From The Twilight of Human Rights Law, by Eric A. Posner, out next month from Oxford University Press. Posner is a professor at the University of Chicago Law School.
Amarildo de Souza, a bricklayer living in a favela in Rio de Janeiro, was arrested by police in 2013 as part of an operation to round up drug traffickers. He was never seen again. De Souza’s disappearance was taken up by protesters in street demonstrations, which in turn were also met with a ruthless police response. Normally, de Souza’s story would have ended there, but public pressure led to a police investigation and eventually to the arrest of ten police officers, who have been charged with torturing and murdering him.
When people think of the major human rights–violating countries, they think of places like North Korea, China, and Russia. Brazil, one of the largest democracies in the world, is rarely placed on that list, possibly because the Brazilian government — unlike the governments of North Korea, China, and Russia — does not harass and murder political dissenters. But the norm against extrajudicial killings is central to human rights law, and it is a norm that Brazil flagrantly violates — not as a matter of official policy, but as a matter of practice. Every year, according to Human Rights Watch, more than a thousand police executions take place in the state of Rio de Janeiro.
Brazil is hardly unique. Nations where police routinely combat crime, maintain order, and advance their own interests through extrajudicial killings include India, the world’s largest democracy; the Philippines, where security forces are involved in disappearances; Malaysia, which has in recent years seen a rapid increase in the number of deaths of people in police custody; South Africa, where violent means are used against demonstrators as well as suspected criminals; Bangladesh; the Dominican Republic; Eritrea; and Sri Lanka. These countries all have court systems, and most suspected criminals are charged and appear in court. But the courts are slow and underfunded, so police, under pressure to combat crime, employ extrajudicial methods.
When police do use the court system, they often torture suspects to extract confessions, a practice that has been documented in many countries, including Greece, India, Lebanon, Mauritania, Ukraine, the United Arab Emirates, and Tajikistan. The United States tortured suspected Al Qaeda militants after 9/11; even before then, it sent captured militants to Arab allies to be tortured by security forces. Liberal democracies in Europe and elsewhere gave assistance to the U.S. effort to round up, transport, interrogate, and detain suspected Islamic extremists. Torture is also commonly used in such places as China, North Korea, Iraq, Egypt, and Syria to intimidate political opponents, journalists, human rights workers, and others.
The governments in authoritarian states employ a broad range of strategies to retain their power. Some, like China’s, outlaw independent political parties and refuse to conduct elections. But most authoritarian governments maintain power in subtler ways: operating the major media outlets, censoring other sources of news and independent opinion, intimidating journalists, controlling the judiciary and using it to conduct political trials of dissenters, and rigging elections. Such countries also interfere with political associations, spy on citizens, and exploit popular prejudices by harassing racial, ethnic, and sexual minorities.
One study by the human rights–research group Freedom House counted 88 “free” countries out of 195 in 2013, where a free country is defined as one with “open political competition, a climate of respect for civil liberties, significant independent civic life, and independent media.” The other countries experience a range of human rights abuses. The portion of free countries in the world has gradually increased, from 29 percent in 1973, to 42 percent in 1991, to 46 percent in 2012. In other words, respect for rights has improved, but only modestly over the past twenty years — the period in which the rhetoric of human rights has become nearly universal.
Since the end of the Cold War, states have increasingly regarded ratification of the latest human rights treaty as all but compulsory. It became possible to argue that there was an international human rights “regime” — a consensus among nations that all countries must respect human rights, despite considerable disagreement as to what this meant. Not all countries had ratified all the treaties; but most countries had ratified most of them. (Each of the six major human rights treaties has been ratified by more than 150 countries, and some treaties — including the International Covenant on Civil and Political Rights and the Rights of the Child Convention — have been ratified by nearly every one.)
When governments criticize one another these days, they frequently invoke the language of human rights. NGOs that advocate human rights have proliferated; Amnesty International and Human Rights Watch are just the most prominent of hundreds of such organizations. The media discuss their reports. Numerous U.N. bodies monitor human rights; law schools teach human rights law, and numerous regional courts enforce it. There is even private litigation in America based on international rights violations. None of this was true fifty years ago. And yet the question remains as to whether all of this activity has actually improved people’s lives. In a very rough sense, the world is a freer place than it was fifty years ago, but is it freer because of the human rights treaties or because of other events — such as economic growth or the collapse of communism?
Many parties to the International Covenant on Civil and Political Rights, including Vietnam and Uzbekistan, have authoritarian regimes with few political freedoms. Saudi Arabia ratified the treaty banning discrimination against women in 2000, and yet by law subordinates women to men in all areas of life. Child labor exists in countries that have ratified the treaty on the rights of the child — Uzbekistan, Tanzania, and India, for example. Powerful Western countries, including the United States, do business with grave human rights abusers to which they offer economic benefits or diplomatic support. With the exception of South Africa during apartheid, it is hard to name a violator that has improved its behavior because of pressure from the international community. Such pressure is more often a response to perceived security concerns of the sort posed by Iran and North Korea.
