Toby’s blog

Chayes Fellow 2L Joy Wang recently filled us in on her summer interning with the United Nations Inter-Agency Project on Human Trafficking in Thailand. At HLS, she is involved in the Tenant Advocacy Project, the Human Rights Journal, and is co-captain of the tennis team.

“The term ‘Human trafficking’ – often used synonymously with modern day slavery – deals with individuals who are fraudulently or coercively taken into situations of labor exploitation, most often a factory or a brothel. I spent my 1L summer interning at the United Nations Inter-Agency Project on Human Trafficking in the Greater Mekong Sub-Region (UNIAP), an organization founded in 2000 in order to foster a regional, inter-agency response to human trafficking in Southeast Asia. I first became interested in the issue of human trafficking while working for a London barrister on human rights and asylum applications. One of our clients was a young woman who been sold into prostitution in the UK by a family member from central Africa. While working on this case, it became clear to me that human trafficking is a pervasive and barbaric phenomenon that has yet to find a systematic form of redress. Every year, an estimated 800-900,000 people are bought, sold and forced across borders; the trafficking of human beings is the third-largest criminal industry in the world, exceeded only by the sale of drugs and small arms. Yet to this day, trafficking victims confound the most common migratory categories: it is unclear whether we should think of them as normal immigrants, illegal entry persons, smuggling victims, economic migrants, refugees or asylum seekers. The complexity of human trafficking is particularly condensed in a country like Thailand. As the relatively modern, cosmopolitan hub of Southeast Asia, Thailand is both a prime destination for other migrants from neighboring countries (particularly Myanmar and Cambodia), and a transit and source country for the rest of the world.’

“During the summer, I was based at the regional headquarters of the UNIAP in Bangkok, an office that coordinates the counter-trafficking efforts of governments and related task forces in China, Myanmar, Laos, Vietnam, Cambodia, and Thailand. As a legal intern, I analyzed three anti-trafficking laws in Myanmar, Cambodia, and Thailand, all of which had been enacted within the last two years. My legal analysis focused in particular on victim protection, i.e. how individuals are treated after they have been rescued by police and / or NGOs. At present, the routine treatment of victims raises serious concerns. Once formally identified, most trafficking victims are placed in a shelter for ‘rehabilitation’ – often for 1-3 years – during which time they are unable to leave or look for work elsewhere; the majority are compelled to testify against their traffickers without any witness protection measures in place; they are then sent back to their home countries, many without identity cards. Researchers estimate that 80% of repatriated victims will again attempt to leave home, making them vulnerable to repeat cycles of trafficking. Unsurprisingly, studies have shown that trafficking victims frequently refuse assistance and resist being identified since acquiring victim status is tantamount to prolonged detention. In recent years, new laws in the Mekong countries have attempted to improve victim protection by inscribing into law provisions on conditions of the shelter, duration of stay, and legal counseling. However, as it stands, attempts to help these individuals often do them more harm than good.’

“In addition to writing a legal memo on the new anti-trafficking laws, I also spent time interviewing Thai officials on legal prosecutions and facilities for victims. I had the opportunity to meet and learn from key partners at the International Rescue Committee, the International Organisation on Migration, and the Asia Regional Trafficking in Persons Project. Although it was sobering to work daily on the issue of human trafficking, it was also inspiring to collaborate with a community of people devoted to the same cause. My summer in Bangkok concluded with the recognition that while human trafficking demands immediate intervention, finding a sustainable remedy faces several hard challenges. As long as the root causes of migration endure – i.e. uneven development and the natural desire for upward mobility – the criminal abuse of people in search of a better life is inevitable. Poverty will always provoke dire and precarious forms of movement and the attendant problems of exploitation. Rather than trying to harden border controls, we might instead focus on creating safer migration routes, implementing fairer labor standards in prime destination countries, and guaranteeing better victim services and legal protection for the millions of people who find themselves in conditions of modern slavery. Achieving these aims requires not only better laws but greater awareness and collective political will. Working with the United Nations in Bangkok was a humbling experience that gave me concentrated exposure to the problem of human trafficking, and tentative, germinal ideas about how I might contribute to better solutions. Back at Harvard Law School, I am taking classes on development, local government and labor law that I hope will offer a broader context of related themes and further my understanding of how best to help.”

Archbishop Jaime Pedro Gonçalves

The Program on Negotiation hosted Archbishop Jaime Pedro Gonçalves who spoke about his experience as part of the peace process in Mozambique following a bloody struggle for independence and of the common call for all Christians to be peacemakers. PON staffer Sarah Whitman filled us in.

