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March 23, 2020
Neuman challenges arguments that roll back human rights
Professor Gerald L. Neuman, Co-Director of the Human Rights Program (HRP), filed a submission with the controversial “Commission on Unalienable Rights” of the U.S. State Department on March 18, 2020. Secretary of State Mike Pompeo established the Commission in July 2019 to advise the State Department on reformulating U.S. human rights policy. The Commission is charged with bringing policy back to “our nation’s founding principles of natural law and natural rights.” Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School (HLS).
The mandate of this Commission, and some of the remarks of Commission members at public meetings, have severely alarmed major human rights NGOs, who warn of serious damage to the international human rights system. Neuman’s own submission also addresses several of the concerns that the NGOs have raised. He challenges some Commissioners’ claims that there are too many human rights and argues for the protection of the rights of sexual minorities; he also questions proposals to give priority to civil and political rights over economic and social rights, as well as to privilege freedom of religious conduct over other human rights. Last, he also disputes the suggested foregrounding of the role of “natural law” at the international level.
Before HLS suspended in-person classes in response to the COVID-19 pandemic, HRP had arranged for a public panel event to discuss the Commission on Unalienable Rights. This April panel would have included Mary Ann Glendon, Learned Hand Professor of Law at Harvard University, who is also the Chair of the Commission; Martha Minow, 300th Anniversary University Professor at Harvard and the former Dean of Harvard Law School; Katharine Young, Associate Professor of Law at Boston College Law School; and Neuman.
In lieu of the April panel, you can read Dean Minow’s “Remarks before the Commission on Unalienable Rights,” Professor Young’s “Trumping Human Rights in the United States,” and Neuman’s comments. You can also learn more about the Commission on their public-facing website.
The report of the Commission is expected in the summer of 2020. HRP will convene experts for a public (in person or remote) discussion of the Commission’s report in Fall 2020.
October 22, 2019
By Liz Mineo / Harvard Staff Writer
Costa Rican magistrate Victor Madrigal-Borloz has served for the past 21 months as the U.N. independent experton protection against violence and discrimination based on sexual orientation and gender identity. He will present his report on how laws and cultural norms adversely affect LGBT individuals to the U.N. General Assembly on Thursday. The Gazette interviewed Madrigal-Borloz, who is the Eleanor Roosevelt Senior Visiting Researcher with the Human Rights Program at Harvard Law School, to talk about his work and his hopes for the future.
Q&A: Victor Madrigal-Borloz
GAZETTE: Why did you decide to take on this role?
MADRIGAL-BORLOZ: I have been working in the field of human rights for over 20 years and I saw the possibility to bring about substantial change. The topic bears a lot of significance to me, as a gay man myself. I have been working on these issues for over a decade, first at the Inter-American Commission [on Human Rights] and now at the global level. I have seen many people suffer as a result of stigma and discrimination, and this was a once-in-a-lifetime opportunity to do something about it and put my skills at the service of a cause.
GAZETTE: What did your report find in terms of the root causes of violence and discrimination against LGBT people?
MADRIGAL-BORLOZ: There are primary and secondary root cases. First, there is the notion that societies are structured around certain power relations, which have been designed in relation to a person’s sex. Your role in society is determined by your genital configuration. That’s a very basic construction, and all forms of violence and discrimination come from a defense of those power relations. The other factors come from mechanisms that aim to protect those power relations, such as the idea that gay, lesbian, or trans people don’t exist, and the stigma around them, which is enabled through the message that gay, trans, bisexual, and lesbian people are sick or mentally ill. The other aspect is criminalization. Same-sex relations are still criminalized in 69 countries, which means that, as of today, over 2 billion people live in countries where being gay or lesbian is illegal. Another factor is demonization expressed in the notion that somehow LGBT lives are sinful, immoral; that gays or lesbians cannot be good citizens. The idea is that at the end of the day, there’s something immoral about our existence, and that’s what all of us need to fight against.
GAZETTE: Of your findings, which ones struck you the most?
