Human Rights at Home Blog

New Article: Making the World Safer and Fairer in Pandemics

Gostin, Lawrence O. and Klock, Kevin A. and Finch, Alexandra, Making the World Safer and Fairer in Pandemics (December 22, 2023). Abstract below.

Global health has long been characterized by injustice, with certain populations marginalized and made vulnerable by social, economic, and health disparities within and among countries. The pandemic only amplified inequalities. In response to it, the World Health Organization and the United Nations have embarked on transformative normative and financial reforms that could reimagine pandemic prevention, preparedness, and response (PPPR). These reforms include a new strategy to sustainably finance the WHO, a UN political declaration on PPPR, a fundamental revision to the International Health Regulations, and negotiation of a new, legally binding pandemic agreement (popularly called the “Pandemic Treaty”). We revisit the cavernous shortcomings of the global Covid-19 response, explain potentially transformative legal reforms and the ethical values that underpin them, and propose actionable solutions to advance both health and justice.

Massachusetts Supreme Judicial Court’s decision bans life without parole sentences for people under age 21

By Noelle Gulick, 3L Northeastern Law

On Thursday January 11, 2024, the Massachusetts Supreme Judicial Court (SJC) released an important decision stating that life without parole (LWOP) sentences for people under 21-years-old are unconstitutional. The case is Commonwealth v. Sheldon Mattis, and the court raised the minimum age that a person can be sentenced to LWOP to 21-years-old. Before this decision, the age was 18-years-old. Extending the decision to those who are 18-, 19-, and 20-years-old is a strong step in the right direction of protecting the human rights and dignity of these people.

In this case, Mattis argued that his mandatory sentence of life without parole violated the Massachusetts state constitution’s article 26 which prohibits cruel and unusual punishment. He argued that it is cruel and unusual to expect someone, especially a child or “emerging adult”, to spend the rest of their life in prison without any possibility of being released even on parole.

The court looked at new research on brain development after the age of 17, diminished culpability, social science, susceptibility to peer influence, and the greater capacity for change that younger people have. The court stated that this category of “emerging adults” (18-, 19-, and 20-year-olds) have many of the same “neurological characteristics” as kids under 18-years-old have.

It has been accepted that LWOP nationwide is not a suitable sentence for kids under 18. However, Massachusetts is the first state in the United States to ban life without parole sentences for people under 21, following the lead of other nations, international standards, and human rights law.

The court’s analysis included a look at other nations’ decisions and international statutes, noting that the UK has banned life without parole for anyone under 21 at the time of the offense. It also noted that Canada has ruled that life without parole is unconstitutional for anyone, no matter the age. Life without parole sentences, particularly for young people, are widely condemned under international law. One of the concurring opinions in this case cited the Convention on the Rights of the Child. There are several human rights treaties that condemn juvenile life without parole including the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child.

The ruling is retroactive, which means that people who have already been sentenced to life without parole for something that occurred when they were 18-20-years-old will soon be eligible to apply for parole. This means that about 70 people who were convicted in Suffolk County will become eligible for parole.

This decision is a step towards limiting the large number of life without parole sentences that are given in the United States, protecting the human rights of people facing these sentences, and to the United States following international legal norms.

Event 1/18: Human Rights of Women Webinar

On January 18, from 4:30-5:30pm EST, join the ABA International Law Section’s Women’s Interest Network (WIN) and the ABA International Human Rights Committee for a special webinar devoted to the current status of human rights of women and consider the advances in as well as backlash against human rights of women since the Universal Declaration of Human Rights was adopted 75 years ago. The distinguished speakers will include Judge Delissa Ridgway, Elizabeth M. Zechenter, and Catherine van Kampen.

The Zoom link for the webinar can be found here.

U.S. failure to engage in constructive dialogue with U.N. experts during the 2023 ICCPR Review – Part II

By Ámbar Reyes Pérez, Musa Siam, Roaa Hussien, 3Ls at UIC Law, and Professors Sarah Dávila A., and Lauren E. Bartlett

Part I of this two-part post was published here and builds on the previous post written by Profs. Dávila A. and Bartlett on the 2023 ICCPR review.

