my colleagues,
including myself, received so-called ghost money. Some kind of currency. If you know the
Chinese tradition, ghost money is supposed
to be burned to the ghost or to the ancestor. It means that person. So this is– this reflects
the worriness, the concerns from the society on this issue. When we made our decision
on the same-sex marriage, surprisingly, 12 out
of 15 were in support of the ultimate, final decision. So that is still– that is a very, very
positive outcome. But after that, there
are still movement by various groups
for a referendum to overturn our decision. Of course, constitutionally,
it cannot be overturned. Still, there are still– there are people not
satisfied with this. So you can see the
diversity of the society. And you can also
see that probably on certain critical
issues, perhaps, we have to more or less
depend on the court to lead the development. If we are to wait for the
society come into a consensus to ultimately make
the decision, it would last, perhaps, too long. Thank you so much. WILLIAM ALFORD: Thank
you, Justice Lo. [APPLAUSE] Professor Cohen, I know you’re
always shy about speaking. [LAUGHTER] JEROME COHEN: As
Stalin would have said, it’s no accident I’m
last on the program, because Bill knows
that imposes a limit on the length of my remarks. I love to speak, as
he said, but I’ve never been happier listening to
other people talk than today. I think these speakers
have done a remarkable job. I have learned too much, because
I’ve made endless notes here. And I could, indeed, go
on all afternoon, happily. This book meets the weight
test, as well as all others. I remember when my distinguished
senior Harvard colleagues, Professors Fairbanks
and Reischauer, each published
his autobiography. They gave me copies. And they were good books. But we had air conditioner
problems in our bedroom. The curtains were flying around. I put one book on one
side and one on the other. And then with great sincerity,
I told my colleagues, your books are very useful. Well, this book is, to me, a
great surprise and pleasure how useful it is. I got dragged into it. And I didn’t realize
until I heard the remarks of the
progenitor Justice Lo here that I should
blame it on myself. Chief Justice Hughes once
wrote, the gravest wounds are self-inflicted I’ve edited many books
when I was here at Harvard. And I pledged I would
never do it again. It’s a nightmare. It’s a waste of
academic resources in the conventional sense. And these two fellows
put a lot of heat on me to join them in this. And I knew it was going
to be a nightmare. And it proved to be a
nightmare in editing, but I was spared most of it. These two gentlemen really
did the bulk of the work. Can you imagine the
problems of editing a volume with so many good contributors
who are not native writers of the English language? And you want to get it right? It was difficult. But now it’s worth
it, and this is going to be one of the
most important books, especially in the
light of events that have developed since. You really got the idea. Justice Lo is a phenomenon. I said the other
day in New York, we like to say New York is
the city that never sleeps. He’s the law professor
Justice who never sleeps. He answers emails immediately
at any hour of the day despite the time differences. Just in making
further tribute, I’ll stop by mentioning how glad
I am it has taken Professor Goldstein to get to
Harvard Law School, because if he had come
here conventionally in 19– whenever it was– in
1961, he might have been a successful corporate lawyer. And his academic scholarship
and his perceptive remarks today might have
been lost forever. So luck is an important
factor in life. So many themes emerge
from this conversion. Can you convert one group
to another faith practice? We’re all preoccupied
with Xinjiang. Yesterday at the Council on
Foreign Relations in New York, I was glad to see
my wife has put up a show of 15 Xinjiang Muslim
people, [? weekers ?] in Kozak. I wanted that to go up
to show these are people, and the attempt by the PRC
government, the Communist Party, to convert these
people into Han people is destined to failure
just like the attempt to convert people who are gay
into conventional heterosexual people is destined to failure. But this Taiwan thing– thanks to what we’ve
heard this morning– raises an even more
interesting question. Here, it was an attempt by
the Chiang Kai-shek group to convert people who are of
Chinese, dominant Han ethnicity into their persuasion of a
totalitarian dictatorship. And because they were
products of the Japanese colonial system, they resisted. And when we look at why
this book can be written about Taiwan, and it can’t yet
be written about the mainland, we have to ask, what
took place in those 50 years of Japanese occupation? Colonialism has, since World
War II, gotten a terrible name. But events are making
us recalibrate and see, emphasize more its virtues than
they have been in the past, as well as its many
well-known vises. And this, of course, is rooted
in the Hong Kong problem today. International
relation, Xi Jinping, calls for a new form of
international relations. And for some years he
wanted the United States to engage in this, and
we warily have never accepted that formulation. Taiwan is forcing
on us and on itself a new form of
international relations. Can a state that’s not
recognized as a state, except by 16 mostly
pipsqueak countries, function in the
