Professor Eric Posner’s op-ed in the Saturday WSJ($) (free version now available here) offers a typically unsentimental, hard-eyed assessment of the value of international human rights law. That value, according to Posner, appears to be zero. Here is brief excerpt,
Today, the future of the international human rights legal regime is bleak. And yet if what matters is not conformity with the rules of the human rights treaties, but the well-being of the world’s population, things have never been better. Mortality rates are down, per capita income is up, literacy has spread, democracy is flourishing. Economic growth in China and India, which together account for a third of the world’s population, largely accounts for improvement in overall well-being, but there is also good news in Latin America, South Africa, Eastern Europe and Southeast Asia.
How can this be? As technology and trade have advanced and spread, so has wealth and education, and with wealth and education has come political reform, and the expansion of civil and political rights. This is part of a long-term trend that goes back centuries.
There is no guarantee that it will continue, but one central fact needs to be recognized: The role of legalized international human rights in this process has been minimal or nil. Much more important in the 20th century were the determined efforts of liberal democracies to oppose powerful, dangerous, expansionist states that rejected markets and democracy, and imposed their views on small countries. These efforts required pragmatic accommodation of unsavory allies, and even compromising of Western values, for the sake of the greater goal of keeping dangerous forces in check. For the conflict with radical Islam, this history holds important lessons. [Emphasis added]
This critique deserves to be seriously considered by every international human rights lawyer (and actually by pro-democracy neo-con types in the Bush Administration as well, assuming there are any left). But I doubt it will.
Whoa, those were some seriously unsentimental and hard-eyed new revelations about the failure of international human rights law. I am really glad he laid the truth on us instead of going for some IR realist/rational choice/Washington Consensus regurge worthy of a bad grad student. Nope, it WAS NOT the usual solipsistic reifying garbage that the WSJ usually prints. Thanks Julian!
So sorry, but this really does not even begin to qualify as an academic assessment or critique. The fact that he SAYS that human rights law doesn’t make any difference doesn’t make it so. Where’s his evidence?
If you want evidence that human rights law DOES make a difference, take a look at the thousands upon thousands of people whose rights were protected before the European Court of Human Rights, or the Human Rights Committee, or the families of disappeared people who got satisfaction before the Inter-American Court.
If all human rights law did good was to provide individual justice to these people, it would have been worth it. But it does much, much more, as it permeates municipal legal systems all arount the world, and serves as a source of legal inspiration especially in new democracies.
free link!
Unfortunately, the article seems only available to subscribers with the link you’ve given us, Professor Ku. I’d much appreciate seeing the full article, before commenting on what I’d expect are Posner’s conclusory assertions and calculated misreading of modern history.
Thanks Danny! I missed it before. One by one now: The tension between promoting democracy and promoting human rights, when newly enfranchised peoples turn out not to subscribe to the ideals of the Enlightenment, is the dirty secret of the human rights movement. As the expanding franchise continues to expose the fissure between the two ideals, human rights advocates are finally going to have to choose between them. Dirty secret? I thought it’s well known to anyone reading history from say Athens to the Third Reich that democracies can be authoritarian and unfree, without institutions that protect minority rights and limit the powers of the government against their people. Human rights supports the growth of democracies but also the growth of limited government. Human rights also supports tribalism to a limited extent by supporting self-determination of peoples. There’s no conflict between the two. The tyranny of the majority is still tyranny. Second, the idea that the U.S., with or without European support, could impose its conception of human rights on other countries has taken a beating in recent years, and this beating will only become worse over the next few decades. Of course, it’s hard for the U.S. to impose… Read more »
I wonder if Eric Posner (and his buddy Jack Goldsmith) know how they continue to make early morning classes that much more unbearable for law students all over the country?
I echo Anon’s snark. My sentiments exactly!
Oh, by the way, if Posner isn’t married, someone should definitely introduce him to Ann Coulter. She recently wrote a column about how we need to disregard humanitarian law altogether because,” If you want a shorter rebuilding process, then we’re going to have to wage less humane wars. The enemy — as well as innocent civilians — must be bombed into quivering terror. Otherwise, we displace aggression but don’t destroy it”
Posner would be positively tickled by this, I imagine.
Coulter probably has in the back of her dark mind the bombing of Dresden, or of Hiroshima and Nagasaki, or perhaps the rationale for the bombing of North Vietnam and Cambodia: alas, one more shameless intellectual apologist for ‘dirty hands.’ Where I come from we still call this ‘bootlicking.’ (Think Henry Kissinger…in boots) As Edward Said wrote, ‘…even though the United States is actually full of intellectuals hard at work filling the airwaves, print and cyberspace with their effusions, the public realm is so taken up with questions of policy and government, as with considerations of power and authority, that even the idea of an intellectual who is driven neither by a passion for office nor by the ambition to get the ear of someone in power is difficult to sustain for more than a second or two. Profit and celebrity are powerful stimulants.’
And what ‘Non liquet’ says.
Posner refers to his assertion of ineffectual human rights standards as the “one central fact” of his analysis.
As with the appalling Limits text, he makes no effort whatsoever to substantiate that assertion, preferring instead to create a spurious standard of whether oppressive regimes have continued to oppress – as, gosh, some have done.
The contrary view is well documented in the growing and empirically grounded literature of the impacts of human rights regimes – for example the recently published Making Treaties Work : Human Rights, Environment and Arms Control ed. by Geir Ulfstein (2007) – but it seems that Posner’s mode of scholarship still doesn’t seem to extend to reading any of it, let alone engaging with the issue with any degree of rigor.
Posner’s comment is part of a general move over the past year or so to attempt to legitimize the violations of international law that have been done by the United States and others in the illegal war in Iraq, the extraordinary renditions, the torture and cruel inhuman and degrading treatment. All of these acts hit up against human rights law and humantarian law and are illegal. To get where they want to go these persons are basically trying to enhance the “acquiescence” part of the following equation: illegal act + acquiescence of the world = legitimacy. This effort is trying to follow a Kosovo bombing model – with the nuance of the absence of any kind of necessity for these acts and the absence of a defense of necessity for these acts. Hayden in Europe this past week. Bellinger in Europe and here on Opinio Juris. You can go down the list of people running out from the United States right now trying to get others to “go along” with what the United States did even though it is illegal. MCA is another part of this effort. On the other hand, what other Americans can do is resist this effort… Read more »
This is a surprisingly nonintellectual piece from Posner. I usually like his stuff. But this is pretty poor.
Strangely, this particular link to the WSJ refuses to load for me. Given the comments, I suppose I haven’t missed a great deal…
The problem with treaties and norms is that they only work if they can be enforced – often with military power. And you can’t enforce such regimes if you don’t have power. So security – and power projection – come first. As John Mearsheimer likes to say, he supports human rights. But you can’t promote such things if you cease to exist. Or if someone else has a bigger army. If we had lost the Cold War, I’m going to guess that human rights would not be doing quite so well.
jvarisco,
I think your Hobbesian presumption has proven wrong by the course of history. And there are a number of writers in the field of international law and relations that have explained why and how states have found sufficient incentives and reasons to obey treaties and norms in the absence of positive enforcement or the force of power. Which of course hardly means there are times when such enforcement or power is deemed necessary to the effectiveness or success of international rule regimes. The dramatic, exceptional or occasional cases should hardly be held representative of what is in fact the case, increasingly, in many places and most of the time.