Today I am hosting a guest post by BC Law student Marija Tesla about her experience in BC Law’s new International Human Rights Practicum.
I have taken many international law and human rights courses at BC Law, and have loved them all: International Law with Professor David Wirth; International Human Rights: The Law of War, War Crimes, and Genocide (or what is more commonly known as humanitarian law) with Professor Allen Ryan; Immigration Law and the Human Rights Interdisciplinary Seminar with Professor Daniel Kanstroom; International Legal Research with Professor Sherry Chen. I came to law school because this is my calling in life, and every experience I got here (after the slog of the very provincial 1L experience), further proved to me that this is what I was meant to do.
All those courses were amazing, but what I have loved most of all is my experience in the International Human Rights Practicum with Professor Daniela Urosa.
I loved working on the amicus brief that we submitted to the Inter-American Court of Human Rights (IACtHR) with Professor Urosa and my amicus partner, Nadia Bouquet, because I got to think about and analyze a technical area of international human rights law while having an opportunity to be creative and to think outside the box (I wrote an earlier post about our visit to the IACtHR; read it here). My aim in everything I do is to challenge the status quo and to focus on how the law can challenge systems of oppression and create societies in which every person can and does live a life of dignity. Human rights law is aspirational and sometimes it creates standards that are not at all lived on the ground by the people who are most marginalized in our societies. Yet, if those of us who dare to remain idealists in a world often run by realists stop aspiring and working towards creating a more just and equitable world, then where will we end up as a collective? What I love about human rights law is that it cares deeply about individual life while caring about the collective. In a world of great economic inequality, environmental and racial injustice, human rights law is not just necessary, it is a difference of not just life and death, but a difference of what it means to live and to be alive.
Too often, lawyers make the mistake of focusing on how they can advance the law and their own name and ego versus focusing on the individual human being who was wronged by a system and is seeking their help when they are at their most vulnerable. The case of Guachalá Chimbó et al. v. Ecuador, is one of the most tragic. And although, when one is writing an amicus brief the advancement and analysis of the law is primary, I could not stop thinking about Mr. Luis Eduardo Guachalá Chimbo, a mentally disabled man with epilepsy who disappeared from a public psychiatric hospital in Quito, Equador in 2004. Mr. Guachalá Chimbo was unable to finish secondary education because his illness would not allow him to concentrate and study and his mother, Ms. Zoila Rosario Chimbó Jarro, could not afford to purchase his textbooks and school supplies. He started to experience epilepsy attacks from the age of thirteen. Ms. Chimbó Jarro took him to various hospitals where he received medication to help him manage the attacks. However, she was unable to continue to purchase these medications, and as a result of a lack of continuous treatment, Mr. Guachalá Chimbo experienced many more attacks. Due to their extreme poverty, Mr. Guachalá Chimbo had worked as a mason for a period of time. However, due to his condition he had to stop. He would have attacks while working or while on public transportation.
The trauma and the pain he and his family experienced is what I kept in mind while I worked on sharpening my advocacy skills in the brief. Mr. Guachalá Chimbo’s story sheds light on the ways in which people with mental disabilities are othered by societies, and the ways in which the law oppresses and further reinforces this othering through its use of the medical model versus the human rights model or capabilities model, advanced by my intellectual hero, Professor Martha Nussbaum, the prolific and distinguished philosopher.
Before the clinic, I had never focused on economic, social and cultural rights. Most of the work I had done centered around genocide, war crimes and crimes against humanity. (I am also a master’s degree candidate at The Fletcher School of Law and Diplomacy at Tufts University, and I am writing a capstone/thesis on the responsibility to protect and protection of civilians, and a lot of my work focuses on atrocity prevention.) However, it was very evident to me that I was going to research and write about the intersection of the right to health as it relates to persons with mental disabilities. I had decided to focus on the need to directly protect the right to health well before the pandemic, although the bulk of the writing happened in April 2020. I did not know very much about either area of human rights law, but this was an incredible opportunity to learn, as I believe that everything exists on a continuum. I chose to write about this intersection because I saw a window of opportunity in being able to advance this area of the law within the IACtHR. Prior to this case, the right to health was always protected through the right to life, but when I pieced together previous decisions of the Court, I saw an opportunity to not just advance the right to health directly, but also to advance disability law, especially as it relates to people with mental disabilities, most of whom live in developing countries and are some of the most marginalized individuals in the world. According to the World Report on Disability, published by the World Health Organization (WHO) and the World Bank, more than a billion people around the world have a disability. The United Nations Development Program (UNDP) has stated that 80 percent of persons with disabilities live in developing countries, like Ecuador. Further, both the United Nations and European Union statistics show that people with disabilities have lower educational achievements and higher rates of poverty than those individuals without disabilities.
