In a recent article in The Chronicle Review (“The Human-Rights Charade”), Eric A. Posner claims that international human-rights-law clinics (IHR clinics) and programs have no pedagogical value and do nothing more than engage in “left-wing” political activism. I write this response particularly for readers who are not aware of the landscape of views on human rights in the legal academy. Posner’s thoughts on IHR clinics and programs are nothing more than an extension of his narrow view about international human-rights law and also reflect a lack of understanding of what students in IHR clinics and lawyers in the real world do.
Posner thinks that international human-rights laws and institutions are at best useless and at worst harmful. Part of why he thinks they are useless is that “many countries completely disregard their treaty obligations,” and he believes they are harmful in large part because they restrain states from acting in ways that would maximize their own priorities. For example, he argues that a developing country should not be held accountable for the torture committed by its police because instead of training the police to avoid torturing, it should be allowed to use its limited resources “to build schools or medical clinics.” But people who teach IHR clinics and who practice international human-rights law are guided by a starkly different vision of international human-rights law, a vision in which building schools does not justify toleration of torture.
Posner argues that IHR clinics have no pedagogical value because they fail to give students experience doing “real” legal work such as “draft[ing] contracts, fill[ing] out legal forms, and conduct[ing] interviews of clients.” The reality is IHR clinics do teach nuts-and-bolts legal skills that are consistent with the broader pedagogical goals of law schools. To use Posner’s example, a report on Cambodian factory workers—as with most human-rights reports—would have required students to conduct interviews with multiple stakeholders, conduct extensive international and foreign law research, and undertake legal writing in drafting the report. The Chicago City Council resolution that domestic violence is a human-rights violation (another Posner example) would have given students legislative drafting and lobbying experience and an understanding of how local governments work.
In the real world, lawyers in many areas of practice advocate for legislative change, negotiate with opposing counsel, work with clients and local counsel from other countries and other cultures, work in teams, and achieve legal change through means outside of the courtroom. IHR clinic projects teach students those very same skills. Some projects of IHR clinics do not involve representation of an individual client in a court case. Instead, they are aimed at achieving change for large groups of people through means other than courts. Those tactics require the use of legal skills beyond the traditional set. In the real world, public-interest and human-rights lawyers achieve social change by mobilizing peoples and communities using media or technology. Filing shadow reports with international treaty bodies, holding thematic hearings at the Inter-American Commission on Human Rights, or drafting reports using the moral persuasion that human-rights principles offer can raise the awareness necessary for legal change to occur.
Second, according to Posner, because there is no pedagogical value in IHR clinics, they are just vehicles for academics to engage in political activism using university resources. Posner acknowledges that most people are motivated by their personal viewpoints about social justice and that most clinics reflect the views of people who teach them. But that is not problematic to him as long as clinics are working within his conception of the “legal system.” For example, he notes that people who teach death-penalty clinics are likely to be opposed to the death penalty, but because he thinks students in those clinics work within the “legal system,” those clinics are teaching law.
The reason Posner thinks that IHR clinics do not operate within a legal system is that he does not think that the international human-rights system is a “legal system.” However, I think that international human-rights treaties, resolutions, and other documents, the United Nations and its bodies, regional international human-rights courts such as the Inter-American Court of Human Rights and the European Court of Human Rights, and the numerous international criminal tribunals do constitute a “legal system.” In IHR clinics, law students who interpret those treaties, apply their provisions to real-world situations, submit briefs before international and foreign courts, and make presentations before U.N. committees are working within a “legal system” even if it does not have the same enforcement powers of a domestic legal system.
To say that IHR clinics are driven by nothing other than the beliefs of those who teach them is also wrong. Most IHR clinics team up with nongovernmental organizations and view them as “client” organizations. It is the goals of those client organizations that drive the work. Law-clinic students guide and advise their clients, much as lawyers do. Other IHR clinics allow students to choose the projects undertaken by the clinic; thus many IHR clinic projects are not simply defined by the professor who teaches it.
Third, because Posner believes that international human-rights law has no impact, he also wonders whether IHR clinic projects “do any good.” He wonders whether a resolution by the Chicago City Council—that domestic violence is a human-rights violation—would reduce domestic violence. The purpose of the resolution on domestic violence is (among other things) to bring the United States closer to its international obligations, including strengthening the enforcement of a recent Inter-American Commission on Human Rights decision that found the United States to be in violation of its obligations to protect domestic-violence victims and their families. But this is precisely why Posner thinks this project is pointless—because it attempts to draw the United States closer to its international law obligations.
There are also many examples of where IHR clinics have had an impact on court decisions. For example, my students worked with Colombian lawyers who successfully argued that charging for primary education is not consistent with Colombia’s international human-rights treaty obligations. But to define “impact” as winning or losing a court case is too narrow. IHR clinics also “do good” by investigating and exposing human-rights abuses that would otherwise go unnoticed (like the report by the Stanford and NYU clinics describing the impact of drone strikes in Pakistan) and by pressuring governments to change their abusive policies by filing reports with numerous international and regional human-rights mechanisms.
There are other concerns Posner raises about IHR clinics that are again really just problems he has with international human-rights laws and institutions. He argues that IHR clinics have too much scope in selecting “rights” to advocate for; this is because, in his view, treaties are too broad and cover too many rights (from migrant rights to women’s rights to disability rights). He also argues that IHR clinics are not actually attempting to enforce the law, perhaps because he does not think that international law is enforceable. But even one of the projects he cites is an example of just that. For example, the best-legal-practices guide for responding to domestic violence in Mexico and Guatemala was aimed at disseminating information about domestic-violence laws to various actors responsible for enforcing it.
Even though they were not meant in that spirit, the truth is that many of Posner’s critiques of international human-rights law are useful to those who believe in the value of the international human-rights system. Indeed, people who teach IHR clinics are continually engaged in discussions about how international human-rights laws and norms reflect a Western bias, the ethical problems with advocating for change in the Global South from Global North institutions, and identifying the weaknesses in international human-rights enforcement mechanisms for the purpose of strengthening them.
It would be more consistent with his scholarly work for Posner to simply argue that IHR clinics have no place in academic institutions because he does not think there is value in promoting international human-rights law. On the other hand, most people who teach international human-rights law clinics and programs see value to promoting international human-rights laws, and indeed many countries do comply with their international treaty obligations (in many cases explicitly incorporating them into their constitutions), and human-rights principles can lead to change even when they are not enforceable in a court. In other words, Posner’s critique of IHR clinics is simply a restatement of his disagreement with the mainstream view that international human-rights law matters.
Sital Kalantry is a clinical professor of law at Cornell Law School, where she founded the International Human Rights Clinic in 2007. She was also director (2013-14) and founder of the International Human Rights Clinic at the University of Chicago Law School.