The Human Rights Clinic as Contested Ground

Recently, while leading a seminar class on the fundamentals of International Human Rights Law, I was lamenting before my students on the US government’s latest flagrant dismissal of human rights norms. One student intervened and shared that she felt this scale of dismissal was evidence that the “empire is dying”, and that “this is okay”. She obviously recognized my frustration and the vulnerability in my tone throughout the session and, I think, wanted to reassure me that structures of oppression do come to an end, even if that end is gnashing its teeth and harming itself. I am reflecting on how much of what we understand as imperative to the project of equality, peace, or even dignity for all, sits within a human rights legal system that remains hostage to the colonial and discriminatory character of the State. In short, are we, too, as human rights folks, dying with the empire(s)?

Where Human Rights Law Fails: Accumulated Power, Not Grassroots Contestation

Perhaps now more than ever, rights cannot survive on theory alone. The abstraction of rights, unmoored from practice, is at best insufficient and at worst harmful, and the human rights clinical model is one serious response or attempt to address that gap.

As a pedagogical space, legal clinics, including those that focus on human rights law, weave together the worlds of practice and theory, using direct exposure to cases, clients, and issues, along with the practical demands of lawyering. What matters most, and underpins the experience, is that the model requires that both the professor-instructor and the students reflect on whether the norms and standards we activate through a human rights approach will really work at a fundamental level when responding to the cruel systemic indignities people face.

It is not uncommon or rather, it is increasingly common these days, for students to have complicated feelings about the “International Human Rights project”: its inability to hold powerful individuals and states accountable; the struggles of human rights law as a system to mitigate the harms of Thanos-esque corporations; the drastic loss of funding; the international legal order’s inherent discomfort with legitimate pushback against neo-colonial expansion by the Western world; and the hesitation to name mass atrocities, let alone protect communities from them. These charges are often, and rightly so, leveled at countries that fail to uphold their legal obligations under the very treaties that enshrine hard-fought and won rights for marginalized, disenfranchised, and historically oppressed groups. So, in my students’ hot take moment, I think we found an educational and philosophical pause about what it means to do human rights work right now.

Centering Expertise and Asserting Affected Communities as Knowledge Holders

The work in my own clinic often takes this on when in partnership with organizations and partners from around the world who are not simply invoking human rights as a framing device, but demand radical resistance as authoritarian forces are on the rise everywhere. Part of that demand is to disrupt the idea that accountability only travels through the corridors of the United Nations or through the well-lit halls of well-funded institutions and foundations that have the privilege of theorizing about what is, for most people, a struggle against assault on their very existence. It asserts that students and instructors together have to navigate the very contradictions that communities have, in order to survive. The work of clinics collaborating with partners across the world is to compel academics and advocates to take a sustained interest in these issues, so that students are not merely trained to be exposed to seemingly “exotic problems”, so to speak, but are taught to examine these issues while actively practicing allyship, an enduring discomfort because of the persistent examination of power and critique of where they are placed within the international legal system.

However, when undertaken thoughtfully within a feminist framework, clinical teaching can be an opportunity for future lawyers to learn about inclusive practices, build relationships with communities, and advocate for equality. An example of this is the longstanding work of my clinic around sex workers’ rights. It is an area that often makes students uncomfortable and anxious when they are first introduced to it. Our (historical feminist) movement’s own history has too often failed to extend human rights protections to sex workers. The focus should not be confined to abolition, coercion, or the purported incapacity to consent (i.e., claims often advanced by some feminists), but to the pervasive reality that violence against sex workers is frequently state-sponsored. It takes the form of police brutality and state surveillance; the withholding of healthcare and protection from sexual harassment; and the denial of socioeconomic rights, including housing, education for their children, and social security. In these ways, the state undermines sex workers’ capacity to live full and dignified lives, regardless of whether one regards sex work as a contentious form of labor. In a clinical environment where community-based organizations are clients and partners, students have to confront these lived realities. They have to engage with experts of both law and lived experience, who are those in conflict with the law and yet intimately understand it, perhaps better than any lawyer, and propound the ways it can oppress better than any scholar.

