The Unrestrained Corporatization and Professionalization of the Human Rights Field
By J. Sebastián Rodríguez-Alarcón and Valentina Montoya-Robledo*
Human Rights organizations are increasingly becoming professionalized and corporatized. These two characteristics might be problematic as many Human Rights lawyers and organizations may have an ambitious socially driven vision, but struggle to find a balance between economic and social value. If this problem is not solved in time, it could limit the possibility for Human Rights lawyers and organizations to achieve substantial transformations in terms of justice and equality. Based on the revision of literature and ten semi-structured interviews conducted between June 2014 through May 2017 with Human Rights lawyers from North America, Europe, and Latin America, we describe how excessive professionalization and corporatization can take place at two levels: 1) law schools, where disproportionate professionalization and corporatization end up reinforcing privilege and egos, as well as Human Rights work that is only partially critical, while producing legal advocates with good intentions but narrow possibilities for substantial change; and 2) in Human Rights legal practice, where robust negative corporate governance structures and cultures of dominance are replicated in a disproportionate manner at Human Rights institutions, losing sight of substantial change in the conditions that account for the vulnerability of particular communities. We provide possible solutions for the challenges that Human Rights advocates, international organizations, governments, philanthropists, global nonprofits, medium-size nonprofits, grass-roots organizations, law firms, and academia face in relation to the excessive corporatization and professionalization of the field. We propose a set of pragmatic legal, policy, behavioural, economic, and organizational solutions to help promote the work of Human Rights lawyers and organizations in current world affairs to their full potential.
Les organisations des droits de la personne sont de plus en plus constituées en sociétés et professionnalisées. Ces deux caractéristiques peuvent être problématiques puisque de nombreux avocats et organisations des droits de la personne ont une vision sociale ambitieuse, mais doivent à la fois s’efforcer de trouver un équilibre avec des considérations économiques. Si cette problématique n’est pas résolue, cela pourrait fortement limiter la capacité des avocats et des organisations des droits de la personne d’effectuer des transformations substantielles en termes de justice et d’égalité. En nous fondant sur notre analyse de la littérature ainsi que de dix entretiens semi-structurés menés entre juin 2014 et mai 2017 avec des avocats des droits de la personne provenant d’Amérique du Nord, d’Europe et d’Amérique Latine, nous décrivons comment la professionnalisation et la privatisation excessives peuvent se produire à deux niveaux : 1) les facultés de droit, où la professionnalisation et la privatisation disproportionnées renforcent ultimement le privilège et l’égo, ainsi que les travaux reliés aux droits de la personne qui manquent de sens critique. Tout en formant des avocats avec de bonnes intentions, l’approche des facultés diminue la possibilité de changements substantiels; et 2) dans la pratique juridique des droits de la personne, où les structures de gouvernance d’entreprise et la culture de dominance sont reproduites de façon disproportionnée dans les institutions des droits de la personne. Les entreprises perdent alors de vue les changements importants qui seraient nécessaires concernant les problématiques au fondement de la vulnérabilité de certaines communautés. Nous fournissons des solutions possibles aux défis que les défenseurs des droits de la personne, les organisations internationales, les gouvernements, les philanthropes, les organisations à but non lucratif, les organisations locales, les cabinets d’avocats et les universités rencontrent. Nous proposons un ensemble de solutions juridiques, politiques, comportementales, économiques, organisationnelles et pragmatiques qui permettront de promouvoir à leur plein potentiel le travail des avocats et des organisations des droits de la personne les affaires internationales actuelles.
Las organizaciones de derechos humanos se han vuelto cada vez profesionalizadas y corporativas. Estas dos características pueden acarrear ciertos problemas ya que, aunque muchos abogados y organizaciones dedicadas a los derechos humanos tienen una visión social ambiciosa, es difícil para ellos encontrar un balance entre el valor económico y social. Si este problema no es resuelto a tiempo, esto podría limitar la posibilidad que tienen los abogados y organizaciones de derechos humanos de alcanzar transformaciones sustanciales en términos de justicia y equidad. Basados en una revisión de literatura y diez entrevistas semiestructuradas realizadas entre junio 2014 y mayo 2017 a abogados de derechos humanos en Norteamérica, Europa y Latinoamérica, describimos cómo la profesionalización y corporatización excesivas se llevan a cabo en dos niveles: 1) en las facultades de derecho, donde la profesionalización y corporatización terminan reforzando privilegios y egos, y donde el trabajo en derechos humanos es importante solo parcialmente; y 2) en la práctica legal de derechos humanos, donde estructuras robustas de gobernanza corporativa y cultura de dominancia se replican de manera desproporcionada en instituciones de derechos humanos, perdiendo de vista los cambios sustanciales en las condiciones de vulnerabilidad de determinadas comunidades. Presentamos posibles soluciones para los desafíos a los que abogados en Derechos Humanos, organizaciones internacionales, organizaciones de base, gobiernos, filántropos, organizaciones sin ánimo de lucro globales y de rango medio, firmas de abogados y la academia se enfrentan en relación con la excesiva profesionalización y corporatización de este campo. Proponemos un conjunto de soluciones pragmáticas legales, políticas, conductuales, económicas y organizacionales para ayudar a promover en todo su potencial el trabajo de abogados y organizaciones de derechos humanos en el mundo corporativo actual.
Table of Contents:
- The excessive professionalization of the ‘ideal’ Human Rights lawyer
- The corporatization of the Human Rights field
- What is wrong with the unrestrained corporatization and professionalization of the Human Rights field?
- Case studiesa. Studying in law schooli. Privileged law schools for privileged studentsii. Human Rights experts becoming technicians instead of social changerb. Working at Human Rights institutions
c. The disconnection effect of professionalization and corporatization
d. When lawyers cannot afford to be Human Rights advocates
e. Increasing excessive professionalization against low professional status of Human Rights work
f. When only Human Rights Lawyers can speak the language of Human Rights
g. David v. Goliath: Struggles among organizations with different scopes, resources, and capacity
h. Burnout: when Human Rights lawyers feel frustrated with the system and lose passion for their work
- Possible solutions
Amidst the current political context, the massive amount of information available in the world, the rise of nationalism and anti-globalists, populism, and the re-institution of far-wing political agendas, after decades or progress, we start to see a manifestation of Human Rights backlashes throughout several countries around the world leaving a troubled uncertain future.1See Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge: The Belknap Press of Harvard University Press, 2012). These backlashes are manifested through harsh laws preventing the financing and functioning of Human Rights organizations, reprisals against Human Rights defenders, women’s rights and minority groups, counter-terrorism, rising authoritarianism, and the tendency to depict Human Rights concerns as illegal outside interference in countries’ domestic affairs. As a result, Human Rights as a field, and Human Rights organizations as leading institutions that work towards the protection of the rule of law and Human Rights realization, have never been as relevant.
The recognition of Human Rights has allowed communities to identify and understand sociological issues more thoroughly than ever before. With more accessible information and the recognition of issues that have been historically hidden, by looking at the history and politics of Human Rights, one could see how the field has become more complex and harder to work within, moving from of a field more interested in transnational civil, political, social, economic, and cultural rights recognition, to one more interested in the social inequalities that have resulted from the triumph of neoliberal globalization.2See Samuel Moyn, Not Enough: Human Rights in an Unequal World (Cambridge: Harvard University Press, 2018); see also Samuel Moyn, Human Rights and the Uses of History: Expanded Section Edition (Brooklyn, NY: Verso Books, 2017). As a result, nowadays many competing interests and priority political agendas intertwine, ranging from climate change, privacy, access to healthcare, women’s rights, migrant and refugee crisis, counter-terrorism, armed conflicts, anti-democratic regimes, corruption, police and military abuse, and human trafficking, among many other world issues.
Theoretically, the Human Rights field brings hope to redistribute goods and justice among the most excluded and to counteract political interventions, colonialism and repression that tend to reinstate inequality and exclusion. However, while Human Rights as a field remains vital nowadays, Human Rights advocates must think about their shortcomings and successes by offering an internal critique to their work in order to increase its impact potential.
This piece starts by defining the concepts of excessive professionalization and corporatization of the Human Rights field and exposing some of the critiques to these phenomena. We demonstrate how excessive professionalization and corporatization could be problematic as they limit the possibility of achieving substantial transformation in terms of justice and equality for highly vulnerable populations. While corporatization is undeniably a collateral effect of professionalization—and it is important that organizations have robust organizational structures and endowments to operate domestically and globally—through our research, we found that excessive corporatization can create negative organizational and behavioral changes that can be detrimental for the field. We found this based on concrete cases at: 1) law schools where we encountered evidence of how current legal education institutions can reinforce privilege and non-critical Human Rights activism, producing legal advocates with good intentions but narrow possibilities for effecting substantial change; and 2) legal Human Rights practices that often replicate strong corporate structures and cultures, creating problematic dilemmas for Human Rights activists and their role within these structures.
This piece ends with possible solutions for the challenges international organizations, nonprofits, medium-size nonprofits, community-based and grass-roots organizations, and clinical programs face in relation to the excessive corporatization and professionalization of the field. We aim to strike a balance between doing methodical and rigorous work; we recognize that while Human Rights organizations need to be financially sustainable with clear directives, professional development strategies, and robust organizational structures, they must also strengthen the mechanisms available to enhance social justice transformation in a more effective and efficient manner, while keeping the Human Rights realization vision as the core principle component of its day-to-day practice.
Although extensive literature has analyzed the power dynamics present in the Human Rights field, we found that only a small amount of critical legal scholarship has analyzed the collateral effects of the excessive corporatization and professionalization of Human Rights practice from an organizational, behavioral, and economic perspective.3See e.g. Christine Jolls, Cass R Sunstein & Richard Thaler, “A Behavioral Approach to Law and Economics” (1998) 50:5 Stan L Rev 1471 at 1471. Based on this reality, in order to provide empirical evidence to support our thesis, between June 2014 and April 2017 we conducted ten semi-structured interviews with law school students interested in the field of Human Rights law, as well as junior and senior Human Rights lawyers, and pro-bono private practice lawyers, who preferred to remain anonymous. These lawyers worked for international organizations, large international Human Rights nonprofits in U.S. cities linked to Latin America, and domestic Human Rights nonprofits in Latin America. Others were students at law school clinics, and lawyers at global law firms. These individuals had also worked in development and government agencies, private foundations and academia. Several had short-term legal and advocacy experience, and others had been working for fifteen to twenty years or more in the field. Numerous interviews were conducted in Spanish since it was the native language of some of the lawyers we interviewed who focused their work predominately in Latin America. For those interviewed from the U.S., Canada, the U.K. and Switzerland, the interviews were conducted in English. The interviews consisted of twelve open-ended questions.4See generally Annex I, “Informed Consent for Non-Medical Research” (2014) at 1. The questions included the reasons that had lead them to become Human Rights advocates, their experience during law school, the type of work they have been doing, what they like and dislike about their work, the types of organizations they have worked for, the obstacles they have faced, their perception of the impact of their work in the communities they work with, and their relationship with those communities.5As this research required the participation of individuals and was expected to be carried out in a safe and ethically responsible manner, participants were asked to sign an informed consent form for non-medical research.
