With authoritarian regimes on the rise around the world, the need to protect basic human rights is more urgent than ever. How can law schools, law students, and law faculties help do this critical work — at home and internationally?
Three Berkeley Law experts join Dean Erwin Chemerinsky for this episode: Chancellor’s Clinical Professor Laurel E. Fletcher, co-director of the school’s International Human Rights Law Clinic and its Miller Institute for Global Challenges and the Law; Eric Stover, faculty director of the Berkeley Human Rights Center; and Professor Saira Mohamed, whose research focuses on criminal law and human rights.
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More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at morejust@berkeley.edu and tell us what’s on your mind.
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- New Project Tracking Campaign to Curtail Reproductive Rights Showcases Cross-Campus Alliance
- New Podcast and Human Rights Blog Series Further Expand Miller Institute’s International Reach
- Clinic Reveals ‘Increasingly Hostile Environment’ for Online Freedom of Expression in Gulf Nations
Episode Transcript
ERWIN CHEMERINSKY: Hello, listeners. I’m Erwin Chemerinsky, dean of Berkeley Law. And this is More Just, a podcast about how law schools can play a role in solving society’s most difficult problems.
With authoritarian regimes on the rise around the world, the need to protect basic human rights is more urgent than ever. How can law schools and law students and law faculty help to do this critical work? In this episode, I’m joined by three terrific Berkeley Law professors who are deeply engaged in these efforts. Professor Laurel Fletcher is the chancellor’s clinical professor of law. She’s co-director of our International Rights Law Clinic in the Miller Institute for Global Challenges and the Law.
Professor Saira Mohamed, whose teaching and research focus on criminal law, international human rights. And Professor Eric Stover, who’s the faculty director of Berkeley’s Human Rights Center. Thanks to each of you for taking time from your busy schedule to be here. I think the logical place to begin is with the question, what do we mean when we speak of human rights? Saira, if I could start by posing this question to you.
SAIRA MOHAMED: Thanks, Erwin, first of all, for inviting me here today. It’s a pleasure to be part of this conversation. So when we speak of human rights, we are talking about rights that are inherent to all human beings, regardless of any status, regardless of race or sex or nationality, ethnicity, language, religion, any other status. Because the law of international human rights is primarily built around state obligations, when we talk about international human rights in the context of legal education or legal scholarship or legal practice, we are typically referring to human rights as claims that a person can make upon their government.
And then if the government fails to fulfill those claims, then the realization or protection of the right might be the obligation of some other non– or additional supranational entity. So this is really different from the idea of human rights as existing in the ether, or something like god-given rights or natural rights. Even while the background is something of a vision of humanity and what it means to be human, human rights law is about specific protections and specific entitlements. And behind that is that broader proposition for which human rights law stands, that individuals have rights simply by being human, and that no person is dispensable.
ERWIN CHEMERINSKY: Laurel, where do the rights come from? If they’re the rights that people have just for being human, and it’s not a concept of natural rights, what’s the source for human rights?
LAUREL FLETCHER: Oh, many law professors and law students have torn their hair out in big chunks trying to answer that question. So I’ll give you the lawyer answer. And it’s really one that talks about the power of positive law, which is what we humans, in this case, as Saira just mentioned, states, representative of states can come together and make an agreement about what the law is, what are the obligations that states voluntarily undertake and recognize. And so those are codified in international agreements.
And the fullest first statement of what human rights are is written down in a document called the Universal Declaration for Human Rights, which was really one of the first documents that was created by the United Nations in the aftermath of World War II, in response to the horrors of that war. And the idea was, if we had had an agreement that certain conduct by the Nazi regime had been recognized as illegal, that there would have been greater possibilities for earlier intervention. In the absence of an agreement about what rights individuals could make against the state, other states simply had no claim to make on the Nazi regime that it was violating human rights, something called human rights. So that was this attempt to codify what is this catalog of rights.
And as that developed into treaties, which are binding laws, so agreements that states make and they undertake specific set of obligations in recognition of these rights, and so we have these two primary treaties. One is the Codification of Civil and Political Rights, which is much more familiar to people in the United States, looks more like our constitution. But we also have this other international agreement, the Covenant on Cultural and Social Rights. And these two are right. They have a different legal character, in some ways, than civil and political rights, but they are also rights.
