Faculty Bibliography

From a human rights perspective, impeachment offers an extraordinary mechanism for halting or preventing violations serious enough to motivate the legislature’s intervention. The need for this mechanism is greatest when officials who cannot otherwise be removed are committing or directing the violations. Historically, impeachment has often served human rights goals. Nonetheless, the power of impeachment has also been abused for partisan advantage or to undermine the independence of the judiciary. Human rights tribunals have articulated limits on the impeachment process to protect the rights of officials and of the voters who supported them. These limits also need to preserve the potential of impeachment for protecting democracy and human rights.

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of discrimination on the basis of chronological age, including discrimination against the young and against the old and against any ages in-between, and including both direct and discrimination (both practices with discriminatory intention and those with discriminatory impact), and also including a specific discussion of political rights of minors. The participants including current and former members of international and regional human rights institutions, judges, and academics from Harvard and other universities within and outside the United States.

Disqualification after impeachment prevents the return of unfit leaders to power by barring their re-election—but for how long? This article examines international human rights decisions on the duration of post-impeachment disqualification, including an important 2022 opinion of the European Court of Human Rights, along with the experience of impeachment in the United States. The neglected history of impeachment in U.S. states adds dimensions to the thinner narrative of impeachment at the U.S. federal level. The European insistence on keeping disqualification proportionate resonates with a minority practice of partial disqualification in the states. Nonetheless, the European Court’s prohibition of irreversible lifelong disqualification may be too rigid for democracies under threat.

What is the added value – or disvalue – of a “right to effective governance”? That question is phrased in relative terms, and needs a baseline. If the baseline is the United States Constitution, then suffice it to say that the US Constitution is notoriously an eighteenth-century constitution with a few later additions, and that it includes rather few “positive rights” (meaning affirmative rights to government action, as opposed to negative rights to government forbearance). Assuming that the “right to effective governance” is defined in a manner that actually requires the government to do something, and especially if the right is enforceable by private persons, then it would add a great deal to the requirements of the US Constitution. (Whether the result would be a net benefit is a different question.)

This book examines these new challenges to international and regional human rights in Africa, Europe, Latin America, and the Middle East.

Returning to the rule of law and fortifying democracy in the U.S. will best be accomplished by reemphasizing the country’s own democratic and egalitarian values, and by vindicating truthfulness after four years of Trumpian fraud.

This Report presents a summary of the discussion at a workshop that explored in a comparative and cross-disciplinary manner the phenomenon of indirect discrimination (or practices with discriminatory impact) during the COVID-19 pandemic. The participants included academics, advocates, and mandate holders in the United Nations and regional human rights systems. The discussion included the theory and practice of antidiscrimination norms and alternative framings for analyzing the same harms, in contexts of judicial, legal, and political strategy.

The institutional dialogue among the Committee on the Rights of Persons with Disabilities and other human rights tribunals has led to greater protection of rights. But not all courts and treaty bodies have accepted the Committee’s absolutist position on legal capacity. The chapter illustrates the multiple human rights-based approaches to capacity and decision-making, and describes how the Committee’s absolutism endangers many of the people living with moderate or severe dementia whom it supposedly benefits.

The Harvard Law School Human Rights Program convened a Workshop in October 2020, for the purpose of exploring in a comparative and cross-disciplinary manner the concept of indirect discrimination (or practices with discriminatory impact) on the basis of sexual orientation or gender identity. This report presents a summary of the discussion, as well as five individual papers prepared for discussion at the Workshop, preventing divergent views on how arguments regarding indirect discrimination are best understood and best used in the context of sexual orientation or gender identity.

The Supreme Court's June 2020 opinion in Department of Homeland Security v. Thuraissigiam unjustifiably reopens settled questions about the Habeas Corpus Suspension Clause of the U.S. Constitution, and endangers everyone -- U.S. citizens and noncitizens alike.

This short paper, building on previous discussions in the workshop series, begins in Part A with some general considerations on indirect discrimination law. Part B then discusses Hypothetical No. 7 on the differential effect of restaurant closings in light of some of these general considerations.

The Supreme Court's June 2020 opinion in Department of Homeland Security v. Thuraissigiam unjustifiably reopens settled questions about the Habeas Corpus Suspension Clause of the U.S. Constitution, and endangers everyone -- U.S. citizens and noncitizens alike.