Following Susan Silbey’s critique of the role of law in reaching justice, we agree with the idea that “[to] know what law does and how it works, we needed to know how ‘we the people’ might be contributing to the law’s systemic effects, as well as to its ineffectiveness.”6Susan Silbey, “After Legal Consciousness” (2005) 1:1 Ann Rev L Soc Sci 323 at 326. Thus, while this paper celebrates the work of professionals in the Human Rights field, it also critically analyzes it under the concepts of excessive professionalization and corporatization, specifically considering: 1) the struggles legal advocates experience; 2) the obstacles they encounter within the structures and cultures of the organizations and the field of Human Rights, considering the power dynamics present; 3) their vision on these structures; and 4) the extent to which their work effectively generates positive impacts and transformations in society.
Our findings and conclusions are based on a literature review and the interviews we conducted for three years that we further analyze and discuss in our findings. Given the qualitative nature of this paper, this study does not attempt a quantitative analysis of the object of the study. Instead, this research constructs interpretations and collects ideas that attempt to make explicit the theoretical and practical tensions that exist in the Human Rights field. Our narrative and level of persuasiveness depend on how much of our ideas resonate with other members of the Human Rights community and the readers of this piece. We recognize that the findings do not represent the Human Rights field overall.
2. The excessive professionalization of the ‘ideal’ Human Rights lawyer
We define the concept of professionalization within Human Rights as a characteristic of the Human Rights field that lawyers specialize in, practice, and study, as they would study any other field of the Law. As critical legal scholar David Kennedy describes it, the Human Rights discipline emerges between the fields of International, Public, and Constitutional Law, devoting students, scholars, and practitioners in this field to an institutional life, a status and a set routine.7David Kennedy, “International Human Rights Movement: Part of the Problem?” (2002) 15:1 Harv Hum Rts J 101 at 119. We depart from the premise that the professionalization of the Human Rights field in recent years has helped lawyers and organizations achieve larger, sustainable results, as a result of clear directives, professional development, and strategy formulations to change economic, social, and political agendas around the world. Without this professionalization effect, the Human Rights field would not have achieved its accomplishments in the past decades. Nevertheless, when professionalization becomes excessive, Human Rights lawyers move away from the idealistic idea of finding purpose in life and fighting for a cause, and their career becomes a day-to-day job without a cause.
Human Rights lawyers work towards strategies to transform history, culture, and power dynamics of communities. Their personal history and the intersection of their personal experiences with collective situations in practice, discourses, and identities, help them define their role as agents of social change within society. This interaction between their personal history and the multiple identities they develop helps them critically analyze and engage in further work that allows them to help transform social structures and the way these structures affect the lives of people.8See also Lekkie Hopkins, “Creating an Activist Voice: Re-storying the Self in the Light of Contemporary Feminist Understandings of Power and Subjectivity” (2001) 2:2 J Int Womens Stud 1.
Some Human Rights advocates decide to attend law school to translate their philanthropic interests and ideals into legal and political action. Others arrive at law school without a clear idea of their focus. In these cases, students progressively develop an interest in certain issues. From this point onwards, numerous Human Rights lawyers follow the existing structures and traditional career paths that are endorsed by law schools and Human Rights institutions to become the so-called “ideal” Human Rights lawyer—one who brings the expertise and the language of the Law into the field of social justice, aiming to transform the reality of a community.
An affluence of factors motivate people to become Human Rights lawyers. Some, for example, argue that leaders become activists and future advocates when they are exposed to counter-discourses among social groups that form oppositional interpretations. Others go back to moral and religious views of society that respond to ideas of charity, working for others, and creating social value.9See Gustavo Gutiérrez, Teología de la liberación: Perspectivas (Salamanca: Ediciones Sígueme, 1972) at 387–88; Phillip Berryman, Liberation Theology: Essential Facts about the Revolutionary Movement in Latin America and Beyond (Philadelphia: Temple University Press, 1987). As Professor Lekkie Hopkins suggests, individuals have unique life experiences, which, depending on their specific social and political background, might expose them to direct experiences and feelings of disappointment and powerlessness in relation to the government. It is often through this process of recognition of their own political identities that Human Rights advocates commence a journey that remove them from a context of oppression and marginalization in terms of their socio-political identities, and give them stories of development and transformation.10Hopkins, [sup fn=8]. Yet, in the Human Rights field, these ideals are often immersed in a system that welcomes agents of social change only within the current structure, in a singular way through excessively professionalized and traditional legal channels that limit them from expressing concerns and taking action through substantial changes or mass mobilizations.
If one places two types of Human Rights advocates at opposing ends of a spectrum, on one side, one would have the “idealist transformative advocate”, and on other, the “excessively professional advocate.” On the one hand, the idealist would bring powerful experiences, open spaces for the voices of vulnerable communities to be heard, and innovative ideas that are aimed at transforming the system towards diversity and respect for differences. This type of advocate would promote ideas of hope and change, embrace a world where communities are not systematically disadvantaged and oppressed as a result of their identities or beliefs, and where individuals are treated equally, but not identically, conforming to their specific needs.11Robert Leckey, “Must equal mean identical? Same-sex couples and marriage” (2014) 10:1 Int’l JL in Context 5. Anthropologist Stephen Gregory, for example, has referred to some advocates that inspired this notion, bringing powerful and innovative ideas about different ways to identify and tackle racial inequalities that derive from existing power relations and practices, while obscuring and masking inequalities among racial minorities.12See Steven Gregory, “Race, Identity and Political Activism: The Shifting Contours of the African American Public Sphere” (1994) 7:1 Pub Culture 147.
On the other hand, excessively professional advocates, particularly those at higher levels of power, might continue to be interested in Human Rights and social justice. However, due to their access to privileges and the disproportionate professionalization of their roles, this group of advocates is more likely to be interested in building a prominent career, thinking about the Law, but less interested in its application and its impact, detached from the communities and the contexts for which they advocate. In practice, a number of advocates are located somewhere along the spectrum between the “idealist transformative advocate” to the “excessive professional advocate”.
3. The corporatization of the Human Rights field
We define corporatization as the process through which organizations transform their assets into a legal entity with a corporate-style structure.13This business model often includes a board of directors, managers, and staff members to retain ownership of their work. The corporatization of an institution often involves a high level of bureaucracy in decision-making and hierarchy. Among more sophisticated organizations, competition becomes a natural pattern between organizations seeking funding,14John K Eason, “The Restricted Gift Life Cycle, or What Comes Around Goes Around” (2007) 76:2 Fordham L Rev 693 at 733. as well as between lawyers within organizations.
Robust corporate structures within the Human Rights field have become complex and hard to work within. They are a direct consequence of the rapid and changing landscape of the professionalization of Human Rights. Corporate governance per se is not necessarily negative, as the more resources an organization has, the more important it becomes that it has clear directives, a strategy, organizational models, sustainable growth, and financial stability that result in better relationships between its management, shareholders, board, and stakeholders.15See generally OECD, “G20/OECD Principles of Corporate Governance” (Paris: OECD Publishing, 2015), online: <http://www.oecd-ilibrary.org/docserver/download/2615021e.pdf?expires=1521077867&id=id&accname=guest&checksum=B89A0140D24ED18FFF4DD4F8092EC1C2>; Richard A Brealey et al, Principles of Corporate Finance, 8th ed (Boston: McGraw-Hill Irwin, 2007).
In the framework of an economic and political system modeled by market-oriented structures, the profits of private owners control the sector, even more than governments. In the context of Human Rights, one must see that “good corporatization” can strengthen Human Rights and empower individuals, and particularly Human Rights lawyers, by allowing them to participate in disputes against powerful actors on a more egalitarian basis.
We differentiate the concepts of ‘excessive corporatization’ and ‘good corporatization’. We deem the latter essential for the progress and prosperity of the Human Rights field, as it balances the power dynamics, ensures transparency standards, guarantees that clients are treated equally, and allows organizations to be independent. We believe that “good corporatization” in the context of Human Rights also protects the rights of its members, its partners, and clients, along with ensuring long-term, strategic, and sustainable objectives.
For the purpose of this piece, in the case of international organizations and international Human Rights nonprofits, we found that corporatization means that these institutions build a corporate structure where they establish managerial and responsibility hierarchies, distribute tasks among a range of varied commercial functions including programing, communication, development, management, monitoring and evaluation, safety and security, finance and operations, among others.16See e.g. Office of the United Nations High Commissioner for Human Rights, “OCHCR Organizational Chart”, online: <www.ohchr.org/Documents/AboutUs/OHCHR_orgchart_2014.pdf>; Office of the United Nations High Commissioner for Human Rights, “OHCHR’s Funding and Budget”, online: <www.ohchr.org/EN/AboutUs/Pages/FundingBudget.aspx> (The Office of the United Nations High Commissioner for Human Rights (OHCHR) has headquarters in New York and Geneva and offices in 13 countries around the world. With over 1058 staff as of December 2013, as well as 689 international Human Rights officers serving in UN peace missions or political offices, OHCHR has four major divisions: the research and right to development division, the Human Rights treaties division, the field operations and technical cooperation division, and the Human Rights Council and Special Procedures division. As of December 2016 OHCHR’s total budget was over $200 million USD); Human Rights Watch, Defending our … Continue reading Climbing the corporate ladder implies learning a jargon and developing a set of skills that allow bureaucratic differentiation in terms of salary, responsibilities, and clear distinctions between a junior Human Rights lawyer and a senior one. Human Rights organizations that adopt these corporate characteristics highly resemble corporate behavioral schemes in the way their internal administration operates.
4. What is wrong with the unrestrained corporatization and professionalization of the Human Rights field?
The critique of the Human Rights field remains highly theoretical, yet Human Rights lawyers and organizations do not address it. As legal scholar Richard Delgado explains, the practical work in the field of Human Rights often reveals that studies on the doctrine of rights promoted by critical legal scholars and critical race scholars are far from being implemented in practice.17Richard Delgado, “Rodrigo’s Reconsideration: Intersectionality and the Future of Critical Race Theory” (2011) 96:1247 Iowa L Rev 1247. Critical scholars focus partially on the power dynamics and the oppression present in the field, and the relationship between those with more privileges and those with less. Legal scholar Dean Spade has argued that “critical intellectual traditions have also made an important argument that equality and rights advocacy not only fails to address the conditions that affect vulnerable people but often actually shores up, legitimizes, or expands harm.”18Dean Spade, “Intersectional Resistance and Law Reform” (2013) 38:4 Signs: J of Women in Culture and Society 1031 at 1037. Critical legal scholar Janet Halley refers to the role that Governance Feminism19Janet Halley et al, “From the International to the Local in Feminist Legal Responses to Rape, Prostitution/Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism” (2006) 29:2 Harv JL & Gender 336 at 340 (“I mean the term to refer to the incremental but by now quite noticeable installation of feminists and feminist ideas in actual legal-institutional power. It takes many forms, and some parts of feminism participate more effectively than others; some are not players at all. Feminists by no means have won everything they want – far from it – but neither are they helpless outsiders. Rather, as feminist legal activism comes of age, it accedes to a newly mature engagement with power”). has played in re-victimizing women without acknowledging its own power and responsibility.20Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Princeton: Princeton University Press, 2008) at 33. Her argument can be extended to the Human Rights field as a whole, where many well-intentioned advocates end up re-victimizing those they are trying to protect without assuming responsibility for their powerful actions.
