No. 6: Human Rights Law

© AP/Fernando Antonio

This Human Rights Law Guide aims to identify opportunities for a critical approach to the teaching of human rights law in all of its contexts: larger survey courses, seminars on specific human rights issues or related topics, clinics, and pro bono activities. It is organized around sample modules to allow for incorporation into a range of courses geared towards substantive areas of rights (including Health Law, Labor & Employment Law, National Security Law, & Business Law), practice areas within human rights, and lawyering itself.

Table of Contents

I. Introduction to the Guide
II. International Human Rights Law: Modules for General Survey Courses
A. Human Rights: Birth, History, Background
B. The Legal and Normative Foundations of Human Rights
C. Human Rights Accountability and Enforcement
D. Human Rights Advocacy*
III. Readings and Case Studies for Introducing Critical Theory and Human Rights into Specific Courses & Seminars
A. Public Health / Health Law
B. Labor and Employment Law
C. Counterterrorism, National Security, and the Law of Armed Conflict
D. Business and Human Rights
IV. Human Rights Clinics
A. Case and/or project selection
B. Case/project mapping and preparation
C. During the Case or Project
V. Critical Perspectives on Human Rights Teaching: General Resource

I. Introduction to the Guide

1. International human rights law establishes a set of globally recognized values and principles grounded in dignity and the right to equality and non-discrimination against which to evaluate and critique domestic legal systems. Human rights law comprises a global system of norms and institutions, comprising treaties, customary law, and bedrock principles enforced by individual countries, regional and international courts and commissions, and U.N. bodies. Although the United States has ratified only a handful of international human rights treaties, and has sought to limit the enforceability of those treaties through reservations, understandings and declarations that – among other things – hold the treaties to be non-self-executing and assert limitations grounded in federalism, a wide set of human rights legal norms are binding on the United States.  In an era of growing global nationalism, increased attention to stark wealth inequalities, and rising tides of discontent among those confronting oppression, violence, and discrimination, human rights law has gained a renewed sense of importance and relevance.  But human rights law and practice – despite appeals to universalism – are not immune from historic and present-day entanglement with colonialism, elitism, and paternalism.  Human rights law and the mechanisms created for its enforcement have been developed and are often employed in a manner that fails to recognize the agency of or ensure accountability to its subjects, particularly communities across the Global South, as well as those experiencing intersecting forms of discrimination and marginalization such as persons of color, indigenous peoples, LGBTQI communities, persons with disabilities, and persons and communities living in poverty.

2. The teaching of human rights in law schools takes on multiple formats, including: international law, human rights and comparative law survey courses; specific seminars addressing categories of international human rights law, such as economic, social and cultural rights; and human rights clinics. This guide also takes into consideration subject matter seminars traditionally taught from a purely domestic law perspective, such as discrimination law, environmental rights, health law, and labor and employment law, which are enhanced by employing international and comparative law.

3. As we structure our teaching – though our larger survey courses, seminars, clinics, and pro bono activities – we must grapple with how to engage in discussions and practice that ultimately serve the promise of human rights law: dignity for all without discrimination. We must remain cognizant of the historical ways in which the language and deployment of human rights norms have perpetuated existing global power structures, and the often-unintended negative consequences of human rights litigation and other advocacy campaigns that can stifle organizing efforts and broad, community-wide participation.  At the same time, the language of human rights and the discourse of dignity continue to be a powerful source of legal empowerment and rights claims, organically arising in multifaceted locations by diverse communities facing injustice. As with all areas of law and practice aimed at advancing concepts of justice, it is of paramount importance that we engage with our students in critical reflection, informed by the lived experiences of the subjects of human rights litigation and campaigns, on how the process of human rights advocacy may by turns advance empowerment and equality or undermine core principles of human rights, such as the right to self-determination. The pedagogy and practice of human rights is well served by the theory that frames “community lawyering,” a method of practice that prioritizes the voices and power of impacted communities as anchors to any lawyering strategy. In the international context, this is often called “legal empowerment,” “community accompaniment,” or other terms more familiar in specific locations. Drawing on theories of community-accountable lawyering from different countries is an especially rich way to expose students to vital forms of transformative legal practice.

