Remarks at the White House Forum on the State of
U.S. Civil Legal Assistance
April 17, 2012
Harold Hongju Koh
Legal Adviser, U.S. Department of State
I am Harold Hongju Koh, Legal Adviser to the State Department. I find myself here today for many reasons:
In my brief time, let me address three questions: What is the rule of law? How does access to justice contribute to the rule of law? And how are the problems we discuss here critical, not just to our national well-being, but to our world standing and capacity to lead in the global community?
According to one definition (footnote 1), a social system reflects the rule of law when it exhibits four features:
Rule of law systems stand in contrast to rule by law systems, social systems where powerful elites impose their will on individuals through the tool of law, but are not themselves accountable, act through no clear or predictable rules, which leads to unequal and biased results, and access to justice limited to the powerful.
The United States is the richest country in the world. Thus, most Americans simply assume that we rank at the top on every empirical rule of law measure. In fact, and shockingly, we do not.
One recent NGO study, the 2011 World Justice Project Rule of Law Index, gives the United States high marks for the first three dimensions of the rule of law: accountability, fundamental rights, and due process. But the same report notes that our civil justice system suffers from access to justice deficits in at least four areas:
For a country that prides itself on leaving no stone unturned in search of equal justice under law, these are disturbing grades indeed. Today’s panels discuss why these problems arise in our legal services programs and what we as a nation might do to address them. But my question is different: why, in an age of globalization, should we care? Let me suggest three reasons, drawn from our development policy, our human rights policy, and our diplomatic credibility.
First, your discussion today is part of not just a national, but a global development movement, known as the global movement for legal empowerment of the poor (LEP). In the late 20th century, the relationship between law and development shifted from a “top-down” approach, narrowly focused on the relationship between elite lawyers, state institutions and law, where initiatives often excluded the voices of the very people they were intended to help, to legal empowerment of the poor, a bottom-approach approach that has sought to bring these excluded voices into the development discourse, by studying the relationship between poverty, exclusion and law and expanding the protections and services afforded to ordinary people. These ideas were captured in the UN’s Millennium Development Goals, and a UN Commission on Legal Empowerment of the Poor hosted by the UN Development Programme—chaired by former Secretary of State Madeleine Albright and Peruvian economist Hernando de Soto—whose 2008 report, Making the Law Work for Everyone, argued that as many as 4 billion people worldwide are “robbed of the chance to better their lives and climb out of poverty, because they are excluded from the rule of law” The Report proposed four “pillars” for legal empowerment to enable the poor to become partners in their own development, not just, passive recipients of handouts: first, better access to justice and the rule of law; second, expanded property rights; third, better protection for labor rights; and fourth, stronger business rights, especially, access to credit and support for the poor to start and operate small businesses.
Second, access to civil justice as part of the rule of law has formed a fundamental plank of a nonpartisan human rights policy that America has long promoted around the world in both Democratic and Republican Administrations. We press the issue with every government we engage—whether rapidly changing countries such as Burma and Colombia; perpetually challenged countries such as Haiti; post-conflict societies like Iraq, Vietnam, and the Balkans; Arab Spring countries like Libya, Tunisia, Bahrain and Egypt; major powers such as Russia and China; and emerging democracies throughout Latin America and Africa. We will simply have no credibility promoting these values abroad, if we do not seriously advance them at home.
Third and finally, this issue affects our diplomatic credibility. History teaches that the justice we provide here is highly visible to those deciding whether to follow a democratic or authoritarian path. As law professor Mary Dudziak has detailed in her book Cold War Civil Rights: Race and the Image of American Democracy, nonaligned diplomats who represented African countries at embassies here in Washington during the 1950s closely followed the Brown v. Board litigation in trying to decide whether to vote with the United States at the U.N. or other international fora and in trying to decide whether the U.S. deserved their support in the complex geopolitical debates of the day. Today, our most significant foreign policy interlocutors care just as much. Last week’s G-8 summit focused on rule of law and access to justice as a basic plank of the developed nations’ multilateral approach to the Arab Awakening. This coming weekend, along with Assistant Secretary of State for Democracy, Human Rights, and Labor Michael Posner, I will travel to Beijing for a legal experts’ dialogue with the Chinese government that includes comparative discussion of such topics as legal assistance, the role of lawyers, criminal justice, and law reform. The internet has made justice in American, and lapses in it, even more instantly accessible to foreign observers. I learned this in bilateral human rights dialogues with the Chinese in the 1990s, where they would regularly counter our points about political prisoners and harsh punishment in China by citing cases like O.J. Simpson and Rodney King and high profile examples of inadequate representation of U.S. capital defendants. At this critical juncture in world history, where so many nations –like Burma, Guinea-Bissau, Mali, Egypt, Libya, and other nations undergoing the Arab Awakening—are at national decision points, what we do here at home to give access to justice can provide either an inspirational example or harsh proof that as a society, we are really in no position to preach.
In closing, this conference illustrates two mottos from the 60s, when the American legal services movement went national. The first was "Think Globally, Act Locally"—which as you know, meant considering the well being of the planet, but taking grass roots action in your own communities and cities to reduce poverty, promote equality, expand inclusion and protect the environment. Your conference today is really about “Thinking Locally; Acting Globally”: by promoting access to justice at home, contributing to an international development, human rights, and diplomatic movement for legal empowerment of the poor that graphically demonstrates our commitment to the rule of law to allies and challengers alike,
And what is the second motto? Do I have to say it? Ladies and Gentlemen, I think you know: “The Whole World is Watching.”
Thank you very much.
Footnote 1: 2011 World Justice Project Rule of Law Index, www.wjp.org