international community? It’s doing it. There’s going to be
a lot more of it. In other words, we’re getting a
new conception, a broader view of international politics as
we look at what will the world order of the future be. And Taiwan is doing it,
not at its own volition, but because the world
has forced it upon it. And we have to do more. We have to overcome the
denial of diplomatic relations that Beijing is forcing
on Taiwan by forging a new form of
international relations that will better be more
inclusive and include Taiwan. The Taiwan people
still have– despite their enormous progress– a sense of inferiority. I noted on two occasions that
we’ve had these human rights external reviews in Taiwan,
often the government response is well, we can’t do
what you’re suggesting like an independent
Human Rights Commission. We have to wait till the
more progressive countries like Japan and India
and others do more. And I’ve told them,
that’s nonsense. You are in the lead
now, and you are being looked to increasingly
for establishing human rights standards and practice. And you have to overcome
this inherited view. Another thing, as I sat here, I
thought of Harvard Law School. There is a book that’s come
out I think three years ago, maybe some of you have read, by
a man named Jedediah Kroncke. And it includes very interesting
material about Harvard Law School professors,
not only Roscoe Pound who was Dean, who
went out to help author the Constitution
of Chiang Kai-shek’s republic of China. But even before
that, Warren Seavey, who was a proverbial
Torts professor who never published much. And it reminds me of the old
academic joke of the two Roman soldiers standing
under the cross, and one looked up at Jesus and
said, he was a great teacher. And the other said, yes, but
what did he ever publish? Well, Warren Seavey
never published much. He was a great teacher. But in 1906, he left Harvard
Law School having got his LLB. And he went out and he taught
at the Imperial Pei Yang Law School in Tientsin
for five years. Later, he became a kind of
anti-communist spokesman for Chiang Kai-shek. But you should learn
about– and you should learn about Taiwan’s
graduates of this law school. And there are many here. Ma Ying-jeou got
his doctorate here. [INAUDIBLE],, [INAUDIBLE]
got her LLM here, and she could have gone on
probably if she had wanted to, but she wanted to
join the Taiwan Human Rights Independence movement. But these are great stories that
really people should pursue. Just a few other comments here. Confucius influence. One of the things
about Xi Jinping that I really don’t like is his
attitude toward Confucianism. On the one hand, he
invokes it to show China has an autochthonous
tradition that can support nationalism
in a way to make the world recognize China’s
enormous accomplishments. On the other hand, he doesn’t
follow the most basic tenet of Confucianism,
which is not only honor your father by building
museums and praising him, but by following his advice. Because when Xi Zhongxun
came back from 16 years, forced on him in Maoist
exile, his wisdom to the party was
[NON-ENGLISH SPEECH],, differences in opinion. We must allow
differences of opinion or the Communist Party will
never achieve ultimate success. Differences of opinion among
the masses and among the elite. And the one thing Xi
Jinping stands for today is you must not allow any
differences of opinion. And as we today try
to digest what’s taking place in this
fabulous scandal over the Houston
Rockets General Manager putting out a
short tweet saying, stand up for what’s going on
for the people in Hong Kong, and we see the immediate
massive Chinese reaction that’s beginning to
spread into our country. We have to ask, how
far is Xi Jinping going to try to repress opinion? Are we going to be able to
have a meeting like this at the Harvard Law
School in a few years? Will China say, you’re
hurting the feelings of the Chinese people
and, therefore, you should not speak out? Otherwise, we will prohibit
our students and our faculty from coming here. And we will prohibit
you from having access to China and our libraries. How far is this external
attempt to suppress freedom of speech going to go? We know it’s hitting
Taiwan and Hong Kong. And we watch Australia
struggle today. Every day there’s news
of this, and we see now, are the Philadelphia
76ers, the basketball team going to be able to
have a basketball game against that one Joe
Lyons in Philadelphia? Or will that be canceled, also? And what will be the reaction? And that leads to
maybe what should be my final point, this
disturbing question of, how are we going to cope
with these problems? On the one hand, we must fend of
the kinds of Chinese pressures I’ve just articulated. On the other hand, we’re
facing as the New York Times today reminds us,
the question of how will the good guys treat those
whose ideas they don’t like? Look at the beatings now
that the violent protesters in Hong Kong are beginning
to subject people who object to what they’re doing. This is ridiculous. And I was fascinated
by this point about, how are people in
Taiwan who still adhere to the mainland point of view– how are they going
to be treated? And how are we going
to be treating people from China who are
now widely suspected in the scientific engineering
field of spying and all that? These are enormous
challenges to us. And this whole question
of, can we decouple? Decoupling will