And one fact that I think Saira and I like to raise with our students when we teach human rights is to have them guess, as between which set of rights, which one is more widely ratified, which one is more widely recognized. And invariably, students are surprised that they’re really very closely– they’re really neck and neck. It is only in the United States where we think, oh, economic rights, the right to health, the right to food, the right to housing, that can’t possibly be a right. But that is codified and states have voluntarily undertaken to recognize it, and it comes with a set of responsibilities and obligations. I’ve just torn out one chunk of hair. You’re welcome to it. May it be useful.
ERWIN CHEMERINSKY: Eric, if I could just follow up with you, Saira starts by saying that human rights are the rights inherent to all human beings. Laurel especially focuses on the treaties and agreements. Is there something left out in that account that you think should be added as we think about what we mean by human rights?
ERIC STOVER: Well, I would mention not only do we have human rights, but we also have what’s called international humanitarian law, or the laws of war. And those are a set of agreements that have been made, particularly through the Geneva Conventions following World War II, about the way in which war would be conducted. Now, one can be very cynical about that, but I can tell you from my own experience working in many war zones that I have seen the certain rights that prisoners of war will have to be visited by the International Committee of the Red Cross, and also to ban certain weapons, such as chemical weapons and so on, that could be used.
Another bucket we should talk about is international criminal law. And that’s where international humanitarian law and human rights law comes together in a sense in which you’re actually bringing charges against individuals, particularly for violations of war crimes and genocide and crimes against humanity. Now, these are based on court statutes, like the International Criminal Court, and also in domestic courts. And we’re seeing this now in Ukraine, for example, a very heavy involvement in investigating war crimes and bringing those responsible to justice before Ukraine courts.
ERWIN CHEMERINSKY: Let me try to center this in law schools perhaps to make it a bit less abstract. I’d be interested in the thoughts in each of you about what human rights issues should law schools most be focusing on. Eric, you’ve just given us some examples. Would you say those are the ones that law school should be looking at– law of war, international criminal issues– or are there others that you think are most important, from the perspective of law schools?
ERIC STOVER: Oh, I think from the respect of law schools, it’s the whole gamut. It really does, from climate justice all the way to war crimes to looking at immigration issues that we see at our own border. There should be no limit. At the Human Rights Center, our motto is that we pursue justice through science and law.
And what we try and do at the center– and we’re very lucky because we’re based in the world’s premier research university, so being based in the law school, we can work with law students, law faculty, but we can go over to the School of Public Health, we can go to other science departments and bring them in. And also, it helps to educate law students in science. And I think that is extremely important.
ERWIN CHEMERINSKY: Well, let me ask you this, Laurel. Resources are inherently limited. I certainly agree with Eric about the importance of focusing on a wide range of issues, but do you have a sense of what are the issues with regard to human rights that law schools should most focus on? And then after, I’d like to hear Saira’s view on that.
LAUREL FLETCHER: I think that it is incredibly exciting for students and our community to be working on the most pressing issues, human rights issues of the day. And I think that, as the premier public institution, premier public law school in the state of California, it’s important that we’re working on issues on human rights in the United States, in our own backyard, as well as abroad.
So what I would say is I’ll just tick off a few, and maybe we can return to these. The repression of dissent of journalists and other human rights defenders that is happening worldwide, this is associated with the rise of authoritarian regimes and popular nationalism. This is something that has particularly affected activists in the United States under the Trump administration.
It has continued globally, and we’re looking at the criminalization of freedom of expression and other ways that governments have restricted, illegally, under international law and human rights standards, restricted freedom of expression. Anti-terrorism, the misuse of anti-terrorism legislation. This was a terrible aftereffect of 9/11 that has been globalized. Technology and human rights. The Human Rights Center– I know Eric will talk about this– has been using technology to excavate human rights abuses.
The flipside of that is that governments are using electronic and digital technologies to surveil, illegally, human rights defenders and quash their activities. We should be working on that. And we should be looking at– we have pressing human rights issues in the United States. And whether that is anti-Black racism and police brutality that’s gotten increased attention in the aftermath of George Floyd, our attacks on immigrants and on immigration, the structural determinants of poverty and discrimination that are pervasive in the United States.