MADRIGAL-BORLOZ: What disturbs me is that in 2019 there are countries that are considering bringing back the death penalty for same-sex relations. There was a discussion in Uganda about it, and early this year Brunei Darussalam enacted legislation allowing the stoning of gay men. That, to me, is shocking. What I also find surprising is that there are environments that are actually extremely progressive when it comes to gender identity, but can be very restrictive when it comes to sexual orientation and vice versa. In Pakistan, for example, there is an extremely forward legislation on the recognition of gender identity, but sexual orientation is very much criminalized. Sexual orientation has always been a more challenging notion for societies, which in general have used the notion of a traditional binary, hetero-parental family as the nucleus of society, and this has been recognized in public discourse and in the law. But what we also know is that homosexuals, lesbians, and bisexuals have existed and sought happiness all throughout history.
GAZETTE: What policies or practices have been the most successful in the protection of LGBT rights?
MADRIGAL-BORLOZ: Anti-discrimination legislation with the words sexual orientation and gender identity is very important because it allows for all actors in the system to understand that a red line has been drawn and that shouldn’t be crossed. This creates the belief that lesbian, gay, trans, bisexual, or gender-diverse people are entitled to protection. Other good practices are policies aiming at promoting integration of LGBT people in society and campaigns to change hearts and minds.
Let me give you an example. About a year ago, the Inter-American Court of Human Rights issued an advisory opinion, OC-24, which determined that Costa Rica and other countries in the continent must implement same-sex marriage, and it gave a time frame for that. Despite the fact that this created great polarization in Costa Rica, the Costa Rican state has now put together a campaign called “Yes, I do,” or in Spanish, “Si, Acepto,” which focuses on the parents of gay and lesbian children and their reasons why they support gay marriage and why their children are entitled to happiness.
Another good measure is access to justice, and this means that judges have to actively seek to implement the principle of nondiscrimination when it comes to LGBT rights. That’s what the Supreme Court of India, the Supreme Court in Botswana, and the High Court in Trinidad and Tobago did when they voted to decriminalize gay sex in their respective countries.
GAZETTE: How do you explain the dramatic advances in the protection of LGBT rights in regions such as Latin America, where same-sex marriage is now legal in five countries?
MADRIGAL-BORLOZ: It’s the work of civil society and human-rights defenders and advocates who have fought relentlessly for their rights. I began working on these issues over a decade ago, and at that time the trans movement in South America was strong. An extraordinary trans activist in Argentina, Lohana Berkins, used to say that trans women must expose the audacity of their bodies to the society that fails to understand the fragility of their lives. The average life expectancy of a trans woman in Latin America is 35 years, and that’s what Berkins was talking about. It was her voice and those of other great fighters in the LGBT movement that forced people to see their humanity, and ensured that Argentina, Uruguay, and other countries in the continent have the most advanced legislation on legal recognition of gender identity.
GAZETTE: Which countries are the worst and best performers in terms of LGTB rights?
MADRIGAL-BORLOZ: I have a lot of resistance to ranking countries, because things change very fast. Most of these rights are not necessarily enshrined or written in stone; there are forces in societies that are quite keen on seeing them taken back. We live in times in which rising populism uses certain categories of people, such as LGBT communities, as pawns for their political objectives. But I can say that the most problems arise in the countries where gay sex is criminalized, and they are roughly distributed along the Caribbean, sub-Saharan Africa, some regions of Asia, and the Middle East. It’s not a small part of the world. Criminalization forces people to live underground, and often the situation of those whose existence is considered criminal is devastating. The killing of trans women, for example, has been invisible from public records because they are classified as men. And the levels of violence against lesbian women and gay men all over the world is worrisome.
GAZETTE: Why have there been more gains in protection of sexual orientation than gender identity, and what does it say about the possibility of social change?
MADRIGAL-BORLOZ: There is a certain concentration of power and influence within gay and lesbian, or cisgender, urban populations. They have been able to represent their valid agendas in the political debate. On issues of concern for the gay and lesbian urban upper and middle class, there has been more progress than on those concerning trans women or trans men coming from the countryside. But those gains show that social change is possible within one generation. Those of us who were born in the ’60s have seen the world change from a majority of countries criminalizing and pathologizing LGBT identities to a majority of countries embracing the richness that comes from diversity.