Benefits of Human Rights Treaty Reviews for State Parties

The benefits of reporting incentivize countries to participate in treaty reviews. Human rights treaty reviews allow them to gain technical advice from experts on implementing the rights set out within the treaties they have ratified. Moreover, the treaty review allows for the conversion of interstate complaints into reports, allowing regional and international human rights mechanisms to engage with those reports of human rights violations.  

The core foundation of the human rights reporting process is engagement. In compiling these reports, countries are supposed to reflect and assess their own human rights situations, including violations. Countries are encouraged to conduct comprehensive reviews of their human rights policies implementation and progress and then identify gaps presenting obstacles to achieving a society based on dignity and human rights. The bottom line is that human rights treaty body reporting allows for review by other countries, United Nations entities, constructive dialogue, civil society input and international expert advice.

The Role of U.S. Civil Society in the Human Rights Treaty Review

The Human Rights Committee considers the role of civil society key to fulfilling its mandate effectively. Specifically, the Committee considers it necessary that the constructive dialogue be based on information received from the state party, other United Nations entities, and civil society.  Civil society provides information to the state party, which the state party should put in its periodic reports.  Civil society also provides information directly to the Committee through alternative or “shadow” reports and the presentation of oral information during briefings with the Committee.

Ahead of the review of the United States in October 2023, U.S. civil society submitted 127 shadow reports to the Human Rights Committee.  A summary of those reports was compiled by the International Human Rights Clinic at UIC Law and the Program on Human Rights and Global Economy at Northeastern Law.  The shadow reports covered issues as broad as the need to establish a National Human Rights Institution, to discrimination based on gender and sex, freedom of expression, assembly and association, Indigenous rights, the right to privacy, treatment of non-citizens, refugees and asylees, rights to food and water, criminalization of homelessness and poverty, and the treatment of persons deprived of liberty, among others.

U.S. civil society was also able to both formally and informally present oral information to the Committee. Committee members participated in informal briefings organized by U.S. civil society in July and September 2023, with two in-person during the week leading up to the formal review in October 2023.  In addition, the Committee allowed almost ninety minutes for U.S. civil society to present during the formal NGO briefing for its 139th session on Monday October 16, 2023. There were a record number of U.S. civil society members present in-person in Geneva for the review - over 140 persons traveled to Geneva to attend the review. Oral presentations by directly impacted persons made up the majority of those oral presentations to the Human Rights Committee, including those impacted by death by incarceration sentences, those subjected to racial discrimination and excessive force at the hands of the Border Patrol, Indigenous voices, and more.

As has been noted on this blog previously, the Fifth Periodic Report submitted by the United States to the Committee was  incomplete and outdated.  Therefore, the information provided by U.S. civil society helped provide the Human Rights Committee with a fuller and more accurate understanding of the human rights issues and violations of human rights at the federal, state, and local level in the United States.

The Constructive Dialogue at the U.S. Review in 2023

The Constructive Dialogue between the Human Rights Committee and the U.S. took place on October 17 and 18, 2023. On October 17, Ambassador Michèle Taylor began by giving some broad opening remarks to the Committee. The Country Report Task Force for the U.S. Review, consisting of Committee members Tijana Šurlan, Imeru Tamerat Yigezu, Changrok Soh, Marcia V.J. Kran, and Yvonne Donders, then began asking the U.S. government delegation direct questions, most of which focused on information provided by U.S. civil society. Other Committee members also asked additional questions to the U.S. delegation.  For example, Ms. Donders asked what the U.S. does to combat racism in the criminal justice system and what targets does the U.S. set to eliminate bias. 

The U.S. government delegation then had a chance to respond to the Committee’s questions. The U.S. officials’ responses consisted entirely of reading pre-written statements that did not directly address the questions the Committee asked. The Committee then took a brief break and came back to ask a few more questions.  The U.S. delegation responded briefly before the Committee Chair Abdo Rocholl adjourned the session for the day.

