Teaching international law: lessons from clinical education.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Thursday, March 25, 2010, by its moderator, Richard J. Wilson, of American University, who introduced the panelists: Bernard Duhaime, of the University of Quebec at Montreal; Lusine Hovhannisian, of the Public Interest Law Institute; Deena Hurwitz, of the University of Virginia School of Law; and Hector O1asolo, of the University of Utrecht.

INTRODUCTORY REMARKS BY RICHARD J. WILSON *

Good morning and welcome to our panel discussion on teaching international law through clinical legal education. I was told that this is the first panel on clinical legal education in the Society's history, which makes this a momentous occasion. My own research and writing at ASIL this spring focuses on a book I am writing on the global growth of clinical legal education. This morning, I will first introduce the panelists in the order in which they will speak, providing some information on each speaker, and then I will briefly provide some remarks on the issues the panel will discuss.

Our first speaker will be Bernard Duhaime, who is Professor of Law at the University of Quebec at Montreal (UQAM) and Director of UQAM's International Clinic for the Defence of Human Rights. The second speaker will be Lusine Hovhannisian, the Program Director for Legal Education Reform, NGO Advocacy Training, and Public Interest Law Fellowships at the Public Interest Law Institute (PILI), with offices in New York and Budapest. She has provided technical assistance and advice for the creation and development of clinical legal education programs in a variety of countries in Central and Eastern Europe, including former Soviet Republics. Our third speaker will be Deena Hurwitz, Associate Professor of Law and General Faculty Director of the International Human Rights Law Clinic and Human Rights Program at the University of Virginia School of Law. Our fourth and final speaker will be Hector Olasolo, Professor of International Criminal Law and Procedure at the Willem Pompe Institute of the University of Utrecht, and one of the founders and directors of that law faculty's newly established Clinic on Conflict, Human Rights and International Justice.

Our panel's title is "Teaching International Law: Lessons from Clinical Legal Education." Consistent with this year' s broad conference theme of international law in a time of change, it deals with two relatively recent changes in that field. First, it deals with a method or philosophy of law teaching within legal education: clinical legal education. Second, it deals with an even more recent development within the clinical teaching movement, both here in the United States and abroad: the teaching of international law, and particularly, given today's panelists, international human rights law. Let me set the stage for the discussion by providing some definitions and context.

First, what is a clinic in the context of the academic curriculum of legal education? The term "clinic" comes from the field of medicine, and in that context refers to that later stage of formal training in which the medical student, with some theoretical and scientific preparation, works with real patients, both in the lab and at the patient's bedside, accompanied by a trained physician-teacher. No one could imagine a doctor practicing medicine without this dimension of practical training, and law teaching has, at long last, begun to see the merits of similar training of lawyers for practice within the law school curriculum--not only through the traditional apprenticeships that are often required, particularly in the civil law tradition, but through a pedagogy of practice. Change is happening within legal education, no small accomplishment among institutional structures and actors deeply bound to tradition!

Clinics, which are most associated with the common law tradition, have a long history that starts outside the United States and the common law. The first mention of clinical education in law came from Germany in the mid-nineteenth century, and a clinic was operating in Copenhagen, Denmark, in the late nineteenth century--well before the first so-called legal dispensary opened at the University of Pennsylvania in 1893. Since then, particularly with foundation and government money and accompanied by changes in law school accreditation criteria, clinics have grown exponentially, not only in the United States but throughout the world.

A paradigmatic clinic in the United States has five characteristics:

  1. It is within the law school curriculum and is offered for credit.

  2. Students provide legal services to individual or institutional clients with real legal problems, and in court, to the extent that local practice rules permit.

  3. Clients served by the program are indigent or otherwise unable to gain access to justice due to poverty or other marginal status.

  4. Students are closely supervised by an experienced lawyer, often a teacher within the clinic.

  5. Practical case work is accompanied by a classroom component that focuses on either skills or substance, or both.

    Not all clinics have these characteristics, but all clinical education shares a core principle: learning through experience by doing what lawyers do when in practice. This context allows students, under guidance, to gain training in the skills, ethics, and values of the legal profession within the academy. Wherever this has occurred, this has been a dramatic change in law school teaching. In clinics, theory is extracted from practice. Nowhere is this more true, in general, than through clinics with a focus on international human rights.

    With that, let me give the floor to Professor Duhaime to tell us about his work.

    * Professor of Law, Washington College of Law, American University, and ASIL Tillar House Sabbatical Fellow.

    CLINICAL EDUCATION AND INTERNATIONAL HUMAN RIGHTS LAW: RETROSPECTIVE ON UQAM'S PEDAGOGICAL METHODOLOGY

    In order to illustrate the lessons learned from clinical legal education for the teaching of international law in the Canadian context, we suggest discussing the methodology used at the UQAM's International Clinic for the Defense of Human Rights (or the CIDDHU using its French acronym) since its creation. The CIDDHU is the only international human rights law clinic in Quebec and, to our knowledge, in the francophone world.

    The CIDDHU was created in 2005. Courses are offered to both JDs and LLMs, as well as to undergraduate students of international relations and international law. All must have a background in public international law or human rights law to enroll. Teams of students, working under the supervision of attorneys and professors, offer legal assistance to human rights defenders across the globe, on projects to be accomplished in a few semesters. The course can be taken twice in a student's regular curriculum.

    The teaching methodology of the clinical class has several components. The first weeks of the semester are dedicated to reviewing basic international law and human rights law principles, referring to courses and readings that students have already completed. Emphasis is placed on substantive law and on international human fights institutions and mechanisms, such as the UN Human Rights Committee, the treaty bodies, or the regional agencies such as the Inter-American Commission and Court. More recently established institutions are also discussed, such as the Human Rights Council, the International Criminal Court, the UN-Cambodia Hybrid Tribunal, or the UN mechanism of experts on indigenous peoples. Subsequently, a significant amount of time is dedicated to skills a human rights attorney should master.

    Accordingly, students are required to review and teach to their colleagues how to use specific international law research tools and Internet sites. This is done through practical research exercises conducted in class. Students are then required to study the art of documenting human rights situations, tackling important methodological challenges. Discussions are based, inter alia, on the literature written in the 1980s when Americas Watch challenged the U.S. Department of State's methodology of human rights reporting in Central America. This also allows us to address broader issues such as the characteristics of the subject matter of human rights law, as well as the sources of the law.

    More technical aspects are also covered, such as the credibility of the information collected and the most favorable techniques to present such information to the public or to the informed experts. Specific interviewing skills are also presented. Students, under the supervision of professors, have developed a detailed manual on how to interview victims. A special class is dedicated to simulation of victim interviews, accomplished with the help of former students. This is not only the opportunity to address issues dealing with the formulation of questions and the ability to obtain information, but also to address issues regarding victim and interviewer security, practical logistical aspects of working in the field, as well as more moral and ethical issues and the psychological aspects of the victim-defender relationship. This often presents an opportunity to address notions of empathy and responsibility, which characterize the work of a human rights attorney.

    General principles of evidence law are also reviewed. Significant portions of such classes are spent on the use of elements of proof in litigation. Students are asked to review raw facts and organize them to build arguments proving human fights violations. This is done using a Canadian National Film Board documentary dealing with the E1 Mozote massacre, which occurred in E1 Salvador in the 1980s. Students must identify witness testimonies and expert evidence, reconstruct the facts, build documented chronologies, and so forth. They must also present counter-arguments based on inconsistent testimonies or reports presented in the documentary. Alternatively, students...

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