Social change is possible when the prime minister of Luxembourg speaks at the General Assembly last week, and declares “I was never hoping to be the gay prime minister. I just happen to be the gay prime minister.” When political leaders take part in a pride parade, they are changing the views that people have about LGBT people. I’ve had the honor of marching alongside Justin Trudeau in Vancouver, and the first lady of Costa Rica in pride parades. That makes me hopeful, but also the fact that the new generations have changed their paradigm of thinking; they embrace the notion that their existence is not determined by rigid notions of gender. That is a great source of inspiration.
But I worry that for some, the change will not come fast enough. Elderly LGBT people are suffering enormous health disparities, and after living their lives in inclusive environments, they are being forced to go back into the closet as they move to retirement communities that are not prepared to cater for their needs. They deserve happiness now.
GAZETTE: What would you like to see happening before your tenure as the U.N. independent expert ends in 2020?
MADRIGAL-BORLOZ: My dream is to see a world free of criminalization of same-sex relations by 2030. Given the fact that international human rights law considers criminalization of same-sex relations a violation of human rights, I see no reason why states would actually get away with continuing this practice past 2030. That’s what I like to dream about.
This interview has been edited for clarity and condensed for length. This article first ran in the Harvard Gazette on October 22, 2019.
October 21, 2019
On October 17, 2019, Victor Madrigal-Borloz, the Eleanor Roosevelt Senior Visiting Researcher with the Human Rights Program and the UN Independent Expert on sexual orientation and gender identity, spoke to the Harvard Law School community, previewing his October 24 address to the United Nations General Assembly.
Mr. Madrigal-Borloz shared findings from his recent report on socio-cultural and economic inclusion for LGBT individuals. The report provides an overview of LGBT access to education, employment, housing, health, public spaces, and religious and political discourse. The talk was organized by the Human Rights Program at HLS and co-sponsored by HLS Advocates for Human Rights and the Harvard Human Rights Journal.
Watch the full October 17 address above or on the Harvard Law School YouTube site.
You can read more about Mr. Madrigal Borloz’s HLS residency as a senior visiting researcher on the Harvard Law Today website.
September 19, 2019
By Elaine McArdle
As a young person in Sierra Leone in the 1990s, Alpha Sesay knew little but war. He lost close family to the conflict, witnessed atrocities, and was internally displaced before obtaining refugee status in Guinea. As a university student in Sierra Leone, he was arrested and beaten in prison after challenging a police practice as not grounded in law.
“Those experiences really influenced me a great deal in terms of what I wanted to do with my life,” said Sesay, who as a human rights lawyer has held various positions in the human rights and international justice sectors. He is currently an Advocacy Officer for the Open Society Justice Initiative (OSJI) in Washington, D.C. Sesay has dedicated his career to human rights, moved to make sure that his experiences of war are not replicated elsewhere. “What shall I do as an individual so that this doesn’t happen again and that others don’t experience what we did as a country?” he said.
As a law student, Sesay mobilized friends to launch the first student human rights group in Sierra Leone—and the first human rights clinic in Western Africa—which led to the creation of a human rights module at the University of Sierra Leone. After getting his law degree in Sierra Leone and an LLM in International Human Rights Law from the University of Notre Dame Law School, he returned to his home country to establish and teach international human rights at the university.
When the trial of former Liberian President Charles Taylor before the Special Court for Sierra Leone was moved to The Hague, Sesay created and managed a trial-monitoring project for OSJI that provided daily information to Sierra Leonean and Liberian audiences. A few years earlier, he had created a similar trial-monitoring and accountability program for proceedings before the Special Court for Sierra Leone and criminal cases within Sierra Leone’s domestic justice system. In that program, he focused on promoting judicial accountability and providing information to and soliciting feedback from the public, especially victims in Sierra Leone. Today, it has become one of the country’s leading NGOs, he said.
Sesay took a sabbatical from OSJI in 2018-2019, joining HRP as a Visiting Fellow. At HLS, he researched how the state fails to comply with decisions of human rights bodies. His aim was to devise recommendations for how to better ensure state compliance with human rights standards. As a fellow, Sesay also mentored HLS students interested in human rights work and offered his expertise to Harvard faculty working on various human rights issues.