Law schools and Human Rights lawyers have therefore created a structure that normalizes the sources of State power inside and outside the State apparatus. According to historian David Austin, this same structure has socially constructed the concepts of ‘sameness’, ‘equality’ and ‘inclusion’ through formal equality principles to homogenize communities and undermine the necessities of ‘different groups’ with ‘diverse identities’ on the cultural and political stage.21David Austin, “Narratives of power: historical mythologies in contemporary Québec and Canada” (2010) 52:1 Race & Class 19 at 20.
For the purposes of this paper, we define unrestrained corporatization as the creation of a corporate governance structure where competition, climbing the corporate ladder, learning to speak a jargon, promoting mainly managerial and administrative tasks becomes the main target of Human Rights lawyers and Human Rights organizations, instead of focusing on social transformation and serving the communities that have been victims of violations. In this setting, one could argue that the excessive corporatization of the Human Rights field, in certain contexts, has been transformed into a hierarchical dominant structure by recognizing social problems but failing to fully respond to situations of discrimination and vulnerability affecting different social groups.
As critical race scholar Kimberlé Crenshaw points out, the Human Rights field creates a power imbalance that can be evidenced in the excessive corporatization and professionalization of Human Rights practice and the reproduction of hierarchies in the Human Rights field.22See Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” (1991) 43:6 Stan L Rev 1241–99; see also Loretta J Ross, “Reproductive Justice as Intersectional Feminist Activism” (2017) 19:3 Souls 286–314. Crenshaw explains how a self-selected group of advocates created and further maintained this power imbalance.23See Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” (1991) 43:6 Stan L Rev 1241. Many Human Rights organizations adopt structures that promote the concepts of equality and meritocracy as a process, but as they get trapped in the Human Rights corporate culture, become less worried about the concepts of substantive equality and fairness as a result,24See Kimberlé Williams Crenshaw “Race, Reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law” (1988) 101:7 Harv L Rev 1331. even for the members of the field. In accordance with Crenshaw’s critique, the discourses of technical and professional advocates, often with limited or no contact with the populations they advocate for, end up reproducing patriarchal “discourses of deservingness” and compassion that “participat[e] in logics and structures that undergird the relations of domination that are being opposed.” 25See Dean Spade, “Intersectional Resistance and Law Reform” (2013) 38:4 J of Women in Culture and Society, online: <www.deanspade.net/wp-content/uploads/2014/05/signs-proofs.pdf>, 1031 at 1037.
In many cases, Human Rights advocacy strategies led by large corporate Human Rights institutions might expand relations and structures of dominance.26Ibid. These structures reproduce harmful systems and institutions that strive to change the lives and conditions of vulnerable groups in a non-cohesive or strategic manner, as advocates fail to set long-term strategies with clear outcomes, activities and outputs, or to share information with their peers and partners in order to set collective strategies that respect each individual or organization’s skills and expertise. Some Human Rights advocates get so immersed in these structures of excessive professionalization that they end up working in isolation, involved in tremendous competition that only helps to serve advocate’s egos. They often become technicians in applying the law, while forgetting their initial discontent with the system a lack of interested in collaborate with their peers, and their original intention to achieve social change and empower those affected by injustice and inequality.
In the context of this article, we define excessive professionalization in the Human Rights field, as a law behavior more interested in the concept of Human Rights as a legal tradition, its interpretation, and it broader analysis, and less interested in the human aspect of it, its application, and impact potential in people’s realities.
Excessive professionalization has several problems. As presented by Kennedy, one of the costs of professionalization of the Human Rights field is that it can limit work exclusively to aspirational advocates, leaving behind other pragmatic interdisciplinary professionals such as politicians, doctors, journalists, social workers, and other citizens interested in humanitarian causes and emancipatory struggles.27David Kennedy, “The international human rights regime: Still part of the problem?” in Rob Dickinson et al (eds) Examining Critical Perspectives on Human Rights (Cambridge: Cambridge University Press, 2012) 19 at 22. Excessive professionalization can further pull local and global elites away from their bases, as lawyers might be the only ones able to access professional training, working on “resolutions and reports” that end up creating more of a symbolic impact, and less of a tangible one.
The excessive professionalization and corporatization of Human Rights as a field can dangerously disturb the notion of social change by absorbing innovative ideas into the existing legal and political status quo. Human Rights lawyers might adopt professional language that “[a]s an absolute language of righteousness and moral aspiration came to be used strategically, human rights became less compelling, easy to interpret as nothing but strategy, cover for political objectives, particular interests clothing themselves in the language of the universal.”28Ibid at 22. As a result, the excessive corporatization of the Human Rights field, particularly at the highest levels of power, has increasingly moved to become a field that could end up perpetuating, through both its aspirational and naïve language and its highly vertical structure, the privileged class of those who can practice it. At international organizations, it could further reinstate colonial traditions in which members of the geo-historical and political elite come into less-advantaged communities with their ‘knowledge’, impose top-down solutions by presenting them as the only possible answer to address social inequalities, and forget to pragmatically address the needs of the community or listen its voices, concerns and demands.29See Scott L Cummings & Louise G Trubek, “Globalizing Public Interest Law” (2008) 13 UCLA J Intl L & Foreign Aff 1 at 41–42; Brian Z Tamanaha, “The Primacy of Society and the Failures of Law and Development” (2011) 44 Cornell Intl LJ 209 at 222; Carrie Menkel-Meadow, “The Lawyer’s Role(s) in Deliberative Democracy” (2004) 5 Nevada LJ 347 at 354, citing Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Cambridge, Mass: MIT Press, 1996) at 107; Kathleen K Janus & Dee Smythe, “Navigating Culture in the Field: Cultural Competency Training Lessons from the International Human Rights Clinic” (2011) 56 NYL Sch L Rev 445 at 469.
Based on the background of our interviewees and their experiences, we present five settings as the places where the field of Human Rights predominately operates: legal clinics at law schools, domestic nonprofits, international nonprofits, global law firms, and international organizations.30See e.g. The Inter-American Court of Human Rights, the Inter-American Commission of Human Rights, and U.N. treaty monitoring bodies. We also present a critique of each of these spaces from the perspective of excessive professionalization and corporatization.
a. Studying in law school
Advocates we interviewed belonged to law clinics located inside prominent law faculties in Latin American and top tier American and Canadian universities. The clinics gather a minimum of 5 to a maximum of 30 students picked from a pool of candidates who are interested in Human Rights and public interest work. Law clinic professors, many of whom have experience in Human Rights and litigation, select students with high academic qualifications and/or professional experience. Once selected, students work on different Human Rights projects at the domestic and international level. Activities include conducting research, providing technical assistance, developing and executing Human Rights advocacy strategies, leading capacity-building trainings, leading strategic litigation, rights empowerment workshops, and legal counseling for vulnerable or less-advantaged populations. The law clinics appearing in our interviews are often no more than 15 years old. In Latin America, law students receive training in public interest law in the year before graduating from university.31Richard J Wilson, “Three Law School Clinics in Chile, 1970-2000: Innovation, Resistance and Conformity in the Global South” (2002) 8 Clinical L Rev 515 at 567–68. In American and Canadian law schools, students can decide to receive training in public interest law throughout their studies.
Law schools are one of the most relevant institutions that traditionally encourage, maintain, support, and educate Human Rights lawyers. They are designed to provide advocates with tools to ensure that their political goals translate into legal action. Legal education provides them with new mechanisms to comprehend socio-legal consciousness and with a scenario to “better understand” and develop their personal identities and political action.32Matthew Ball, “Legal Education and the ‘Idealistic Student’: Using Foucault to Unpack the Critical Legal Narrative” (2010) 36 Monash UL Rev 80 at 80. However, while a number of scholars put great effort into intersecting theory and practice to contravene power dynamics along racial, gender, and class lines (among other issues),33See Patricia J Williams, The Alchemy of Race and Rights (Cambridge, Mass: Harvard University Press 1991). as it was documented in this study, students arrive with socially idealistic goals but only some maintain these ideals upon completion of their programs.34Ball, [sup fn=32]. Under the current power structures that exist among several professions, in the context of Human Rights, a law degree represents a form of privilege that is naturally associated with access to a network and sphere of national and global decision-makers, which might enable a sense of entitlement among Human Rights lawyers. However, several other reasons related to corporatization and professionalization could account for this fact.
Privileged law schools have Human Rights programs and clinics that allow a pool of students to pursue their social justice dreams, while many lower income or public schools do not have these kinds of programs. Often, these privileged schools want to get involved in projects oriented towards high-impact social transformation and have the resources to do so, but at the same time, they want to educate Human Rights lawyers that are professional and “successful enough” to contribute to the social and educational status of the school in terms of quality of education.
One of our interviewees suggested that due to the nature of the work, Human Rights law is taught mostly at top tier law schools with specialized programs.35Annex II, “Anonymous interview with U.S. law school student” (1 March 2015). Law school clinics with resources to work abroad or even outside cities are limited, so the focus ends up being concentrated in elite schools that have large endowments of over several billions of dollars.36See Daniel Bonilla, “Legal Clinics in the Global North and South: Between Equality and Subordination – An Essay” (2013) 16 Yale Human Rts & Dev LJ 1 at 8–9. These institutions often attract and retain a highly selective pool of students with specific backgrounds and credentials to maintain their status. In order to be admitted to a highly reputable institution, students must either be highly intelligent and/or must have had access to resources that enabled them to build higher credentials, such as access to reputable educational programs, and relevant professional or personal experiences. In the Latin American context, this may include coming from elite private high schools, being fluent in multiple languages, having professional parents, among other qualifications. It becomes a cycle: many law schools try to reinforce their academic status by attracting students with credentials who are interested in social transformation, to make them as successful as possible, so they can learn the knowledge to further reinforce the status of the law school upon graduation.
Admissions officers at these law schools want to ensure that they attract highly competitive students with strong indicators of success in terms of where they end up working, their income as lawyers, their influence in national and international politics, and the media coverage of the cases they are involved in, among others. However, several problems can also come into play because of this logic.
According to one of the interviewees, “knowledge can also be used as measure of privileges and wealth. Wealth can pay for good schools, extracurricular activities, unpaid internships, summer schools, language classes, standardized test private lessons and international experiences.”37[sup fn=36]. Another interviewee suggested that if it were not for the scholarships she got due to her academic ability and success, she would have never been able to focus on unpaid Human Rights internships.38Annex IX, “Anonymous interview with junior Human Rights attorney” (21 April 2017). Furthermore, one of the interviewees suggested that he had to find work at a law firm and then find his way back to Human Rights through pro-bono work, because he did not have the money to find a voluntary position and pay for his basic living expenses.39Annex VIII, “Anonymous interview with senior private practice attorney” (20 April 2017). By following this narrative, top tier law schools not only attract smart people, but also a self-selecting group that has had access to many resources, as well as the knowledge of where those resources are. Although these institutions in some cases provide opportunities for students in need of financial-aid, these opportunities are often merit-based.40[sup fn=36]. In contemporary society, higher credentials often go hand-in-hand with greater life opportunities related to wealth and social status. In many countries in Latin America where inequality is rampant and social mobility is limited, it is highly unlikely that low-income students that have attended low-quality schools or the public education system will have the necessary skills or credentials to be admitted to high-quality and often highly-priced universities where Human Rights law clinics operate.
