Sital Kalantry Responds to Eric Posner’s Critique of Human Rights Clinics, Part I

A Response to Posner’s Critique of International Human Rights Programs and Clinics  

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 of the Chronicle Review 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 because “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 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 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 law schools’ broader pedagogical goals. To use Posner’s example, a report on Cambodian factory workers—as with most human rights reports—would have required students to conduct interviews of multiple stakeholders, conduct extensive international and foreign law research, and undertake legal writing in drafting the report.  The Chicago city 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 these 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. These 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 because 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 these treaties, apply their provisions to real world situations, submit briefs before international and foreign courts, and make presentations before UN committees are working within a “legal system” even if it does not have the same enforcement powers of a domestic legal system.

Prof. Silantry’s response originally appeared in the Chronicle of Higher Education.  The remainder of her response will be posted here on December 3, 20014.