Human rights offers a unique framework to address those. And what I find so exciting to work with students is when they realize, looking at the law, that international human rights provide affirmative obligations that the United States has voluntarily undertaken to address these issues. And activists don’t use them. And for many years, activists haven’t looked to them because our domestic law set higher standards than minimum international standards. As repression has increased, as conservative agendas have rolled back domestic protections– we have a supermajority of conservative justices on the Supreme Court– those rights are being curtailed.
And so what I think we’re seeing is that advocates are now looking for what other legal sources can we use in our struggles to promote equality and fight discrimination. And human rights offers not just a range of legal tools and institutions, but a conceptual framework that makes visible and surfaces many of the claims that advocates are already making, but puts them in an international context. And I think that that is incredibly powerful and opens up a whole new terrain. And law schools should be investing in that.
ERWIN CHEMERINSKY: I want to just pause there before I turn to Saira. Usually when we speak of human rights, there seems to be a more international perspective. And that’s where we began this conversation. The last things you were talking about was human rights in the United States. We usually think of that in terms of constitutional law, rather than international commitments. Should we be thinking of in terms of international commitments? Is there any chance our courts will be receptive to hearing it from the perspective of international commitments if they’re not willing under US constitutional law?
LAUREL FLETCHER: Regularly, there are international human rights law professors and briefs that are being filed before the Supreme Court in consequential federal appellate decisions that are making these arguments. Now, the receptivity of those arguments by judges, I think we have seen really important examples by our Supreme Court in particular cases. I think the biggest concern now is that, with a 6-3 supermajority, those just simply aren’t going to be persuasive in cases that matter.
So I think that state courts and state legislatures provide fertile terrain. So for example, how many people realize that the California state constitution has the right to water? In California, where water rights and access to water is such a pressing issue, there’s a constitutional right to water. Well, what does it mean? And that’s where human rights activists, professors, law students, social justice actors and legislators need to come in. That’s the opportunity to provide a progressive content to that right that can address some of the very real and dire disparities in who has access to clean, healthy and affordable water.
ERWIN CHEMERINSKY: Thank you. Saira, if I could turn to you and again ask the same question I was asking of Eric and Laurel, do you have a sense of what are the human rights issues that law schools should be most focusing on?
SAIRA MOHAMED: Yeah, I think it’s a great question because I think it really draws our attention to all the possibility in human rights law, but also all the possibility in law schools, and makes me think about how law schools can not only train our students and set them on the path for the work they do in the future, but also we can think about the social or expressive role that law schools have, and in the choices that we make about what we’re teaching. So I guess I’ll draw attention to two discrete issues that I think Eric and Laurel haven’t mentioned that should and could be taught as human rights issues. One is gun violence.
So in the last few years, there’s been increasing attention from international institutions to gun violence as a human rights issue, in particular attention on the failures of the United States in that regard. So that’s absolutely a cutting-edge issue in human rights. And it’s not one that we typically think about as a human rights issue, but we should.
The other, of course, is climate change. So this is much more developed in terms of what the law is and the state of litigation around the world. And this is, of course, an issue here at home in the United States. And we might think that human rights litigation in the United States may not go far to protect us against environmental devastation. Surely, human rights litigation won’t be the answer, but it can be an answer. And there have been climate lawsuits all around the world, some of which have been centered around human rights claims, that have been successful in requiring governments to make concrete change in their environmental policies.
The last thing I’ll say is this. Instead of thinking about this in terms of specific human rights issues, I think one thing that law schools can and should do when we’re teaching human rights is draw students’ attention to human rights violations that exist in structural forms. So, so often when we think about human rights violations, we’re thinking about emergencies, discrete emergencies, dire events that somehow diverge from the norm.
And this kind of thinking is supported by the rules of international human rights law, which often identify these discrete events as violations, and by the enforcement mechanisms that also look at discrete violations as what needs to be remedied or repaired. But we should be teaching that human rights violations take place not only in emergencies, but in structural conditions, in poverty, in inequality, in the political and economic conditions that not only create the violations, but also that constitute the violations.