He described interacting with students and sharing his knowledge of the African human rights system as one of the highlights of his time at the Law School. “To find myself at Harvard doing research and contributing to the university’s academic life was immensely fulfilling,” and the human rights community “is a really welcoming academic environment.”
“Having been an intimate witness to human rights violations myself, I strive to give those a platform who would not otherwise have a voice,” he said. “A lot of people, many of them victims [of human rights violations] themselves, work every day to make life better for vulnerable communities. Those people inspire me every day in the work we do.”
This profile is an excerpt from the 2018-2019 Human Rights Program Annual Report. You can access the full report here.
September 10, 2019
We are delighted to present HRP’s 2018-2019 Annual Report. The report showcases the global reach and impact of the Human Rights Program in its 35th year. Previews have already run on the Harvard Law School website: profiles of Paras Shah JD ’19, Jenny B. Domino LLM ’18, and Anna Khalfaoui LLM ’17. In addition to celebrating these former students and fellows, the annual report explores how members of HRP contributed to a convention on crimes against humanity, innovated in clinical pedagogy, and advocated for LGBT rights. We thank all of the students, partners, and alumni who made last year so strong and look forward to engaging with our community and working on the most pressing issues in 2019-2020.
Read the introduction below, which highlights the words of the Human Rights Program and International Human Rights Clinic Co-Directors:
The Human Rights Program: Reflecting on 35 Years
Founded by Professor Emeritus Henry Steiner in 1984 as a center for human rights scholarship, Harvard Law School’s Human Rights Program (HRP) enters its 35th year in 2019. Concurrently, the International Human Rights Clinic celebrates its 15th anniversary. HRP was founded as a place of reflection and engagement and a forum that brings academics and advocates together. Since 1984, HRP has only deepened its commitment to this endeavor. With this past year marking the 70th anniversary of the signing of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly, it is a particularly opportune time to take stock of human rights at Harvard Law School (HLS) and how the Program’s impact has reverberated beyond the university.
“The Universal Declaration set forth a vision of liberty and equality and social solidarity that has never been fully achieved; it continues to inspire people around the world as we strive to fulfill its mission,” said Gerald L. Neuman JD ’80, Co-Director of HRP and the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at HLS. “The Program has always been about critical involvement with human rights. In a time when human rights face extreme challenges globally, that means thinking more deeply about what changes are needed and how we can contribute to the system, scholarship, and the world.”
Today, HRP comprises the Academic Program and the Clinic, which together bridge theory with practice and engage with pressing human rights issues around the world. As a center for critical thinking, the Academic Program organizes conferences and other events; publishes working papers and books; offers summer and post-graduate fellowships to launch students in human rights careers; and draws human rights advocates and academics from across the globe as part of the Visiting Fellows Program.
Over the past decade and a half, the Clinic has engaged more than 1,000 students in an analytical and reflective approach to human rights lawyering. While devoting itself to the training of future practitioners, the Clinic has promoted and protected human rights through scores of projects around the world. This work includes pushing for global equity in the realm of gender and sexuality, litigating landmark accountability cases, and helping to negotiate treaties that ban nuclear weapons and cluster munitions.
“The formal founding of the International Human Rights Clinic 15 years ago is really consequential; it recognizes the diversity of ways that people can contribute to the human rights movement,” said Susan H. Farbstein JD ’04, Co-Director of the Clinic and Clinical Professor of Law. While not all clinical students pursue careers in human rights, they often cite their clinical education as influential and formative. For many, clinics are the one place at HLS where they have the opportunity to engage in real-world preparation and see their efforts make an impact. “We’re training students in critical approaches to human rights practice, emphasizing cross-cultural sensitivity and how to be guided by the clients and communities we serve. We hope this leads to better, more effective human rights advocacy,” Farbstein said.
This year, HRP recognizes the anniversary of the Program, the Clinic, and the UDHR with both celebration and humility. After decades of training students and building a network of HRP fellows and partners, it is inspiring to step back and glimpse the network that we’ve built. “It’s not about one particular year but about the cumulative impact,” said Tyler R. Giannini, Co- Director of HRP and the Clinic and Clinical Professor of Law. “When we see the success of our students, alumni, partners, and fellows, it’s a testament to the power of this community.”