In the North American context, students who want to pursue a career in Human Rights also face a set of challenges mainly associated with finances. In some cases, students acquire large loans in their aim to achieve professional skills that a career in public service will not allow them to repay.41Annex III, “Anonymous interview with lawyer at a major U.S. international NGO” (3 February 2015). As Noam Chomsky has argued, “Once you have a big debt, you can’t do things you might have wanted to do. Like, you might have wanted to graduate from law school and do public interest law, but if you have a $100,000 [dollars of] debt to pay off; you’re going to have to go into a corporate law firm. Once you get into it, you’re trapped by the culture and forget about public interest law.”42Interview with William Hodgkinson, “The Callous System of Student Debt and the Structure of the ‘Free Market’” (15 January 2014) Breakwater Review, online: < https://chomsky.info/20140514-2/>. As presented by one of the interviewees, if she had not received a full-scholarship from an elite U.S. law school to complete her legal studies, she would not had been able to pursue a career in this subject.43[sup fn=36].
In the U.S., the federal government has developed a Loan Repayment Assistance Program that helps former students pay their loans over a decade following their graduation if they work in the public-interest sector. One of the interviewees explains that several law schools have similar types of programs.44[sup fn=39]. Comparable financial-aid programs are present in other careers such as medicine and government schools. Nevertheless, these programs have at least two problems. First, they are focused on certain careers and not on others, which entails that, for example, business school students, and others who might be interested in pursuing careers with a strong social focus, end up losing the possibility of using their skills for public interest work as they get trapped in the corporate culture. Second, many of these programs are designed to pay for the loan once the student graduates from school instead of receiving the funding at the beginning of the program. The result of this is that interest rates have already been escalating for a couple of years before graduation.45Ibid.
In addition, these privileged institutions, connected to their professionalizing effort, can also reinforce the dangerous notion that the most effective way to achieve social change is through a very narrow understanding of the practice of Human Rights law. This notion presents several shortcomings. First, it ignores that law is just one tool in a variety of professional disciplines and non-professional fields to achieve social change.46Ibid. Second, it narrows the interdisciplinary, critical, and innovative ideas and actions of activists to transform social inequalities, and instead, educates these individuals by placing them into legal systems and institutions that continue to reproduce structures of power imbalance or excessive corporatization.47Julieta Lemaitre, “Legal Fetichism at Home and Abroad” (2007) 3 Unbound 6. Third, it assumes that practicing Human Rights law is only a matter of “technical expertise”, according to which students are trained to limit their emotions and romanticism of justice, and pushed to place form over substance.48[sup fn=33] at 140. Fourth, in the context of Latin America, it creates a counterproductive culture that alienates Human Rights lawyers and public interest lawyers from private practice lawyers by placing them in unchangeable career paths that obstruct any type of dialogue and potential collaboration between the public, social, and private sectors.
ii. Human Rights experts becoming technicians instead of social changers
One cannot make broad generalizations about Human Rights experts. However, based on the interviews conducted, a common pattern was found among clinical Human Rights lawyers and prominent Human Rights scholars. As lawyers get immersed in their careers, over time, several clinical practitioners and professors became more interested in building a prominent career and a personal brand as excessive Human Rights professionals, rather than producing strategic legal tools that disrupt the status quo and promote social transformations.
Top tier universities generally attract well-known professional leaders in their respective fields, many of whom have been mindful supervisors that promote environments where mental health and balance are a priority.49[sup fn=39]. Nevertheless, while being part of clinics or research centers, students in top tier universities felt that several faculty members, instead of being Human Rights advocates interested in social change, acted like prominent influencers. Once they have reached the top of the Human Rights field ladder, they seemed more interested in building a personal brand, a successful career, and climbing in the academic “corporate” ladder, than in advocating for the communities they were supposed to advocate for.50“Annex IV, “Interview to an anonymous lawyer at a national NGO” (15 June 2015).
In the path towards personal success, clinical professors can lose track of connecting with the ideals of young law school students, which might discourage eager students interested in pursuing a legal career in social change. For example, one of our interviewees recounted having done interview transcription after a fact-finding mission and preparing a draft for a report. Although she felt fact-finding missions are worthwhile projects as they allow students to strengthen their legal and research skills, as well as be exposed to different global cultures through work exchanges, she lost motivation because she lost track of the higher purpose of the project. She belonged to the lower ranks of the “corporate” Human Rights ladder, with no connection to the top, and with very little influence on the way in which her supervisor oriented the projects, or even a more substantive knowledge about the type of impact the final product of her work was going to have in transforming people’s realities.51Ibid; [sup fn=36]. In her case, the supervisor never set out a strategy, and there were no clear objectives or outcomes after the report was submitted.
Legal scholar Daniel Bonilla describes how these sorts of small projects can have structural issues as they expect students to understand and evaluate extremely complex social, political, cultural, or economic contexts after spending just a few days doing fieldwork from only legal lens of analysis.52[sup fn=37] at 22–23. This is problematic, as reports of fact-finding missions not only include descriptive sections but also theoretical, critical, and normative analyses of the country’s overall legal, political and economic context.
A second problem arises when law clinics from the Global North are primarily the ones that execute these projects. In these cases, North-South collaboration often normalizes behavior based on the questionable premise rooted in beliefs that law schools from the Global North are solid enough to “produce knowledge, after a tangential direct contact with the reality being studied and that a week or two is enough time within which to determine what the problems are, how to evaluate them and how to fix them.”53Ibid at 23. This completely disregards or gives less visibility to the local knowledge produced at Global South countries. One could even extend this critique to top tier law clinics from elite schools in the Global South where highly privileged students go on short fact-finding missions to peripheral areas of their own countries, hoping that in a very short amount of time they can get ahold of the context and complex issues that communities face.
In order to gain a name in the Human Rights field, many clinical professors want competent and interested law students that can produce quality work for their clinics and their clients. One would imagine this is desirable, since outstanding law students become a good indicator of successful Human Rights interventions that will help the professors in their task. In the process of recruiting these students, Human Rights law clinics adopt selective processes that follow a corporatization approach, to take in “the best and brightest students”. According to one of our interviewees, the pool of applicants for the law clinic where she wanted to practice was rampant, and only a small group was admitted.54[sup fn=50]. Again, this admission depended on certain credentials and networks to which only particular students had access, which relates to the previous critique about privilege.
Prestigious law schools can therefore be the starting point of a structure that inherently promotes and sustains hierarchical structures and power misdistribution. This is often immersed in logics of disproportionate professionalization, corporatization, and competition within a legal career, which impacts the reality of Human Rights practices. These logics could reinforce egos, class, language, country of origin, ethnicity, sex, gender, disability, and other sources of inequality within its members, and its partners, and clients, instead of promoting avenues that break those structures.55Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System: A Critical Edition (New York: New York University Press, 2004) at 9. Therefore, once activists become Human Rights practitioners and their interests in social justice prevail, those interests adapt to the existing legal and social system. As a result, Human Rights lawyers, both at the higher and lower levels of power, still aim to promote change, but they learn how to convey those ideals primarily by using only the existing social, political, and legal channels.
b. Working at Human Rights institutions
Human Rights lawyers that were interviewed have worked either in international organizations, domestic small and medium-size nonprofits, large international nonprofits, international organizations, or global law firms. The domestic nonprofits they described are either too small, or have grown rapidly and in an unplanned way. They receive financial resources for operation mainly from international donors such as international organizations, foreign aid and development government agencies, private foundations, larger non-profits, and seldom from the governments of the countries where they operate. Some of these nonprofits devote themselves to one issue, helping a set of populations. Other nonprofits have broader missions, working with multiple vulnerable populations at a time.
Advocates working at domestic nonprofits range from those interested in litigating and helping transform the situation of these communities, to those that are more interested in learning and doing research, while thinking of policy as their main target. Some nonprofits focus mainly on litigation before international courts and advocacy, others focus on domestic judiciary, and some combine their strategies while also working as think tanks. Most of the activists working on these nonprofits are lawyers, but they also include journalists, administrative personnel, anthropologists, economists, sociologists, and political scientists, among others.
These domestic nonprofits, as described by anthropologist Sally Engle Mary, are among the fundamental institutions involved in the process of vernacularization of Human Rights. On the one hand, they often act as intermediaries and translate the language of transnational Human Rights to local contexts and back. On the other hand, being in the middle implies that these nonprofits can become vulnerable to manipulation and subversion by actors including States, communities, and even international organizations and bodies.56Sally Engle Merry, “Transnational Human Rights and Local Activism: Mapping the Middle East” (2006) American Anthropologist 108:1 38. Merry explains: “Translators are both powerful and vulnerable. They work in the field of conflict and contradiction, able to manipulate others who have less knowledge than they do but still subject to exploitation by those who installed them.”57Ibid at 40.
The international nonprofits we identified are large organizations with headquarters in major U.S. and European cities, and regional offices across the world. They have a large international staff and sophisticated corporate structures. They focus on several issues with a global scope, and use diverse tactics and strategies (predominately advocacy and communications) to achieve their mission. They have large endowments of over several million dollars, and receive unrestricted and restricted funding from international organizations, anonymous donors, foundations, and private sector corporations among other powerful and influential global actors.
Governments establish and fund international Human Rights judicial and political bodies, such as international and regional intergovernmental Human Rights agencies, treaty monitoring bodies, international courts, and special courts, as well as special political missions.58For Intergovernmental Human Rights Agencies see for example: The Office of the U.N. High Commissioner for Human Rights, the Inter-American Commission on Human Rights, and the African Commission on Human and People’s Rights. For International and Special Courts see for example: the Inter-American Court of Human Rights, the African Court on Human and People’s Rights, the European Court of Human Rights, the International Criminal Court, the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL). For Treaty Monitoring Bodies see for example: Human Rights Committee (CCPR), Committee on Economic, Social and Cultural Rights (CESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against … Continue reading Their main task is to monitor Human Rights situations and thematic issues in countries, analyze individual petitions, and decide on cases brought by victims against States located in different regions. They employ mostly Human Rights lawyers, political scientists, and few administrative personnel; however, they also maintain a highly sophisticated corporate legal structure. They work on cases related to any Human Rights issue brought by victims and nonprofits.
In practice, the work of Human Rights involvement that seeks to protect and transform society is performed in a variety of ways. In this regard, Legal scholar Martha Minow analyses three essential words: “Law” and “Social” “Change”. She explains that “Law” includes actions and inactions in the judicial, legislative and executive branches, and also those activities of private groups or individuals, which either pursue a transformation of the law or law enforcement as such. “Social” includes politics and culture in which people think and experience their society; as well as spaces to debate morality and economic justice. “Change” refers to alterations, renovations and challenging of the status quo.59Martha Minow, “Law and Social Change” (1993) 62 UMKC L Rev 171 at 182.
From a bottom-up perspective, activism and social change can be related with individuals expressing their frustrations with the system in more radical and explicit manners, such as demonstrations and protests, or working directly with communities on a more personal basis for rights awareness and legal empowerment.60Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Durham: Duke University Press, 2011). Some strategies include, for example, the work of grassroots organizations empowering communities on their rights and the existing mechanisms they can use to ensure the respect for those rights. Other work may involve producing analytical research by exposing the multiple circumstances that affect social groups in practice, to promote awareness among the community and relevant stakeholders. In some other cases, work might involve direct representation of clients with specific needs before lower courts and impact litigation before high-level courts in each country. The work might also include drafting bills and negotiating with legislatures for the recognition of rights for groups that have been historically discriminated or neglected. Most of this work takes into consideration the suffering and experiences of communities and individual victims and build the type of work based on this, often opening spaces for them to express their own concerns and desires, for their voices to be heard.