So one specific example of this is racism. Racism is not traditionally part of the survey course in human rights. Perhaps discrete events of race discrimination are, but racism itself we could think of as a human rights violation. And racism itself we can also understand as part of the fabric of the human rights law corpus. And so as we teach students human rights law, we can also teach them the history of this body of law, of its origins, so that they’re set off on a path of trying not just to use it in their future work, but also to continue to make it more effective.
ERWIN CHEMERINSKY: Those are great examples. All three of you have given important illustrations of the kinds of issues that law schools should focus on. Let me shift the discussion to talking about how law schools can go about this. Where are the places in law schools where this can be implemented?
Let me start with the idea of a human rights center. What kind of things might a human rights center do within a law school? Eric, you direct our Human Rights Center at Berkeley. What kinds of things are you doing? What kind of opportunities is it providing our students in this area?
ERIC STOVER: Well, I think a good thing to remember is we’re training students. And our focus is really on students, is law students and other students across the campus, is if you’re trained to be an advocate, that’s fine. We need advocates. We need activists. We need marching in the streets.
We need change. But you also need to change, you need to train students to be investigators. And that means, when you look at a potential violation of human rights or international humanitarian law, war crime or whatever, that you’re beginning with multiple working hypotheses, that you understand that what you think you’re looking at may not be what your confirmation bias might be.
So to give some examples, what we do at the center, we developed with the UN High Commissioner for Human Rights the Berkeley protocol in digital open source investigations. This is a protocol we worked with law students on to develop so that anyone who is going online and looking at Ukraine today, our lab, our open source investigations lab is engaged in investigations in Ukraine. And those students are being trained when they look at an issue that they question their own beliefs of what’s happening. And this is extremely important.
We are also doing trainings here in the United States and around the world. Two of my colleagues now, Lindsay Freeman and Alexa Koenig, both lawyers, and two of our students are in New York today. And they’re spending a week training Ukrainian investigators in open source investigations. So that’s one example.
Another is to go back to issues that Saira and Laurel raised about domestic issues, we have a project now which is working with public health law students that are looking at foster care in San Francisco and how easily sex traffickers will target those in foster care homes, particularly group homes, and how can we work with the city government to improve that situation. It’s a long-term project.
Another project we’re working on is what we call the DNA bridge, or the [SPANISH] in Spanish. And that is that so many unaccompanied children who’ve come across the border, migrant children, have remained in detention. They may have been put in detention when they were four or five years old, and now they’re 10 or 11. And it’s time for them to be reunited with their parents back in Mexico, Honduras or Guatemala. And so we have set up with DNA labs that are very independent, both here in the United States and in Argentina, in Guatemala and El Salvador, is a system whereby DNA could be taken from potential biological parents so those children can be reunited.
One last I’ll mention is we worked with a team of law students last year on a documentary that hopefully will come out within a year or so. And that is looking at misogyny in the United States, and particularly looking at Texas and Roe v. Wade. How are ways in which we can historically and legally look at that issue within the United States? And I’ll just add one other project that we’ve had now from the 29 years the center has been in existence is a fellowship program. So we are now up to about 870 fellows, many of them law students, who we send to work with local human rights organizations around the world.
ERWIN CHEMERINSKY: Let me ask you a quick follow-up. All of the things you describe are terrific. What do we gain by putting them in a law school? There are wonderful international human rights organizations– Human Rights Watch, Amnesty International– that can do some of these things. What do you think is the benefit of a law school having a human rights center?
ERIC STOVER: The benefit of a law school having a human rights center is exactly that. It’s in a university. I have a question. I can go to Laurel Fletcher or Saira Mohamed or other colleagues in the law school and ask them for assistance. Help me with this. I don’t understand this particular aspect of climate justice, if you will. I need to understand it. Or I can go across campus and I can find somebody in mechanical engineering, as we did years ago, who actually worked on improving prosthetics for landmine victims.
So we can reach out. And as I often say, is that we steal from the university to give to the community. We want to take all the various departments in the law school here and the students and get them out working on projects within communities. And so having a human rights center and a clinic in a law school is exceptional.