“Recently, the Program on Negotiation hosted Jaime Pedro Gonçalves, the Archbishop of Beira and Apostolic Administrator of Quelimane for an informal brown bag lunch. Archbishop Jaime Gonçalves is well known for his participation as a mediator in the 16 year long civil war in Mozambique after their long struggle for independence from Portugal. With the assistance of the Community of Sant’Egidio, an international Catholic lay movement that played the role of mediator. After 27 months of negotiations he successfully brokered peace, a peace that has endured for over 15 years.

“During the informal lunch the Archbishop discussed how his role as an observer of the conflict transformed into one of the key roles in resolving this protracted war. He addressed how he created a novel mediation framework between the two parties and how his unique relationships with individuals on both sides allowed him to successfully work away from the table to broker peace. The Archbishop closed the discussion with powerful advice: In conflict be ready to resist what is wrong and speak the truth to power gently but firmly.”

Alison Welcher, a rising 2L and Chayes Fellow focusing on international humanitarian and human rights law, caught up with us recently about her summer working in Africa working for the Sierra Leone Court Monitoring Programme in Freetown.

“Having just left Sierra Leone, after spending a little more than two months working for a local NGO in Freetown, it’s hard to believe that the summer is already drawing to a close. When I started the search for a summer job, I knew that I wanted to find an internship in Africa that was related to criminal justice; I also had a growing interest in post-conflict societies and their transition to peace. As a government major in undergrad, I had spent a fair amount of time studying African politics and was very familiar with the international tribunal that had been set up in Rwanda after the civil war there. I also spent my second semester of 1L year interning at the Program on Humanitarian Policy and Conflict Research in Cambridge, which led to a greater interest in the laws of war and how they are applied in actuality. After talking to a lot of older students at HLS and doing independent research on the internet, I was most interested in working with either Sierra Leone or Cambodia with the international criminal tribunals that had been set up to try war criminals.’

“Eventually I decided I’d rather have the experience of working with a grassroots organization than with the tribunals themselves and settled on the SLCMP, or Sierra Leone Court Monitoring Programme, an organization that HLS students had worked with in the past and loved. SLCMP was originally established to monitor the trials of those charged with violations of international law during the country’s almost decade-long civil war. However, as the Special Court for Sierra Leone’s operations are slowly drawing to a close, SLCMP has expanded its operations to monitor the activities of national courts, local courts applying customary law, the national anti-corruption commission, and other justice-related institutions.’

“My role in all this was to follow the joint trial of three of the accused at the Special Court and write up weekly reports on the happenings. I would then focus on one or two particular topics that arose and write a longer legal analysis to be published in SLCMP’s monthly newsletter. I am also in the process of putting together a much longer research paper on the legacy of the Special Court and my opinions of its operations (which have evolved tremendously from beginning of summer to the end). However, I also had a great amount of flexibility in my internship, pretty much working on my own time, free to pursue any topic that may interest me. As a result, I conducted interviews with the newly established national Human Rights Commission and wrote an analysis of its first annual report, amongst other side projects. My boss also gave me a large role in writing a new, multi-volume training manual for the organization and teaching sessions on pre-trial and trial rights at a week-long training program held in Freetown for all of the staff.’

“Sierra Leone is a chaotic and often frustrating place, but I will always treasure my experiences there. No matter what difficulties I encountered, I was struck by the friendliness and openness of the people, who were always eager to share their own views of the Special Court and their personal stories about the war. Working at a local NGO came with its own share of frustrations and has taught me a lot about what I want out of a future career, including direct access to clients and the ability to work on individual cases from the beginning to a hopefully successful outcome. All in all, I believe that I took much more away from this summer for myself than I could have ever given back to my host organization. Still, I am planning on continuing to work with SLCMP on various projects throughout the upcoming year and hope to use the opportunities and contacts I have at HLS to strengthen the program however I can.”

President of the HLS Christian Fellowship, 3L Jennifer Kwong, submitted the following blogpost on an event last semester that explored the dichotomy between human rights and the basis for lawmaking as outlined in the Declaration of Independence and the U.S. Constitution.

“ ‘The [Declaration of Independence and the U.S. Constitution] are completely at odds over the nature of human rights and the basis for law making.’

“So began a lecture on Thursday evening about the way that the conflicting assumptions underlying America’s founding documents shape—and, perhaps, distort—government and lawmaking in the U.S. today.

“The speaker, Dr. Roy Clouser, was a Professor of Philosophy (Emeritus) at The College of New Jersey. He explained to the assembled students and members of the public that our assumptions about the nature of law, rights, and society have important consequences for how we choose to order our lives together.

