Paper Rights

The trouble with international human rights law


The Twilight of Human Rights Law, by Eric Posner, Oxford University Press, 200 pages, $21.95

Legally speaking, human rights have proliferated over the last 40 years. Only 20 human rights were listed by treaty in 1975. Today there are around 300, including the right to privacy, the right to freedom of movement, the right to join a trade union, and the right to an interpreter in official proceedings. With so many human rights recognized by so many countries, we clearly are moving toward a more just and humane world.

Or perhaps not. In his new, short, drily pessimistic book The Twilight of Human Rights Law, University of Chicago law professor Eric A. Posner meticulously, and with a touch of glee, pours cold water on the hopes of the international human rights regime.

There is little evidence, Posner argues, that the proliferation of human rights treaties has done anything to push countries toward a greater reverence for human rights. In fact, he suggests, the growth in the number of legally enshrined human rights is both a symptom of and a contribution to the general incoherence of human rights law. With so many different rights on the books, from a right to free speech to a right to employment, countries can pick and choose which they want to pursue.

You might think that the solution here is to reduce the number of rights to a bare minimum—say, the rights to free speech, free elections, and fair trial. But such a reduction would never receive international assent, in part because it might actually be enforceable. With tons of human rights laws available, the United States can say that it needs to spy on its citizens, despite the right to privacy, because otherwise it will violate the right to security. China can say it needs to limit the right to free expression in order to ensure the right to development. One right is at least potentially legally meaningful. Hundreds aren't.

Nations sign human rights treaties because signing is costless. Western countries have already established human rights in law (at least to some degree), so the treaties require no substantial change. Authoritarian countries sign the treaties, Posner says, because "they do not want to offend Western countries, but also do not expect to incur any costs from doing so." Saudi Arabia on paper says it will grant rights to women, but it has no intention of doing so; Brazil has signed treaties outlawing torture, but its police routinely torture anyway. There has been some improvement in human rights worldwide since the '70s, but that's mostly because of the collapse of Communism. No country pays attention to its human rights treaties. The only reason the treaties have been widely ratified is because everyone knows that the obligations will never be enforced.

Posner carries the argument further, claiming that even enforcing the treaties would not necessarily be beneficial. Governments, and especially poor governments, have serious limitations on their resources. Protecting rights can be costly and difficult. How would you go about enforcing a right to health care in a country with strictly limited resources? Even political rights, Posner argues, can have unexpected downsides. In fractious nations like Iraq, Sadaam's repressive regime, awful as it was, prevented an outbreak of civil war which, by the death toll at least, has been significantly worse. Balancing the right to free elections versus the right to security, or the right to health care versus the right to food, is a job best done by individual country's political institutions, Posner argues, not by international bodies imposing inflexible rights.

This argument can at times tip over into a blanket conservatism and an odd idealization of entrenched governments. Posner argues, for example, that preventing torture requires the investment of resources to monitor security forces, investigate charges, and bring perpetrators to justice. He concludes that "the key question for a state is how much of its resources it must devote to countering torture at the expense of building health clinics and public schools."

The vision of concerned governments carefully weighing how much torture they can afford to restrain neatly elides the fact that torture itself is very often expensive—in Chicago, police torture resulted in numerous wrongful convictions, which meant the state paid for a wasteful investigation, useless trials, and years of incaraceration for no reason. On a broader scale, North Korean prison camps are not a sorrowful trade-off for North Korean prosperity. Officials in power are often thuggish, not out of rational economic calculus, but because some people enjoy being thugs and will pay for the privilege. That seems obvious enough that it's hard to believe that Posner is entirely in good faith when he worries that NGOs like Human Rights Watch may induce governments to "transfer resources from poverty prevention to torture prevention." Is this really a serious concern? Or has Posner's investment in his own counterintuitive argument simply run away with him?

If Posner lets his delight in trolling NGOs outweigh his concern for the well-being of folks in distant nations, that actually (if inadvertently) bolsters his larger point. International rights law is, he argues, always going to be flawed and unenforceable in part because people don't care that much about individuals living on the other side of the earth. They do care a little—there is grudging support for some foreign aid, and more for providing relief during big showy disasters such as an earthquake in Haiti or a tsunami in Asia. But the interest is always limited and transitory.

That limited, transitory interest is both inevitable and, Posner suggests, insufficient. It's part of why, in Posner's view, "There is very little that the West can do for poor countries. It turns out that foreign countries really are foreign. It is hard for us to understand their peoples, customs, institutions, and pathologies. It is often hard to tell whether efforts to help those countries improve the well-being of people or just create new problems." That's why development aid has moved away from massive one-size-fits-all projects toward smaller scale, targeted efforts to improve conditions, which are reevaluated and reworked on a country by country basis. Human rights efforts, Posner suggests, need to follow that model as well.

At the very least, Posner's argument raises serious questions about the rationale for humanitarian military interventions. Human rights treaties do little positive harm. But dropping bombs on people for humanitarian reasons is another matter. Posner discusses military intervention as a sidelight to his main thesis, but following through on his logic I think leads to a very forceful criticism of intervention as a "humanitarian" policy.

Posner points out that human rights are rarely the sole rationale for an intervention, precisely because nations are not invested enough in distant human rights issues to risk resources and lives. This is true even in the case of the most egregious atrocities, such as the Rwandan genocide, in which most Western nations sat on their hands. (Posner does not mention this, but France was an exception. It did have national interests involved—and its interference was not especially constructive.) But human rights do often provide an extra argument, or excuse, for intervention. As Posner says, the wars in Afghanistan and Iraq were "defended on humanitarian grounds," as were the intervention in Libya in 2011 and the recent attack on ISIS. The argument in each case is there are governments or groups who will perpetrate hideous human rights violations if left to themselves, and that American military power can defeat the bad guys and protect innocent lives.

If even development aid and peaceful human rights provisions are difficult to implement in a beneficial way, though, how much harder must it be to improve human rights outcomes by tossing a bunch of firepower at them? Given the low level of interest in the well-being of foreigners and the manifest inefficacy of blunt, universal human rights instruments, there seems little reason to believe that war will improve humanitarian outcomes even in the best of cases. Posner makes a strong case that human rights law needs to be approached with more care, more humility, and less hubris. That's surely even more true of human rights interventions, where the stakes, and the potential death tolls, are much higher.