I like seizing opportunities where a paradigm shift is possible with creative thinking. Mr. Guachalá Chimbó’s case is the first time that the Court had the opportunity to recognize the right to health directly in relation to individuals with mental disabilities. The direct protection of this right is essential for persons with mental disabilities as it is directly tied to the protection of their dignity. This right and its implementation by the State of Ecuador is critical and reflective of how persons with disabilities are treated in the context of all rights they should be afforded under the Convention on the Rights of Persons with Disabilities (CRPD). Compliance with the State’s obligation to respect and guarantee this right must give special attention to vulnerable and marginalized groups. This is directly tied to the understanding that all human rights are indivisible, and the fact that Article 19 and other human rights outlined in the CRPD, demonstrate what it means for people with mental disabilities to be able to live independent lives, and, most importantly, to be included in their communities like any other individual would be, this includes the preservation and special protections of their right to health.
While it makes sense to argue for the direct right to life in a death penalty case where death is imminent, it did not make sense to argue for the same in Mr. Guachalá Chimbó’s case. Instead, I argued that the right to health should and needs to be directly enforceable and acknowledged when a person’s existence depends on certain guarantees which should be provided to them by the health care system on a regular basis because their condition gives them no other choice. The need for the right to health is very important when you have a disability, a chronic illness (which can cause short-term or long-term disability), or a disease which needs regular treatment, as it is a vehicle tied to the essence of your dignity. This is especially true for people with severe mental disabilities. For example, according to the WHO, it is estimated that up to 70% of people living with epilepsy could live seizure-free if properly diagnosed and treated.
The law and law school often teaches us about the importance of being able to argue both sides of an issue, how to analyze the law, but it does a poor job of teaching students how to think critically about the systems they are a part of or normative approaches to the law. Not everyone will subscribe to a critical lens or a normative approach, but we should at least be humble enough to admit what we don’t know and to recognize the difference between intent and impact. Good intent does not equal good impact in the law or in policy. I often think of these words by The Honorable Ayanna Pressley, “The people closest to the pain, should be closest to the power.”
This quote gives context as to why the bottom-up approach to the law and anything else is key in understand how systems that are meant to provide justice are often doing the very opposite, and why people like Mr. Guachalá Chimbó and his family, the ones with the fewest resources and least power, are left to fight against powerful and oppressive systems. In any context, if you want to truly understand what is going on, talk to the people with the least amount of agency who are living the experience of navigating through the legal, medical, or any other system or setting.
Upon the Court’s decision in this case, Professor Urosa stated, “I can see the influence of our brief,” as written in BC Law Magazine. And while it was great to see the points raised by our brief, what I appreciated seeing the most was the Court’s careful analysis of intersectionality, which is an analytical tool used to understand how different aspects of a person’s identities combined create different modes of discrimination and privilege and is something our brief did not address directly. Professor Kimberle Crenshaw, lawyer, civil rights advocate, philosopher, and a leading scholar of critical race theory, first explored this concept in “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” in explaining that Black women experience both sex and race discrimination. As a concept, intersectionality believes that it is important to understand people and their vulnerabilities in the world according to the various intersectionality of their identities. In this case, Mr. Guachalá Chimbó had a severe mental disability but he and his family also lived in extreme poverty, which created a particularly vulnerable situation. The Court cited one of the cases, Ximenes Lopes v. Brazil, which I had also used as part of my own argument in stating: “in the case of [Mr.] Guachalá Chimbo, if the diverse grounds for discrimination alleged in this case are verified, different factors of vulnerability or sources of discrimination associated with his condition as a person with disabilities and his financial situation – owing to the situation of extreme poverty in which he lived – had coalesced intersectionally. Thus, the Court stresses that the lack of financial resources may hinder or preclude access to the medical care required to prevent possible disabilities or to prevent or reduce the appearance of new disabilities. Based on the foregoing, the Court has indicated that the positive measures that States must take for persons with disabilities living in poverty include those necessary to prevent all forms of avoidable disabilities and to accord persons with disabilities preferential treatment appropriate to their condition.”
I am proud of the work we did during the first few months of the pandemic, especially to have worked on the need to directly protect the right to health in this case. It was especially meaningful for me to have this as a point of motivation during a time when so much felt like it was beyond my control. While we still don’t know exactly what happened to Mr. Guachalá Chimbo, I hope that the ruling of the Court provides some solace to his mother and siblings who continued to fight in his name, and I hope that the IACtHR continues to fight for those closest to the pain, who need the power of the Court to at least be heard and seen in a world that all too often silences and ignores people like Mr. Guachalá Chimbo.
And, may my classmates and those of us who have been privileged enough to gain this legal education heed the words of Rev. Dr. Howard Thurman, author, philosopher, theologian, educator, and civil rights leader, “Don’t ask what the world needs. Ask what makes you come alive, and go do it. Because what the world needs is people who have come alive.” And, may we come alive by giving back and giving a platform to those most vulnerable who need to be heard.
Marija Tesla is a current BC Law student and M.A. in Law and Diplomacy Candidate at the Fletcher School. Reach her at tesla@bc.edu.
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