Human Rights Lawyer | Doughty Street Chambers & Berkman Klein Center for Internet & Society
You recently participated in an expert meeting on developing a protocol for the protection of human rights defenders.
To be precise, it’s a protocol to investigate threats to human rights defenders. This also contributes to their protection, obviously. This meeting was in Bogotá, and it was an expert meeting of about 50 people, including lawyers, human rights defenders, medical professionals, investigation professionals, and also academics. This was the first time that this protocol was formally discussed in order to identify the most important issues we need to consider for next steps.
There were lots of different aspects highlighted including how threats to specific professional groups or ethnic or gender groups should be handled within the protocol, and how to identify the obstacles to effective investigations into those threats. We tried to translate that into the principles that should be guiding the development of our document.
We had three days of closed meetings with the experts and two public events to discuss these topics with a wider audience outside the university.
Were these human rights defenders that operate specifically in Latin America or worldwide?
This is meant to be an international soft-law instrument so it's not supposed to focus only on Latin America – it's supposed to be something that will have worldwide application. I'm not the organiser, it is CEJIL (The Center for Justice and International Law) who are driving this process – they are based in Washington, D.C., and they do a lot of work in the Inter-American human rights system. They're also behind the GQUAL campaign. They are now going to map out what the next steps are and that will also include consultations with people from different regions.
CV in brief
Currently: 2016 – 2017 Fellow at the Berkman Klein Center for Internet & Society | Advisor at the Cyberlaw Clinic at The Berkman Klein Center for Internet & Society| Associate Tenant at Doughty Street Chambers | Project Board Member of the Public Interest Litigation Project | Strategic Adviser to GQUAL
Inspired by Nani’s interview? Get involved with the Media Legal Defence Initiative | Apply for a Fellowship at the Berkman Klein Center | Learn more about The Public Interest Litigation Project | Take Action at GQUAL | Watch Nani’s presentation on “Litigating free speech cases in the African regional courts” (video)
Exclusive Interview with Aisha Babalakin on December 10, 2016
At Harvard, I do two different things. Firstly, I'm working on a project that I proposed when I applied for my fellowship. That project looks at the collaboration between different disciplines when working on strategic litigation that concerns free speech online. I'm trying to figure out how to get lawyers, activists, technological experts, and academics to go outside of their professional silos and better collaborate to keep the internet open and free.
I talk to a lot of people from different disciplines, different backgrounds, and different parts of the world to hear what their experience have been in collaboration across these different professional areas of expertise. If they haven't collaborated in this way, what has stopped them from doing so? If they have, then what worked well, and what didn’t? Then I try to see what kind of common denominators I can distil from that.
The next step is to write up a number of case studies of examples of collaboration to inspire people to take a more holistic approach to pursuing their advocacy when it concerns internet freedom. My underlying thesis is that a lot of activists don't think about using litigation as a tool and a lot of lawyers, for example, don't think about the wider context of their case. In particular, when you look at internet-related matters, it can be really, really important to get the right technological expertise on board to make sure that the issues are properly understood. A lot of people still find it very difficult to relate to anything that has to do with tech.
I’m also an advisor at the Cyberlaw Clinic. I'm not a US attorney so I could never actually supervise students. However, I am involved in a couple of projects. One such project has been to do background research for the expert meeting in Bogotá. We looked at international standards of free speech and where you cross the line to speech that is no longer protected and should be considered hate speech. How does international law deal with threats to human rights defenders including journalists and how are these groups actually also subjected to restrictive speech laws such as harassing people by bringing defamation claims?
We did a couple of country studies to give some examples of how this balance is struck in different jurisdictions.
My work with Doughty Street is a bit different. Primarily, I'm in touch with the media group and with Doughty Street international. There it’s a matter of finding different projects and cases that we can work on together. We communicate by team calls every now and then and also through the email list. We organise events and it's a really nice way to be connected with another group of fantastic people and find interesting things to work on together.
Did they reach out to you or did you reach out to them? Why did you choose Doughty Street instead of any other chambers?