On October 18, 2023, the Country Report Task Force started off by asking deeper, more probing questions of the U.S. delegation. For example, Committee Member Kran asked what measures the United States is taking to address voting disenfranchisement for those who have served felony sentences. Ms. Kran also asked the U.S. delegation to please engage with her and her colleagues’ specific questions and not speak generally. The U.S. delegation again responded by reading pre-written statements that did not directly address the questions asked by the Committee. The Committee took a break and when the Committee came back, a few additional Committee members asked questions.  The U.S. delegation responded again by reading pre-written statements that were only sometimes responsive to the questions presented by the Committee.

When Ambassador Michèle Taylor began providing her broad closing remarks, U.S. civil society members silently stood up and turned their backs on the Ambassador. Once the Ambassador completed her remarks, civil society turned and sat back down. In her closing remarks, Human Rights Committee Chair Abdo Rocholl re-emphasized that the Committee recommended that the United States ratify each of the United Nations human rights treaties and thanked the large number of people from U.S. civil society and government who attended the review - she said thanks in a few indigenous languages - before formally closing the Fifth Periodic Review of the United States by the Human Rights Committee.

The protest was important for U.S. civil society members who were present at the U.S. review. They were frustrated and outraged over the U.S. government’s failure to reply to the Committee’s important questions. The sheer number of civil society members in the room and the dramatic but otherwise un-interrupting silent protest was meant to send a strong message to the U.S. government. Hopefully the U.S. government will do better next time.

U.S. failure to engage in constructive dialogue with U.N. experts during the 2023 ICCPR Review – Part I

Photo @Kaitlyn Kennedy

By Ámbar Reyes Pérez, Musa Siam, Roaa Hussien, 3Ls at UIC Law, and Professors Sarah Dávila A., and Lauren E. Bartlett

This two-part post builds on the previous post written by Profs. Dávila A. and Bartlett on the 2023 ICCPR review.

On October 18. 2023, U.S. civil society engaged in a spontaneous protest over the failure of the U.S. government delegation to engage in constructive dialogue with the U.N. Human Rights Committee (“Human Rights Committee” or “Committee”). Photos and videos of that protest when viral, with news media and social media across the globe discussing the protest without knowing the context. During closing remarks by U.S. Ambassador Michèle Taylor during the Human Rights Committee’s Fifth Periodic Review of the United States, U.S. civil society members silently stood up and turned their backs.  Once the ambassador completed her remarks and the Committee Chair Tania María Abdo Rocholl began her closing remarks, civil society members sat back down.  This silent protest was a powerful statement by U.S. civil society organizations expressing frustration and outrage over the U.S. delegation’s failure to reply to the Committee’s important questions about broad domestic and foreign policy human rights issues from systemic racism, militarization, mass incarceration, reproductive health, immigration, detention, as well as the U.S. failure to protect civilians and prevent mass atrocities in Gaza. 

This blog post attempts to address what the constructive dialogue between the Human Rights Committee and the government delegation is supposed to look at during the country review process and helps to explain why the U.S. civil society delegation was spurred on to engage in that powerful protest on October 18.

How the treaty reporting procedure and constructive dialogue is supposed to happen

Once countries (“State parties”) have ratified the International Convention on Civil and Political Rights (the “ICCPR”), then the country is subject to periodic reviews by the Human Rights Committee of its compliance with the treaty. The Committee begins the reporting process (under its Article 40 of the ICCPR obligations) by first composing the Country Report Task Force, composed of 4-5 members of the Committee who will lead and direct the periodic reporting process, and a country rapporteur who is the person leading the drafting of the list of issues and coordinating different procedures throughout the reporting process (with the Human Rights Committee Secretariat’s support), including organizing the substantive contribution of Committee members in the reporting process.

Generally, the review consists of four steps: (1) submission of State party initial or periodic report; (2) constructive dialogue between the State party and the Committee, which includes in-person meetings in Geneva with government delegates and civil society; (3) the Committee issuing Concluding Observations; and (4) follow-up to those Concluding Observations.

