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Saul, B; Baghoomians, I --- "An experiential international law field school in the sky: learning human rights and development in the Himalayas" [2013] LegEdDig 6; (2013) 21(1) Legal Education Digest 20


An experiential international law field school in the sky: learning human rights and development in the Himalayas

B Saul and I Baghoomians

Legal Education Review, Vol 22, No. 1, 2012, pp 273-316

This article discusses our experience in establishing and implementing an elective international law course at Sydney Law School, entitled ‘Himalayan Field School: Development, Law and Human Rights’. The course was established in 2010–11, takes place annually in Nepal over two to three weeks, and is run jointly with Kathmandu School of Law (KLS). The course focuses on Nepal as a broad case study illustrating a range of universal international law themes, institutions and problems.

Student passion for public international law is increasingly matched by innovative ways of teaching and learning about it. Historically, it was something of a struggle even to have international law taught or taken seriously in Australian law schools, not least because it is still not included in the conventional ‘Priestley 11’ subjects that are compulsory for admission to the profession as a legal practitioner.

There is no template for the ‘internationalisation’ of legal education. It is often driven by vocational demands, in reaction to the ‘globalisation’ of legal services, including the transnational demand for and mobility of law graduates; the increase in career opportunities in governments, international organisations and NGOs; and the greater prevalence of foreign or international law in Australian legal practice. More Australian law students also take part in exchanges at foreign universities or internships with organisations overseas, and more law graduates enrol in postgraduate degrees abroad, generating demand for local curricula to engage more with international and foreign law.

Pedagogically, many law schools understandably attempt to meet market demands. But there are also autonomous pedagogical reasons for engaging with international and foreign law, and related areas of scholarship (such as ‘transnational’ or ‘global’ law, which are also finding their way into curricula). Precisely because law encodes, represents or thwarts particular politics, policy, culture, economics, social life and so on, exposing students to different (and often contradictory) legal visions of structuring, governing or regulating the world can influentially widen their understanding of the promise and limits of ‘law’.

The course was initially conceived of somewhat fortuitously, rather than as part of any strategic institutional design to develop new experiential learning opportunities. At the time (2010), Sydney Law School did not offer a general subject on law and development at the undergraduate or postgraduate levels, in contrast to some other Australian and foreign law schools, some of which have even developed specialised Masters degrees in law and development.

In 2008–09, we had designed and delivered a one-year development project, funded by AusAID, to strengthen human rights in the criminal justice sector in Nepal.

That experience gave us an entry point into Nepal through the highly professional KSL, which we saw as a trusted partner for future collaborations. AusAID was interested in ensuring the sustainability of the development project it had just funded, and creating a joint law course between our two law schools, on a student fee-paying basis, was one way of moving our partnership onto a continuing, self-funding footing. The intellectual partnership between our two law schools could continue, and KSL would receive a modest but developmentally significant financial return through the course.

The learning objectives of the course were formulated to include substantive and skills based competencies. The first aim is for students to acquire a sound knowledge of the substantive (or doctrinal) international and foreign law and policy of international development and human rights, and to understand the interaction between different legal systems. Secondly, students are to gain an enhanced understanding of the processes, institutions, and actors involved in development and human rights.

A third aim is for students to be confident in analysing the strengths and limitations of those substantive norms and institutional processes, from vocational, policy-oriented, and critical theoretical perspectives. Fourthly, students are to become conscious of the political, social, cultural, economic, and historical contexts within which the law is formulated, implemented, and contested, including in the strained environment of post-conflict, multi-ethnic, newly democratising Nepal.

As for the skills oriented learning objectives, a fifth aim of the course is for students to develop enhanced skills of legal research and effective writing, by means that include becoming familiar with the techniques and ethical concerns of research-based, socio-legal field work. A sixth aim, flowing from the research orientation of the course, is to strengthen students’ skills in legal analysis and reasoning, including the capacity to critically tackle legal sources, methods, arguments, and theories.

A seventh learning objective is for students to gain skills in transnational, multi-system or cross-cultural lawyering. While much has been written about experiential learning involving minority cultures within one’s own domestic legal system – for example, through placements with community legal centres assisting refugees, indigenous peoples, or migrants – there has been far less attention to the transnational dimensions of cross-cultural experiential learning.

The course does not explicitly define any additional learning objective in instrumentally vocational terms (for instance, by declaring that ‘this course aims to prepare students for legal practice in development or human rights’), although this is an incidentally likely outcome. In particular, one recognised benefit of the experiential nature of some of the learning methodologies used by the course is to foster vocationally relevant skills, including interpersonal skills and emotional intelligence, as well as cultivating professional attitudes, values and ethics.