lead to containment. It will be two
scorpions in a bottle. We can’t decouple. And the basketball
scandal shows it. Can you really uncouple what’s
been done in the basketball economic sphere? It’s impossible. And to see the way
we’re all caught up– Taiwanese, Americans,
Canadians, mainland Chinese. The basketball case is
a great illustration. Today the Times story
about the basketball case calls Joseph Tsai a Chinese. Joseph Tsai is a Taiwanese. He went to Yale Law
School as well as College. And he is a Canadian
by nationality. He’s not a PRC National. But he is obviously
somebody– contrary to his father’s advice, has
been helping communist China and showing you can do
good while getting rich. So the fascinating way
we’re all interlocked now makes this a subject
for the future that our speakers today have
given us much to chew on. So I’ve had a great time. Thanks. WILLIAM ALFORD:
Thank you, Jerry. [APPLAUSE] One quick note, as
I mentioned earlier, we also want to acknowledge
Nancy Hirst’s role in helping the book be what it is. Let’s open up for questions. We don’t have a lot of time,
but perhaps a few questions from the audience. Do you think June
has a microphone? Nope. JEROME COHEN: That’s Ian Chong. IAN CHONG: Hi. I’m Ian Chong. I’m from Singapore, but
a visiting scholar here. So my question really
has to do with– trying to elicit
an listen answer about what to do with regard
to the sort of tensions and challenges that
China presents to Taiwan. There’s a lot of dancing
around this issue of, OK, so is there going to be too much
of a heavy hand on people who side a lot with the mainland? But on the other
hand, there is also the case where people
who have these sort of pro-mainland views are
found to have ammunition in their homes, and are found
to be beating people who are of a different persuasion. So how do we square– in your view– how should
Taiwan and Taiwan’s legal system try to square that
kind of a circle? CHANG-FA LO: Well, actually, I
do not have an answer to that. Our example is only an example. It’s not a model for any place. Our development is different. But we have some– perhaps I can characterize
it as prerequisite of moving this far. We have economic development. You also have economic
development in the mainland. Our education was
improved in the 1960s. And you also have very
good educational system in mainland China. But one point that is different
is still [NON-ENGLISH SPEECH] is quite well
recognized in Taiwan, even those people who are in
favor of Taiwan independence. But you do not have a
person like Kim to decide– at a critical point to
decide the liberalization of political parties,
to have free press. That was the critical point. And also, there
are other factors. One, perhaps, it is about
nationalist sentiment. In Taiwan, a lot
of people welcome so-called foreign interference. We actually benefit a
lot from foreign factors, including foreign
government, foreign experts. But perhaps, in
China, a lot of people are not very much appreciating
the foreign interference. These are background
differences. But in terms of the
progress, I will say if there will be any
meaningful improvement, the free speech, free speech
should be the first step for China to adopt. That, perhaps, a few points
concerning free speech. JEROME COHEN:
[NON-ENGLISH SPEECH].. That’s critical. [INAUDIBLE] worth focusing on. When I first visited
Taiwan in 1961, [INAUDIBLE] was a
notorious killer. He was in charge of his
father’s secret police. He decided who would
live and who would die. I met then with the American CIA
head in Taiwan, and he told me, this is all wrong. [INAUDIBLE],, he said, is a
much misunderstood person. I dusted that off as CIA
stuff and forgot about it. 25 years later, when
[INAUDIBLE] died and I was asked by the
media, I found myself saying nice things about him. And I surprised myself. And why was this, I had to ask. I had to ask because he saw
the handwriting on the wall, and he didn’t try
to suppress it. He could have gone on killing
people in the mid ’80s. That’s the way they
did until then. But he decided not to do
it, and try to moderate, and try to take account of
the rising Taiwan sentiment. And I think– I haven’t read all the
literature about him, but I hope I will have
a chance to do so. But this shows two things. One, the critical factor of
leadership at a critical point, as you mentioned. And the other is,
leaders change over time. Some learn. Some get ossified. Poor Teng Hsiao-ping who did so
much for China in the late 70s and 80s, including in
international affairs, the return of Hong
Kong to the motherland, the quieting of dispute with
Japan over the [INAUDIBLE],, et cetera. But Teng, who had always been
a Stalinist Maoist in terms of repression, he got
increasingly ossified as he got older
in the late ’80s, and we saw the result
on June 4, and later. But [INAUDIBLE] is different. Now today in Hong Kong,
where is the leadership? It makes a difference. You have these leaders
in Beijing today who are like deer in the headlights. They can’t move. They don’t know what to do. If [INAUDIBLE] were the leader
today, it might be different. He had the boldness,
the brilliance– he was a gutsy guy. And maybe that’s why he
never quite got to the top. So leadership at a
critical time is important. And we need somebody to
come forth on the mainland. And will that happen? Of course, it will
happen someday. I may not live to see
it, but it will happen. China has to go forward because
