Sital Kalantry Responds to Eric Posner, Continued

Prof. Kalantry continues her response to Eric Posner’s critique of International Human Rights Clinics.

To say that IHR clinics are driven by nothing other than the beliefs of those who teach them is also wrong. Most IHR clinics partner with non-governmental organizations and view them as “client” organizations. It is the goals of those client organizations that drive the work. Law clinic students—much like lawyers do—guide and advise their clients. 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 that 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 would think this project is pointless—because it attempts to draw the United States closer to its international law obligations.

There are also many examples where IHR clinics have impacted 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 clinic’s 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 these 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 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 the ways in which 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.

Prof. Kalantry’s response originally appeared in the Chronicle of Higher Education.  Part I of Prof. Kalantry’s response was published in this blog on Dec. 2, 2014.