4. The Human Rights Law Guide aims to identify opportunities for employing critical theory throughout the teaching of human rights law in all of those contexts. It is organized around sample modules to allow for incorporation into a range of courses geared towards substantive areas of rights, practice areas within human rights, and lawyering itself.

II. International Human Rights Law: Modules for General Survey Courses

A. Human Rights: Birth, History, Background

5. Critically examine the birth and history of human rights law and movements, and introduce alternative historical narratives: Interrogate the tension between, on one hand, the universalist ideals of human rights, and, on the other, the colonial moment during which the modern concepts of human rights were born. Question the mainstream assumption that human rights comprise a monolithic movement that emerged with the adoption of the Universal Declaration of Human Rights in 1948. Examine Western political and neocolonial agendas that contributed (and still contribute) to the mainstreaming of human rights. Histories of anti-colonial, anti-racist, feminist, and bottom-up movements for human rights should also be discussed and advanced.

Readings and Case Studies

B. The Legal and Normative Foundations of Human Rights

6. Situate the exercise and restriction of civil and political rights (“CPR”) in their broader social, cultural, political, and historical contexts: Examine the ways in which common CPR interpretations and assertions abstract the individual from his or her broader community, and often set up one to be at odds with the other(s). For example, challenge the presumption of individual vs. collective in the context of widely accepted restrictions on CPR, such as “public order” and “national security.” Select examples and case studies that discuss the links between CPR violations, structural inequalities, and economic conditions.

Readings and Case Studies

7. Reject the marginalization of economic, social, and cultural rights (“ESCR”): Dedicate time and effort to explore the nature and scope of ESCR (particularly the positive obligations to ensure and promote these rights), and their ongoing marginalization in mainstream human rights discourses. Reject the simplistic conflation of ESCR with social welfare and developmental initiatives, and discuss the meaning and importance of their special status as human rights. Examine the role of governments, international and regional organizations, civil society, and others in their ongoing marginalization, and discuss strategies to promote ESCR accountability.

Readings and Case Studies

8. Challenge assertions of universality underlying mainstream human rights frameworks: Take stock of the ways in which human rights discourse individuates power and depoliticizes governments. Introduce, identify, and challenge Savages/Victims/Saviors dynamics in rights frameworks and case studies discussed so far; i.e. the narrative that human rights advocates are “saviors” swooping in to save “victims” (often assumed to be powerless or helpless) from “savages” (often assumed to be perpetrators of human rights abuses in a vacuum, without an understanding of the broader context and other relevant dynamics). (See Mutua (2001)).

Readings and Case Studies

C. Human Rights Accountability and Enforcement

9. Explore meaningful ways to hold States accountable to human rights: Examine the way human rights law and related international law approaches shield powerful actors in a given situation, including through the doctrines of sovereign and diplomatic immunity; territorial jurisdiction and effective control; state responsibility and attribution; self-execution and non-self-execution. Introduce progressive theories and approaches that articulate the obligations of State actors that have often escaped accountability under the human rights regime, including extraterritorial and international obligations, universal jurisdiction, and corporate responsibility.

Readings and Case Studies

10. Explore the role of non-State actors in human rights situations: Explore the role of corporations not only in discrete human rights violations, but also systemic human rights problems, such as the lack of affordable healthcare, armed conflict, and transnational surveillance. Examine how corporate responsibility frameworks (such as the Guiding Principles on Business and Human Rights) permit corporations to evade meaningful accountability while claiming the mantle of human rights. Situate the role of corporations within broader theoretical discourses on capitalism, neoliberalism, and socialism, bringing economic and financial policies into view as objects of human rights critique and assessment.

Readings and Case Studies

  • Refer to the Business and Human Rights readings and case studies provided below.