This concluding essay draws on the insights of earlier chapters and provides the author's own conclusions regarding how monitoring bodies in the human rights system should deal with the challenges created by the current wave of exclusionary populism. As the varied accounts illustrate, one size does not fit all. Moreover, international human rights institutions should not address populism as such, but should rather continue to focus on the specific human rights violations that populism leads to, and on the violations that have contributed to the rise of populism. Meanwhile, human rights institutions should also be attentive to the criticisms that populists have directed against the international human rights system, some of which (as examples show) may be meritorious even within a human rights analysis. These recommendations would not solve the problem that the spread of populism poses, but they would enable human rights institutions to contribute positively toward particular solutions.

This chapter frames the discussion that follows by examining the concept of populism, which is debated among political scientists, and the negative effects that populism may produce on internationally recognized human rights. The chapter emphasizes an understanding of populism as a form of politics that employs an exclusionary notion of the people as opposed to disfavored groups that are unworthy and that purports to rule on behalf of the people, whose will should not be constrained. The chapter describes both internal and external effects of populists' rise to power. Domestically, populist governance threatens the human rights of the excluded group, but also poses danger for members of the majority, as leaders seek to entrench themselves in power and undermine checks. Externally, the influence of populism on foreign policy reduces support for the international human rights regime, in a manner that has become increasingly problematic as populists gain power in more countries that previously played key roles in maintaining it.

A former member of the UN Human Rights Committee, Harvard’s Gerald Neuman, analyzes its draft document on peaceful assembly, in this third of a series.

The International Criminal Court (ICC) makes headlines around the world when it issues its occasional judgments. But most of the work of fighting impunity for severe crimes condemned by international law depends on national enforcement. Two separate efforts are currently underway to strengthen international cooperation in ensuring national prosecution: 1) a multi-year project of the International Law Commission (ILC) to draft articles for a future convention on the prevention and punishment of crimes against humanity, comparable to the existing Genocide Convention and Convention Against Torture; and 2) an episodic state-led initiative to draft a mutual legal assistance treaty for the most serious international crimes. The Human Rights Program at HLS recently convened a private workshop to discuss the vitally important ILC project.

Improper confinement of children in migration contexts – unnecessary, prolonged, or in harmful conditions – is a severe and troubling phenomenon. In that regard, the UN Human Rights Committee’s General Comment No. 35 (2014) summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay describes the Human Rights Committee’s approach to detention of migrants, including child migrants. It explains why General Comment No. 35 employs a broad definition of “detention,” and the resulting need for a nuanced and non-absolutist approach to the “detention” of children in migration contexts. Such “detention” is not invariably arbitrary, but rather should be used only as a measure of last resort, and for the shortest appropriate period of time.

This chapter discusses the multiple roles played by the members of the Human Rights Committee in giving effect to the rights guaranteed by the International Covenant on Civil and Political Rights. It argues that the most important contribution the members make to the human rights project consists in their credible, professional elaboration of those rights, particularly by means of the Committee’s Views and General Comments, as emphasized by the International Court of Justice in the Diallo case. While the Committee members should be open to learning from the insights of other treaty bodies, they should resist urgings toward a simplistic harmonization. The texts and interpretations of other ‘core’ human rights treaties must be used with care in the members’ independent exercise of their own interpretive function.

The UN Human Rights Committee’s General Comment No. 35 summarizes the treaty body’s interpretation of the right to liberty of person, including protection against arbitrary detention, under the International Covenant on Civil and Political Rights, one of the principal human rights treaties at the global level. This essay provides an overview of General Comment No. 35, and then focuses on three aspects that provoked controversy either within the Committee or outside it: the time limit for “prompt” presentation of pre-trial detainees to a judge; the standards governing security detention in non-international armed conflict; and the disagreement between the Human Rights Committee and the Committee on the Rights of Persons with Disabilities regarding whether involuntary hospitalization is ever permitted. These examples illustrate significant issues about the interaction between the Covenant and other international regimes.

Human Rights, Democracy, and Legitimacy in a World of Disorder brings together respected scholars from diverse disciplines to examine a trio of key concepts that help to stabilize states and the international order. While used pervasively by philosophers, legal scholars, and politicians, the precise content of these concepts is disputed, and they face new challenges in the conditions of disorder brought by the twenty-first century. This volume will explore the interrelationships and possible tensions between human rights, democracy, and legitimacy, from the philosophical, legal, and political perspectives; as well as the role of these concepts in addressing particular problems such as economic inequality, catastrophic risks posed by new technologies, access to health care, regional governance, and responses to mass migration. Made up of essays arising from an interdisciplinary symposium convened at Harvard Law School in 2016, this volume will examine how these trusted concepts may bring order to the global community.

