Editor’s note: The following remarks were delivered at an event organized by the US-Asia Law Institute on Jan. 30, 2025 to celebrate the publication of USALI Director Emeritus Jerome A. Cohen’s memoirs, Eastward, Westward: A Life in Law.
The publication of Jerome A. Cohen’s long-awaited memoirs, Eastward, Westward: A Life in Law, celebrates an incredible person – an able diplomat, legal practitioner, advocate, scholar, and teacher. His “life in the law” is a record of someone to whom others owe much, sometimes their lives. Those of us who have been lucky enough to have our lives intersect with Jerry’s (it is impossible to call him anything else) are fortunate that some 66 years after he made his initial attempt to record his life – and his infant son put a stop to it by vomiting over the manuscript and his typewriter -- no current great-grandchild has prevented the latest effort. Eastward, Westward exhibits the author’s most obvious qualities: the generosity of spirit that has mentored generations of scholars interested in Asia and the humility that prompts its author to recall his father’s complaint that “ambition should be made of sterner stuff.”
That humility is singular and highly ironic for someone who, in his twenties, had already been editor of the Harvard Law Review, clerked on the Supreme Court, and was on his way to a sterling career second to none. It is evident that Jerry would have excelled at the many alternative career paths that at distinct points in his life were within reach but which he did not pursue, including Supreme Court Justice, law school dean, or US secretary of state.
Another evident quality of these memoirs is its author’s wisdom. This particularly shown by Jerry’s even-tempered capacity to put in historical context the complexities and deep flaws of both the United States and China today. This is rare at a time of severe acrimony between the world’s two great powers. This book is a valuable corrective to the tendency by not a few to forget the tremendous progress China has made if judged by the horrors of the Cultural Revolution rather than by the unrealistic expectations of the 1990s, when some expected the emergence of a rights-respecting democracy in America’s image.Without glossing over the totalitarian government that rules China today, the memoir’s final pages remind readers that the United States has, over recent years, fallen far short of its self-image as a “shining city on the hill.”
Not enough is said in these memoirs about the institution that Jerry built when he came to New York School of Law, namely the US-Asia Law Institute (USALI). USALI is the embodiment of the broad and visionary policy recommendations that close these memoirs. Today, USALI continues to serve as a forum for frank criticism of what Jerry sees as another extreme in the pendulum’s swing toward repression under Xi Jinping, including grave human rights violations directed at China’s minorities and a strikingly effective turn to repressing criticism of the Communist Party by redefining rule of law to rule by law and using advanced technological surveillance to make sure it happens.
USALI continues to engage in nuanced criticisms of China’s engagement with law.
USALI continues to engage in nuanced criticisms of China’s engagement with law. Its programs continue to address, as in its early days under Jerry’s leadership, improvements in China’s formal judicial system, at least for less political cases. At the same time, given existing tensions between the United States and China, the face-to-face “rule of law” programs organized in China for its lawyers at its request that are mentioned in the memoir, including those directed at Chinese judges and prosecutors, are rare. As the recent Trump administration attempt to ban foreign aid funding suggests, their re-emergence is unlikely.
At the same time, USALI still entertains an old-fashioned respect for the role of expertise and rational deliberation in the formulation of public policy. These are the same qualities evident in Jerry’s influential articles in the 1970s in Foreign Affairs urging the United States to recognize mainland China. (See “Recognizing China” in Foreign Affairs of October1971 and “A China Policy for the Next Administration” in Foreign Affairs of October 1976.)
For now, those of us involved in USALI still think – even in the age of Trump – that fostering dialogue among experts in comparative and international law in both countries can and should matter -- as it did to this memoir’s author, Richard Nixon, and Henry Kissinger. USALI is, as Jerry intended, embedded in a university whose commitment and trust in academic expertise persists, despite populist backlash. USALI’s programs still evince faith that the underlying conditions that drove the Nixon administration to establish diplomatic relations with China remain relevant and that it would harm both countries and the world to go down the path of a full “de-coupling” (even if that were possible). Even in these tumultuous times the unique forum for exploring US-China relations that Jerry built still aspires to US-China dialogues to address (if not resolve) the global commons challenges that his memoir consider: climate change, public health, food security, as well as the regulation of cyber/telecommunications, the Arctic, outer space, and arms control.
Of course, it is no longer possible to assume that the United States and China share common views on the value or content of international law – or perhaps of law itself. In the heady days of the 1990s, many could assume that China was genuinely attempting to come up to speed on learning, applying, and incorporating important aspects of Western law, particularly in the economic sphere. At that time China was turning to Western laws governing credit, contracts, and business transactions, as well as international regimes governing international trade and investment.
Today, China has largely mastered the art of international law, including the lesson that its rules can be re-made by hegemonic powers such as itself.
Today, China has largely mastered the art of international law, including the lesson that its rules can be re-made by hegemonic powers such as itself, and that this power can be deployed by exercising de facto financial vetoes in places like the WHO or UNESCO. China is no longer reticent about exploiting trade and investment rules originally designed for market actors to benefit state-run enterprises that may promote governmental agendas. It is no longer shy about using or threatening to use its veto at the UN Security Council to get its way, as do the United States and Russia. Today China can walk away from international adjudicative efforts to settle law of the sea disputes in emulation of the US’s disdain for the International Court of Justice after the Nicaragua case.
Perhaps inspired by its own recent efforts to redefine the rule of law domestically, China is now trying – with some success – to redefine fundamental concepts in international law, such as what constitutes “illegal intervention in domestic affairs” for purposes of the UN Charter. It is now invoking Hans Kelsen’s and Carl Schmitt’s law of the exception, arguing that some matters raise sacrosanct and “self-judging” security issues at the heart of sovereignty that cannot be subject to supranational scrutiny.
China’s approach to “constructive engagement” is attempting to redefine what human rights UN bodies are entitled to criticize and how. It is winning some states in the Global South and even in Europe to its point of view. China is contributing to a growing global backlash against international human rights. Indeed, China is attempting to re-define “democracy” and challenging the idea that the UN has any business certifying the fairness of a nation’s election.
These memoirs rightly focus attention on the dire threats facing Taiwan in the shadow of China’s rise.
These memoirs rightly focus attention on the dire threats facing Taiwan in the shadow of China’s rise. USALI programs, and international lawyers generally, will continue to address the need for the United States to re-examine security arrangements with countries such as Japan and South Korea in the face of Chinese threats to Taiwan, along with Chinese challenges to rules governing the law of the sea.But no one should assume that there is uniform agreement among international lawyers everywhere about what the applicable international rules are. We can no longer assume that all lawyers will agree China has no legitimate territorial claim to Taiwan, or that the wishes of that island’s people must be consulted prior to or after an occupation.These contentions may be up for grabs depending on what happens elsewhere – particularly (but not only) in Ukraine in the immediate future. At a minimum, some UN General Assembly members can be expected to take the position that, absent the Security Council’s authorization, the United States is not legally permitted to come to the defense of Taiwan should it be attacked.
On this as well as many other cutting edges issues, there is likely to be considerable pressure to negotiate new international law rules, as well as new interpretations of old treaties or rule of custom. Implicit throughout this memoir is the elephant in the room: international law often evolves in deference to power.
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José E. Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law and faculty director of the U.S.-Asia Law Institute.
Suggested Citation:
José E. Alvarez, “Jerry Cohen: The Person, the Vision,” USALI Perspectives, 6, No. 1, Oct. 4, 2025, https://usali.org/usali-perspectives-blog/jerry-cohen-the-person-the-vision.
The views expressed in USALI Perspectives are those of the authors, and do not represent those of USALI or NYU.
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