‘For instance, while the Declaration of Independence affirms that ‘…all men are created equal and have been endowed by their Creator with unalienable rights…,’ the Constitution does not contain a single unalienable right—every right mentioned in the Bill of Rights is an amendment that can be repealed. The Declaration, therefore, assumes a form of natural law theory in which individual rights form the basis for law and justice, while the Constitution assumes a pragmatist view of law in which rights and statutes can be whatever “We the people” want them to be.

“Dr. Clouser continued on to explain what he saw as the deficiencies of both these views, positing a ‘third view of rights and law’ based on the social principle of ’sphere sovereignty.’ According to the principle of sphere sovereignty, both individuals and collectives were brought into existence by God, who endows people and social institutions (such as families, schools, and government) with different rights and authorities to be exercised according to a universal norm of justice. Government, as one among many institutions, is responsible for preserving the sphere of public justice. It exercises its proper, limited authority when it protects the integrity of all other institutions from interference by one another, as well as from itself.

“Members of the audience responded spiritedly to Dr. Clouser’s talk, challenging his claim that sphere sovereignty is not a form of theocracy and asking him to clarify what counts as a distinct ‘sphere.’”

(L-R) María Luisa Romero 3L, Tim Mayhle 3L, Professor James Cavallaro

María Luisa Romero: (19:09)

As her tenure at HLS begins to wind down, 3L María Luisa Romero stopped in to chat with staffer Julia Foresman about her human rights advocacy in Panamanian prisons. In the fall of her 2L year, as a student in Clinical Professor James Cavallaro’s Human Rights Advocacy seminar, María Luisa already had a project on Panama’s prisons in mind. She’d found there had been few international reports on the topic since Noriega’s ouster. During an independent clinical, met with prison system officials and members of the government, including the attorney general.

Last March, Cavallaro, Romero and two other students visited six prisons. María Luisa estimates these facilities hold more than 70 percent of Panama’s prisoners. During her research, she found, among many other abuses, flagrant corruption, overcrowding, and sanitation problems.

In Fall of 2007, María Luisa returned to Panama with Cavallaro returned to meet with other officials from the correctional system. The culmination of her efforts, which included the submission of a report to the U.N. Human Rights Committee, came a few weeks ago during a hearing before the Inter-American Commission on Human Rights.

To watch the recording of the hearing on March 7, 2008 before the Inter-American Commission on Human Rights, visit their website. The title of the hearing is “Human Rights Violations in Prisons in Panama.” Please note that the hearing is in Spanish.

I noticed this give and take on recent Supreme Court cases on Slate and since two of the four participants are members of the HLS faculty, I thought you might be interested. Professor Jack Goldsmith is an expert on national security law and teaches constitutional law and other courses. Visiting Professor Walter Dellinger leads one of our Supreme Court Clinicals.

Visit this link for The Supreme Court Breakfast Table.

I get a biweekly e-mail from the Human Rights Program updating me on their latest activities. The most recent one discussed a report the Human Rights Clinic released on prosecutions of apartheid-era crimes in South Africa and HLS student participation in the negotiations to ban cluster munitions. I thought some people out there might like to be on the list, so I asked Mike Jones at HRP to fill me in. He responded:

“Students can sign up for it directly on our Web site…http://www.law.harvard.edu/programs/hrp. There’s a box on the left side under events where folks can enter their emails to sign up for our e-newsletter.”

Harvard Law School has a very active Immigration and Refugee Clinical Program, and we regularly bring speakers to campus to highlight related issues. Recently, I sat in on an interesting discussion on African asylum hosted by Dr. Wagacha Burton, the co-founder of Mapendo, a privately funded NGO that since 2005 has sought to identify, rescue and protect African refugees who have fallen through the cracks of traditional humanitarian efforts.

According to the 1951 Convention Relating to the Status of Refugees, a refugee is defined as “a person who has fled from and/or cannot return to their country due to a well-founded fear of persecution, including war or civil conflict.” Thus, for over half a century, the United Nations High Commissioner for Refugees (UNHCR) has sought to lead and coordinate action to protect refugees and resolve racial, religious, national, social and political conflicts worldwide.

“Today,” Dr. Burton began, “there are over 3 million total African refugees.” Among those he cited as vulnerable refugees are survivors of violence and torture; those individuals with serious threats to their lives in their country of refuge; and women at risk.

A case that has garnered particular attention over the last year is that of the urban refugees of Nairobi, Kenya where Mapendo operates the only healthcare clinic dedicated to the city’s urban refugee population of 185,000. According to Dr. Burton, “Nairobi’s refugees live unseen and forgotten. They are subjected to an abuse of human rights including lack of access to healthcare, increased risks of sexual and gender based violence, child abduction, forced marriage, and arbitrary arrest and detention.”