The lynchpin or overarching concern of the course is to expose students to the roles and limits of law, justice and legal institutions in addressing acute problems of socio-economic development and human rights in developing countries. Each of the themes explored, and teaching methods used, is geared towards deepening students’ understanding of this central problematic.

The substantive content of the curriculum is heavily research-driven, not least because law and development is a vibrant scholarly field but historically has been little taught in law schools (such that standard student textbooks are rare). The course thus follows the contours of contemporary and historical debates in scholarly research in addition to incorporating developments in institutional practices in the field.

Thus, at the outset, the course is contextualised by introducing students to different conceptions and approaches to ‘development’, from conventional metrics of pure economic growth to more contemporary understandings of ‘human development’ and Amartya Sen’s ground-breaking notion of development as the expansion of human freedom (and freedom as its ends and means).

We then introduce students to the origins and evolution of the Nepalese legal, political and social system over time, to familiarise them with the dynamic historical, cultural and structural processes within which law, development, human rights and attendant institutions circulate in Nepal.

The course then moves on to consider a bundle of related, core legal themes. The relevant international law frameworks are set out, including the contested international ‘right to development’; the structural causes of poverty, including the contribution of international law (including world trade law) to both sustaining poverty and ameliorating it (including human rights law); and the suite of international tools available for addressing developmental problems. The infusion of human rights law into development practices and institutions (such as the World Bank and donors) is examined in light of the failure to establish a ‘right’ to development or a fair redistributive, new global economic order.

The global debates about development and human rights frame specific legal issues and practices that we explore in Nepal. For example, we consider in detail the problem of impunity for serious human rights violations and international crimes committed during the Maoist insurgency by both sides, and explore the way problems of security and justice can imperil a lasting peace and political reform. The connected question of drafting a new constitution – including new political structures, extensive human rights protections, and attention to developmental issues – is considered.

A particularly strong focus of the course is international economic, social and cultural rights and the way they are embedded and implemented in Nepalese laws and practices. The course focuses in particular on basic survival or livelihood rights, including those related to water, housing, and labour, as well as the way state-led development of natural resources intersects with these rights and the environment.

A final cluster of legal issues relates to human displacement in Nepal. We examine the legal legacy of mass internal displacement during the civil war, as well as the situation of different groups of Tibetan refugees and Bhutanese refugees in Nepal.

The content of the curriculum is inextricably connected with (and driven by) the combination of teaching and learning methods adopted, which in turn were influenced by contemporary learning scholarship. The methods were chosen to reinforce each other in advancing learning about the substantive content of the course. First, the theoretical and doctrinal component of the course, along with primary materials for the site visits and field trips, are assembled in compulsory reading material of some 1000 pages.

The readings are augmented by 24 hours of participatory seminars in Nepal (comprising 16 sessions of 90 minutes each). About one-third of seminars are delivered by Sydney Law School staff, and the majority by KSL staff and Nepalese legal experts.

Seminars and readings are supplemented by a series of ‘site visits’ to key actors in the development and/or human rights space in Nepal. The choice of site visits aims for a balanced mix of different perspectives – international, foreign donor, national, and NGO.

Our course drills further down into international organisations by exploring their work at a country-specific level, albeit limited, thus far, to insights at the level of country headquarters rather than local or field levels. This enables students to understand how international norms filter down in their implementation, or indeed how they are mediated, modified or resisted in local contexts.

We do this partly through field trips (see further below), but also by focusing some site visits on domestic actors, such as the Constituent Assembly (drafting the constitution), National Human Rights Commission, the Armed Police of Nepal, and various NGOs. These domestic actors routinely engage with international organisations and foreign donors on legal issues, and are important in evaluating the politics, values, effectiveness and lacuna of developmental and human rights processes.

Through these visits, students begin to understand that international priorities do not always align with local ones; that transnational legal transplants via donor projects may not stick; that donors can insist on the long-term sustainability of projects but only fund them for a short time (setting them up to fail); that the production of knowledge about development is multi-directional and that the international community does not have all the answers; and that local actors are capable of both extraordinary change and terrible things.

Another method we use to open up legal perspectives on development and human rights is through field trips.

We conduct one major and two minor field trips. The major trip is a five-day visit to a remote, mountainous, rural river valley, Melamchi district, about 75 kilometres north-east of Kathmandu. Melamchi is the site of major water supply infrastructure project which will divert much of the Melamchi River through a tunnel to Kathmandu, where it will be used to supply essential drinking water to the acutely water-scarce population of Kathmandu Valley.