April 2, 2019
This week, the International Human Rights Clinic published “Interpreting The Arms Trade Treaty: International Human Rights Law and Gender-Based Violence in Article 7 Risk Assessments” with Clinic partner Control Arms. Clinical Instructor and Lecturer on Law Anna Crowe LLM ’12 presented the paper in Geneva today at a preliminary meeting of States Parties to the Arms Trade Treaty.
The paper takes a close look at the human rights risk assessment Article 7 of the Arms Trade Treaty requires States Parties to undertake whenever an arms export is proposed. Article 7 requires States Parties to assess the potential that any proposed exports could be used to commit or facilitate a serious violation of international human rights law, including serious acts of gender-based violence (GBV). Within that assessment, States Parties must also consider the potential that the weapons would contribute to or undermine peace and security. If there is an overriding risk of harm, the export must be denied.
The paper provides interpretive guidance on a number of key terms in the Arms Trade Treaty with a focus on considering gender and risks of GBV in each part of the Article 7 risk assessment, particularly with respect to serious violations of international human rights law.
Clinical students Radhika Kapoor LLM ’19 and Terry Flyte LLM ’19 joined Crowe in Geneva. Jillian Rafferty JD ’20, Natalie Gallon JD ’20, and Elise Baranouski JD ’20 are co-authors of the paper, along with Kapoor.
January 30, 2019
On Jan. 11-12, dozens of experts convened at Harvard Law School to provide commentary on draft articles for a future convention on the prevention and punishment of crimes against humanity. In a post for the Harvard International Law Journal blog, Gerald Neuman, HRP Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, explained the importance of establishing more clarity on the definition of “crimes against humanity” following the Rome Statute.
“A key issue in establishing state obligations to prosecute international crimes involves the choice of a definition that is appropriate to the obligations that are being imposed,” Neuman says. “The notion of ‘crimes against humanity’ has a long history, but its definition has evolved over the years. The definition negotiated for the Rome Statute, which created the ICC—an international tribunal with a limited capacity to prosecute and adjudicate—may not provide the right definition for an obligatory system of consistent national prosecution.”
Establishing a convention on crimes against humanity would give clarity to states’ obligations to enforce the prohibition against crimes against humanity, among other benefits. Read the full post on the International Law Journal website.
The Crimes Against Humanity workshop was organized by the Human Rights Program and led by Professor Neuman and Sean Murphy, Manatt/Ahn Professor of International Law at The George Washington University School of Law and Special Rapporteur for Crimes Against Humanity at the International Law Commission.
Professor Murphy will visit the Human Rights Program on April 4th for a public talk about the draft articles. Stay tuned to our events page for more.
October 2, 2018
New Book: Human Rights, Democracy, and Legitimacy in a World of Disorder, Edited by Gerald L. Neuman and Silja Voeneky
Gerald L. Neuman, HRP Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law and Silja Voeneky, Co-Director of the Institute for Public Law and Professor of Public International Law, Comparative Law and Ethics of Law at the University of Freiburg and former Visiting Fellow at HRP, have published a new edited volume, Human Rights, Democracy, and Legitimacy in a World of Disorder (Cambridge University Press). The book examines how and why the concepts of human rights, democracy, and legitimacy matter in the conditions of international disorder brought about by the 21st century.
Building from an interdisciplinary symposium organized by Professor Voeneky for HRP in 2016, authors’ perspectives draw from philosophy, history, and legal theory. Their contributions explore the role of human rights, democracy, and legitimacy in addressing such problems as economic inequality, access to health care, mass migration, and the catastrophic risks posed by new technologies.
“Which conceptions of rights can help us find legitimate solutions to the new challenges that social and technological change are raising? That is the urgent question that we gathered to debate,” said Neuman.
Professor Neuman authored a chapter on “Human Rights, Treaties, and International Legitimacy,” and HRP Co-Director and Clinical Professor of Law Tyler R. Giannini contributed a chapter on, “Political Legitimacy and Private Governance of Human Rights: Community-Business Social Contracts and Constitutional Moments,” which examines how to maximize human rights protection in situations where a functioning State is largely absent.