Feminist legal theory has long insisted that the personal is political, that harm experienced in a home, a village, or a police station is not a private matter but a public one that demands public attention. I have found it essential for students to be grounded in the work of African American scholar-activists like Patricia Hill Collins, E. Tendayi Achiume, and Kimberlé Crenshaw as part of Black feminist epistemology whose writing insists that the oppressed body’s experience should not be treated as a sensational fetish or mere data of violence, but rather as giving insight into how systems as well as structures are built with the very intention of that subordination. Often, violations are waiting for dominant groups to name them as such, rather than validating the experience of those whose very bodies and lives are shaped by constant persecution.

The autobiographical work of the Dalit feminist writer, Baby Kamble, builds on the importance of others and reinforces how we articulate narratives when experiencing atrocities. She writes in the first person in plural rather in singular (“we” rather than “I”) expanding on how we (those enduring oppression) give epistemological value to the lived experience and therefore must be centered in any pursuit of a path of restitution, restoration, or redress. A situation that exemplifies this is that of the sexual and gender-based violence that has been committed across millennia against Dalit women, a group so systemically embedded in the narrative of violence wherever caste is present, and yet so persistently underreported and rarely spoken about within international law.

Clinical Work as – and is – Risk, Opportunity, and Intellectual Rigor

In the US, there is a recorded history of political meddling in the work of legal clinics, dating back to the 1980s, largely because of the State’s intent to interrupt meaningful representation for groups, individuals, or communities that the state itself often targets. Clinical work requires engaging with intersectionality, a concept that I think should be partnered with the term invisibility. The responsibility in activating or applying an intersectional lens is to unearth the invisible (or what the accumulators of power want to bury), and to expose vectors of harm that were not previously considered. This is even more necessary when it comes to the law, a habitual offender in neutralizing what requires nuance.

bell hooks described the classroom as a site for liberation and a practice of freedom, one that instills in people the capacity to teach as much as they learn, and to disrupt domination and authority. Pair her philosophy with Paulo Freire’s approach in Pedagogy of the Oppressed, and you come to believe that the classroom and the human rights clinic specifically can deliver dialogue, participation, and a chance to give real language to what it is we are analyzing when we think about oppression.

Clinical work can also trouble the generalization of violence and instead calls for an ontological examination that not only asks what harm occurred, but also what complex power dynamics are being ignored (the work of Judith Butler also explores this). To state that these violations exist, to document them with rigor, to give them a name, maybe even a legal home, is why clinical work is a project of democratization. And then, if critical frameworks are meaningfully applied, it attempts to relocate the authority to define justice away from those with the resources to theorize it, and back toward the communities living in its absence. TWAIL scholars like Mutua, Gathii, and Natarajan also demand this of scholars, opening up a conversation around how knowledge is power and who decides what counts as knowledge, disrupting the notion that true expertise only comes from one site.

Concluding Remarks

One aspect of my experience should also be noted, and I hope to expand on it elsewhere: how feminized the student population is when it comes to human rights clinics. In nearly a decade of doing this work, I have found that the cohorts I have taught are disproportionately femme-female and queer, and this cannot be incidental. It suggests that feminist study and the labor of human rights practice taught in the clinic are already being lived by the students who walk through its door, and that any account of where feminist theory meets feminist practice has to reckon with who is actually doing the work.

The task at hand for international human rights clinicians now is to reflect not only on what we teach, but also on how we radically design and transmit the capacity to hold that pedagogical stance under conditions of institutional pressure, fascism and repression, a type of anticipatory resilience built into the curriculum itself. Investing in and expanding these kinds of models, moving them beyond being housed solely in law schools, and offering them instead as a point of interdisciplinary engagement across other spaces is thus of particular importance. And, finally, to answer: Are we perishing with the empire? No. We are becoming the thing that it cannot absorb.