of what China now has become. But we’re at a very
depressing time, and there is no
leadership in Hong Kong. The elite, as well
as the government, are just standing by
doing almost nothing, and Taiwan needs leadership. And America needs leadership,
and we have a chance next year. [LAUGHING] [APPLAUSE] WILLIAM ALFORD: Thank
you, Jerry and Justice Lo. Maybe time for one
more quick question. Jeff? AUDIENCE: Mr. Cohen,
long time, no see. Long time, no see. I’m confused about
transitional justice process, and I’d just be curious
what the panel thinks. Is the transitional
justice process really an objective search
for reconciliation and truth? Or is it just partisan
score-settling with one party trying to get
the upper hand on another party? Thank you. WILLIAM ALFORD: Let
me offer one comment. But also, Yu-jie,
you look like you– why don’t you
start, and then I– OK. YU-JIE CHEN: We, in Taiwan,
are confused, as well. As you probably know, since Tsai
Ing-wen took office in 2016, there have been a lot of new
initiatives on transitional justice in Taiwan, including
the pursuit of the KMT assets, which would be considered
illegal party assets that was taken by the KMT during
the authoritarian regime, as well as other more positive
efforts such as revoking the guilty verdicts of many– many people who were convicted
during the white terror era. And I see that there is indeed
a need, a deep felt need in this society
that has been saying that the process
since democratization has been largely a process
in pursuit of transition without justice. And now we have to bring
the element of justice into this transformation
to make people who should be accountable really
take up their responsibility. But indeed, I think right
now the major challenge would be that people– I think a large
segment of the society feel quite indifferent
to this project. And people who are
pursuing this project, mostly politicians and scholars,
are pursuing it with passion, but don’t know how to deal
with the larger question. Which is to say,
through this process we can really bring about
social reconciliation. Now we see more
division in the society. But this is something
that people really should start a conversation
about for the long term. [INTERPOSING VOICES] WILLIAM ALFORD: Jerry, we’ll
give you the last word. Let me make a quick comment,
which is, I think, Jeff, you’ve asked a really
great and hard question. There are several different
essays in the book about transitional justice. They don’t all share the same
viewpoint, which is good. I think it’s really
incredibly difficult dealing with wrongs or
perceived wrongs in the past, and how to do that in a way that
helps a society march forward. I sometimes, myself, even
wonder, what exactly do we mean by transitional
justice, since that assumes we’re going from
one thing to another, and somehow the
process in the middle doesn’t define important
things for the future, as well. I’ll put in a plug
for October 31, I think it is, our
former Dean Martha Minow is giving a talk sponsored
by the Harvard Law School Library in the same
series about forgiveness and transitional justice. She’s one of the leading
thinkers on these issues. And now the very last word
goes to Jerry Cohen, as always. JEROME COHEN: Bill and I often
think along the same lines. And before he started, I circled
this thing on the advertisement for future Harvard
Law library programs. When should law forgive? And my point is, it’s
hard to overestimate the degree of hatred that still
exists among the Taiwanese who suffered under Chiang Kai-shek. I remember in 1962, I was a
young teacher at Berkeley. I brought my first protege
from Taiwan to law school. She walked in one day with
the tear-stained letter. And I said, what’s going on? She said, it’s a
letter from my mother. I said, did your father die? She said, worse. My sister married a mainlander. Fifty years later, when Ma
Ying-jeou got re-elected, she had pledged a million
dollars to a chair in my name at NYU Law School. And when she saw I
said in the newspapers, if Ma can go on making
cross-trade agreements with the mainland
without prejudicing the security of Taiwan,
he should be considered for the Nobel Peace Prize. Compared to Obama
and others who got it for doing little,
sometimes negative things, it seemed to be a no-brainer. And she sent me a
telegram saying, I’m sure you were misquoted. And I said, I wasn’t. And she withdrew the
gift 50 years later. There’s still this
hatred, especially of Harvard Law School’s
Ma because he transformed the Kuomintang from the evil
Chiang Kai-shek dictatorship into a modernized
political party. And yet the Kuomintang was
still getting the credit. He had just got re-elected. It looked like injustice
was being rewarded. That’s an extreme point of view. But the hatred you
mentioned, passion, that passion, unfortunately, has
not fully died out in Taiwan, and that affects the
transitional justice process. Thanks, Bill. WILLIAM ALFORD: Thank you. And thanks to all of our
panelists and to the audience. It’s been quite a
session, terrific session. Thank you. [APPLAUSE]

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  1. Thanks – quite stimulating. My take is that while speech, association, dignity, and self-determination should be recognized as human needs, in terms of human rights there is nothing more fundamental than access to air and water.

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