Additional contributions come from notable academics, such as Samuel Moyn, Professor of Law and History at Yale University; I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law at HLS; Matthias Risse, Professor of Public Policy and Philosophy at the Harvard Kennedy School; and Iris Goldner Lang, Jean Monnet Professor of EU Law and UNESCO Chair on Free Movement of People, Migration and Inter-cultural Dialogue at the University of Zagreb Faculty of Law.
May 9, 2018
This piece originally appeared as the spotlight feature on Harvard Law School’s homepage.
The global impact of populist movements was the topic of a two-day symposium, “Human Rights in a Time of Populism,” that was held on March 23-24 at Harvard Law School. The Human Rights Program organized the conference under the leadership of its co-director, Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law.
Friday’s two panels, “Populism and its Causes” and “Populism and its Effects: The United States and Poland,” brought together a team of faculty and international experts to discuss the direct and indirect effects of this worldwide and largely right-wing phenomenon.
“This will not be the most cheerful conference I’ve attended,” noted former HLS Dean Martha Minow, who moderated the second panel. The speakers looked at populist movements including the rise of Donald Trump in America, Jarosław Kaczyński in Poland, and Viktor Orban in Hungary, and found that each shared similar xenophobic tendencies and anti-elite rhetoric.
At the opening of the first panel, Peter A. Hall, Knapp Foundation Professor of European Studies at Harvard, said that populism is a hard term to define, but pinpointed what it means in the current climate: “I would define populist candidates as ones with a distinctive set of appeals; those who claim to speak for a broad people whose voice is said to be ignored by a political elite that is presented as corrupt or incompetent.” By this standard, he said, Donald Trump would be defined as a populist while Bernie Sanders, though a radical critic of capitalism, would not.
Hall asked the underlying question: Why this movement, and why now? One answer, he said, is the sense of the middle class being “left behind,” socially and economically marginalized. “If the root cause of discontent lies in the disappearance of decent jobs, and I think it does, remember that public policies such as minimum-wage laws can make existing jobs more decent.” Instead, he said, modern populists have moved the focus to social issues such as immigration. “Centering political competition around values issues makes a perfect storm for populist candidates.”
Stephen Pomper, the Director of the International Crisis Group’s U.S. program and a veteran of the Obama administration, said that human rights foreign policy initiatives are difficult to enforce in the best of times—and that this is definitely not the best of times. Obama, he said, was criticized for being soft on abusive regimes, but he still had a human rights policy that he tried to implement. “What’s most jarring about the Trump administration is that it has called the ideals themselves into question. He ran as a candidate on the presumption that Washington and foreign elites cooked up deals that were harmful to ordinary Americans. Now we are being driven by economic nationalism, immigration restriction, and a robust militarism that may not be about getting into wars but threatening them.” The silver lining, he suggested, is that many of Trump’s staff actively disagree with him—but this hardly bodes well for human rights initiatives.
HLS Professor Matthew C. Stephenson examined the role that corruption—or sometimes, just the perception of corruption—plays in the rise of such movements. In some cases, he said, a regime change results when actual systematic corruption is exposed; Italy’s “Mani pulite” (“clean hands”) investigations, which led to the collapse of its center-left and center-right parties in the ‘90s, is a notable example. But more recent populists, including Trump and Orban, have campaigned on the idea that the existing elite is corrupt, without necessarily providing evidence. Thus, said Stephenson, “Corruption itself can open the door for an insurgent populism, but anti-corruption rhetoric can do the same thing.”
The paradox, he noted, is that the new leaders maintain their popularity when they themselves are revealed to be corrupt. “Why doesn’t this behavior alienate supporters of the populist movement more? One hypothesis is that the rhetoric of corruption wasn’t really what they were appealing to; it was more a code word for ‘Defeat cosmopolitan snobs taking your jobs.’ Another possibility is that even though voters don’t like corruption, they dislike moralists even more. Berlusconi in Italy and Trump in America are seen as living the dream. [Voters] admire the charismatic populist leader, and take attacks on the leader as attacks on them.”
