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April 01, 2015

The Power of Human Rights Law

by Elisa Massimino

Criticism of the system of international law and human rights is as old as the system itself. The Universal Declaration of Human Rights was adopted in 1948 with support from an overwhelming majority of nations. But there were abstentions—from Soviet Bloc countries, which thought it didn’t go far enough because it lacked an explicit denunciation of fascism; from South Africa, which thought it went too far and posed a threat to apartheid; and from Saudi Arabia, which abstained because of provisions on marriage rights and religious freedom. Ever since, the Universal Declaration and the system it birthed have faced objections from critics on the left, right, and center. Criticisms run the gamut—from claims that the Declaration is undemocratic to arguments that it’s unworkable, ineffectual, or imperialistic.

One of today’s more prominent critics is Eric Posner, a law professor at the University of Chicago, whose book The Twilight of International Human Rights Law purports to expose “the failure of the international human rights legal regime.” Unlike early critics, Posner has nearly 70 years of history at his disposal. Yet his analysis of the record is highly selective. He downplays or ignores evidence that contradicts his thesis, which withers under a complete and balanced assessment of the modern human rights era.

Posner’s premise is that progress has stalled. Rights are barely, if at all, more respected than they were 20 years ago, he says. But his timeframe is arbitrary. He claims that the last 20 years is the period when “international human rights law finally became entrenched.” How so? He doesn’t say. It would make more sense to examine the trends since the adoption of the Universal Declaration, or since adoption of the three major human rights treaties in the mid-sixties, or since the human rights movement’s rise to global prominence in the seventies. In recent decades, democracy has undeniably expanded, as has respect for the rights of women and racial minorities.

At one point, Posner acknowledges the spread of freedom since the sixties, speculating that economic growth and the fall of communism are the chief causes. But what if one of the causes of the fall of communism and economic growth worldwide was greater respect for human rights? Shouldn’t an author address the social science suggesting that this is, in fact, the case?

A lack of perspective and nuance afflicts Posner’s book. He reasonably laments today’s human rights violations: killings by police in Brazil, discrimination against Roma in Europe, torture of terrorist suspects by the United States. Yet not even the most optimistic human rights advocate, rhetoric aside, expects a world free from all violations. Posner—who criticizes human rights treaties as “utopian”—tries to indict the human rights system by pointing out that “age-old scourges such as slavery continue to exist.” Posner’s “main argument,” he says, is that “[h]uman rights law reflects a rule naiveté—the belief that the good in every country can be reduced to a set of rules that can be impartially enforced.”

But that view of what “human rights law reflects” is Posner’s; it does not reflect the perspective of human rights advocates, none of whom—unlike the straw man Posner constructs—believe rules alone are sufficient or that progress hinges solely on enforcement.

Human rights advocates understand that treaties are only one ingredient in a recipe that also requires bold and imaginative activism, domestic political and economic progress, the support of sympathetic states and other outside forces—and time. “The arc of the moral universe is long,” said Martin Luther King Jr., “but it bends toward justice.” I suspect that if Eleanor Roosevelt were alive today, she would not be surprised—as Posner seems to be—that “even the most liberal European countries have violated the human rights of immigrants and other noncitizens.” Posner mistakes the ideals motivating human rights advocates for expectations, projecting his own utopian view onto them.

This is not to sugarcoat today’s reality. A range of crises—war in Syria, persecution of the Rohingya in Burma, the rise of ISIS and Boko Haram, and so much more—have people rightly worried about the state of the world. Refugees are the very embodiment of upheaval—a barometer of distress—and there are more in the world now than any other time since World War II.

Yet brutality and rights violations are only part of the larger picture—and not the largest part. It is this part that Posner obscures. He highlights the backlash against LGBT equality, but of course there could be no backlash without progress. He notes that women continue to lack equality, yet he largely overlooks the huge advances worldwide in equality for women.

Not only are advancements in women’s human rights profound and measurable; they are, according to social scientists Neil A. Englehart and Melissa K. Miller, attributable in part to the Convention on the Elimination of All Forms of Discrimination against Women. The success of the treaty as a motivator of social change punctures a rather large hole in the heart of Posner’s thesis.

Posner focuses on treaties and the lack of enforcement, but treaties are only one part of the human rights system, and treaties need not be enforced to have an effect. Meaningful change starts and ends within societies. Human rights agreements are tools that the world community can provide to activists. But Posner downplays—and at times denies—the powerful interplay between domestic political movements and international law. As Beth Simmons says:

Posner’s gaze is far too fixed on state-to-state relations, which leads him to ignore the extent to which domestic actors reach for international treaties to enhance their political demands on their own governments. Treaties change politics—in particular, the domestic politics of the ratifying country. This happens because international human rights treaties have a singularly unusual property: They are negotiated internationally but create stakeholders almost exclusively domestically.