From a top-down perspective, the word ‘activism’ is no longer used. Instead, ‘advocacy’, ‘diplomacy’ and ‘negotiation’ are the terms experts use to describe the type of work conducted within large Human Rights organizations, such as international organizations, national governments and international nonprofit organizations. It includes technical work involving liaising, negotiating and drafting domestic and international laws, resolutions, and policies aimed at implementing the changes identified as necessary in achieving social justice.61Ibid. Additionally, it includes the role of experts in academia conducting research to identify and develop new theories and strategies that can be implemented to improve the work of advocates, law, and policy makers in their respective fields. It involves using international litigation strategies before international courts and treaty bodies to resolve individual cases on thematic issues, and aiming to establish groundbreaking precedents with an international scope that can influence governments from around the world in addressing structural inequalities at the legal and the policy level.
These forms of Human Rights work do not necessarily represent an exhaustive list of what Human Rights legal practice entails. However, these examples suggest that work in this field can be performed in a variety of ways, at different levels, and in traditional and non-traditional ways. These methods sometimes demand excessive technical efforts that are often led by privileged legal professionals who develop work that might centralize and replicate their own backgrounds, their concerns, and the concerns of the same class only accessible to their peers.62Ibid.
c. The disconnection effect of professionalization and corporatization
The collateral consequences of disproportionate professionalization and corporatization of the Human Rights field are made visible when people working at Human Rights organizations disconnect from the needs and experiences of communities or individual victims for whom they act as advocates. One of the interviewees describes that the relationship between the nonprofit and the communities is fluid.63[sup fn=50]. Other interviewees expressed that they were able to build self-help groups that empowered members of the community in the long term and maintain a strong relationship with them.64Annex V, “Anonymous interview with lawyer at grassroots NGO and others” (6 August 2015). Another explained that the relationship went beyond the community and included people not involved in the case but who simply became aware of it.65[sup fn=39]. However, this was not the experience of all interviewees.
Several interviewees shared the dilemmas they faced when interacting with communities, both because of structural constraints of their organizations and the practice of Human Rights law in relation to victims who suffered rights violations. One of the interviewees who worked in an international nonprofit spoke to clients who felt the nonprofit had its own agenda, took information from them and then left them alone; she felt used.66Annex VI, “Anonymous interview with lawyer at international court” (31 July 2015). This was not the same experience she had while working in a small domestic nonprofit where contact with the community was constant. Although in this context, administrative disorganization was persistent, the work was completely directed at assisting the community.67Ibid. Another interviewee shared the ethical dilemma they faced when working with victims. She wondered whether “it was ethical to remove their silence”, and open the doors to traumatic events of the past that could make traumas resurface.68[sup fn=64]. Moreover, the interviewee was worried about the dilemma of victims expecting something in exchange for their testimonies and the nonprofit lacking capacity to compensate victims for sharing their stories.69Ibid. Furthermore, one interviewee suggested that it is very difficult time-wise to have the same lawyer working on technical issues of the case and meeting with the community.70Annex VIII, “Anonymous interview with experienced Human Rights lawyer” (20 April 2017). Another expressed the difficulty of building a relationship with particular communities that were isolated, such as combatants, indigenous communities, and inmates.71[sup fn=39].
The dilemmas described echo what Legal scholar David Kennedy explained in his “Spring Break” piece when referring to a particular episode he experienced as a Human Rights activist in Uruguay. He articulates “the activist’s sense of not knowing what things mean or where they are going in human right work [sic] by exploring the ways our search for the right tactic produced results we could not evaluate, and the ways our inability to know what was intrusive in a situation we had defined as foreign left us confused about our connections and responsibilities.”72David Kennedy, “Spring Break” (1985) 63:8 Texas L Rev 1377 at 1378. He further introduces the element of voyeurism present in Human Rights practice, where perhaps as a consequence of excessive corporatization, the practitioner accesses the life of the victim(s) in problematic ways.
Legal scholar Makau Mutua further categorizes the relationship among 1) savages or victimizers, 2) victims, and 3) saviors who are human rights advocates, part of the “human rights corpus” within the grand narrative of Human Rights.73Makau Mutua, “Savages, Victims and Saviors: The Metaphor of Human Rights” (2001) 42:1 Harv Intl LJ 201 at 201–04. In this scenario, although lawyers are supposed to be the saviors of “powerless” victims promising “freedom from the tyrannies of the state, tradition, and culture”,74Ibid at 229, 204. their position as saviors is deeply problematic because it is embedded in the power dynamics that places knowledge, population, advocacy, and ideas of the Global North over those of the Global South. In this setting, Human Rights legal activism becomes a very particular practice where often well-intentioned professionals try to help victims in the name of an organization and of a belief in justice, and end up providing legal aid without consciously anticipating the consequences of their actions, and having to face indeterminacy, trouble, internal moral questioning, and even guilt about their roles and actions as individual Human Rights advocates.
Major international nonprofits and clinical programs have enough funding to send researchers on fact-finding missions to document Human Rights situations across the world, organize lectures series on the methodologies of clinical work at Global South universities, or lead specific projects such as drafting an amicus brief before a high Court or a submission before an international Human Rights body.75See [sup fn=37] at 2. These projects allow students to develop lawyering skills such as gathering facts, documenting witness depositions, drafting legal memoranda through experimental learning methodologies, as well as expanding the network of researchers through partner clinics across universities around the world. Researchers are later expected to write reports and develop advocacy strategies to bring powerful stakeholders and high-profile leaders to pay attention to their issues.76[sup fn=36]. Although identifying Human Rights issues remains a crucial part of the work in the field in giving visibility to such situations and later developing strategies that help mitigate these realities, in fact, institutions are often not accountable for the impact this type of work has in communities, which sometimes causes additional emotional and moral harm among the victims.77[sup fn=42].
As Bonilla presented, in some cases “many of these exchanges are guided by unstated background assumptions that do not promote equal relationships between clinics in the Global North and the Global South, or with the individuals and communities which are impacted by these issues. Rather, the unstated background assumptions which result from unbalanced power structures create dynamics of domination and subordination that hinder the fulfillment of the purpose that clinics are said to pursue.”78[sup fn=37] at 3. In the context of legal academia, these dynamics create unequal relationships between the center and the periphery in the ways legal knowledge is created, produced, and used.79Ibid.
In the context of International Human Rights and judicial bodies, the relationship with the grassroots level or the community level is almost inexistent. For instance, a number of local community organizations or major international non-governmental organizations get immersed in the logics of professionalization, collaboration, and recognition from the State or multilateral bodies, responding to State’s control dynamics. The dialogues about human suffering between professionals that represent the interests of the States or their respective institutions, end up forgetting the real stories of those behind the resolutions that motivate their practice. These institutions are not substantively critical to new forms of mobilization and resistance towards these power dynamics.80See, for example, Aziz Choudry & Eric Shragge, “Disciplining Dissent: NGOs and Community Organizations” (2011) 8:4 Globalizations 503.
Several large nonprofit organizations work on issues that do not completely address the specific necessities of the population. For example, critical legal scholar Dean Spade has critiqued the manner in which U.S. reproductive and Lesbian, Gay, Bisexual, Trans and Queer (“LGBTQ”) organizations advocate and promote discourses and strategies of legal inclusion, recognition and equality before the law which have not necessarily aided the poverty cycle conditions that trans individuals experience in their lives.81Spade, [sup fn=61]. Instead, their strategies have only been directed at benefitting a small portion of white, middle-class and upper-class populations that experience completely different necessities.82Ibid. In these cases, these types of organizations adopt strategies that are distant from the real necessities of the communities.
d. When lawyers cannot afford to be Human Rights advocates
In our interviews, we found that working in the field of Human Rights is not easy nor is it inexpensive, which creates a diversity and inclusion problems in the field. People tend to believe that merely because a lawyer or an individual is interested in Human Rights issues they can develop a career in the field, but this is not always the case. Even though several people would have the motivation to work in alleviating poverty and social issues, many are unable to do it either because a career in Human Rights is not as profitable as one in other legal fields and therefore not everyone can afford it, or because entering field itself is difficult and highly-competitive. Some of our interviewees working at low-corporatized domestic nonprofits revealed that their salaries were low and did not even cover their basic personal expenses. According to one of the interviewees, although she had a great interest in Human Rights issues, she had to quit her job at a domestic nonprofit because her father went bankrupt and her salary as a Human Rights lawyer was not enough to cover her living expenses. She had to migrate to a public office and change her career path; although she had been in a fulfilling job that could improve the well-being of others, it was not well-paid.83[sup fn=64]. Another interviewee answered that the salary she received while working for an international nonprofit in a larger city was very low, thus she had to find additional sources of income to cover her living expenses.84[sup fn=50]. For many, this implies a challenge to their mental and emotional wellbeing, as they lack time to rest.85[sup fn=38]. One interviewee explained that he had trouble leaving his job at a law firm to go work full time in Human Rights advocacy because he had to start on a voluntary basis, which implied no salary for a while.86[sup fn=39]. He had to live in unsafe areas of cities around the world since he could not afford anything else.87Ibid. Now, after a long career in this field, he continues to earn much less money than his peers working at private law firms.88Ibid. However, this was not the case at international organizations such as the U.N., where officials reported receiving generous salaries and benefits in comparison to their counterparts at Human Rights nonprofits doing similar work, exposed to same political contexts, and facing the same security risks.89See United Nations, “Salaries, Allowances, Benefits and Job Classification” (30 January 2018), online: <www.un.org/Depts/OHRM/salaries_allowances/index.html>.
In response to the problem of low salaries, it is reasonable that, in order to become sustainable institutions that can fairly compensate their staff for their work, nonprofits have adopted excessive corporatization and commercial strategies to attract new donors who can allow them to operate more functionally. While financial sustainability remains a critical issue for Human Rights nonprofits and lawyers, the problem with this excessive corporatization effect is that nonprofits could go down a slippery slope of pursuing the donors’ agendas, which are the powerful actors, instead of their original mission, and in so doing, ignore their vision of making substantial and sustainable social transformations.
e. Increasing excessive professionalization against low professional status of Human Rights work
Due to the low professional status that many Human Rights lawyers face within the legal profession for not being “real lawyers” that deal with black letter law, the Human Rights field has increasingly professionalized the entry requirements and the career path. This means that many Human Rights lawyers with a passion for transforming oppressive realities are dismissed from the sector either because they do not have the professional qualifications to start a career in the field, or because they do not fit the internal paradigm of professional standards at Human Rights organizations. One of the advocates interviewed mentioned that in particular elite and right-wing contexts, being a social justice or Human Rights lawyer has a low professional and social status. She mentions that in these settings, she rather describes herself as a researcher or public interest lawyer than a Human Rights lawyer. She is afraid of being stigmatized as either less legally and more politically driven, superficial, “not too professional” and left-wing.90[sup fn=50]. This stigmatization pushes the Human Rights movement even further into professionalization, which makes it “look more serious” and gives status to Human Rights lawyers, despite the fact that this disproportionate professionalization might not be helping the vulnerable communities in a direct manner.
In response to the low status of Human Rights and its characterization as not professional enough, the recruitment process—especially at international nonprofits and international organizations—has increasingly become stricter in attracting more competent and talented Human Rights lawyers who may bring legitimacy and who could cover an extensive international scope of work. In both settings, lawyers usually come from Global North top tier law schools and have the necessary networks and work experience to be hired. Consequently, the Human Rights field is such an exclusive field that most of the time it indirectly creates a circle that only benefits those at the top of the system, those who are more privileged. The above argument is exemplified if one analyses the nationality, languages, education and work experiences that advocates have in their curriculums before starting professional work in the field of Human Rights.
