Theory to the practice and practice to the theory
Noah Novogrodsky’s work in human rights is sprawling—from championing marriage equality to challenging “seafood slavery” to defending the health of Ugandan mothers to analyzing the Islamic State. What binds it all together is a commitment to fusing legal theory and academic scholarship with an unwavering eye on the prize: the practical impact on human rights. He is the co-director of the Center for International Human Rights Law & Advocacy and a professor of law at the University of Wyoming. He was also the founding director of the International Human Rights Clinic at the University of Toronto Faculty of Law. The father of two, Novogrodsky is a visiting scholar at UC Berkeley’s Human Rights Center this year while his wife, also a University of Wyoming professor, conducts research in her field of cultural history.
Q. What sparked your career in human rights?
A. I read about the work that Harold Koh was doing at Yale Law School on behalf of Haitian refugees trying to get to the United States who were intercepted and taken to Guantánamo Bay. You don’t need a lot of reasons to go to Yale for law school, but I had an extra one in that I was studying international relations in graduate school at Cambridge but there was a human face to the work that folks were doing at Yale. When I went into academia, I was influenced by both the practice and scholarship of Yale Law School. I’ve tried to keep my foot in both worlds ever since.
Q. What does “practice and scholarship” mean to you?
A. I think there is a problem with academics in general when they become too far removed from real-world issues. If they are only operating at the theoretical level, it’s hard to test their ideas and see if they are applicable as problem-solving or framing devices. The practitioners are in the trenches every day and sometimes they don’t get to think beyond their immediate circumstances and more holistically about law and society and what it means to be an advocate for social justice. I think that the best practitioners draw from interesting ideas, many of them theoretical concepts, and the best scholarship, research, and writing is informed by real world events and practice. I’ve tried to bring theory to the practice and practice to the theory.
“There are some times when it is disappointing, but I draw a distinction between disappointment and discouragement.”
Q. Is academic scholarship compromised when it is influenced by advocates?
A. Some academics are pretty elitist and they don’t want to be sullied by practitioners so they turn out constitutional tomes that have very little applicability in practice. I believe the sweet spot for an academic is to be able to step outside of the trenches occasionally and pay attention to interesting scholarly developments and bring some of those ideas and influences to your work as a practitioner.
Q. Is that what we do here at Berkeley?
A. One of the things I like about the Human Rights Center at Berkeley is that the investigative reports that come out of this office have application for both academic scholarship and real-world human rights advocacy. It starts with excellent research and analysis and writing in clear unexaggerated terms. Human Rights Center reports are a reflection of real problems and how people are negotiating the resolution of those problems, as opposed to an aspirational document about a vague duty that may crystallize in the future but doesn’t exist right now. I think studies of victim participation at the International Criminal Court or sexual violence experienced by migrants have practical and institutional implications for how we do this work better or more sensitively or in ways that are for victims or in support of human rights and the rule of law. It’s my go-to resource for academic writing on similar topics. I’m concerned about academics who fall in love with an idea and don’t test it against a reality.
Q. We tend to think of the United States as a great leader on the marriage equality front, but it’s not necessarily so.
A. The United States is both a leader and a laggard, because some states were out front and others resisted. Some of our state supreme courts came up with loony ideas about marriage. The Indiana Supreme Court, for example, ruled that marriage exists to save the children of unwed teenagers from bastard status. They were down to one, decidedly unromantic, reason for limiting marriage to opposite sex couples: to give a status incentive, usually to young people who accidentally get pregnant, to rescue them and their unborn children from stigma and discrimination.
Q. What’s the gist of the amicus brief on marriage equality that you drafted and filed in the U.S. Supreme Court?
A. The struggle for marriage equality has played out in human rights terms and has occurred with dizzying speed. In a dozen years we went from one or two states experimenting to 50-state marriage equality. That is in a sense a whole generational or multigenerational civil rights project playing out in a 12-month period. The Obergefell case asked whether same sex marriage should be a legal possibility in all 50 states. The claim we made in the brief was that the United States does not exist in isolation and that we can learn from developments in other constitutional democracies and how we determine constitutional rights and principles influences what happens in other countries. We are not an island. The lead author [of the amicus brief] was [Yale’s] Harold Koh. The argument that the six professor amici made in this case was that principles of dignity and equality in our Constitution have been interpreted by the Supreme Courts of other nations to allow marriage equality. About twenty countries globally now allow same-sex marriage. The trend is undeniable. From Canada to Argentina, they have all embraced marriage equality for reasons of the dignity of the participants and the notion that it is unseemly for the state to create separate and unequal forms of legal partnership. We made the argument that in this circumstance, the U.S. could learn from other countries that have, in turn, learned from us on issues of dignity, equality, and liberty.
Q. You are working on another landmark case halfway around the world, to improve maternal health in Uganda.
A. I’m involved in an interesting case in partnership with a Ugandan NGO—a challenge under the Ugandan Constitution to provide safe Cesarean sections and other emergency obstetrics to pregnant women. Uganda has an appallingly high mortality rate. It also has a constitution that contains protections for women and children. The claim in that case is that right to life and right to health mean that women should be able to give birth in as safe an environment as possible. In Uganda, poor women sometimes have a hard time getting to hospitals and clinics to deliver and women who need C-sections often don’t get them because they don’t get the medicine or procedure to deliver babies safely. Somewhere on the order of sixteen women a day on average die in childbirth in Uganda. That’s almost fifty times the death rate of the United States and other developed countries and seven times that of neighboring Rwanda, which has a similar GDP.
I was asked to join the case after a Ugandan Court issued an adverse ruling based on a misreading of the U.S. law, specifically the political question doctrine. Our role was to help our allies appeal that issue to the Ugandan Supreme Court. We helped to contribute briefing material for the local lawyers who argued the case and helped them to construct an argument about the role of the judiciary, based largely on US law.