D. Human Rights Advocacy*

11. Problematize and reframe dominant modes of human rights advocacy: Examine and problematize the inherited suite of skills that human rights lawyers are assumed to need (fact finding, advocacy before United Nations and other international and regional bodies, litigating domestic human rights claims, etc.). Identify and challenge the Savages/Victims/Saviors dynamics that arise in their practice. Supplement the toolkit by reframing those skills in a collaborative environment where those most conversant in a given community might be best suited to carry out fact-finding and interviewing, and where law students can assess their value added as partners instead of leading actors. Explore legal empowerment and community lawyering models for ideas in this context.

12. Introduce non-law based research, reporting, and advocacy techniques: Decenter the law by exploring non-law disciplines and inter-disciplinary collaborations and integrate them into human rights research and advocacy, including budget analysis, policy monitoring, social science methods, and macroeconomic considerations.

13. Introduce alternative and complementary frameworks that contribute to international justice: Assess the importance and complementarity of non-human rights frameworks, such as development/alternative development based frameworks, as well as social movement discourses, anti-capitalist critiques, face-focused analysis, feminist and anti-patriarchal approaches.

*More detailed suggestions on teaching critical perspectives on human rights advocacy are provided in the section below on Human Rights Clinics.

Readings and Case Studies

III. Readings and Case Studies for Introducing Critical Theories of Human Rights into Specific Courses and Seminars 

The readings and case studies below are provided as useful tools for addressing many of the themes discussed throughout this Guide. Some elements of these readings and case studies highlight the ways in which human rights law and practice fail to live up to their ideals, in part due to the narratives employed and the approach to advocacy. Other elements highlight the role that law and advocacy informed by critical theory can play in advancing social justice.

A. Public Health / Health Law

14. Topics in the area of public health and health law create opportunities to address the failure of the United States to ratify the International Covenant on Economic, Social and Cultural Rights, substantive equality within the context of health, the intersectionality of rights, and the multiplicities of discrimination, while also providing an opportunity for rich interdisciplinary engagement. Public health and health law also provide rich opportunities to discuss the affirmative obligations of the state (in providing health services, regulating private providers and insurance markets, and ensuring access to medicines for all). Public health and health law courses can also be venues for discussion of the tensions between individual rights approaches (e.g., access to specific expensive medicines or procedures) and equitable approaches to the distribution of health goods and services, as well as the background norms that undergird these tensions, including patent law and private insurance markets. Specific topics within public health that overlap with other areas of substantive human rights law include: domestic violence; sexual and reproductive rights; access to medicines (including HIV/AIDS medications and palliative care drugs); workplace health and safety; natural resource law, water rights, and environmental rights; issues that feed and arise out of the industrial prison complex, such as the school-to-prison pipeline, mental health and substance abuse treatment (or the lack thereof), criminalization of homelessness and poverty, death row phenomenon, civil detention, etc.

Readings and Case Studies

B. Employment and Labor Law

15. Courses in labor and employment law (as well as poverty law, trade law, immigration law, human trafficking, business, human rights and corporate social responsibility) provide opportunities to address how socio-political and economic interests operate through the legal system, often to the disadvantage of the individual worker. As the formal labor movement faces a decline in membership and power within the workforce, and a corollary decline in its political power in the United States, the onus for enforcement of workplace rights is increasingly on the individual – through the filing of a wage complaint or a discrimination claim, for example.  But numerous de jure and de facto exemptions to legal protection, and the denial of meaningful access to justice for large numbers of workers, has led to a dramatic growth in the number of workers now among the “working poor” who endure wage theft, health and safety violations, discrimination, sexual harassment and assault, and other rights violations.  This module provides comparative case studies and readings for a critical exploration of the individual and collective rights vs. realities of marginalized workers, and the ways in which workers and advocates have engaged extra-legal strategies and international human rights norms to ensure workers are treated as possessors of fundamental human rights, rather than as labor commodities.