After reviewing the job requirements for ten positions published at the websites of major international Human Rights nonprofits, private foundations, international organizations and Human Rights government institutions from the Global North,91[sup fn=36] at footnote 1(Based on Daniel Bonilla’s critique in “Legal Clinics in the Global North and South: Between Equality and Subordination – an essay”, the words ‘Global North’ are not used as geographic terms, but rather concepts related to historical distribution of wealth among countries that are “politically stable”, “military strong”, and “culturally dominant”. ‘Global North’ refers to countries such as the U.S., Canada, continental Europe, Australia, or Japan. On the other hand, the words ‘Global South’ refer to “a group of countries with a colonial history, [that are] politically unstable, relatively [less wealthy or] poor, militarily weak…and culturally subordinated.” In the context of this article, ‘Global South’ refers to countries with some exceptions situated in Asia as well as Latin America, Africa, and Eastern Europe.) we found that in many of these organizations, technical expertise, international experience, public speaking, public relations, project management, and a clear understanding of the power dynamics in the grantee/grant maker relationship, as well as the ability to handle this relationship accordingly were required.92Idealist, “Human Rights and Civil Liberties” (5 July 2016), online: <www.idealist.org/en/?areasOfFocus=HUMAN_RIGHTS_CIVIL_LIBERTIES&type=ALL>. Applicants were also required to have excellent writing and oral skills in English, although in some cases other language skills were desirable for certain positions in the field depending on the geographic location. Bachelors and advance university degrees, masters or equivalent, preferably in law, policy, economics, or international relations were also required.
After reviewing the profiles of U.N. staff that appears on online job search websites like LinkedIn or Idealist, which lists background information on the education and other credentials of current employees of these organizations, we found that a greater percentage of these advocates came from predominately elite universities from Global North countries.93LinkedIn, “People who work at United Nations” (5 July 2016). One interviewee described that stigmas regarding qualifications become an issue within the Human Rights industry especially for qualified or overqualified advocates coming from the Global South and not being native English speakers. In his case, the interviewee observed that younger students originally from higher-income countries, educated at universities in the Global North, with less or no experience in the field, and even without law degrees, or advanced degrees, were hired more easily than highly educated and experienced lawyers from the Global South.94[sup fn=39].
A dichotomy exists when one realizes that if a person wants to be ‘competitive’ in the Human Rights market, the person is required to be fluent in English, and ideally in an additional languages, have volunteered or done a number of unpaid internships with a nonprofit or international organization domestically or abroad, and have studied at a highly ranked and reputable Global North institution, all dynamics that are also present in other for-profit fields.95See Aoife Nolan & Rosa Freedman, “The human rights sector must stop exploiting unpaid interns” (12 January 2015), The Conversation, online: <www.theconversation.com/the-human-rights-sector-must-stop-exploiting-unpaid-interns-34994>. As a result, only those that come from specific countries and a privileged background can have access to these types of experiences and credentials, both to cover their tuitions and living expenses without receiving a salary. This dynamic excludes by default a large group of individuals with different types of qualifications who could be highly interested in Human Rights and pursuing a professional career to achieve social justice. They might come from diverse backgrounds and bring innovative visions on how to conduct matters, and even belong to vulnerable communities with firsthand experience of their problems. However, due to their lack of opportunities reflected in their restricted access to prominent legal education programs, resources, and networks, they are not even considered as potential candidates in this field. We saw this pattern in the interviews conducted: the ten interviewees went to elite law schools either in their home countries or abroad in Global North countries, and all of them fit in the standard of privilege, highly educated, experienced, and professional Human Rights lawyer.
The weight of credentials is not surprising in the existing social and economic status quo, modeled by our market oriented society, the existing current foreign policy dynamics between the Global North and the Global South, and the social demands that the economy impose upon individuals to be competitive in a global market. However, for a field that aims to be fully global, to reach inclusion and equality at its core among the most marginalized ones, to ensure access to justice, and to empower the most vulnerable, maintaining such logics and structures is unreasonable and contradictory.
f. When only Human Rights Lawyers can speak the language of Human Rights
The Human Rights field, given its public origins and its main concerns, often implies a language and vocabulary that centralizes the debate of Human Rights among those with more decision-making power against those with less or minimal power.96Dustin N Sharp, “Human Rights Fact-Finding and the Reproduction of Hierarchies” in Philip Alston & Sarah Knuckey, eds, The Transformation of Human Rights Fact-Finding (New York: Oxford University Press, 2016) 69 at 69. Only those who speak the language present in legal theories, international legal scholarship, treaties, general observations and comments, case law, and sometimes philanthropy can take part in Human Rights disputes. Although this is also the case in any other legal field, in the context of Human Rights, where the violation of the rights of vulnerable people are the main issues in dispute, excessive professionalized language can legitimize the hierarchy that divides lawyers from the rest of the population, and those coming from elite schools from the rest. It can reinstate an oppressive system affecting those with less power, privileges, and who have neither access nor tools to speak this language, but rather an interest in disrupting power misdistribution and injustice.
In addition, the gap that exists between those documenting Human Rights violations, those interacting with the communities, on the one hand; and those discussing the reports presented at international organizations, and working at global forums concerned about the same Human Rights violations, on the other, is vast. One of the interviewees describes the huge disconnect she felt between what she saw in the communities and their desires, on the one hand, and what she had to write to multilateral organizations in order to seek funding, on the other.97[sup fn=64]. From a colloquial language that better addressed the experiences of the members of a vulnerable community, she had to adopt a technical language that donors encourage as part of the requirements to obtain funds. No member of the community could have expressed her sufferings without the “translation” service that the interviewee provided as a Human Rights professional. Her experience brings back Sally Engle Merry’s argument previously referred to when describing the vernacularization of the field.
The interviewee also commented on having to change the type of language she used originally in her reports to protect a set of victims as a result of a change in the political context because donors, including the State, were no longer interested in the previous language used and its implications. In particular, she worked for an organization that had worked for seven years using the concept of “forced displacement”, but then that concept faded away because the concept of “victim” emerged as the acceptable one.98Ibid. This language transformation, although it might seem formal, implied that the organization lost a big part of the work it had been doing for almost a decade.99Ibid. Language transformation in order to receive financial resources from donors implied that the process with communities was partially broken.100Ibid. The organization had to renew its business model, and the lawyer had to promote a new language of Human Rights that ended up ignoring many of the claims of the forcibly displaced community she had been building trust with for years.
In the context of academia, Human Rights legal theorists often develop refined critical theories that serve to distinguish and categorize negative sociological issues among specific groups. They operate under a logic where only those with their background and credentials can participate in their debates and understand the language they use to describe such situations. Those who cannot have access to such spheres and institutions are systematically excluded from such conversations. However, while reputable scholars and high-level decision makers continue advancing these academic conversations, many vulnerable communities continue living their lives without sufficient transformations in their social or economic realities. As described by two of the interviewees, very few Human Rights scholars have direct contact with the communities that have suffered Human Rights abuses.101Ibid; [sup fn=66]. If they do, it often occurs in a hierarchical or paternalistic way that sets a distinction between them and the affected people. Yet, they keep sophisticating a language that broadens the gap with the realities of the communities they are supposed to be working with.
g. David v. Goliath: Struggles among organizations with different scopes, resources, and capacity
The difference in terms of access to resources is huge between small organizations and large ones. One of the interviewees described her work for a small domestic organization that was purely interested in helping a population. The work was encouraging and intellectually appealing, but highly disorganized in terms of management, and thus they received less funding than other more “corporate-like” nonprofits. However, she did encourage some type of organized scheme, emphasizing that nonprofits without a financial team are not sustainable.102[sup fn=66]. Another interviewee explained that even for the victims the survival strategies are complex, and that sometimes organizations have trouble supervising and understanding the dynamics and needs of the vulnerable populations they work with. In one case, 40% of the victims dishonestly stated that they lived out of the capital city to receive funding from the State, asking public officials to pay for a working day.103[sup fn=64]. The small organization she worked for had limited resources to tackle these dynamics, and as long as they kept happening, the possibility of getting additional funding in the future was reduced.
Small organizations respond to the problem of not getting enough funds to operate by immersing into a snow-ball effect of excessive corporatization, often simulating private model schemes, as they are forced to reproduce logics of organization and management mirroring their larger peers to conduct their work in the field.104[sup fn=60]. As they start professionalizing their language, many times they end up forgetting about their own constituency, the trust bonds built with communities for years, or even their original mission.
h. Burnout: when Human Rights lawyers feel frustrated with the system and lose passion for their work
Two ideas come into play when thinking of Human Rights work as a job without emotions. On the one hand, excessive professionalization and corporatization of the Human Rights field has promoted a view of Human Rights technicians who lose interest and passion for their work the more they advance their professional paths, because they realize substantive change is often difficult to achieve, and tackling the existing power dynamics is challenging. As a result, with time, Human Rights lawyers become increasingly concerned with their personal brand and legal technocracy rather than with trying to change people’s lives, make an impact, or achieve social change. On the other hand, many Human Rights advocates, due to the difficult cases they deal with, end up suffering from serious distress.
According to one of the interviewees, when she worked at a domestic nonprofit, she saw international Human Rights bodies as a ‘God’ that understood human suffering and injustice, but once the case reached the jurisdictional body, she discovered that many of the people working there, who generally are high-profile experts, are not emotionally attached to the cause. Instead, they just see their work there as a “normal” job. As stated by one interviewee, “they are more interested in feeding their ego than in helping people.”105[sup fn=66]. This excessive reliance on technocracy and egos derived from the politicization of such professions ends up affecting the strategy crafting process as well as the possible outcomes of working with communities to help them transform their lives.
Another interviewee commented on all the stress she suffered associated with the difficult cases she took, and how many organizations that think of Human Rights lawyers more as experts than as human beings in touch with immense sufferings lack effective mental health aids to help advocates respond to this collateral emotional damage.106[sup fn=38]. “In some of these cases, when you hear advocates laughing nervously when telling a case, it is not because they are laughing at victims, but because by distancing themselves from the cases they cope with their own frustration and stress”.107Ibid. She also described good practices in a nonprofit that had a psychological therapist contracted to help advocates deal with their emotions.108Ibid. She referred to outstanding supervisors that promoted free time policies inside the workplace, and psychological outlets to help advocates deal with emotions in a healthy way, and not just by blocking them.109Ibid.
6. Possible solutions
In practice, several problems relate to the excessive professionalization and corporatization of the Human Rights field. Yet several solutions can be proposed and implemented with the aim to improve good corporate governance and the substantive social transformation that Human Rights Law and practice can produce.
At the international level, Human Rights bodies at international organizations can work to guarantee that the discussions that occur at these organizations turn into inclusive spaces, while breaking the existing gap between these powerful institutions and civil society. These conversations should move from global and diplomatic discussions to local realities. Given that most of these gatherings take place in international affairs hubs like New York, Washington D.C., London, Brussels, and Geneva, these bodies should strike a balance by trying to bring these conversations to the regional level, as well as bring regional representation to global spaces and forums, so a greater number of Human Rights activists and lawyers can directly engage with these bodies and improve effective dialogues in a less vertical manner. By doing so, international Human Rights bodies and international organizations must work in making the language that they use more accessible to people from all backgrounds110Annex VII, “Anonymous interview to lawyer at international human rights body” (2014–2017). — one that is not just accessible to people with the credentials and privileges to be in these spaces, and that does not exclude from these conversations those for whom they advocate. Instead, this language should open spaces so that the members of vulnerable communities can always speak for themselves when they feel they need to.
