 on what's happening in China. Thanks so much for being on the show, Jerry. I'm delighted, Jay. You know, looking you up has been an incredible experience to see all the things. You know, I knew what you were doing when you were here when I met you 10 years ago, maybe 15, and I know more now. I recall that, you know, when we last met, I said, gee, how is it that you can practice for an American law firm in Beijing at the same time teach at NYU? And your answer was, you probably don't remember, your answer was, yeah, NYU has been asking me the same question. That's right. Gave that up. So I've been an academic for many years and I haven't been active in practice except in behalf of human rights victims in China. That's not to say, though, that you were not active in business and trade, as a matter of fact, and we have two photographs of you way back in 1979 at the request of the Chinese government where you went to China, you know, just as it was opening up under, thanks, I think, and you were teaching Chinese officials about American law, American trade. There's one picture and there's another one too, we have. And quite extraordinary that you did that and it was a tremendous contribution to them. And I wonder if you can talk a little about, you know, the nature of that contribution and how it affected China and the trade and the development of law, which they didn't have much of at the time. And of course, what do you think of that contribution now today? Well, of course today, some people are highly critical of the efforts that many of us made in the late 70s and 80s at the request of the People's Republic to help them enter the world community and diplomatically, politically, economically and legally. And China after three decades of terrible suffering, anti-rightist movement, the great leap forward disaster, the great proletarian cultural revolution, tens of millions of people dying of starvation, terrible political repression. 1979, 30 years after going through all that, the People's Republic under Deng Xiaoping decided to give up class struggle and try to join the world, modernize their economy and their society and their political system. And they needed help and the legal system was a particular problem for them because it had really been in remission for 20 or more years. And they were even out of touch with the Soviet system that had originally influenced the first eight or nine years of rule of the communists in China. So I was interested in learning about the Chinese legal system up close. I'd started August 15th, 1960 at 9 a.m. with my first Chinese lesson that I'd been waiting many years to live in China. We first went there after 12 years of waiting but for the next six or seven years I had occasional trips where they were very polite to me but never would tell me anything because they didn't have anything that they were willing to show because they were very embarrassed about the lack of a legal system. So I was eager to have an opportunity with the new Deng Xiaoping regime to live there. And through my Harvard tutor who was from Beijing and connected to one of the leading economic officials I had the opportunity to go there not just for a week or a month but for at least a year, perhaps two to train their business officials. The law schools weren't yet open law professors weren't really permitted to meet with me but the business officials were eager and anything I told them at nine o'clock in the morning they put to use it two o'clock in the afternoon. So it was an extraordinary period. Well, you wrote a piece, a memoir, an article which appeared in your blog and by the way for our listeners a Jerry's blog it's called Jerry's blog on recent developments in the rule of law in China and Asia it's at Jerome Cohen.net and I should add that the photo there which is really a wonderful photo is by Joan LeBone Cohen. Jerry's wife has many, many years been through the wars with him. Yeah, she is sitting here with me and glad to hear that you're giving her credit for her photos often people fail to. We regards to Joan from the Sherry Broder regards to you from Sherry Broder who has helped us connect with you this morning. Well, she's a marvelous person and we're glad that she continues the work of John Van Dyke, her late husband. Absolutely, absolutely. So this article, this memoir which the world can see is on that blog and it answers the question and the primary question is was it a mistake teach the Chinese about law and trade and did you do it the right way? Because if we look at it today, 2020 maybe it didn't turn out the way you had hoped. Am I right? Well, it has turned out in many ways the way we had hoped in 1979. The poverty in China was enormous. Educational system was in shreds. There was no law to speak of tremendous insecurity. And we were there not to create democracy. We were naive to think we were gonna create China in the American image or the Western liberal image. But we thought we could make a better life for people introduce some notion of legal stability. Some notice, some notion of due process of law that we could help China cooperate with the world. The legal system was essential to having successful business cooperation. They needed more trade. They had to start importing foreign technology and above all, they were short of money. They wanted foreign investment. They had very little foreign exchange and we helped them do that over a period of years. It took a lot of effort that the Chinese government was eager. They weren't worrying about human rights in the sense of protection against arbitrary government, arbitrary arrest, but they were worried about crime because crime was a serious problem. They wanted a legal system that could help them suppress crime. But above all, they wanted foreign exchange. They needed to know about contracts. They needed to know about