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Authors

Beth Lyon

Abstract

This article examines the little-explored ethical dimensions of an important trend toward the use of international law in U.S. civil rights and social justice advocacy. Internationalized civil rights work, described here as “domestic human rights,” is a growing practice area that plays out in a unique ethical context that has received little academic attention. An important first step toward generalizing about the ethical issues arising in domestic human rights advocacy is to learn about the current state of practice, and to begin that project, the author carried out an advocate survey. The goal of the survey was to gain insight into the current ethical practice of the domestic human rights bar by analyzing self-reported accounts of the specific ethical duties and pitfalls arising for a practitioner employing a human rights strategy in the domestic context. In order to reach the relatively limited number of advocates in this practice area, surveys were distributed electronically, distributed on paper, and administered in-person. The survey respondents brought to the study a broad variety of backgrounds and experience levels. Their responses revealed that some practitioners see the use of international law as just another tool in a large social change arsenal, posing, in the practitioners’ eyes, no new ethical challenges. Other practitioners argued that incorporating international law and fora into civil rights work does raise unique ethical questions, sharing their analysis and techniques for ensuring that their work is ethically sound. Many of the ethical dilemmas they described reflected the essential embeddedness of domestic human rights work in domestic-only practice, including client management and allocating limited resources to novel arguments. They also pointed out unique dilemmas, such as litigating in international contexts with no ethics codes, and arguing that domestic remedies have been exhausted while continuing to advocate effectively in the domestic context. The article grounds these debates in the ethics literature, drawing both on domestic lawyering and the less extensive literature on ethics in international law practice. The survey respondents also analyzed the current ethical regime, critiquing it for its gaps and substantive failings, including class- and culturalbias and parochialism. Other respondents defended the regulatory ambiguity of the current situation as providing the flexibility necessary for effective advocacy. The respondents also described the difficult struggle between skepticism of law as a solution for subordinated communities and appreciation for the radical and transformative potential of international human rights law. The survey revealed a small, overtaxed group of advocates trying to balance parallel goals of advancing client cases, community causes, and the integration of international human rights standards with U.S. law. In the context of a domestic legal regime that is often at substantive odds with human rights law, as well as quite hostile to the notion of international legal authority, the ethics of this practice is complex and often wrenching. Most of the survey respondents are the first and last source of legal assistance for their client communities, and their calls for reform merit attention, just as their observations provide important insights into the development of domestic human rights in the United States.

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