Human Rights advocates should also implement forms of affirmative action by making high-level Human Rights institutions spaces that experience diversity, inclusion, and equality principles, instead of corporate-style institutions that respond to strong for-profit commercial rationalities that lose sight of their own mission.111Duncan Kennedy, “A Cultural Pluralist Case for Affirmative Action in Legal Academia” (1990) 1990:4 Duke LJ at 705. Organizations should not become institutions that segregate those members of the communities whom they work for, and privilege only members that are already part of the field, while increasing the competition to access the field reproducing logics of racism, classism, ableism, and settle-colonialism.112[sup fn=60]. Therefore, empowerment, implementation, accountability, impact measurement mechanisms, organizational mobility, work-culture shifts, as well as diversity and inclusion strategies, have been suggested as solutions to better engage with people in legal and political struggles.
For instance, one of the interviewees identified herself as a grassroots trans activist that has worked hand-in-hand with trans communities in the poorest areas in Colombia. Just like her peers, many times she felt like an outlier within the Human Rights community. Even though she felt highly critical and had the credentials to participate in such spaces, her ideas were often taken for granted. She did not speak their sophisticated language nor knew how to act in spaces like international organizations where Human Rights debates at the highest levels often take place. When a private foundation awarded her a fellowship to work at an international Human Rights body, she mentioned how she felt empowered. She felt that her radical ideas were being listened to and were becoming influential among high-level decision makers.113[sup fn=110]. Currently, she is a respected and inspirational trans leader in her country tackling power dynamics between the trans movement and the gay and lesbian movement. Therefore, Law, but also Human Rights institutions at the highest levels, can take the symbolic role of embracing the work and ideas of excluded individuals that can help deconstruct unjust structures as well as develop new strategies that tackle systemic inequalities. By adopting rights empowerment and implementation strategies, advocates and critical legal scholars could try to make individuals aware of their abilities as citizens, and help them find solidarity in collective action.
In terms of capacity building, international organizations and international nonprofits must work to equip civil society with the necessary tools so that they can directly engage and advocate effectively when they don’t have the skills or resources to complete this type of work.114Ibid. In addition, these bodies should allocate resources for the implementation of standards previously recognized by these bodies. Whether these come as the result of political discussions between certain Human Rights bodies or individual complaints, international Human Rights bodies must increase their implementation role to guarantee that their work is substantially improving domestic realities in countries where Human Rights abuses persist. They should also assist governments, ensuring that governments guarantee that their Human Rights policies allocate budget and human resources to follow up on the implementation of decisions and recommendations made by these bodies.
For example, international organizations in partnership with international nonprofits should critically develop mechanisms that not just invest on norm-building work or evaluate countries compliance with international norms, but also set a full body of work that monitors the application and implementation of international Human Rights legal standards in each country. This should also include impact measurement guidelines of such standards to track the real effect of such norms into country realities. Political resolutions, recommendations, international case decisions, and Human Rights principles will continue to be the core basis of Human Rights Law, yet new conversations should arise in terms of how those existing standards are and should be communicated, discussed, and applied at the local level, which should increase the impact accountability of Human Rights organizations.
In addition, international organizations must have an open conversation about their diversity and inclusion policies to question whether their staff is reflective of egalitarian values, and how as organizations these institutions can contribute to bridging the gap between those with power and those without it. They should respond to stereotypes that place advocates from the Global North or native English speakers as better trained to make effective use of Human Rights legal knowledge, worthy of respect, and recognition per se than those from the Global South; question its culture of meritocracy; but also open the path to people coming from more vulnerable settings and interdisciplinary professional backgrounds.
International nonprofits must discuss their resources and whether their day-to-day work effectively contributes to the causes they work for in each country. It is crucial to determine whether their role should be an integral one that executes each of the tactics that currently exists in the Human Rights field, or one of giving international visibility to the people that would not have a voice or importance without intermediaries.115[sup fn=35]. Given the reality of the amount of economic resources these organizations receive from large donors, it is paramount to create a culture among these organizations about their ‘institutional responsibility’ with their smaller peers.116Annex III, [sup fn=41]. One that is realistic of each organization´s resources, human capital, and competitive advantage, and that creates a social consciousness of promoting capacity building among smaller organizations, so that large international nonprofits transfer their ‘know-how’ to smaller organizations with the goal of building a more robust and skilled Human Rights movement in each country. At the same time, however, a culture that values the knowledge and personal skills that grass roots organizations already have, and the personal skills of how they locally approach their communities and realities.117[sup fn=38].
Within a market-based society, resources will continue to determine the level of competition and culture among these organizations; however, as their assets continue to grow exponentially, the brand equity must be used ethically and responsibly. Given the capacity that international organizations, global top tier universities, and large nonprofits have, these organizations and educational institutions must be the first institutions to adopt, implement and respect the standards they advocate for. They should be the primary example of change that external stakeholders can see as a good-practice reference. Their staff must be diverse, and their structure must reflect the vision of the organization in a more horizontal way. The structure should value people in all professional levels, respect merit, promote diversity, boost innovation and maintain the vision as the core component of its work culture.
As one of the interviewees suggests in the nonprofit sector, a good practice would be limiting the periods of people directing the organizations or including employees from different levels in the Board to allow a work culture of transparency and dialogue between employees and leadership at each organization, against the idea of the vertical corporate ladder based on timing or experience only; and rotating them to other projects or tasks in order to allow oxygen to come in and bring new voices of other innovative leaders and their ideas to the table.118[sup fn=66]. Another idea could be to decentralize work and responsibilities,119[sup fn=50]. to redistribute the power from high-profile Human Rights lawyers to other activists and people from the communities that historically have had less power; or to innovate operational models of strategy, organizational behavior, and management that respond to nonprofit structures and promote operational models that improve nonprofit functioning and reliability. More innovation and research from nonprofit management and social impact experts is needed to address these problems.
In the context of Human Rights clinical education, in order to avoid reproducing dynamics of subordination between the academic center and the periphery, Bonilla proposes three principles that should be followed by clinics: “mutual recognition of the parties involved in the project; using consensus to establish, interpret, and apply the rules governing the clinical exchange; and prioritizing the social justice objectives pursued over the educational and professional development purposes that are also part of the programs of cooperation advanced by the clinics.”120[sup fn=36] at 4. Likewise, the path to access the Human Rights field must be re-constructed critically. Law schools, nonprofits, governments, and international organizations should not use unpaid internships as forms of free labor that disregard labor rights, or as forms that help identify and measure privilege. Instead, internships should be based on factors that dismantle power structures and recognize talent, potential, and needs-based financial aid. As presented by Darren Walker, president of the Ford Foundation,
The right internship can put a young person onto a trajectory for success. This is precisely why those of us who oversee internship programs ought to make sure they provide a hand up to all people of promise, not merely a handout that, best intentions aside, accelerates a cycle of privilege and reward.121Darren Walker, “Internships are not a privilege”, The New York Times (5 July 2016), online <www.nytimes.com/2016/07/05/opinion/breaking-a-cycle-that-allows-privilege-to-go-to-privileged.html?smid=tw-share>.
In the context of academia, universities at large should take the opportunity to expand the vision that only law schools and particularly Human Rights lawyers can enable social change. By informing the students of other professional and non-professional avenues for social transformation, they can promote more creative paths that promote social change, empower disadvantaged communities, as well as foster knowledge, debates, and dialogues on the importance of mutual collaboration between these fields, once students are part of these institutions, in order to achieve collective, interdisciplinary, and sustainable impact.
Schools can promote forgivable loan programs in faculties besides law schools for other professionals who want to engage in public interest and social impact work.122[sup fn=38]; see also Michael Beer et al, Higher Ambition: How Great Leaders Create Economic and Social Value, (Boston: Harvard Business Review Press, 2011). In this regard, they can also strengthen interdisciplinary approaches towards social transformation that can facilitate a greater understanding between the passion for social change and the technical mechanisms to achieve that transformation. In addition, by creating bridges between law students, policy and socially business driven students,123We define socially business driven students as students in the disciplines of business and economics that are programmatically interested in the fields of universal healthcare, poverty alleviation, financial inclusion, venture philanthropy, gender pay gap, etc. or in fields such as non-profit management, social strategy, diversity and inclusion, monitoring and evaluation, communications, and fund-raising. as well as others pursuing alternative professional careers, they can understand how the intersection of Human Rights, businesses, and other fields can result in high-impact and long-term social transformations. For example, one way to achieve this is by incorporating changes in MBA curricula and redesigning courses to advance management thinking and practice at non-profit and other Human Rights organizations. These changes enable training higher-ambition leaders with greater social purpose and value.
Several career paths, other than Law, can also produce social change. However, a paradigm shift in terms of training and career path avenues is needed to have more individuals at different fields and disciplines interested in delivering superior economic and social value in distinct ways to scale up social change and Human Rights realization. At the more programmatic level, when large Human Rights organizations bring strategic cases before international Human Rights bodies or domestic high-courts, this type of work must adopt many ethical guidelines that clearly set out the type of partnership and collaboration that is expected with affected communities. The guidelines should include among others: understanding and building the work on local experiences, and not just on top-down impositions; maintaining open communication channels between the lawyers and the community without leaving that communication for particular moments in which lawyers need something from the victims; constantly informing the community of the stage of the process and what can be expected; bringing in the goals of the community to the particular goals of the case; making legal language accessible to the community; and, once impact is made, organizations should accompany victims in creating sustainable educational and financial plans that allows them to reach new opportunities and investments that increase their life opportunities, such as better education opportunities, housing, and savings.
At the individual level, Human Rights advocates should try to go beyond their technical skills, acknowledge their privilege, and start reconnecting with the communities in any way they can. Pragmatic and interdisciplinary Human Rights Law Practice requires going beyond legal expertise taught at law schools into community-based practices. As legal practitioner Shin Imai argues,
The lawyering skills transmitted through the conventional law school courses do not prepare students for this type of community practice. In order to transmit community lawyering skills, clinical courses should utilize a counter-pedagogy that allows students to absorb the lessons of collaborative relationships, the recognition of personal identity and race, and the ability to take community perspectives. By doing so, we will be preparing future lawyers to play a positive role in the work for social justice.124Shin Imai, “A Counter-Pedagogy for Social Justice: Core Skills for Community-Based Lawyering” (2002) 9:1 Clinical L Rev 195 at 226–27.
Without this necessary transformation, advocates can get immersed in a system where their imagination for change, their feelings, their idealism, and their deep connection with the communities they are supposed to work with gets limited, and their scope of action to transform realities becomes restricted.
