In “The Twilight of Human Rights Law,” Eric A. Posner, a professor at the University of Chicago Law School, sets himself two tasks. The first is to trace unsentimentally the history of the international treaties and institutions that set forth and attempt to promote human rights. Here, he succeeds admirably. The second task is to argue that these treaties and institutions have done little or nothing world-wide to advance people’s well-being. Human-rights treaties, he concludes, “were not so much an act of idealism but an act of hubris.” While ultimately unconvincing, Mr. Posner’s skepticism is bracing, and his claims usefully force readers back to the question of what we mean when we talk about human rights.
The attempt to codify the obligations that states owe to the people who live within their borders began in earnest, in 1948, with the United Nations’ adoption of the Universal Declaration of Human Rights. Its 30 articles spell out protections ranging from the political (“everyone has the right to life, liberty and security of person”) and economic (“everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”) to the social and cultural (the right to be married “only with the free and full consent of the intending spouses”). The Universal Declaration is not a treaty, but many treaties flowed from it, including the International Covenant on Civil and Political Rights and a similar covenant centered on economic, social and cultural rights. Other treaties have followed, barring racial discrimination and discrimination against women, for example, and protecting the rights of children.
As for the enforcement of these rights, the major treaties have established committees to monitor compliance, issue reports and advise governments. Two U.N. bodies undertake similar activities: the Geneva-based Human Rights Council and the office of the U.N. High Commissioner for Human Rights. In a way, however, “enforcement” is the wrong word. Neither the treaty committees nor the U.N. human-rights organs have the power to compel any government to do anything. And indeed, many of the governments represented on the Human Rights Council are flagrant abusers of their own people.
Thus Mr. Posner’s indictment begins to emerge: If human-rights law is largely unenforced because it is largely unenforceable, what good does it do? Some states do indeed care about human rights (perhaps on principle, perhaps out of expediency). But the profusion of enumerated rights invites trade-offs and excuse-making when they come into conflict with one another. Human-rights law has no answer to the question of whether it is better to devote more resources to girls’ education or to programs designed to break police forces of the habit of torturing those in their custody. Meanwhile, governments disinclined to respect human rights can readily get away with ratifying, for appearance’s sake, treaties whose provisions they have no intention of observing.
Mr. Posner does acknowledge that dissidents in the former Eastern Bloc have cited the value of the human-rights provisions of the 1975 Helsinki Accords in providing them space to operate within their repressive countries. But he dismisses their views out of hand, concluding that “if the human rights provisions of the Helsinki Accords changed the behavior of Eastern Bloc governments, it could not have had a very large effect.” In the end, “the hypertrophy of human rights law” is based, he says, on the credulous view that “the good in every country can be reduced to a set of rules that can then be impartially enforced.” That, he believes, is a fundamental misconception of how the world works.
And so it is. And no doubt some proponents of human rights suffer from this “rule naiveté.” But Mr. Posner’s insistence that the evidence is on his side depends critically on what evidence he chooses to admit. The testimony about the efficacy of the human-rights provisions of the Helsinki Accords is extensive. It comes from dissidents who worked both before and after 1975 to help free their countries from oppression; Mr. Posner rests his dismissiveness on the observation that “it would be almost 20 years before the communist governments fell and were replaced by less repressive regimes.” Actually, it was less than 15 years. And as a rejoinder to what Václav Havel and others have said about the importance of the internal human-rights processes that the Helsinki Accords created in repressive regimes, Mr. Posner’s comment seems, frankly, lame.
Meeting Mr. Posner on his own empirical turf, two Bowling Green University scholars, Neil A. Englehart and Melissa K. Miller, have recently published a paper in the Journal of Human Rights showing the “statistically significant and positive effect on women’s rights” of the international treaty banning discrimination against women, adopted in 1979. This correlation can be observed despite the acknowledged weakness of the enforcement provisions of the treaty.
The broader point, however, is not that Mr. Posner is wrong on the evidence. It is that his characterization of human-rights law as an attempt to formulate “a set of rules that can then be impartially enforced” is itself a bit naive. No serious person doubts that enforcement is problematic in the absence of coercive authority. Rather, the development of human-rights law has been an exercise in codifying principles about what the relation of governments and the individuals who live under their authority ought to be. It sets standards, sometimes contradictory, for arguing about and judging such relations in the real world—and for trying to push state practice to meet those standards. International human-rights law is good and useful not because it compels, which it mostly can’t, but because it inspires.
Mr. Lindberg is a research fellow at Stanford’s Hoover Institution.