As the litigation over the travel ban moves to the Supreme Court, the most important passage in the Fourth Circuit’s en banc opinion may be a tangential footnote finding “yet another marker” of illegitimate purpose in the text of the Executive Order. Both the first version of the Executive Order (of January 27) and the […]

The completion of the project of the International Law Commission (ILC) on "the expulsion of aliens" marked an important stage in the development of international law relating to migration. The resulting Draft Articles on the Expulsion of Aliens reflect the joint effort of the ILC's distinguished experts on public international law, from all regions of the world, to enunciate principles that regulate states' exercise of a power that is frequently abused. The product of this multi-year effort deserves the attention and engagement of other experts in the field. of international migration, regardless of the cold reception it has initially received from states. The international law regarding expulsion of aliens is influenced by centuries-old interstate rules on responsibility for injury to another state's nationals as well as modern rules of human rights law, which I will construe here as including refugee law. The Draft Articles may someday serve as the basis for a multilateral treaty regulating the expulsion of aliens, and in the meantime they offer themselves as a reference for identifying states' international responsibilities within the scope of the topic. The introductory "general commentary" and the commentary on draft article point out that the Draft Articles involve both codification of existing international law and exercises in progressive development of international law-twin aspects of the ILC's mandate The goal of this Essay is to examine the Draft Articles from the human rights perspective. One should ask, to what extent do the Draft Articles measure up to existing human rights standards, to what extent do they fall short of those standards, and to what extent do they progress beyond the status quo in human rights law? This short Essay cannot be comprehensive, but it will explore what appear to me as the most important discrepancies that are not discussed by other essays in this symposium.

This chapter examines the U.S. constitutional law of citizenship, particularly as a status recognized by the Constitution entailing rights and duties. It first traces the evolution of the institution of citizenship in the Constitution and how federalism has contributed to the maintenance of multiple citizenship statuses rather than a uniform common citizenship. It discusses the constitutionally salient rights of citizenship, and citizenship itself as a right, before turning to civic duties implied by the Constitution. Against that background, it focuses on women’s citizenship, and the slow dismantling of gender differentiation in civic rights and duties. It also explores the extraterritoriality of citizens’ constitutional rights and concludes by examining the weak constraints that constitutional rights place on naturalization and immigration policies.

"Over a century has passed since the United States Supreme Court decided a series of cases, known as the “Insular Cases,” that limited the applicability of constitutional rights in Puerto Rico and other overseas territories and allowed the United States to hold them indefinitely as subordinated possessions without the promise of representation or statehood. Essays in this volume, which originated in a Harvard Law School conference, reconsider the Insular Cases. Leading legal authorities examine the history and legacy of the cases, which are tinged with outdated notions of race and empire, and explore possible solutions for the dilemmas they created. Reconsidering the Insular Cases is particularly timely in light of the latest referendum in Puerto Rico expressing widespread dissatisfaction with its current form of governance, and litigation by American Samoans challenging their unequal citizenship status. This book gives voice to a neglected aspect of U.S. history and constitutional law and provides a rich context for rethinking notions of sovereignty, citizenship, race, and place, as well as the roles of law and politics in shaping them." -- Back cover.

This Essay explores a few of the many legal dimensions of the federal government’s regulation of harmful conduct of its own officials and its own nationals outside the borders of the United States. First, Part I discusses statutory regulation of the action of federal officials, as an essential aspect of defining their roles abroad. Second, Part II addresses the currently disputed power of Congress, under the Foreign Commerce Clause, to protect foreign citizens against harm—including sexual abuse—inflicted by U.S. nationals in foreign territory. Finally, Part III examines recent developments concerning constitutional restrictions on extraterritorial federal action, including the denial that the Warrant Clause applies to U.S. citizens, and the surprisingly limited effect of the Supreme Court’s 2008 decision in Boumediene v. Bush10 on other constitutional rights of foreign nationals. The common theme that will emerge from these related inquiries is that legal interpretation must remain open to appropriate recognition of extraterritorial harm.

