Choice of Law in International Human Rights Fact-Finding Missions

• Author: Jacob J. Demree
• Position: J.D., Georgetown University Law Center (expected May 2022); B.A., Swarthmore College (May 2019)
• Pages: 927-956

Choice of Law in International Human Rights Fact-

Finding Missions

JACOB J. DEMREE*

INTRODUCTION

There is no agreement between the secular and the theological, or between tra-

ditional and modern perspectives, on man and the Universe. One cannot prove,

or even persuade, whether a substantially free economy or substantial planning

is more conducive to the good of society or the good of individual man. But

there is now a working consensus that every man and woman, between birth

and death, counts, and has a claim to an irreducible core of integrity and dig-

nity. In that consensus, in the world we have and are shaping, the idea of

human rights is the essential idea.

1

Louis Henkin concludes The Age of Rights with the powerful statement that

human rights and humanity co-constitute each other. Today, there is no human

without rights, and no rights without humans to fight for them.

This idea animates international human rights work and lawyering. A quick

read through human rights organizations’ websites reveals that this idea moti-

vates policy change, justice, campaigns, and leadership across the globe.

2

Such

rhetoric reflects that of the Universal Declaration of Human Rights, the preamble

of which begins by acknowledging that “recognition of the inherent dignity and

of the equal and inalienable rights of all members of the human family is the

* J.D., Georgetown University Law Center (expected May 2022); B.A., Swarthmore College (May 2019)

© 2021, Jacob J. Demree. I would like to thank Dash-Muse Teaching Fellow and Adjunct Professor of Law

Melissa Stewart, Adjunct Professor of Law Scott Gilmore, Dennis Blumenfeld, Aysha Chowdhry, Elizabeth

Fray, Juliana Lord, and Hibah Siddiqui for their guidance and support during the 2020–21 Human Rights

Institute Fact-Finding Practicum.

1. LOUIS HENKIN, THE AGE OF RIGHTS 193 (1990).

2. See, e.g., What We Do, AMNESTY INTERNATIONAL, https://www.amnesty.org/en/what-we-do/ [https://

perma.cc/73QK-V9W5] (last visited Apr. 26, 2021) (“Through our detailed research and determined

campaigning, we help fight abuses of human rights worldwide. We bring torturers to justice. Change

oppressive laws. And free people jailed just for voicing their opinion.”); About Us, HUMAN RIGHTS WATCH,

https://www.hrw.org/about/about-us [https://perma.cc/RVA9-FSHV] (last visited Apr. 26, 2021) (“We meet

with governments, the United Nations, rebel groups, corporations, and others to see that policy is changed, laws

are enforced, and justice is served.”); Who We Are: An Overview, OFFICE OF THE HIGH COMMISSIONER FOR

HUMAN RIGHTS, https://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx [https://perma.cc/59CK-72ZT]

(last visited Apr. 26, 2021) (“Both the High Commissioner and the Office have a unique role to: . . . Inject a

human rights perspective into all UN programmes . . . to ensure that peace and security, development, and

human rights—the three pillars of the UN—are interlinked and mutually reinforced.”).

927

foundation of freedom, justice and peace in the world.”

3

Just as impassioned are

the denunciations of offenses against the idea of human rights:

[D]isregard and contempt for human rights have resulted in barbarous acts

which have outraged the conscience of mankind, and the advent of a world in

which human beings shall enjoy freedom of speech and belief and freedom

from fear and want has been proclaimed as the highest aspiration of the com-

mon people.

4

Attacks on healthcare,

5

child labor,

6

arbitrary detentions and family separa-

tions

7

—violations against human rights demand immediate action.

Before addressing human rights abuses, nongovernmental organizations

(NGOs) and others often begin with fact-finding.

8

International human rights

fact-finding missions intend to uncover significant facts and stories that could aid

in future advocacy—including legal action—and classification of human rights

abuses.

9

Lawyers working on such missions can play an important role: with

knowledge of municipal and international legal frameworks, they can assist

researchers with the discovery and recognition of legally significant facts.

Evidencing this role is the existence of several human rights clinics and organiza-

tions at United States law schools.

10

As a practice area, international human rights fact-finding lawyering is pecu-

liar: it incorporates principles of transnational practice and movement lawyering

3. G.A. Res. 217 (III) A, Universal Declaration of Human Rights pmbl. (Dec. 10, 1948).

4. Id.

5. See, e.g., Where We Work jSyria, PHYSICIANS FOR HUMAN RIGHTS, https://phr.org/countries/syria/

[https://perma.cc/DJ6T-AHCB] (last visited Apr. 26, 2021).

6. See, e.g., Child Labour, INTERNATIONAL LABOUR ORGANIZATION, https://www.ilo.org/global/topics/

child-labour/lang–en/index.htm [https://perma.cc/KW39-FZJ5] (last visited Apr. 26, 2021).

7. See, e.g., USA: “You Don’t Have Any Rights Here,” AMNESTY INTERNATIONAL, https://www.amnesty.

org/en/latest/research/2018/10/usa-treatment-of-asylum-seekers-southern-border/ [https://perma.cc/2Q2R-

FFGR] (last visited Apr. 26, 2021).

8. Human rights fact-finding is defined in the Lund-London Guidelines as “a mission, visit or activity man-

dated by an NGO to ascertain the relevant facts relating to and elucidating a situation of human rights concern,

whether allegedly committed by State or non-State actors. In many instances this activity will result in a

report.” Raoul Wallenberg Inst. Hum. Rts. & Humanitarian L. & Int’l Bar Assoc., Guidelines on International

Human Rights Fact-Finding Visits and Reports by Non-Governmental Organisations 2 (2015) [hereinafter

Lund-London Guidelines]. In this Note, a slightly broader definition is adopted which excludes “mandated by

an NGO.”

9. See, e.g., U.N. Off. High Comm’r for Hum. Rts., Basic Principles of Human Rights Monitoring, in

Manual on Human Rights Monitoring 4 (2011); Our Research Methodology, HUMAN RIGHTS WATCH, https://

www.hrw.org/our-research-methodology [https://perma.cc/W9XE-Y3DH] (last visited Apr. 26, 2021).

10. See, e.g., Human Rights Institute Fact-Finding Project, GEORGETOWN LAW, https://www.law.

georgetown.edu/human-rights-institute/our-work/fact-finding-project/ [https://perma.cc/5XS4-W4A5] (last

visited Apr. 26, 2021); International Human Rights Clinic, STANFORD LAW SCHOOL, https://law.stanford.edu/

international-human-rights-and-conflict-resolution-clinic/ [https://perma.cc/E6JE-H2FC] (last visited Apr. 26,

2021); Lowenstein International Human Rights Law Clinic, YALE LAW SCHOOL, https://law.yale.edu/schell/

lowenstein-international-human-rights-law-clinic [https://perma.cc/3VGM-GPHW] (last visited Apr. 26,

2021). I participated in the Georgetown University Law Center’s Human Rights Institute Fact-Finding Project

between 2020 and 2021.

928 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:927