how to settle business disputes, what courts should do and what arbitration institutions should do. It was very, very basic. I remember a very smart young man who worked for the Ministry of Machine Building in Shanghai who wanted to go to study law at Harvard so far at that point. We hadn't yet been able to send anyone although I was eager to do so. And I said to him, why do you want to study law? And he said, every day we at the Ministry of Machine Building are negotiating with the giants of the automotive industry of various countries. He said, now I'm negotiating with Volkswagen. They want to do a joint venture. And we in the law and contract division of our ministry have only one problem. I said, what's that? He said, we don't know anything about law or contracts. And he was not only being humorous, but he thought he was being very accurate. So that's where we started. So you had nowhere to go but up. Well, you know, you were the perfect person for this. You know, you've been a jail undergraduate, jail graduate at law school. You've been the editor-in-chief. You clerked for not one but two justices in the Supreme Court. You were a prosecutor. You understood it on both sides of the coin, both civil and criminal. And I want to add something else that I have gleaned from what I've seen about you is you really like people. That article, for example, the memoirs is loaded with the people you've dealt with. And I've seen the talks you've given with students and the like. And you're into people, you're into communication. So you were the perfect guy to talk with them and to disarm them somehow and make them more sophisticated in the area of law and trade. And therefore I put you at the center of a movement in China that ultimately resulted in an enormous trade between China, the US and other countries. You gave them the tools to do that, am I right? Well, I certainly helped, but many people helped. And of course the Chinese did most of the work. I met so many able people, so many people hungry for learning who wanted to play a useful role in helping their country, who wanted to learn something about the world. It was a gratifying experience. And it continues to be, despite the restraints of the Xi Jinping regime, we still have some research and training, exchange projects going in China, even though the obstacles are greater than they were a decade ago. And we still have some contacts with Chinese scholars, Chinese lawyers, even some judges and prosecutors, but everybody is operating under strict limits. And yet China is subject not only to internal pressures from all these people who really wanna bring the rule of law to China, but to a lot of external pressures. And we just had news today of a lawyer human rights expert who was locked up for five years and was released on April 5th. And China doesn't like to free people from prison, but when they free them, they don't like them to be free afterward and be free to talk and tell what happened to them in prison and why. So this time because of a lot of media pressure, the man today we learned was allowed to reunite with his family after temporarily being held for two weeks on the excuse that he had to undergo quarantine because he might have the coronavirus. That wouldn't have happened without foreign protests and I and others wrote about it. And occasionally we get some victories even now, however slow they are in coming. But it's much tougher. You helped a lot of people over the years. You helped a lot of people with dissidents and the like who have been the object of detention or worse. And I think that's probably that kind of detention or worse. I'm thinking of letters from Massangia, the movie a couple of years ago, about a fellow who was in the Falun Gong and it wound up in a detention situation, which was actually torture for, I don't know, three or four years. I'm thinking that that's the part that is a disappointment because you went home to achieve in part a level of human rights to China back in the seventies. And that really hasn't happened. And as you suggested, it may be on the decline right now. It was just really regrettable. And I'm sure you've been active and they know it. And I have one big question. Can you go back, Jerry? Can you go back without recrimination of some kind from the government? I can go back for certain conferences like about the law of the sea that the government wants to sponsor. I haven't been eager to go back for the last year and a half or so. I have met with Chinese human rights delegations as well as law of the sea delegations here. I don't know. I had the optimism about three years ago to apply for a 10-year visa, which at my age really was optimistic. But whether they would honor it today, despite having issued it three years ago, it's hard to say because I've become increasingly identified as a human rights advocate who opposes what the PRC regime under Xi Jinping has been doing. And yet, I hear from Chinese officials and judges regularly and many of them still wanna know what we think of what they're doing. And they still want the opportunity to come to this country. And unfortunately, the Trump administration is making it more difficult for Chinese experts in many fields to come here. So we're facing obstacles on both sides of the water. Yeah, I just saw one thing. Yeah, this is in your article. And if you don't mind, I'd like to just look at it with you about optimism. For example, in the year 2008, when you spoke at Cal Western, the Earl Warren program, the Earl Warren School of War program there, you were fairly optimistic about the future. It's what, it's a 12 years later now, and you know, it had to be realistic. But this is what you wrote in your article, spurred by the informed reaction of citizens determined to allow their suppressed fury to overcome their fear. There will be another top-down