The Committee’s examination of State party reports is pursuant to Rule 68 of its Rules of Procedure. These reports must be based on the list of issues created and shared by the Committee with the State party.  That list of issues helps frame the scope of the review, including for the purposes of the constructive dialogue.

The United Nations General Assembly passed resolution 68/268 (Apr. 2014) and encouraged collaboration between treaty bodies to create an aligned methodology to be used in constructive dialogue with State parties. The aim of this methodology is to make the dialogue more effective and productive, as well as to maximize the available time for productive dialogue. (Res. 68/268, at para. 5) Additionally, it asked that the Committee, and other treaty bodies, “adopt short, focused and concrete concluding observations…that reflect the dialogue with the relevant State party.” (Res. 68/268, at para. 6). Moreover, during the in-person review in Geneva, the country is inv​​ited to bring a delegation with representatives from different bodies, agencies, and entities that may respond to questions posed by the Committee.

The purpose of this constructive dialogue is to elicit an effective process in which the Committee analyzes and reviews human rights developments in the State Party under a specific treaty. In general, the face-to-face dialogue follows the same broad structure for all treaty bodies: (a) the State party is invited to send a delegation to attend the meetings at which the committee will consider the report of the State party; (b) the head of the delegation, usually a representative of the Government of the State in question, is invited to make a brief opening statement; (c) members of the Committee, in some cases led by the country rapporteur(s) or country task force, pose questions on specific aspects of the report of particular interest or concern; and (d) the State party delegation responds to those questions.

An initial review requires a comprehensive assessment by the Committee of the enjoyment by all of the rights in the ICCPR concerned and the related compliance by the State party. A periodic report is more focused on previous recommendations made by the Committee. In practice, however, and with some degree of variation between the different treaty bodies, the difference between the dialogue concerning an initial report and a periodic report is minimal.

The formal review, in person in Geneva, then takes place over two consecutive working days with a three-hour session on each day. These public sessions are usually attended by UN observers, civil society representatives, which may include directly impacted persons, and a National Human Rights Institute (“NHRI”) if the State Party has one. However, the U.S. does not have an NHRI. An NHRI’s purpose is to promote and safeguard human rights domestically. It is an independent, non-governmental entity that establishes productive relationships with the government and with non-governmental organizations (“NGOs”). Some key functions of NHRIs include providing advice to the government, monitoring human rights within the State and within its actions, and engaging with the broader international human rights community. NHRIs are regulated by the 1993 Paris Principles which establishes responsibilities, composition, and operating methods.

While the Biden Administration has “centered” human rights in the execution of U.S. foreign policy, it has not established an NHRI. The lack of a U.S. NHRI was a question posed by Committee member Soh during the first day of the review in October 2023. The U.S. delegation response follows a long trend of the U.S. abstaining from “mainstream international human rights standards.”

An NHRI may help facilitate the work of a National Mechanism for Reporting and Follow-up (“NMRF”).   The NMRF is supposed to coordinate and prepare reports on a country’s human rights developments. It is also supposed to engage with regional and international human rights mechanisms to track and follow-up with domestic implementation of treaty obligations. The NMRF performs its duties by consulting with the NHRI and with civil society organizations to ensure its approach is comprehensive in safeguarding human rights.

A lack of both an NHRI and a NMRF hinders the U.S.’s ability to consistently and timely report to the Committee, and such hindrance affects the promotion and enjoyment of human rights across the nation. A lack of both an NHRI and a NMRF also hindered the constructive dialogue between the Committee and the government delegation during the 2023 U.S. Review.

Event 1/9: A National Human Rights Institution for the US: Why Don't We Have One?

On Tuesday January 9, 2023, at 12pm ET/9am PT, the American Bar Association's Section on Civil Rights and Social Justice will be holding a webinar with the Campaign for an NHRI in the US (a coalition effort led by the Southern Poverty Law Center, ACLU, AIUSA, Northeastern Law School Program on Human Rights and the Global Economy, UCI International Justice Clinic, Human Rights Educators USA and more).  This webinar is free and open to the public.  We are trying to educate and build support within the ABA to support the effort to establish an NHRI in the US. 

The registration link for the event is here.