ERWIN CHEMERINSKY: Thank you. Laurel, what types of things can a human rights clinic do within a law school? And what can a human rights clinic in a law school do that perhaps other litigators for human rights around the world might not be able to do as effectively?
LAUREL FLETCHER: Before we get to that, I also wanted to take this opportunity– it responds to this question, but it also refers back to earlier parts of the conversation, in terms of just what is the contribution that human rights or human rights perspective makes, and what is that contribution within a law school. And I would just like to say that part of this is about socializing and normalizing the idea of human rights and, in a law school, the legal content that human rights brings to the canon of laws that we think about as enforceable, creating duties, creating norms that affect behavior, that impact people’s lives.
And I think that, as a law school in the United States, the tendency is that we reflect the exceptionalism that we see our highest court historically adopt towards international law, which is our constitution supplies all the law that we need, all the rights that we need, and will guarantee justice to those within the United States.
And I think the attack on rights that has been ongoing, certainly for the last 30 to 40 years, has accelerated quite dramatically in the last 10 to 12. It makes it just impossible to maintain that we have all the rights in our constitution, as the constitution is being reinterpreted and constricting what those rights are. So just socializing people and lawyers that there is this entire universe out there that actually supplies law, law as is recognized in the United States, is itself chipped that I think law schools can accelerate.
To your point about what is it that law schools do that no one else can do, we train lawyers. We train the next generation of lawyers. And I think that, therefore, we have a particular obligation to think about and how are we equipping the next generation of lawyers to be good not just legal citizens and stewards of justice, but doing so in an international and global context. And that has to include an understanding about how our domestic issues have international dimensions and how international law and institutions can be domesticated and help advance our domestic situation.
Everyone, whatever context they are, arises in a unique national context. The United States is no different. And at the same time, every context, when you’re talking about international human rights, has common dimensions. Discrimination and anti-discrimination work have common dimensions. And that is why we have a set of institutions that are working on these issues. And they are applied in different contexts, but they collectively move the needle.
And so what I think that a human rights clinic does is put the next generation of law students in a position to understand and practice what it means to take international law seriously and address domestic issues and to, as what I say, take domestic issues and internationalize those. So it works in both directions. And we do that in the Human Rights Clinic.
So for example, when we are working on defending human rights defenders and doing a 10-country report documenting how states in the Gulf region and neighboring countries are criminalizing online freedom of expression, students are making connections between those activities and the way that those same types of threats and the threat to freedom of expression is they can recognize how that is happening in the United States. And that’s very important.
I think that it also gives them the opportunity so that they can understand and apply that throughout their career. So we’re working both to defend human rights defenders, because human rights defenders in the United States are under threat, and therefore there is common bonds to be made between activists in the United States and activists in other contexts.
We’re doing individual representation of defenders who have been subjected to surveillance, illegal surveillance, who are being jailed without due process. And students are making– as they develop their professional identity, it really drives home the lessons of what are advocates who are just like them, except they are trying to advocate in a different context, and therefore what are the common institutions and common norms that need to be strengthened that can protect both of those.
And finally, we do some very traditional work in cutting-edge ways. So working on massacres and holding violators, state violators accountable for perpetrating massacres in Mexico, in other contexts, and partnering with local activists who are generating and working up these cases to bring in domestic courts. Right? Because other countries are ahead of the United States in incorporating international norms and international law and making those norms enforceable directly through domestic courts to domestic contexts.
So it turns out that Berkeley Law students learning about international human rights law can be supporting working in solidarity with local activists who are going to use those arguments and apply them in their domestic courts. And I think that’s the kind of education that law schools should be offering to their students in a globalized world, where these problems are not siloed.
ERWIN CHEMERINSKY: That’s terrific. Saira, if I could turn to you, you teach international law. You teach human rights law. You teach criminal law. Are there things we should be doing in the curriculum to better teach about human rights? Are there things we should be doing for our students better than we’re doing now in this area of law?
SAIRA MOHAMED: Yeah, I do think that students should understand the basics of international law. By the time they graduate, they should know the sources and the methods and the institutions of international law. And that’s becoming more common, but I think not uniform across law schools. But even beyond that, I do think that we should be encouraging students to think of human rights as an important part of their legal education, even outside of any obligation to learn the basics of international law. And certainly, they should think of human rights as an important part of their legal education, even if they don’t plan to become international lawyers.