attempt to improve human rights protection, permit civil society to recover from Xi era, persecutions, and free the country to become less censored and manipulated. When that day dawns, the sustained American and other foreign law reform cooperation that persists even now in China may be highly appreciated and useful to further progress as it proved to be in newly democratic Taiwan and South Korea. To me, that is the port payroll. That is the statement of the future. Would you, what would you say about that? What would you add to that? Well, you know, development in the people's republic has proceeded like a pendulum in the 2003, five, six era. Looked like law reform was really going to move ahead. But politics takes command. And since then, we've seen increasingly hostile atmosphere in China toward freedoms of expression and due process of law. But there will be a reaction. You know, I comfortably at Harvard, not in China, lived through the Cultural Revolution. And I put out my first book in 1968 on criminal justice in China such as it was, that was the height of the abuses of the Cultural Revolution. But I said, this won't last. Chairman Mao will pass from the scene. There will be a reaction against all the abuses because the Chinese people do not want to live in such horrible circumstances. And of course, that's what the Deng Xiaoping government was. It was a big reaction to all the hardship. And the 80s with some still repressive incidents, the 80s were a pretty good time for law reform in China. And there was optimism then until the tragedy of Tiananmen Square massacre, June 4th, 1989. But so much in politics in China as elsewhere turns on chats. There were party leaders in 1987, 1989, just before June 4th, who were more liberal, who were more enlightened. It doesn't mean they were gonna be democratic people, but they did appreciate more than the successors, the importance of the legal system, if only for recruiting the loyalty of the citizens and making a better life for them. And if politics had gone the other way, you might have had a much more enlightened party leadership in the 90s. But even then you had a very good prime minister named Jerome J. Caban in the 90s. If he had been able to get to the top spot, I knew him and I knew he saw the importance of the legal system and the importance of winning foreign support. If he had been able to become the top man, he would have had quite a bit of a difference in what's happened. We don't know about Xi Jinping. He was to many people a surprise, but not to all. Some have thought, as they do every time there's a new leader in China, maybe things will get more liberal. But now he has imposed such a harsh regime that there will definitely be a reaction. And Justin, if we look today at the mystery of what's happened to Kim Jong-un, the dictator of North Korea, one man management, people in North Korea wouldn't know what to do if it turns out that some of these rumors about him are true. I don't know if you've seen that movie called The Death of Stalin, but it's supposed to be a semi-comedy. But I think anybody in China who sees it would have to worry because it shows when the great dictator who makes all the decisions suddenly goes, there's a very difficult situation and there is a reaction. That's what Khrushchev in destabilization was. So in these countries, progress goes and you might say one step forward, two backward, and then maybe two forward and one backward. So we have to, China is a huge place. It doesn't respond as quickly as islands like Japan and Taiwan or a peninsula was like Korea, South Korea. The policies are also in foreign policy though. And we should talk about that for a minute. We should talk about what's happening with Hong Kong and Taiwan. We should talk about what's happening with the Belt and Road. We should talk about what did the New York Times call it actually one of the people reporting to the New York Times called it Wolf Warrior Diplomacy. That means taking advantage of the coronavirus. It means being brutal with autonomy in Hong Kong. And you've written a couple of blog pieces about that. Can you talk about what's happening in Hong Kong and what will happen in Hong Kong prior to the end of the take, the end of autonomy in 2047? Hong Kong is the battleground. It's a shame that Hong Kong, the forces of democracy and human rights and liberty are fighting a rearguard action. Even if they were to prove successful, which they're not doing at the moment against the repression that's increasing from Beijing, what happens in 2047? When the 50 year period that Deng Xiaoping agreed to, to allow Hong Kong to retain a high degree of autonomy and retain the legal system of the colonial British government, that could end. No one knows what will happen then, but based on what is happening, one can't be very optimistic about 2047, even if things should improve today in Hong Kong. Hong Kong is different from Taiwan. Taiwan is factually on its own. It's a self-governing place. And although Beijing claims that Taiwan is part of Chinese territory, Taiwan runs its own show and under our umbrella continues to do so, despite enormous pressures. And they've made a fantastic transformation over the last generation from the Jiang Kai-shek, nationalist Guomandong dictatorship that we first saw when we went there in the 60s and the 70s to a very impressive democratic state that shows its nonsense to say Chinese people are incapable of running a democratic society. That's one of the reasons Beijing is so desperate to get Hong Kong, not only get Hong Kong back, but also Taiwan, but Taiwan is a much more difficult challenge for them. Hong Kong is the RC territory. And although the British tried to construct through the treaty they made in 1984 with China over Hong Kong's future, a legal system that would guarantee autonomy at least for 50 years, it