In recent years, Sudan bypassed Western efforts to impose sanctions for its rights violations by strengthening its ties with China. The Arab Spring, which initially seemed like a great flowering of human rights, has collapsed — the military took control in Egypt, and a brutal civil war erupted in Syria. Western countries did not encourage pro-democracy groups at the outset of the Arab Spring, partly because they feared the chaos that would accompany the collapse of authoritarian regimes. International organizations have not filled the vacuum, either because they are controlled by Western powers or because they are too weak to act against them.
There is little evidence that human rights treaties have improved the well-being of people or even resulted in respect for the rights in those treaties. Human rights law has failed to accomplish its utopian aspirations, and it ought to be abandoned.
Could one give up on human rights law without giving up on efforts to improve the well-being of people who live under despotic or poorly functioning governments? If Westerners bear a moral responsibility to help less well-off people living in other countries, we ought to look at the history of foreign aid as a model. Over the same period that human rights treaties proliferated, Western countries contributed trillions of dollars of aid to the developing world. The aid has taken many forms: unrestricted cash, loans at below-market interest rates, cash that must be used to buy Western products, in-kind projects like dams and plants, technical assistance, education, training, and “rule-of-law” projects designed to improve the quality of legal institutions. For a while, the “Washington consensus” imposed cookie-cutter market-based prescriptions on countries requesting money. The consensus among economists now is that these aid efforts have failed.
International human rights law has reflected the basic civilizing ideology guiding foreign-aid efforts, combined with the same top-down mode of implementation, pursued in the same crude manner. But human rights law has its distinctive features as well. Because in theory it applies equally to Western countries, there is an illusion of symmetry and evenhandedness that is absent from foreign aid. In practice, international human rights law does not require Western countries to change their behavior, while (in principle) it requires massive changes in the behavior of most non-Western countries. It is the stick corresponding to the carrot of foreign aid. Both foreign aid and human rights enforcement can be corrupted or undermined because Western countries have strategic interests that are not always aligned with the missions of those institutions. But the major problem is that neither system can handle the variation and complexity of non-Western countries.
Development economics has gone some distance toward curing itself of this failing. The best development scholars have been experimenting furiously with different ways of improving the lives of people living in foreign countries. In recent years economists have implemented a range of randomized controlled trials. They use rigorous statistical methods. Expectations have been ratcheted down; the goal is no longer to convert poor societies into rich ones, or even to create market institutions and eliminate corruption; it is to help a school encourage children to read in one village, or to simplify lending markets in another. By contrast, human rights law has addressed the problems of variation and complexity by weaving between two inconsistent paths: insisting that all countries at least comply with a “core” group of narrow (mainly political) rights, and rationalizing diverse government behaviors through selective enforcement. The academic rigor now present in development economics is absent from human rights law. Until recently, hardly anyone bothered to use meticulous scientific methods to test the effect of human rights treaties and institutions. Even today, empirical research is rare. In the legal literature, a hundred papers parsing human rights doctrine to ever finer degrees are written for every paper that takes an empirical approach. Lawyers mainly read and discuss judicial opinions — which affect hardly anyone at all — while ignoring the actual behavior of governments, NGOs, and individuals.
Human rights law also suffers from the problem of rule naïveté — the idea that the public good for any country can be described in the form of simple rules. When foreign-aid donors try to help a country, they recognize that the goal is to improve the well-being of the recipients — better health, greater economic activity, higher levels of literacy, and so on. When human rights advocates try to help a country, their goal is to bring the country into compliance with rules — fewer detentions, less torture, more free speech — which do not necessarily advance the well-being of the citizens in the target country. It is this narrowness and indirectness that make human rights law more troublesome than foreign aid.
A wealthy state, international NGO, or other group can start by identifying the states that are most in need of help. These are not necessarily the ones that violate human rights the most; they may just be those that are very poor. The next question is whether the misery of the population can be attributed to choices by the government, or to deeper factors — cultural, demographic, political. In many countries, the problem is not that the government violates human rights; it is that the government is too weak to keep order because the population is divided into hostile tribes, clans, and other groups. In such countries, there may be little that the West can do to help.
What I am arguing for, then, is recognition that wealthy countries can and should provide foreign aid to developing countries, and use tools of coercion if necessary, based on a rough sense of whether the aid or coercion will enhance the well-being of the population, and of whether the government in the recipient country will cooperate with or undermine these efforts. Such a judgment should be made independent of whether the government complies with human rights treaties. This will mean abandoning the treaties’ greatest potential advantage — which is to provide a method for different countries to coordinate development assistance (as well as means of pressure) by creating a common set of priorities. But that effort never succeeded in the first place because it was never possible to agree on what the common set of priorities was, nor the extent to which bribing or forcing a country to comply with the treaties would actually help the population.
With hindsight, we can see that the human rights treaties were not so much an act of idealism as an act of hubris, with more than a passing resemblance to the civilizing efforts undertaken by governments and missionary groups in the nineteenth century, which did little good for native populations while entangling European powers in the affairs of countries they did not understand. A more humble approach is long overdue.