Blog: Scholarship

April 2, 2019

Clinic Publishes Paper with Control Arms on “Interpreting the Arms Trade Treaty”

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.

Radhika Kapoor LLM ’19 and Terry Flyte LLM ’19 at the Working Group Meetings of the 5th Conference 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.

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January 30, 2019

What Counts as a Crime Against Humanity?

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.

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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.

The book is available now as an e-book and in print from October 11, 2018.



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May 9, 2018

Spotlight Feature: HRP’s “Human Rights in a Time of Populism” Conference

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.

(From left) Dinah Shelton, Alexandra Huneeus, and Helena Alviar García spoke on a panel, moderated by Yee Htun (right), about populism in Latin America on day two of the conference. Photo credit: Heratch Ekmekjian.

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 panelPeter 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.

Watch videos of all six panels of the conference.


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March 21, 2018

Conference preview: Gerald L. Neuman on “Human Rights in a Time of Populism”

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.

Natalie McCauley, JD ’19, interviews Prof. Gerald L. Neuman, Co-Director of HRP, on FB Live about his upcoming conference on populism and human rights.

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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January 26, 2015

Call for Papers: Hague Yearbook of International Law

The following publication opportunity comes via Prof. Jure Vidmar, a former Visiting Fellow at HRP, and an editor of the Hague Yearbook of International Law:

Yearbook2The Hague Yearbook of International Law – Call for Papers

Deadline: 1 March 2015.

We welcome articles (8,000-20,000 words) and shorter commentaries (4,000-7,000 words) on any aspect of private or public international law, written in either English or French. All submissions will be peer-reviewed. More information is available here.

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