The students then meet with Melamchi Water Supply Board personnel, community representatives (political and NGO), and walk to outlying villages to conduct small group interviews with indigenous families.

The case study is a hard one, because the residents of Kathmandu have legitimate aspirations to be fulfilled, namely, their right to clean water and associated public health. In this context, the students have an opportunity to interrogate, applying international and national legal standards, Nepalese government prioritisation of this right over the subsistence and livelihood rights of relatively disempowered remote indigenous communities – as well as those of the urban poor, who are likely to be unable to afford the newly privatised water. In doing so, students analyse the range of interests at stake, and draw their own conclusions about flaws in the legal and policy reasoning and the dispute resolution processes underpinning it.

The two minor field trips involve a visit to a Tibetan refugee settlement during a three-day visit to the city of Pokhara, and a half-day visit to an urban squatter/slum settlement (Manohara) on a river bank in Kathmandu.

At the Tibetan settlement, students interacted with a senior community leader, who discussed the origins of the settlement and the challenges faced by its residents. Students are often shocked by China’s treatment of the refugees, and become more acutely aware of the geopolitics constraining Nepal.

The course brings alive for students the complexities and ethical challenges often encountered during field work. Students have to think through how to ask questions in ways which would produce useful answers, without closing off open-ended responses which could equally yield unexpected insights.

In the first year, assessment for the course included compulsory participation in all course activities, a two-hour open book exam in Nepal (worth 50 per cent of course assessment) and a 3000-word research essay due months later in Sydney (worth 50 per cent). We set an exam in Nepal because we believe it provides an incentive for students to take seriously all of topics and activities during the course, knowing that anything is potentially examinable.

A research essay alone, by contrast, might make them expert on one narrow topic but limit their understanding of the broader field.

In the second year of the course, we adjusted the default weightings of the assessments, with the exam worth 40 per cent and a slightly longer research essay (4000 words) worth 60 per cent. In response to student feedback in the first year, this adjustment recognised that students faced difficulties in studying for the exam in Nepal, including lack of adequate lighting and electricity in the evenings (limiting their revision and study time), and a packed schedule (further limiting opportunities to study during the day).

Students were also given the option to take the exam for 100 per cent of assessment and forgo writing an essay.

In 2013, in response to student concerns, we will modify the exam by making it into a take-home exam to be completed on return to Sydney, alleviating the time pressures while in Nepal.

In the second year we also added a requirement to complete a daily reflective journal (on a pass/fail basis), where students would write down insights and comments about what they had experienced that day.

For us the journals were an incredibly useful qualitative tool to gauge the level of understanding of the students, and to identify any gaps or misconceptions.

The journals also reveal a particularly important learning outcome of the course – the cultivation of empathy. In their journals, students often describe a range of feelings and raw emotions in response to their encounters with the poor, victims of human rights abuses, or those in positions of influence.

The course has been highly regarded by students in their course evaluations, with 100 per cent of students satisfied with the course in both 2011 and 2012.

Students perceived not only professional, but personal benefits to the course, underscoring the fact that the learning processes and the development of professional identities are bound up in and motivated by deeply personal experiences.

The course is open to undergraduates (LLB), Juris Doctor (JD), and postgraduate students (LLM or specialised masters degrees), and the latter may elect to take the course for double credit (that is, equivalent to two masters subjects, if they complete additional assessment).

In selecting students, we used transparent, advertised criteria, which included academic merit, relevant extra-curricular achievement (such as evidence of internships or pro bono work), a personal statement of motivation, and seniority (whether a student was in their final year and it was thus their last opportunity to take the course).

In both years we have taken 30 students, largely in response to student demand. A larger group than that becomes too difficult to manage in terms of transport, accommodation, food, classroom size, and group work and interviews, and in keeping to a tight schedule.

Good briefings, written and oral, are essential in preparing students and laying down standards of behaviour, from alcohol consumption to cross-cultural expectations – including, for instance, in remote rural areas, among indigenous peoples.

The Himalayan Field School is a unique experiment in contemporary education in international law. Its teaching and learning methodologies push the frontiers of experiential learning in Australian law schools – and dare we say globally – and in the process attracting wider interest in Sydney Law School as a site of learning innovation.

The course presents many challenges and costs; it is not easy to run or replicate; it is not for everyone; and it is hardly the last word on effective ways of teaching international law. But students evaluate it as providing an unparalleled learning experience and rich opportunities for professional and personal growth, and we think it a valuable model for the reasons given in this article.


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