Well, it goes both ways to be quite honest. I chose Doughty Street because I had worked with a lot of people from Doughty Street chambers already when I was at MLDI (Media Legal Defence Initiative). Many of the Barristers (at Doughty Street) had worked with us pro bono in some shape or form. I recently worked together with Amal (Clooney) on a case at the European court and I previously worked with the late John Jones QC on our case at The African Court on Human and Peoples’ Rights. One of the first cases I did at MLDI was before the Supreme Court of Rwanda and it was fantastic to have (John Jones QC) there with me. There has been lots of really positive collaboration already with individual people at Doughty Street so it just seemed like a very natural fit.
Many of our readers tell us that they want to be international human rights lawyers. We all know there isn’t just one path to becoming a human rights lawyer. While studying your JD/LLB at the University of Amsterdam, did you already know that you wanted to practice law at an international level?
I did know back in law school that I wanted to do human rights law. I always was interested in doing that on an international level. I started studying the regular Dutch law degree, and then at some point, I took a course called Introduction to International Law and I was like “wow, this is really fascinating. I want to know more.” So I just kind of added that second degree to it, but also stuck to the old one because I wanted to be safe and make sure I had all the options.
It became very clear to me after I did an exchange with Fordham Law School during my law degree for half a year. I only took Public International law and human rights courses, etc. Then I did an internship at the Dutch Mission to the UN in New York.
When I graduated, I first did an LLM because for some reason I thought I hadn't studied quite enough. Halfway through the first semester, I realised that I had studied enough. During that time, I also started looking for jobs. I tried to find a job in human rights and that was really difficult. I did have work experience – I put myself through law school so I always worked next to school – but of course not full-time human rights work experience.
I got pretty far in some application proceedings, but not far enough to get hired anywhere. I was doing an internship with an NGO called Security Council Report. I ended up staying for a whole year and during that time, I tried to network and talk to everyone, but it was really difficult. At some point, I was looking for some sort of UN volunteer position in Haiti. In the end, someone I knew who worked at the UN Legal department said to me, "Do you feel that you can hit the ground running when you go there?" I was like “I don't know.” I had just left law school and had some work experience, but not a lot. He said, "Well, I think it's a good idea to consider going to a law firm, getting trained first and then making the switch".
I had interned with a really good law firm in the Netherlands called De Brauw Blackstone Westbroek and I ended up applying there and doing my traineeship with them. I have to say I think that's the reason I became a halfway decent lawyer – because it's just really good training. I can't say that the law firm culture was a good match for me as a person, but I did learn an awful lot. Once I got the opportunity, I switched to MLDI.
Did you sit in a litigation seat at De Brauw Blackstone Westbroek?
At the firm, you had to do half of your traineeship in a transaction seat and half in litigation. I was lucky, I got away with doing "transactional work" in the IP/ICT (Intellectual Property, Information, Communication, and Technology) department which was quite litigation-focused by nature. The only real transactional work that we did there wasn't like mergers and acquisitions themselves, but looking at the IT aspects in due diligence reviews and stuff like that. That was really light transaction work and actually still mostly related to dispute resolution.
Then my second half, I did at the international litigation and arbitration department. There I tried to do as much investment treaty arbitration as possible. That still involves some public international law, which I liked. Throughout my time at the law firm, I tried to do as much pro bono work on the side as I could to stay in touch with the human rights field. I joined the Dutch branch of the International Commission of Jurists and worked on a shadow report on the Netherlands UPR exam. I also did a project with Lawyers for Lawyers and got involved with their Africa working group. I just tried to keep that balance a little bit between corporate matters and the human rights field that I was interested in.
You’re clearly the type of person who likes to commit their free time to volunteering. Have you ever had to tell yourself to rein it back a little bit?
I really find it really, really difficult to say no. Particularly because there are so many things out there that are interesting and I usually overestimate my capacity to do a thousand things at one time. So far, it's always worked out, but I'm continuously trying to take a little bit more time before saying yes to new projects or offering to do things. At some point, you risk taking on too much and then you can't deliver.
You mentioned GQUAL earlier. Why do you feel that gender parity is so important in international tribunals?
Yes, it's really interesting actually how under-reported this topic is. I think there are three reasons why GQUAL is important. The first is the legitimacy of the tribunals themselves. They decide on really crucial issues including the protection of human rights. I don't think that you can have a legitimate justice system that doesn't include a broad cross-section of the society it operates in. Women make up more than half of the world's population, yet they are fundamentally underrepresented in these forums.