In order to do so, Human Rights lawyers should speak the language of the people they are trying to empower. Meet them. Leave their safe spaces to try to build empathy and listen and attend to their concerns. Report to the communities on how the work is going and hearing what the communities have to say in terms of their goals and wishes. Advocates should also open institutional spaces so that members of vulnerable communities can speak for themselves. It becomes paramount to successfully empower victims while at the same time avoid their re-victimization. As one our interviewees presented, she proposed to rethink the ethical dilemma of how to help the victims, empower them, and give them back using their skills and knowledge to help them with particular needs, create financial inclusion plans, and education tools, while also being able to gather information.125[sup fn=41]. Some have suggested this dilemma can be worked out through participatory action research (PAR)126See, for example, Amy Ritterbusch, “Bridging Guidelines and Practice: Toward a Grounded Care Ethics in Youth Participatory Action Research” (2012) 64:1 The Professional Geographer 16. that:
…seeks to understand and improve the world by changing it. At its heart is collective, self-reflective inquiry that researchers and participants undertake, so they can understand and improve upon the practices in which they participate and the situations in which they find themselves. The reflective process is directly linked to action, influenced by understanding of history, culture, and local context and embedded in social relationships. The process of PAR should be empowering and lead to people having increased control over their lives127Fran Baum, Colin MacDougall & Danielle Smith, “Participatory action research” (2006) 60:10 J Epidemiology & Community Health 854 at 854.
This type of research links activism with knowledge and could break some of the excessive professionalization of Human Rights by bringing communities to self-reflect and participate with their own empowerment.
Finally, following Spade’s argument in the article “For Those Considering Law School”, Law should not necessarily be considered the most effective tool to dismantle systems of oppression or to improve the living and social conditions of marginalized communities.128Dean Spade, “For Those Considering Law School” (2010), online: <www.deanspade.net/wp-content/uploads/2010/10/For-Those-Considering-Law-School-Nov-2010.pdf>. Despite the fact that lawyers, and particularly Human Rights lawyers, have an important supportive role when providing legal counseling services to vulnerable communities to ensure not to reproduce logics of power and hierarchy. Lawyers can help movement leaders find strategies to promote legal transformations when it becomes necessary, and effectively target the weak points and grey areas where the legal system presents shortcomings. However, most of the Human Rights work that can be done in any social movement does not necessarily require a law degree. Social impact work can also be done through trainings, empowerment workshops, art, communication strategies, support networks, media visibility, financial and economic inclusion, or direct participation of members of the communities that advocate, all of which require diverse forms of disciplinary training other than Law.
Spade’s argument is supported by one of our interviewees who suggested that often Law is ineffective as the only remedy to solve structural inequalities, since it can often legitimize and reproduce those same inequalities.129[sup fn=110]. She raised an example of how trans individuals are not considered citizens by laws in many countries in Latin America, and don’t have access to justice mechanisms.130Ibid. When trans women are assaulted, they are not able to report their cases to the police, as the police often further abuse them. Thus, community-based approaches that enhance alternative protection mechanisms for these groups and empowers them on their identities and political recognition could even be more effective than using Law as the only tool to protect their rights.131Ibid.
Building on Kennedy, we acknowledge that “…we routinely underestimate the extent to which the human rights movement develops in response to political conflict and discursive fashion among international elites, thereby overestimating the field’s pragmatic potential and obscuring the field’s internal dynamics and will to power”.132[sup fn=8] at 118. As a result, the excessive professionalization and corporatization of the Human Rights field on its way to ‘positively’ transform society is problematic due to the embedded power imbalances present under this structure. The ideas that motivate the corporatization and professionalization of the Human Rights field are aimed at raising funds to conduct their work and promoting a higher social and professional status of the Human Rights field. Many questions arise from the decision of adopting excessive corporatization and professionalization as a path towards achieving these ends. One of the main questions is how to strike a balance between the aim for social transformation and the challenge for financial and political resources that Human Rights organizations face. To be able to fund the professionalization of Human Rights lawyers, corporatization becomes a necessary consequence. However, other questions arise. What is the real danger when large and powerful corporations not operating in good faith try to influence the focus, policy, or strategy of a Human Rights organization? What occurs when donors set their own political agenda on the organization’s work plan, imposing clear political or disjunctive plans? What happens when the legal requirements of such incorporation due to the legal regime make these Human Rights organizations adapt to robust and unfair corporate structures?
This has already been the case of universities and think tanks, where funds come from powerful actors, and those actors then have unfair and potentially dangerous influences on the organizations that they are supposed to be helping to prosper.133See Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right (Toronto: Random House of Canada, 2016). The fiscal control and accountability objective of such logics seem to be necessary to have a more effective system. Yet the consequences of disproportionate corporatization and professionalization of the field can be detrimental for the aims of social transformation that the movement claims in its foundations.
The responsibility from private sector actors remains unresolved due to the tensions that exist between the Human Rights field and the private sector. However, a critical approach to this tension seems necessary to have a more comprehensive strategy of new forms that drive to endurable, sustainable change. One that involves non-traditional actors, like corporate actors and socially driven business that operate in good faith into Human Rights conversations, as well as one that breaks the privilege among Human Rights lawyers.
Based on the problem described, one could argue on the one hand that if someone wants to build a career in the Human Rights field, this person must immerse in the logics of excessive corporatization and professionalization to be part of and remain in the field. On the other hand, one could critically analyze whether current structures and the social dynamics that lead into the excessive professionalization and corporatization of the Human Rights field and its way of promoting social change is the ideal one. Managing Human Rights nonprofits poses unique challenges that have not been adequately addressed in leading mission-driven organizations, managing organizational change, behavior, strategy, operations theory, and practice until now. One such issue is the need to balance multiple demands on the organization, including economic, human resources, and social goals. Although Human Rights advocates and organizations might be operating in good faith, as capitalism, market requirements, and globalization inescapably become part of the structure of the Human Rights field, they quickly get immersed in logics that push both advocates and organizations to be less radical and vocal about important issues, as they know that drastic changes are near impossible in a system that only allows subtle changes and rejects massive mobilizations. As established by Dauvergne and LeBaron, “Without a doubt most activists still want to speak truth to power. But nowadays they are entangled in this power.”134Peter Dauvergne & Genevieve LeBaron, Protest Inc.: The Corporatization of Activism (Malden, MA: Polity Press, 2014) at 2. Instead of challenging a system of global capitalism, they are simply now conforming to the logics of it.
The unrestrained corporatization and professionalization of the Human Rights field has served as a tool to arguably legitimize and perpetuate the existing misdistribution of wealth and power.135[sup fn=17]. These power structures are based on privilege and supremacy that continue to systematically affect communities that are already disadvantaged. Authors like Foucault, Kennedy, Crenshaw, Spade, Moyn, Lemaitre, and Bonilla have developed significant responses to the social movements’ theory from a more constructivist perspective that reshapes the way in which the system has been structured. These authors present strategies that challenge the conformation to the ways in which the system has been created and the way that legal regimes regulate and govern knowledge and practices. By trying to put practices into more institutional forms, Human Rights advocates should not follow the rules of behavior that the system imposes upon individuals.136See also Anthea Roberts & Martti Koskenniemi, Is International Law International? (New York: Oxford University Press, 2017). Instead, advocates should deconstruct oppression and resist institutional forms that directly reproduce racialized, gendered, and other subjections, as well as centralized power among specific social groups.
These types of discourses that legitimate oppressive dynamics should not engage in efforts embedded in pedagogies of demobilization and re-colonization led by national or historic “global political and economic power elites.”137Aziz Choudry, “Transnational Activist Coalition Politics and the De/Colonization of Pedagogies of Mobilization: Learning from Anti-Neoliberal Indigenous Movement Articulations“, (2007) 37:1 International Education 91 at 97. Effective Human Rights work should neither reinforce a system where Human Rights lawyers replicate logics of excessive corporatization that result in power dynamics of compassion and charity. Instead, Human Rights advocates should aim for substantive social change and equality among its citizens by learning more from small and grassroots organizations or individuals that have been strongly committed against colonial discourses and politics of mobilization, but lack the technical knowledge and resources to make their work sustainable or replicable for bigger communities.138[sup fn=80] at 511–14. Human Rights lawyers should then work in reshaping political spaces with more decentralized forms of organization and with greater community participation and engagement from other professional and non-professional fields, and gain a better sense of social responsibility to the communities who they advocate for.139Ibid at 514. One of the interviewees commented that the relationship between the organization and the victim should become stronger and based on ethical grounds in order to empower the victims and compensate them for their engagement.140[sup fn=66]. By writing this article, we do not intend to deconstruct the structure of a field that for decades has fostered dialogue, amplified the voices of the most marginalized ones, and evidenced dynamics of subordination and control that lead to social problems that have been historically and deliberately hidden. This paper is not intended to criticize specific persons or institutions, but rather, to recognize that while we admire that good people with good intentions fight for Human Rights, all of us as humans must be humble and recognize that sometimes we make mistakes, and these must be corrected. There are few individuals with such noble ideas, dedicating their professional careers and personal lives to make positive and enduring change to transform society for the well being of others. However, Law as a tool, its structure and the fields that result from it, including the Human Rights field, must pragmatically help redistribute goods and justice. These should connect and collaborate between lawyers and organizations, as well as with other legal fields and disciplines to build strategic and collective impact. Human Rights organizations must also adopt good corporate governance standards, and identify more opportunities to open spaces for members of vulnerable groups to raise their voices beyond the legal path. The Human Rights field should also serve as a bridge to give opportunities to those that cannot access it from its roots—one that embraces egalitarian values, and that tackles poverty and discrimination, the deep-rooted origins of social inequality.
*Authors’ Disclaimer: We define ‘power’ as a complex notion that results from the combination of privileges, such as economic and human capital, that derive from greater opportunities and access to resources that help individuals lead, influence, and make enduring and sustainable change in their own societies. However, with great power comes great responsibility. Thus, throughout this article we present the critical notion of how systems that reproduce logics of hierarchization and power imbalances in the Human Rights field ultimately benefit predominately those that are part of the top of the structure, those with more power. We argue how this power dynamic has also embedded Human Rights organizations, including the work of Human Rights lawyers in the field. As legal scholars and Human Rights practitioners, we recognize how we too belong to this structure, yet we want to be critical and purposive in bringing to light alternative ways in which we can all collectively increase the impact that results from our work. The arguments presented throughout this article are not based on the personal experiences of the authors.
Valentina Montoya-Robledo is an S.J.D. candidate at Harvard Law School. She holds a B.A. in political science, a law degree, and an M.A. in law from Universidad de los Andes, Colombia; she completed her LL.M. at Harvard Law School.↩
About the Authors
Sebastián is an international human rights lawyer. He has appeared and argued before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, U.N. Treaty Bodies, and the U.N. Human Rights Council.
Sebastián holds law degrees from Universidad de los Andes, Colombia and McGill University, where he was an Open Society Foundations Scholar, Justice James K-Hugessen Fellow and Rathlyn Foundation Fellow. He completed his thesis “Beyond Discrimination: A Reading from the Social Model of Disability to the Mental Health Conditions of LGBTQ People” under the supervision of Dean Robert Leckey.
Valentina Montoya Robledo
S.J.D. Candidate and LL.M. at Harvard Law School. M.A., LL.B., B.A. at Universidad de los Andes (Bogotá). Her dissertation “The Invisibility of Domestic Workers in Local Government Law in Latin American cities: A Multilevel Study of Public Transportation in Bogota and Medellin” analyses the situation of domestic workers in Latin American cities from a legal perspective. Researcher, advocate and consultant on: public transportation, women’s rights, human rights, and rights of people with disabilities. Website: https://hls.harvard.edu/dept/graduate-program/valentina-montoya-robledo/