Beth A. Simmons, What’s Right with Human Rights, 35 Democracy, Winter 2015.

Posner claims that human rights norms have failed to “capture the imagination of voters, politicians, intellectuals, leaders of political movements, or anyone else who might have exerted political pressure on governments.” Throughout the book, Posner gives the human rights system too much blame and too little credit. He holds it responsible for failing to end problems as old as human history yet ignores its role in forging earthshattering progress.

Posner’s 20-year timeframe and emphasis on treaties conveniently exclude a world-changing event that demonstrates how human rights agreements can help make rights real. In 1975, 35 nations—including the United States, nearly all of Europe, and the Soviet Union—signed the Helsinki Accords. This was an act of cooperation between the Soviet Union and the West. In fact, it was regarded at the time as a diplomatic victory for the Soviet Union because the agreement recognized its territorial integrity and authority over its internal affairs.

But one of the agreement’s 10 articles concerned human rights. With Article 7, signatories agreed to respect “human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion.” Some no doubt viewed this as just words on paper, a pretty-sounding pledge that the Soviet Bloc governments would promptly ignore. And it could have been that, had activists not seized on Article 7 and incorporated it into their struggle. Václav Havel would later say:

The first opposition movements, or so-called dissident movements, which emerged in the Soviet bloc at that time had one thing in common: they all cited the Helsinki documents, as well as other papers binding governments to respect human rights and liberties. To these movements, the Helsinki accords were an inspiration, a shield, a chance to resist coercion and to make it more difficult for the forces of coercion to retaliate.

Václav Havel, President of the Czech Republic, Address at the Summit Meeting of the Organization for Security and Cooperation in Europe (Nov. 19, 1999).

It would take many more years of struggle—years in which these democratic movements received the emotional and material support of the United States and its allies, which recognized that the moral imperative of helping activists aligned with their own interests. In 1989, the world changed, and you can trace that political earthquake back to Helsinki.

It is, in fact, difficult to find a major social justice movement in recent decades that didn’t draw strength or inspiration from international human rights norms. Nelson Mandela has said that the Universal Declaration and its ideals helped sustain him during his incarceration on Robben Island. At an event celebrating the Universal Declaration’s fiftieth anniversary, Mandela said:

For those who had to fight for their emancipation, such as ourselves who, with your help, had to free ourselves from the criminal apartheid system, the Universal Declaration of Human Rights served as the vindication of the justice of our cause. At the same time, it constituted a challenge to us that our freedom, once achieved, should be dedicated to the implementation of the perspectives contained in the Declaration.

John Nichols, Nelson Mandela’s Universal Declaration of Human Rights, Nation (Dec. 10, 2013).

The human rights agreement of the most practical use to the anti-apartheid movement was the Harare Declaration of 1989. Adopted by the Organisation of African Unity’s Ad-Hoc Committee on Southern Africa and the UN General Assembly, the document calls for an end to apartheid and sets out steps for the regime to take toward that end. Under pressure from the world, President de Klerk began to take those steps, and in Mandela’s speech on his release from prison, he called on de Klerk to complete them. “The historic Harare Declaration of 21 August 1989 is one of the very significant documents that laid a basis for the negotiated settlement in South Africa,” wrote South African politician Kgolane Alfred Rudolph on the document’s twentieth anniversary. “It opened the way for negotiations between the liberation movement and the apartheid regime.” Kgolane Alfred Rudolph, The Harare Declaration, S. Afr. Hist. Online (2009).

Let’s review. The anti-apartheid movement, long committed to armed resistance, turns for help to a multi-national body, which works out an agreement based on universal human rights principles. The UN embraces the agreement. Powerful countries and South Africa’s neighbors, the so-called “frontline states,” use the agreement to pressure the apartheid regime, which in response begins to reform. This leads to negotiations, which, in turn, lead to the end of apartheid. At the core of this effort is an indigenous movement, but the human rights system that Posner derides provided the tools and leverage to win.

Posner is correct that some rights-abusing governments sign treaties simply for public relations purposes. Yet if treaties are as toothless as Posner claims, why do governments try to weaken them or refuse to ratify them? For example, unlike most countries—including its major European allies—the U.S. government hasn’t signed the 2008 Convention on Cluster Munitions. If the treaty had no legal or political force, the United States would have signed it. But joining the treaty would constrain its ability to use and sell cluster bombs—like the ones Saudi Arabia is using now in Yemen, causing devastating civilian casualties.