Women deserve to be equally represented in all sorts of spaces including this one, the judicial and the monitoring bodies. The third reason is that there's a really specific contribution that women can make. For example, there's been a crucial role of female judges in getting rape recognised as a war crime. Those are really important issues and I think that is a good example of why it's so important to have tribunals that are representative. By the way, I wouldn't only limit that to gender, to be honest. GQUAL is only one piece of the whole equality puzzle, but there should be equal representation on all fronts, really.
I also wanted to talk about work you're doing with Leigh Day to bring cases to courts like the African Court on Human and People's Rights. How long have you been working on this and what have been your biggest challenges in bringing these cases to court?
We launched our partnership in May. I've been working with the African Court longer, but that was in the context of MLDI. The partnership with Leigh Day came about in May if my memory is correct. We're still in the process of scoping cases at the moment. Of course, there is not a shortage of human rights work to be done in the region, but it's a matter of finding a combination of the right issue and also the right partners to work with. The African Court on Human and Peoples' Rights is great because it's a really young court. It still has a lot of jurisprudence to create for the region, providing the interpretation of the obligations under the African Charter.
I find it interesting that you've decided to give training and litigation workshops not only to lawyers, but also journalists and people working in the international human rights field. What do these workshops entail and how does someone get involved? Do you work with only organisations or do you do it individually?
Actually, I've never done it individually so far. It's been mostly training sessions that were organised by either universities or NGOs, etc.
Last summer, I did a training for lawyers in South Sudan on international standards regarding free speech issues that are of particular concern in the country. So, besides the issues that are very common everywhere such as defamation, etc., you'll spend a good deal of time looking at national security and terrorism charges and things of that nature. The workshops usually depend on the target audience. The trainings are always very interactive because I don't really believe in lecturing grown ups. So they're very interactive in nature and there's always an explicit moot-court element to it to get people to really work more deeply on specific issues.
Besides that, we look at the international standards and discuss how one can use these in your court context. What is the best strategy with the judges that you have to actually insert these arguments into the discussion? Can you use case law from other national courts? Which ones would be of interest to them? How do you present that? etc.
I've also started doing sessions on strategic litigation. This includes everything from the planning of your case to identifying both the positive and negative outcomes of your case. What is the wider context to consider? Who can you find to be your allies in all of it? Basically thinking through all the different aspects of case planning.
What advice would you give a young woman who wants to pursue a similar career? What skills should be cultivated in order to be a human rights lawyer.
The main thing I would say is don't let anyone discourage you or tell you that you can't do what you want to do. It might take a while to get where you want to be. We're not all lucky enough to have the straight route from school to ending up in the line of business that we want to end up in. I think if you really want it, it's actually possible. I've had so many people say, “why don't you just do something a little bit more simple and straightforward?” If I'd listened to them, I wouldn't be having half as much enjoyment of my work as I am at the moment. So I think that's one really good thing, just to go for it! A couple of other things are interesting to keep in mind. One is to be focused enough to make sure that you keep this path towards human rights work going. Even if you end up like me, for example, doing other types of work for a period of time, try to keep that connection because it's really important to be able to demonstrate your interest and your engagement with the issues that you want to be working on professionally.
The other thing is to just be flexible. I ended up working in freedom of expression kind of by accident. I just really liked the way the job sounded when MLDI advertised it at the time and I was like, “oh, I actually don't know anything about freedom of expression.” A friend of mine had pointed out the vacancy to me because he knew that I was looking to move away from the law firm. I was like, “yes, but I don't know anything about freedom of expression.”
He said, "Well, listen, they're not going to find anyone who checks all of those boxes. You should just try." My initial reaction was very female if I'm honest, in thinking, “I don't meet 10/10 so I might as well not try.” My male friend simply said, “of course you should just give it a go!” I think that has been one of the most valuable learning moments in my professional life so far. I submitted an application and I got the job.
I ended up working in that field. I ended up doing the type of work that I really, really, really liked: strategic litigation and involvement in all these international proceedings. But I'd never thought about freedom of expression before writing that application letter. When I was in law school, I was focused on women's rights, on law and development, and law of peacekeeping operations. This ended up to be the way in which I kind of entered the field and it's been great.
So it's good to be flexible and to recognise opportunities when they come along, even if it's not exactly what you planned for yourself.