And I think this is important in two ways. One is that the black letter law of human rights, and also the conceptual foundations of human rights, are useful for lawyers, even those who are not going to be human rights lawyers. And that’s because public defenders or civil rights lawyers who are working on what we might think of as just domestic issues, they can potentially draw on the corpus of human rights law in their work, or they can supplement the work that they’re doing in domestic law and domestic institutions with work that they’re doing in international or regional institutions, either on their own or by partnering with other lawyers who are working in those international or regional institutions.
Beyond that, the ethos of human rights law, right, the idea is that no person is dispensable, that the law should serve the most vulnerable, that every person has claims on the state simply by being human. This, I think, is an essential set of core values that any and every lawyer should embrace. So how do we do that? We could make the basic human rights course a required course to graduate from law school. I’m sure we don’t want to talk about curricular reform right now.
But the other way to do this, I think, is to change how we talk with students about human rights, to right from the start, when they come to law school, and I’d say well before that, for them to think of human rights as an important and legitimate way to think about the relationship between an individual and a state. I’ll say, to go back to the conversation about cutting-edge issues in human rights, also an important way to think about collectives, relationships with the state, too, but that they shouldn’t think of human rights as solely international or solely foreign.
And so the work that Laurel and Eric are doing, along with their colleagues in the clinic and the center, I think is so important for conveying to students that, when we talk about human rights law, we’re not only talking about something that is important far, far away, and that this is a way of thinking about the law, of using the law, practicing the law, no matter what particular field a person decides to go into.
ERWIN CHEMERINSKY: Thank you. All too quickly, our time for this conversation is ending. We just have a few minutes left. I think what I’d like to do is to ask each of you– and I apologize, in just a minute– for any concluding thoughts, especially about what law schools can and should be doing better. Maybe I’ll ask Eric, and then Laurel, and then Saira to address this.
ERIC STOVER: Very briefly, I would just say practical tools. And what do I mean by that? I mean that we saw the pandemic hit us. How many law students were versed in the ethical and medical and epidemiologic issues that came with the pandemic? Or when we see migration, as I mentioned earlier, and the use of DNA in order to reunify children who’ve been held in detention here.
And finally, when doing investigations, it’s learning how to triangulate evidence that you’re collecting, whether it’s documentary, testimonial, or physical evidence. And these tools are extremely important because this is your one opportunity. You’re in the university, and you should be learning the law, but you should also be able to draw on the other resources on campus.
LAUREL FLETCHER: I think that law schools, we play a unique role in society. And we should be harnessing our resources to really leverage how we can advance human rights protections through our institutions. And I think that comes– we’ve been talking about specific curricular areas, but I think we can also think about that law schools are wonderful conveners of conversations.
And we are problem-solvers. And using the law school and involving faculty and students and practitioners in addressing human rights problems at home and abroad opens up the vista through the law school to the world, and making a positive impact and deepening and strengthening our commitment to ensuring that every person is entitled and realizes a life with dignity.
SAIRA MOHAMED: And that those can be changed. I think human rights exists out in the ether for so many people before they study it. They think of it as inevitable in some way, that it’s sort of handed down from on high. And I think by teaching students that the laws are concrete and they can be changed, I think we should continue to emphasize context and history in how we’re teaching the law.
Next to those practical skills and the cutting-edge issues, I think we have to teach students that, in human rights, alongside other areas of law, the laws that we have in the institutions that we’re working in are the product of particular decisions on the part of particular people at particular times. That gives students enormous power when they’re doing this work.
ERWIN CHEMERINSKY: My thanks to each of you for this terrific conversation. I’ve been talking with three Berkeley Law professors, Professor Laurel Fletcher, who’s the chancellor’s clinical professor of law, who’s co-director of both our International Rights Law Clinic and the Miller Institute for Global Challenges, Professor Saira Mohamed, whose teaching and research focuses on human rights, international law and criminal law, Professor Eric Stover, who’s the faculty director of our Human Rights Center.
I hope you enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. Until next time, I’m Berkeley Law Dean Erwin Chemerinsky.
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