HLS Professor Ruth L. Okediji examined populist trends in sub-Saharan Africa. Although in some countries democracy may seem stable on the surface—as reflected in this month’s famous handshake between Kenyan President Uhuru Kenyatta and his political arch-rival Raila Odinga—tensions are likely growing beneath. “The deep dissatisfaction that fuels populism is a strange thing to see in the African context, because economic insecurity has long been the status quo. But there is something different about the current state of economic anxiety.” She warned that the insufficient emphasis of the human rights movement on realizing economic, social and cultural rights has contributed to the success of populist leaders who claim to provide economic benefits for their own constituencies, instead of a pluralist democratic system serving the good of all.
According to Wojciech Sadurski, a visiting professor at Yale Law School, the recent right-wing power grab in Poland is the most puzzling of all. “There is no reason that democracy should have failed in Poland. None of the common factors apply, not even [the presence of] oil.” Yet, he said, Kaczyński’s Law and Justice party was able to rise through a familiar populist formula. “What he did was to package together xenophobia, an anti-elite type of rhetoric, and a sense of cultural distance from modernism—LBGT, the Green movement, etc. By being able to present this package as logical and serious and responding to certain anxieties in society, he managed to create a backslide in a society where it should never have happened.” Poland, he said, is already feeling the effect on human rights, particularly in the courts. “They are now used as an instrument of the government, to fight its opposition. Yet because those changes maintain the façade of the institution, they are less visible to outsiders.”
One way forward, suggested Douglas A. Johnson of the Kennedy School, is a return to the more traditional definition of populism: A movement of the people. “Even if the public prefers stricter gun control or universal healthcare, those are difficult things to make happen. In public-good situations, this only happens when there is a strong sense of moral urgency that keeps a social movement at play.” Thus, he suggested, the best solution may be a return to old-fashioned activism. “Historically, populism has created agendas that forced elites to make changes. You can’t create a movement unless you have an adversary.” And he recommended that future populists learn the art of political messaging. “What moves things forward is a language, often an emotional language. I think it’s important that the human rights movement embraces that.”
Pomper also suggested that the best antidote to populism may be a more enlightened populism. “We’re not headed into a good space in the next couple years,” he said toward that panel’s end. “But it’s important that the community who cares about these issues figures out what their approach is going to be.”
The conference continued on Saturday with panels on populism in Southeast Asia, Turkey, and Latin America. It then turned to lessons learned for human rights regimes, and how to address the effects of populism. Some of the speakers on Saturday included Jeremy Waldron, Michael Posner, T. Alexander Aleinikoff, Richard J. Heydarian, Jamie O’Connell, and Anna Crowe.
March 21, 2018
Earlier this week, Gerald L. Neuman, Co-Director of the Human Rights Program (HRP), and the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, sat down to discuss HRP’s upcoming conference, “Human Rights in a Time of Populism,” with Natalie McCauley, JD ‘19.
The conference, which is free and open to the public, takes place this Friday afternoon and Saturday all day on Harvard Law School’s campus.
So Professor, to start us out: What is this conference about?
Thank you for asking. We plan to discuss the current rise in populism: What are its causes? What are its effects? What implications does it have for the international human rights system? And how should the international human rights system respond?
We don’t expect the answers to these questions to be the same for every country, and that’s one of the things we’re going to be discussing.
We’ll have more than a dozen leading experts coming from as far away as The Philippines and as near as our own university. There will be specific discussion on the United States, Poland, Southeast Asia, Turkey, and Latin America, as well as cross-cutting themes.
I should clarify what I mean by populism. Political scientists offer different formulations for the notion of populism, as we’ll be discussing. The phenomenon of concern here is a kind of politics that employs an exclusionary notion of the people- the “real people,” as opposed to disfavored groups that are unworthy. Populist leaders then claim to rule on behalf of the “real people,” whose will should not be constrained.
And does this populism affect internationally protected human rights?
We plan to discuss examples of how that happens. But the easy answer is: Yes, it does. Certainly within the country, and it in cases it has implications for other countries as well. If we look internally, often populism then leads to targeting the excluded groups. But it also poses a danger to the majority. Populists deny the legitimacy of the political opposition. They often try to entrench themselves in power and undermine checks. Populism can tip over into authoritarianism.
We’re talking about examples in Poland, Duterte in the Philippines, and of course, President Trump here. Continue Reading…
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