Louis Henkin (1917-2010)
by Harold Hongju Koh
[Harold Hongju Koh is the Legal Adviser, United States Department of State; previously he was Martin R. Flug ’55 Professor of International Law and Dean, Yale Law School (2004-09), as well as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998–2001). This tribute is adapted from "The Future of Lou Henkin’s Human Rights Movement," Columbia Human Rights Journal (2007).]
Lou Henkin, who died today, was my hero. He was one of the few truly great men I have ever met. During his six decades at the State Department, Penn, and Columbia Law School, Lou shaped modern international human rights law. In his years as an international lawyer, there was no important issue on which he did not take a stand. One measure of his influence is that every human on this planet has found some shelter or affirmation in his ideas. His commitment for human rights universalism came through in The Rights of Man Today; his passion for the rights of aliens and refugees in The Constitution and United States Sovereignty: A Century of “Chinese Exclusion” and Its Progeny, 100 Harv. L. Rev. 853 (1987). As a framer of the Refugee Convention and U.S. member of the Human Rights Committee of the International Covenant on Civil and Political Rights, he fought for human rights not just in the academy, but in the trenches.
Lou dreamed of a world where the executive branch would use diplomacy and compliance with international law to promote global cooperation; where legislatures would maintain our compliance with our international obligations; where the courts would pay “decent respect to the opinions of mankind;” and where civil society would monitor our leaders and hold them accountable. In each of these areas, Lou did foundational work. As a law student, I first read Foreign Affairs and the Constitutionand saw new vistas opening from Lou’s crystalline analysis. As a graduate student studying international relations, I read How Nations Behave and paused over “the sentence that launched a thousand articles”: “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all the time.” Id. at 47 (2d ed. 1979) (1968). Lou’s thought pushed me toward the question–why do nations obey international law– that has since occupied my career.
I first saw Lou in the flesh thirty years ago, at D.C. ‘s Mayflower Hotel where he was running a meeting of theRestatement (Third) of Foreign Relations Law as the American Law Institute’s Chief Reporter. Like Daniel in the lion’s den. Lou was standing amid perhaps one hundred lawyers, each billing $500+ an hour, who were ferociously criticizing the Restatement’s expropriation provisions. After one particularly savage exchange, Lou turned to the speaker and said: “That may be what your clients pay you to say, but that’s not the law, and I won’t say it.”
At that moment I realized that what made Lou a true hero was not just his brilliance and scholarship, but his utter incorruptibility. For if Lou said it, people knew it must be true, because there was no one smarter, and because there was no one more honest. When I was a minority professor in my first year of teaching, the first person who invited me to speak on a scholarly panel was the great Lou Henkin. Once I finally met him, I realized that Lou was not one of those people who loved human rights, but hated human beings. I was as touched by his personal kindness, as by his clarity of thought. He regularly reached out to the underdog, the unnoticed, the unknown.
When I heard of his passing earlier today, I remembered Lou walking through the meadows of Aspen, with his dear friend, Justice Harry Blackmun, debating the right to privacy. And if you ever wanted to know what love looks like, imagine Lou and his beloved partner Alice, strolling in the sunset at Wye Meadows, arm in arm, talking about international human rights.
In his dedication to How Nations Behave, Lou remembered his own father with the words of the Psalms. Today, let us remember our greatest international lawyer the same way: as a simple man, an authentic hero “Who All His Days Loved Law, Sought Peace and Pursued It.”
Lou, as some of us were honored to call him, may not have been much taller than I, but he was a true giant in our field -- in international law, particularly as it interrelates with the constitutional law of the United States.
I first met Lou soon after I began teaching at the University of California, Davis, School of Law; I was privileged to serve as a moderator when ourJournal of International Law & Policy held a symposium to mark the 2d edition of Foreign Affairs and the Constitution (1997), one of Lou's many landmark books. His kindness and erudition were evident, as was the high regard of the assembled conference participants.
A year or two later, during an annual meeting of the American Society of International Law -- for which he served as President from 1994 to 1996 -- I was standing at a D.C. streetcorner, patiently waiting for the traffic signal to change. "You're obviously not from New York," came a voice from behind, and soon Lou, by then in his 80s, strode past me and safely crossed the empty road without regard for the red light.
Though born on Nov. 11, 1917, in what is now Belarus, he was resident in New York's Lower East Side by his 7th birthday, his family having fled anti-Jewish agitation in their homeland.
Following undergraduate studies at New York's Yeshiva University and law studies at Harvard, he clerked first for 2d Circuit Judge Learned Hand, then for Supreme Court Justice Felix Frankfurter. He served in the Army during World War II, then worked at the U.S. Department of State, eventually arriving at Columbia Law School in 1956. There he undertook a truly stellar career in international law, marked by, among many other things, his service as Reporter of the Restatement (Third) of the Foreign Relations Law of the United States (1987). Many more career details may be found in this obituary at Columbia's website.
A last memory:
On one of the too-few opportunities I had to talk with Lou, we discussed a then-forthcoming casebook for which he was the 1st-listed author. He noted with pride that he had succeeded in naming the book, simply, Human Rights. No "international" to modify -- perhaps, implicitly to undercut -- what he saw as the chosen words' fundamental, universal essence.
at 5:39 pm ESTKenneth Anderson===========