My 13-year old daughter, Ruby, said I had done good work on the Uganda case and that mattered to me. David is 9. He’s concerned about Star Wars and fighting injustice on that level.
Q. How is this case about North-South collaboration?
A. There are many lessons in this case. We should think hard about the right times for us to share our experience with foreign advocates and human rights activists. It’s very rarely appropriate for us to say, ‘that’s how we do things in the US and you should do it here.’ We don’t want to be neocolonialists and we don’t want to be telling the rest of the world how to behave. But in a case that interprets US law, we have a lot to say. The work in Uganda pairs nicely with the same sex marriage case because effective human rights advocacy needs to be a two-way street. We need to be sharing the best of what happens here with partners internationally and we need to be importing positive developments internationally.
Q. You’re an expert on failed states and what constitutes a state. Why does it matter?
A. I’m writing an article that asks whether ISIS is a state. The Montevideo Convention is the international building block for ‘what is a state’ and it has only four criteria: a permanent population, a government, a territory, and the ability to enter into negotiations with other states. The state doesn’t need to be representative or democratic or secular or even constitutive of the hopes and aspirations of people in the unit. It’s an authority on a piece of territory that can negotiate with its neighbors and defines where one state starts and another one begins. It could be a capitalist state. A monarchy. A radical Communist state. It’s still a state if it meets the minimum criteria.
The Islamic State is challenging some of our core notions of what it means to be a state. Scholars have long recognized that the Montevideo Convention is an incomplete analysis of what constitutes a real country, but the Islamic State is calling itself a state. Unlike Boko Haram or al Qaeda or other terrorist organizations that use violence to further their aims, the Islamic State has territory under its control. It has imposed an austere and authoritarian government structure. It has engaged in horrific human rights abuses of the population it dominates. But that’s no different than other states.
Q. Who decides if a state is a state?
A. Ultimately, the State Department here and foreign ministries of other states make determinations about when they will recognize other countries and when they won’t. Usually when there are strong political or economic interests that equation looks different than instances when there aren’t. Very few Americans have a stake in the question of whether East Timor becomes a sovereign nation and not part of Indonesia. But there are a lot of Americans who care deeply on both sides of the issue about whether Palestine is recognized as a sovereign state. Part of my agenda here is to help distinguish between the Kurds and the Palestinians, who clearly meet international legal standards for statehood, and the Islamic State, which offends our sensibilities with its horrific abuses. We need a reason for denying statehood. One of the problems is that existing states commit atrocities all of the time. It’s a little rich to tell a would-be state that it cannot be a state. I think part of getting a seat at the table is signing on to international conventions and making commitments and promising to respect borders and boundaries. And with statehood comes immunity from prosecution. Before we talk about the Islamic State becoming a state, it’s reasonable that we demand that it refrain from massacring groups or throwing gay men off of buildings or committing other barbaric acts.
Q. We have learned, in recent months, that shrimp, tuna, and other fish we buy at our local stores may have been caught by men who are literally enslaved on fishing boats. How can this be and what are we doing about it?
A.The Human Rights Clinic in Wyoming has been involved in a project to study possible remedies to this odious practice of seafood slavery. There’s a lot of expertise at Berkeley on the same issue. So some of this is a question of forced labor and of other forms of modern slavery and [Human Rights Center Faculty Director] Eric Stover and others at Berkeley have written extensively of the rights abuses and implications of global and domestic forced labor. Seafood slavery is a relevant and understandable problem: individuals are being duped or coerced to work, not paid for their labor, and sometimes locked in with the fish. The Guardian and others have exposed the abuses. There are companies like Costco and Purina that don’t actively want to abet human rights violations but are buying cost-competitive goods for sale here from suppliers that have a lot of blood on their hands. Most businesses, certainly those with a brand that can be punished by consumers in the marketplace, don’t want to be associated with violations. We need to move to a whole other level of concerted advocacy and coordinated actions and that might take the form of legal regulations in deveoped countries or cracking down on the worst abusers at the source. It might take the form of consumer boycotts or changes in behavior. There are a lot of ways of addressing and trying to correct for a problem once we know it exists.
Q. Have you seen any changes since you started to work on this issue?
A. I think there is a concern among the big players in the seafood industry and they are trying to certify that they aren’t sourcing their fish from certain places. But corporate social responsibility is notoriously voluntary. Some consumers are starting to wonder where their seafood comes from and whether getting seafood at affordable prices is worth it if we know what goes into production….I think we’re at a pretty early stage of exposing the violations.
Q. Do you talk to your young children about your work?
A. My 13-year old daughter, Ruby, said I had done good work on the Uganda case and that mattered to me. David is 9. He’s concerned about Star Wars and fighting injustice on that level.
Q. Do you ever get overwhelmed with the urgency and amount of work there is to do for human rights and feel your work is just a drop in the bucket?
A. Like Bob Bernstein, the founder of Human Rights Watch, I think I’m a happy warrior. You’ve got to do something that gives you energy. One of the reasons I left a corporate law firm for a less lucrative career is that I don’t find myself watching the clock. I feel inspired to work on a range of issues. I feel privileged. There are some times when it is disappointing, but I draw a distinction between disappointment and discouragement. If you have a privileged tenured position like I do, you get wide latitude to make all sorts of contributions. I have great sympathy for people who work in the trenches on issues that are hard to confront every day. The psychologists working in war zones or the rape counselors in the eastern Congo or the journalists covering the Yazidi survivors of ISIS assaults. I think that can be so dispiriting that it’s hard to go to work the next day. I remember how fortunate I am when I go back to my academic office, and I have students who are lined up and eager to join me in this work.