Blog: Treaty Bodies
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January 13, 2021
Posted by Gerald L. Neuman
Impeachment is an extraordinary procedure for responding to abuse of power by government. Is legislative trial of elected officials consistent with human rights? It depends. Groundless political trial, or arbitrary and irregular proceedings, may violate the rights of the officials, and more importantly the political rights of the voters who elected them. But procedurally regular and substantively justified impeachments, with appropriate sanctions, may be consistent with the rights of the officials and essential for preventing future violations of the rights of others and protecting democracy.
We are facing such a moment in the United States. The U.S. Constitution provides that, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (Article II, sec. 4.) It gives the House sole power to impeach, and it gives the Senate sole power to try impeachments. (Article I, sec 2, cl. 5; sec. 3, cl. 6.) The Constitution provides that the consequences of impeachment and conviction “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” while leaving the person impeached subject to other ordinary legal proceedings. (Article I, sec. 3, cl. 7.) Although impeachment uses some of the vocabulary of criminal law, the only sanctions that the Senate may impose are job-related – removal and future disqualification, not imprisonment, and not even a fine.
The UN Human Rights Committee, the treaty body that oversees compliance with the International Covenant on Civil and Political Rights, examined the consequences of impeachment from a human rights perspective in 2014. (Paksas v. Lithuania, UN Doc. CCPR/C/110/D/2155/2012 (2014).) The impeached Lithuanian president Rolandas Paksas, who had been impeached after conferring Lithuanian citizenship on a suspicious Russian donor to his campaign, complained that barring him from future re-election violated his rights of political participation under article 25 of the International Covenant on Civil and Political Rights. The majority of the Human Rights Committee concluded that under the particular circumstances of the case, in which the consequences of impeachment were not clearly specified by law and the Constitutional Court developed its interpretation as an outgrowth of the Paksas proceedings, permanent disqualification from being President, Prime Minister or Minister “lacked the necessary foreseeability and objectivity and thus amount[ed] to an unreasonable restriction” violating article 25. (Id. para. 8.4.)
I wrote a partly dissenting opinion in that case, emphasizing that presidential impeachments are rare and difficult. (Id. p. 17.) They are not merely a vote of no confidence, as in a parliamentary system that contemplates renewed elections to test a leader’s political support, but a more severe recognition of abuse of power. Some democracies limit the number of times that a president who has served honorably can be reelected, in order to ensure a healthy and competitive political system. It is foreseeable and appropriate that a president who corrupts or attacks the democratic system should be permanently barred from seeking additional opportunities to do so again. That sanction does more to protect political rights than it does to limit them.
In the United States, unlike Lithuania, it has been clear for centuries that a foreseeable outcome of impeachment is permanent disqualification. When attempts to subvert the electoral process by baseless allegations and intimidation culminate in incitement to interfere by force with the congressional confirmation of the election results, disqualification would be a vindication of human rights.Continue Reading…
December 15, 2018
Defense Alliance with US not Legal Bar to Ratifying New Treaty
(Cambridge, MA, December 14, 2018) – Australia’s alliance with the United States need not stand in the way of Australia joining the 2017 treaty banning nuclear weapons, Harvard Law School’s International Human Rights Clinic said in a report released today.
The Treaty on the Prohibition of Nuclear Weapons (TPNW) would require Australia to end its reliance on US nuclear arms for defense. But it would not undermine the countries’ broader collective security agreement established under the 1951 ANZUS Treaty.
“Australia has long claimed to support nuclear disarmament,” said Bonnie Docherty, lead author of the report and the Clinic’s associate director of armed conflict and civilian protection. “Joining the ban treaty would advance that goal without creating insurmountable legal obstacles to ongoing military relations with the US.”
The 13-page report “Australia and the Treaty on the Prohibition of Nuclear Weapons” explains why Australia can renounce its nuclear defense arrangement with the US (under the so-called “nuclear umbrella”) while maintaining military ties to its ally. The report also shows the compatibility of the treaty with Australia’s disarmament commitments under other treaties and policies.
The Labor Party is expected to discuss the TPNW at its national conference from December 16 to 18, 2018. The conference will provide a forum for Labor to develop a new party platform. In its last platform, adopted in 2015, the Labor Party called for negotiations of a treaty banning nuclear weapons. Continue Reading…
October 29, 2015
Clinic Submits Report In Support Of Hearing On Rights Of People Affected By The CIA Rendition And Torture Program
Posted by Deborah Popowski
Last week, the International Human Rights Clinic submitted a report in support of an Inter-American Commission on Human Rights thematic hearing on the rights of people affected by the CIA rendition and torture program. The hearing was requested by the ACLU and the NYU Global Justice Clinic, who asked us to adapt our 2014 shadow report to the U.N. Committee Against Torture for this purpose.
Titled Denial of Justice: The United States’ Failure to Prosecute Senior Officials for Torture, the report documents how the Obama administration and other government entities are in violation of the law by shielding from criminal liability the senior officials, including lawyers, who were responsible for the post-9/11 U.S. torture program. It notes that the U.S. government has failed to heed calls by the Inter-American Commission and other human rights authorities to conduct an in-depth and independent investigation into all allegations of torture and ill-treatment and to prosecute and punish those responsible.
We submitted both the Inter-American Commission and the U.N. Committee reports as members of the advocacy group U.S. Advocates for Torture Prosecutions.
Thanks to Michelle Ha, JD ’16, Kelsey Jost-Creegan, JD ’17, and Marin Tollefson, JD ’17 for their work on the report, and to Fernando Delgado, Tyler Giannini, and original co-authors Ben Davis, Trudy Bond, and Curtis Doebbler, for their review.
September 21, 2015
“Negotiating the UN Convention on the Rights of Persons with Disabilities: An Insider’s Perspective”
A Talk by Ambassador Luis Gallegos
12:00- 1:00 p.m.
Harvard Law School
Please join us for a brown bag discussion with Ambassador Luis Gallegos, who chaired the first half of the negotiations on the UN Convention on the Rights of Persons with Disabilities, and is a current board member for the Special Olympics. He has previously served as Ecuador’s Ambassador to the United States, as Ecuador’s Permanent Representative to the United Nations, and as a Member of the UN Committee Against Torture.
August 31, 2015
Posted by Gerald L. Neuman
This post was originally published July 29, 2015 on Just Security
Last week the UN Human Rights Committee, the independent body created by the International Covenant on Civil and Political Rights (ICCPR) to monitor states’ compliance, issued its Concluding Observations (COBs) on the periodic reports of seven states, including Canada, France, and the United Kingdom. These most recent statements of concern and recommendations to those states may exhibit an innovation in the committee’s approach to the perennial debate over extraterritorial application of the ICCPR. They suggest a broadened understanding of the concept of “jurisdiction” that links an individual overseas to a state and triggers the state’s ICCPR obligations, although the committee has not clearly articulated or explained the change.
The COBs on France and the United Kingdom both address issues of surveillance of communication, within and outside national territory. The observations on the UK (and a March 2014 COB on the USA) seem to assume that extraterritorial communications surveillance raises privacy issues under article 17 of the Covenant, regardless of the nationality of the parties to the communication. (The COBs for France are less explicit on the latter point.) The committee therefore expresses concern about overbroad and unchecked surveillance practices, and makes a series of recommendations for reform.
If one probes the committee’s assumption that extraterritorial communications surveillance always raises privacy issues under the Covenant, the following question arises: How does the committee explain the relationship between extraterritorial surveillance of foreign nationals and the undertaking of each state party to the ICCPR “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,” as article 2(1) of the treaty provides?
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