Readings and Case Studies

C. Counterterrorism, National Security, and the Law of Armed Conflict

16. Courses on the law of armed conflict (international humanitarian law) and counter-terrorism and national security provide important opportunities to explore the role of human rights in war, the danger of finding national security exceptions to bedrock norms, and the way “othering” works within counter-terrorism discourses. The torture and extraordinary rendition program in the United States is a crucial example. Especially relevant now are examinations of how dominant narratives about terrorism, security, and conflict have relied on, and often reify, racist and Islamophobic tropes concerning “radical Islam” and “Muslim extremism,” as well as gendered narratives and policies.

Readings and Case Studies

D. Business and Human Rights

17. As a relatively new field of study and advocacy, the business and human rights movement raises age-old questions about the nature of law and how human rights standards are created, implemented and enforced. For example, The Guiding Principles on Business and Human Rights, adopted by the U.N. Human Rights Council in 2011, are not legally binding, but have become a lodestar for corporate accountability discussions and initiatives in a wide range of industries, including extractive minerals, manufacturing, and information and communications technology. Do these Principles create ‘legal’ effects and consequences even though they lack the traditional characteristics of international law? How do these Principles evolve in the absence of formal legislative or enforcement mechanisms, and how are corporations held accountable to their standards? What are the pitfalls of this regulatory approach, and what accountability gaps remain?

18. Specific topics within business and human rights may also compel critical engagement with other substantive areas of law, including: employment and labor law; intellectual property; antitrust; international trade law; consumer privacy; public health and access to medicines; water rights, land use, and other environmental justice issues; the prison industrial complex and the criminal justice system; the military industrial complex, international humanitarian law, and national security law.

19. Finally, the relationship between business and human rights may also spur discussions in the areas of philosophy, history, political science, technology, and other disciplines, such as those concerning the human rights impact of capitalist versus non-capitalist economies, the privatization of government and democratic functions, and the ethics of privately deployed algorithms and autonomous systems.

Readings and Case Studies

The Movement to Create Business and Human Rights Norms and Standards:

On Internet and telecommunications companies and the ICT Sector:

Case Study on Barrick Gold in Papua New Guinea:

Case Study on Firestone:

Case Study on Kiobel v. Royal Dutch Petroleum Co.:

  • Meetali Jain & Bonita Meyersfeld, “Lessons from Kiobel V Royal Dutch Petroleum Company: Developing Homegrown Lawyering Strategies Around Corporate Accountability,” South African Journal on Human Rights, Volume 30 Issue 3 pages 430-457 (2014)

IV. Human Rights Clinics

Human Rights clinics exist in multiple formats. There are those that follow a direct client representation model, those that follow a human rights advocacy cause-driven model, and others that are a hybrid model, engaging in both direct client representation and more systemic human rights advocacy. Within each of the different models, there are multiple choices to be made with regard to the seminar time, with time devoted to substantive human rights law and mechanisms of enforcement, a range of lawyering competencies and advocacy skills, and reflection. The sections above and the general Clinical Law Guide provide guidance on how to engage critical theory throughout each of these components. The guidance below instead considers how critical theory can be incorporated into the design, teaching, and practice of fieldwork components.

A. Case and/or project selection

20. Go beyond readily apparent violations: Case/project selection should aim to provide students with training on how to deal with readily apparent and immediate violations, as well as engagement with long-term visions of change. For example, a case or project may prompt consideration of the relationship between immediate advocacy/client goals and those of the broader community and movement that the case or project serves.

21. Provide diverse skills training: Case and project selection should, where possible, provide training not only on interviewing, counseling, and legal and policy advocacy, but also lesser known skills such as cross-cultural communication, community organizing, media engagement, and basic qualitative and quantitative methods and paradigms. For example, students may be required to work with communities to provide them access to the same kinds of expertise and guidance that companies and governments access in the context of mining or mega-projects; undertake counter-forensics in the face of secret abuses such as drone strikes or mass surveillance; and conduct basic quantitative and qualitative data analysis of the economic toll of healthcare and employment regimes.