President Augusto Pinochet no doubt believed he was scoring painless political points when in 1988 he signed the UN Convention against Torture. His own abuses following his 1973 coup had helped inspire the treaty, so embracing it surely seemed like an easy way to show his “transformation.” But in 1998, eight years after he was forced from office (by a movement that, incidentally, loudly invoked the International Covenant on Civil and Political Rights), he traveled to London for medical treatment. British authorities arrested him on a warrant issued by a Spanish judge charging him with human rights crimes. Pinochet fought extradition, claiming he was immune from prosecution as a former head of state. The House of Lords ruled that he was not immune because both Britain and Chile had signed the Convention against Torture, which has universal jurisdiction. He avoided prosecution only because he was ruled mentally unfit to stand trial. An unmistakable message was sent to torturers everywhere.

For Posner, these examples are either unworthy of mention or not significant enough to alter his view that human rights law is all but worthless. Undeterred by counterevidence, he builds a case against the system, highlighting problems well known—and endlessly discussed—by human rights advocates. But because advocates are also well aware of its manifest benefits, they want to fix the problems, not ditch the system.

The more one reads of Posner, the more one senses that it’s not just the system of human rights he opposes but also the fundamental principle undergirding it: that all people possess inalienable rights by virtue of their humanity. Lurking beneath his practical argument, it seems, is a philosophical one. He claims, “There is no reason that this vision—the vision of institutionally enforced human rights—is appropriate for poor countries, with different traditions, and facing a range of challenges that belong, in the view of western countries, to the distant past.”

This points to Posner’s alternative vision: a system that focuses not on human rights but on human welfare. In Posner’s system, nations would use international agreements to commit to standards of well-being that would, he says, be both more measurable and more universally accepted than human rights standards, and development funds would be used to pressure and reward states most in need.

Reading his book, one would barely know that a development vs. rights debate has long raged, or that the consensus is the choice is a false one—that respect for human rights and material well-being are mutually reinforcing. As a report from the Office of the UN High Commissioner for Human Rights said nearly a decade ago:

It is now generally understood that poverty is a result of disempowerment and exclusion. Poverty is not only a lack of material goods and opportunities, such as employment, ownership of productive assets and savings, but the lack of physical and social goods, such as health, physical integrity, freedom from fear and violence, social belonging, cultural identity, organizational capacity, the ability to exert political influence, and the ability to live a life with respect and dignity. Human rights violations are both a cause and a consequence of poverty.


More recently, Gary Haugen outlined the relationship between poverty and violence in his 2014 book The Locust Effect, arguing that, just as efforts to strengthen respect for human rights require economic development, efforts to improve people’s welfare fundamentally depend on strong human rights institutions.

In fact, economic rights are human rights: the Universal Declaration of Human Rights posits that economic and political rights are equally important and indivisible. Posner is right that many in the human rights movement emphasize “negative rights” enshrined in the International Covenant on Civil and Political Rights over “positive rights” enshrined in the International Covenant on Economic, Social and Cultural Rights.

Indeed, some advocates have argued that economic rights should have greater prominence. With such a reprioritizing, the world human rights community might look less unfavorably on authoritarian states like China that have dramatically reduced poverty and more unfavorably on a country like the United States, which has a high level of political freedom coexisting with a high level of inequality.

But this would be merely an adjustment, not the wholesale rejection of the human rights system that Posner seeks. His diagnosis of the human rights system, where it isn’t exaggerated, is familiar to the point of clichéd. He doesn’t come close to proving that its ills are life-threatening, but he wants to kill the patient nonetheless.

Perhaps that’s because he shows little understanding of the moral center that animates it. As Jürgen Habermas argues in his 2010 essay “The Concept of Human Dignity and the Realistic Utopia of Human Rights,” human dignity is “the moral ‘source’ from which all of the basic rights derive their meaning.” 41 Metaphilosophy 464 (2010).

This “moral source” is the heart of the human rights system, and now is not the time to abandon it. Quite the contrary, the world—especially the United States—should recommit to it. The United States spearheaded the creation of this system and remains its most important, if fickle, champion. American leadership plays a critical role in the vitality of the system. When, for example, the United States ignores its obligations under the Convention against Torture or refuses to sign the Convention on the Rights of the Child, or simply violates human rights, it weakens the system. But when, for example, it leads a global effort to address a humanitarian crisis or works with the UN High Commissioner for Refugees (UNHCR) to protect the rights of refugees or simply respects human rights at home, it strengthens the system.

Those who worry about the state of the world and want governments to do more to resolve today’s crises should be pressing the United States to respect human rights and support the international system designed to advance them. The system’s strength—or lack thereof—depends on how much we invest in it. It will be what we make it.

Elisa Massimino

Elisa Massimino is president and CEO of Human Rights First, an American organization whose mission is to ensure that the United States is a global leader on human rights. Massimino is a national authority on human rights law and has testified before Congress dozens of times. She is an adjunct professor at the Georgetown University Law Center.