hasn't been working out that way because Beijing is saying those legal guarantees are granted their gifts of the central government that this is not a federal system, China is a unitary system. And although you have a basic law implementing the joint declaration between the UK and the PRC, that that basic law is really to be interpreted at Beijing's will. And in the end, the people of Hong Kong have to knuckle under and that's what the struggle is all about now. Many able lawyers, Hong Kong has many courageous human rights people and the majority of people seem to be eager to have more democracy, not less. And until the virus came, the coronavirus, they were willing to go into the streets even in extraordinary numbers the way they never had done before in order to protest increasing Beijing controls. You know, in 1983, when the draft of the agreement between the UK and the PRC came out, I was working in Hong Kong and an editor of the South China Morning Post came to interview me and he said, now that we're gonna have the joint declaration, he said, the future of Hong Kong is solved. It's clear what's gonna happen. And I said to him, are you serious? I said, now the struggle is just beginning because these are just getting vague words on a printed page. And the question is who is gonna control their meaning? Who is gonna interpret these words and apply them? And that really is what's been going on because we've seen a continuing intensive struggle over the meaning of words even this week. What does it mean when Article 22 of the Basic Law says that no department of the central government shall interfere in affairs that are within the jurisdiction of Hong Kong? And what we've seen is increasing interference on the part of departments of the Beijing government that are stationed in Hong Kong. And they say, well, we're not really a department of the government, we're just the government. They say, we're not interfering, we're just commenting on how bad things are going at Hong Kong. And they say these aren't matters within the jurisdiction exclusively of Hong Kong because they affect the way China operates. So they're making the determination of what these words mean, sometimes standing them on their head. But they have the control, it's their baton bowl and they've got the military in Hong Kong. So my heart goes out to these people in Hong Kong. It's a bad example. They had an election in September. And coronavirus has a way of suppressing voting, doesn't it? Well, we're hoping that even though the virus seems to be extending its reach over time, we're hoping that the election will be held. However, there's a threat that Beijing could call off the election for one excuse or another. They had district elections, as you know, just a few months ago. And to their embarrassment, the democratic forces won almost all these seats that were moving. This was a terrible shock to Beijing. They've since decided to be much tougher. They've sent in tougher personnel to cope with the situation. And I think they're afraid, if there is a free election for the legislature in September, that it will be a terrible repudiation of Beijing's control of Hong Kong. So they may not let the election take place. Now, Jerry, one last thing before we go, and that is American foreign policy to China. We've seen that Tarris Galore. We've seen a very strange, off-again-on-again kind of relationship between Donald Trump and Xi Jinping. What would you advise the United States to do at this point to preserve the enlightenment we had before, or semi-enlightenment, as the case may be? What would you advise the United States to do to avoid having real contention, or worse, with China? I think we have to work harder toward cooperation. There are certain fields, not just business trade, investment, technology transfer, but more important, climate, environment. These are life-threatening civilizations, threatening dangers, and without US-China cooperation, things are gonna get worse. So we need cooperation. At the same time, we should have healthy competition. In business, the way we have competition, even with allied countries and their businesses. So competition is good without competition. I think business withers and the public suffers. At the same time, we have to keep up criticism. And I spend a lot of time on criticism, while still supporting cooperation, and it's not easy. But we've got to have continuing public criticism, and that's why I welcome the opportunity you give to people like Davis and others, and Carol Peters and others, to talk about what the real situation is in Hong Kong, in China, and elsewhere. Finally, besides criticism, you might say the fourth C, because they're all C, is containment. I do think we need to continue to have a foreign policy that does not let our defenses drop, that does not weaken them. We shouldn't be aggressive, but we have to maintain our military capacity in order to continue to get respect from Beijing. So you might say, it's the four C's. And I don't mean S-E-A-S either. I mean four letter C's, because we need cooperation, we need competition, we need criticism, and we need containment. So it's a balance, it's not easy. And with the kind of government we have in Washington, it's, they're not capable of maintaining any steady policy toward China. Yeah, well, it'd be nice to see a change of the guard in both places. Both places more enlightened, both places taking that advice. Jerry Cohn is professor at NYU School of Law, director of its U.S. Asia Law Institute. He's also an adjunct senior fellow for Asia at the Council on Foreign Relations, and he writes this blog. We can all go see it. It's to romcone.net, and so many very interesting articles and pieces on there on an ongoing basis. Thank you so much, Jerry. I hope we can do this again soon. Jay, you're very kind, I appreciate it. Thanks. Aloha.