This article examines the role of the principle of subsidiarity in international human rights law. It explains the concept and the procedural doctrines of subsidiarity and considers subsidiarity of international institutions as a structural fact and the substantive subsidiarity within the state. It contends that international protection of human rights is subsidiary to national protection and that subsidiarity plays important roles in international human rights law. This article also predicts the future expansion and evolution of the role of subsidiarity in international human rights law.

The advantages of dialogue across disciplines concerning human dignity should not distract us from the reality that different intellectual disciplines have different discourses and methods. In particular, positive legal systems (which are plural, not singular) produce their own functional understandings of human dignity, and these understandings are influenced by consensual and institutional factors as well as moral (or ‘suprapositive’) factors. Philosophical and religious traditions can contribute insights to debates within the legal discourses, but those insights need to be rephrased into terms that are accessible to outsiders to those traditions. Such rephrasing is especially necessary at the level of the global human rights system, where all philosophical schools and all religions have minority status.

Can constitutions successfully constrain the exercise of the treaty power? This article examines the French Constitution of 1958 as a case study. The founders of the Fifth Republic drafted provisions intended to protect national sovereignty, as the Gaullists understood that concept, against inroads resulting from international agreements. Looking back fifty years later, it is clear that those protective efforts did not succeed. The sequence of events by which the constraints were loosened or evaded may represent one nation's particular history, but they illustrate the limited capacity of constitutional restrictions to control international commitments in the long term.

This article examines the ways in which Inter-American human rights law has been received and employed outside its own sphere. The Inter-American Court and Commission engage self-consciously in dialogue and borrowing from the global human rights system and the other regional human rights tribunals. Tracing the reciprocal influence of Inter-American developments is a complicated undertaking, because official texts may either understate or overstate the degree to which their authors have relied upon external sources. Examination of the jurisprudence of other human rights tribunals produces mixed results that require interpretation. The African and European regional tribunals have openly engaged with Inter-American precedents on procedure and substance from both the Court and the Commission, although less extensively than the Inter-American Court’s methodology leads it to draw from Europe. The International Court of Justice and the UN Human Rights Committee have generally avoided open reference to regional precedent in their institutional opinions, while arguably some tacit influences can be traced. Some express discussion of Inter-American precedent does occasionally appear in concurring or dissenting opinions. The Inter-American Court has had less success, however, in exporting its views on jus cogens.

In the course of vindicating the right to habeas corpus for military prisoners at Guantanamo Bay Naval Base, the Supreme Court had occasion to resolve a series of previously open questions about the meaning of the Constitution's Habeas Corpus Suspension Clause. In this Essay, Professor Neuman examines the implications of the Court's interpretation for habeas corpus law more generally, in civil and criminal contexts within the United States. The Suspension Clause guarantees a permanent minimum content for the judicial remedy against unlawful detention of either citizens or aliens. The constitutionally necessary scope of review is determined partly by historical inquiry, and partly by an instrumental balancing test. Stricter standards apply to review of executive detention, but the Clause may also require some check on judicially ordered detention. The Court's analysis further suggests that the Suspension Clause is best understood today as affirmatively mandating a federal remedy, and not merely as protecting state remedies from federal interference. This Essay explores the consequences of this account for recent controversies over judicial power to provide effective review of decisions removing aliens from the United States, and thereby illustrates the uncertain operation of the Court's new balancing approach.

These comments first provide a general perspective on the nature of the proposed International Migrants Bill of Rights (IMBR) and then offer some specific observations on the current draft, in particular its provisions on the subject of equality or nondiscrimination, including but not limited to Article 2.

France joins the mainstream of Western constitutionalism by permitting individuals to challenge statutes in force that violate their constitutional rights. The Republic has abandoned its prior model of limited review and seeks to reinvigorate a constitutional culture to which citizens have had insufficient access. The pendulum has swung surprisingly far: the new procedures require the Conseil Constitutionnel to decide upon the constitutionality of a statute even if the case could easily have been resolved on treaty grounds, such as European human rights law. The unnecessary adjudication of constitutional questions was found necessary to restore the importance of the national constitution in a system generously infused with transnational human rights. The widely held perception that treaty law has crowded out constitutional law makes the recent developments in France a useful example for exploring the relationship between constitutional rights and human rights regimes. This essay explains the new reform, which creates a system for for their advice on issues addressed in this essay.