On the topic of solutions, Edmundson and Dr. Burton outlined the options for UNHCR. “Voluntary repatriation is the best outcome,” said Dr. Burton,” because it reestablishes ethnic communities.” Barring this option, Mapendo works in conjunction with UNHCR to attempt local integration and third country resettlement. Unfortunately, although the United States has implemented a resettlement regime that allows a quota for African refugees the quota is typically not met due to the inability of NGOs to properly mobilize the refugees. To rectify this, Mapendo refers qualified parties to the U.S. Embassies in Africa and has begun collaborating with local NGOs in East and Central Africa to research and identify at-risk populations.

Here’s some food for thought for all of you Law and Economics aficionados out there:

It was during a commencement speech here at Harvard exactly sixty years ago that Secretary of State George C. Marshall outlined his ambitious plan to rehabilitate and modernize the economies of Western European friends and allies in the wake of WWII atrocities. It is in much the same spirit that R. Glenn Hubbard, Dean of the Columbia Graduate Business School, spoke recently at HLS of a Marshall Plan for Africa “In 1960,” he began, “the average labor productivity in sub-Saharan Africa equaled Asia… there is no reason why the same scheme, based on economic reform, could not also jumpstart business and productivity in Africa.”

British Prime Minister, Gordon Brown first argued for the notion of extending the Marshall Plan to Africa in 2005. “Gordon’s plan focused on the social sector… it was essentially a bigger package of the same old stuff,” said Hubbard. Unlike Gordon’s plan, the original Marshall Plan emphasized the business sector and aimed to restore productivity to local businesses, circulate funds to rebuild commercial infrastructure, implement economic policies to restore the private sector, and distribute the funds evenly around Europe. “It offered something new…on the micro level,” said Hubbard, “There is a difference between the development of social services and the economic reform… charity is not economic development.”

The thrust of Hubbard’s argument is that a Marshall Plan for Africa would by and large replace NGOs with businesses to ignite the economic reforms that would in turn mitigate poverty and humanitarian crisis. “Business leaders have been conspicuously absent from African business talks, which is unfortunate,” Hubbard commented. “For this reason, I feel that business schools are cauldrons for the study of practices and management skills that work… Inventory that best practices in developed countries and import them.”

Hubbard admitted that his plan was not without its controversies, especially when several students questioned the differences of human capital and governance ability that existed in pre-war Europe and Africa and whether or not Africa’s social ills were going to be management problems in and of themselves. “This is your moral responsibility,” insisted Hubbard, “and the antecedent is resoundingly clear.”

Anyone considering HLS for whom the allure of law school is sweetened by the promise of never having to endure Science again might be advised to consider the number of fields in which scientific research is altering the way law is administered. Take child advocacy work, for instance. A recent panel of experts including Charles Nelson, the Richard David Scott Chair in Pediatric Developmental Research at Harvard Medical School, and Cindy Lederman, a judge of the Miami/Dade County Juvenile Court joined HLS Professors Charles Ogletree, Martha Minow, and CAP Director Elizabeth Bartholet in exploring the short and long-term effects of toxic stress related to child abuse and neglect, parental substance abuse, maternal depression, and exposure to violence.

To frame the issue, Dr. Nelson provided the clinical background for examining maltreatment and neglect. “Early experiences have a particularly strong influence,” said Nelson, “Timing of abuse, the nature of it, and one’s genetic predisposition can be long-lasting due to fundamental changes in mental circuitry.” To illustrate his point, Nelson explained the findings of the Bucharest Early Intervention Project, a randomized trial of foster care as intervention for social deprivation associated with the institutionalization of nearly 200 children in Romania. “Due to negative experiences as infants, many of the children had stunted growth, anxiety disorders, and reductions in brain activity.” Nelson stressed that we must improve our understanding of the neurobiology of early adversity to improve the court’s understanding of neural plasticity… we must translate science to policy.”

Judge Lederman agreed with Nelson and admitted that the cases she sees involve, by and large, parents unengaged with and apathetic to their babies. “Mothers that come before me are there as a last resort; they don’t understand why their children have been taken away from them,” she explained. “We’re forced to make clinical and mental health decisions all the time. Dealing with the deterioration is not something they teach you in law school.” Judge Lederman insisted that to properly attend to the needs of children jurists must become students of the science of early childhood development.

Presented with the clinical side of child maltreatment, Professors Bartholet and Minow weighed in. “I see two very important policy implications arising from these social science findings,” said Bartholet. “It involves enabling as many parents as possible to be able to nurture and support their kids… and it further involves intervening early and coercively to place abused children under foster care.”

“We know that when the phrase ‘in the best interest of the child’ is uttered with a lawyer in the room that it’s already too late for these kids,” explained Minow. “We’re looking now for the least worst thing that can happen…time matters when you’re talking about kids, and new brain research can help us facilitate their well being.”