22. Promote direct accountability: Where possible, cases and projects should ensure the clinic is directly accountable, or at least answerable, to those most impacted by the human rights violations at issue.

B. Case/project mapping and preparation

23. Identify the client’s and community’s needs, interests, goals, positions, priorities, and visions of justice: Discuss and emphasize the importance of collaboration with the client(s) and their broader community. Identify and address Savages/Victims/Saviors dynamics when discussing client/community needs, and interacting with them. Recognize that the “client” may not be easily identifiable – for example, the client may be part or all of a group that has suffered similar abuses, or may be pursuing a matter on behalf of someone else. Recognize that there may be minority, dissenting, or marginalized voices within client groups and the community that may not be adequately reflected (see e.g. Hoffman and Vahlsing (2014), observing that many of the communities they have worked with are often represented by men). Recognize that under the theory of “community lawyering”, lawyers and clients are engaging in a collective fight for social change that advances the clients’ objectives.

24. Map all stakeholders: Engage in a mapping project of all stakeholders, their interests, and their relationships to centers of power and decision-making.

25. Identify and address potentially competing interests and goals: These include the chief aims of the clinic and its vision of justice; and the interests of the ‘legal advocate’ (e.g. professional responsibility concerns, strategic decisions based on the limits of the law). Also prompt consideration of relationship between immediate advocacy/client goals and those of the broader community and movement that the case or project serves.

26. Identify risks to client/community: Actively brainstorm and address any risks you may bring to or exacerbate in the community through your involvement; assess and address physical, digital, and psychological threats that may be aggravated through your work, including re-traumatization.

27. Set goals and limits: Identify desired outcomes and markers of “success,” and evaluate the impact (short-term, medium-term and long-term) – intended and unintended – on the client/client community on whose behalf advocacy is undertaken, and other stakeholders. At the same time, explicitly explore what we are best suited to do well and what others are better placed to take on; be willing to recognize one’s own limitations, and in particular, to turn down cases or projects or refer them to another entity more suited to realize the client’s/community’s goals.

C. During the Case or Project

28. Bring critical perspectives discussed in the classroom into the field: Most of the discussions initiated during case/project mapping and preparation, particularly around client and community, are likely to continue in the field. Continue to engage the students in dialogue on these issues and concerns, informed by critical theory.

29. Adopt a bottom-up / collaborative approach: Practice advocacy based on accountability to, and regular consultation and engagement with, the client and/or communities most impacted by the laws, policies and practices we seek to challenge. Aim toward solidarity and accompaniment instead of “saving” or “solving” issues. In particular:

a. Resist displacing community-based expertise, advocacy organizations, and lawyers; actively seek opportunities to replace ourselves with advocates and lawyers most rooted in the community, and reject invitations to speak “for” the community when they can speak for themselves. Use methodologies most well-suited to empowering communities in the face of powerful actors.

b. Respect the principle of “nothing about us without us” by joining with community-based and accountable organizations, advocates, and movements, where possible providing work product in the language and style most widely used by the community, slowing down when necessary to allow for consultation and coordination, and ensuring the (economic/language/locational) accessibility of meetings and other opportunities for consultation.

c. Find ways to identify and amplify communities’ own articulations of their rights claims, making creative use of human rights law in response to authentic iterations of entitlements. Engage with feminist and anti-colonial theories of voice and claiming.

d. Model critically reflective human rights lawyering: Apply the principles of rights-based work to our own legal work and advocacy: do all we can to ensure that our work is participatory, empowering, accountable, transparent, and equality-enhancing. Honestly uncover and assess one’s own implicit biases and fears, and political, social, and cultural assumptions throughout the advocacy process.

Readings and Case Studies

V. Critical Perspectives on Human Rights Teaching: General Resources

These are a few additional general resources that guided our research and drafting of this Guide:

 

** We are indebted to colleagues, including Davida Finger and Meetali Jain, who have contributed valuable feedback and suggestions. Any errors and omissions are solely attributable to members of the Guerrilla Guides collective noted here.

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