The Case for Human Rights
Introduction
In Eric Posner’s article “The Case Against Human Rights”, Posner makes an attempt to argue that the current Universal Declaration of Human Rights (UDHR) has been unsuccessful. Moreover, the author argues that the UDHR has failed at establishing a universal moral code that all nations should ratify and uphold. For the purpose of this paper, I will attempt to reconcile some of the claims from this article by establishing a “Case for Human Rights”. Posner uses the vast number of human rights rules that are guaranteed in international standards as a comparison against the rates of governance and compliance in many nations. Whilst I must agree that there is some weight in Posner’s critique, especially in his comments noting poorly equipped international organisations and the disinterest of states in governing human rights globally, his over-arching conclusions that human rights law is obsolete is far from compelling. Additionally, his arguments are not supported by the evidence that Posner presents forward to the reader. It is clear to me that the arguments presented in Posner’s “The Case Against Human Rights” are not only culpable of misinterpreting the significance of formally defining human rights, but also guilty of oversimplifying the cases of human rights violations.
International human rights law as a top-down approach
Posner’s arguments are centred around the top-down approach to international legalisation and its impact on nations. The author argues that the fundamental problem with international human rights is that “human rights law has failed to accomplish its objectives. More precisely, there is little evidence that human rights treaties, on the whole, have improved the wellbeing of people”[1]. It is important to note that the author is not so bold as to claim that the human condition has decreased since the establishment of international human rights covenants or treaties. In its place, Posner challenges the primary correlation between the multi-lateral treaties and their impact on domestic policy or legal systems. Posner, instead, assertively argues that the collapse of communism, and the spread of the democracy and economic growth are directly responsible for the progress towards human rights rather than any legal movement. He does not, however, present the reader with a comparison, empirical evidence or statistics that support his claims.
It would be negligent not to connect Posner’s approach to international human rights law and the approach to civil rights law adopted by Gerald Rosenberg in “The Hollow Hope”[2]. In this text, Rosenberg also centres his critiques on the impact of top-down approaches to legislation. He explores this in his commentary on the US Supreme Court Decision in Brown v. Board of Education. The findings of this case determined that rates of desegregation in schools as well as black votes did not increase until the latter half of 1960’s – ten years following the 1954 decision. From this, Rosenberg determined that court orders are not soul incentives for social or political change. Similar to Posner’s arguments against international human rights, Rosenberg claims that national legislation outweighs the contribution of litigation. Reflecting on Rosenberg and Posner’s arguments, it would seem a central theme to their work pivots on claims that for human rights lawyers and activists to pursue the cause of human rights successfully there needs to be a dramatic shift in their approach. Moreover, the focus on human rights should centre on development economics rather than the complexities of rules that coincide with the growing list of protected rights. When collecting the claims from Posner’s “Case Against Human Rights” and Rosenberg “The Hollow Hope”, two covert statements stand out. Firstly, that human rights law is independent and separable of other factors contributing to social change such as democracy. Secondly, that pursuing legal interventions often carries a trade-off with more economic and sustainable strategies for bottom-up or on-the-ground interventions.
Minutiae of social context and economic advancement
Posner explores this in his commentary on Brazil and the right not to be tortured. Posner is on target in that for most developing countries torture is not a matter of official legislation or policy. Speaking generally, criminal justice and judicial processes within developing nations are often poorly supported and underequipped to meet the standards set by human rights law. Additionally, the courts and bureaucracies are often rife with corruption and inefficiencies. As such, police forces often resort to extrajudicial methods. It is here that I resonate with Posner’s claims towards economic development as a strong factor that needs to be appropriately reconciled with the legal discourse in the pursuit of human rights. The right to fair trial, for example, as a counter method for mitigating the risk of extrajudicial methods and multi-level corruption requires that a sophisticated and resilient institutional infrastructure to be in place. Well trained staff with a collectively sophisticated understanding of human rights law, therefore, is also necessary to facilitate the protection and attainment of human rights. In the case of Brazil, enforcing anti-corruption laws and raising salaries, or “cleaning them up” as Posner claims, comes at a high cost and often one that developing nations cannot afford. Governments of developing nations, therefore, may elect to use its limited resources in other capacities ie. building schools, medical centres, or community development. If we recognise these as reasonable grounds, however, a significant issue for human rights law arises as there is no clause that accepts such grounds as reason for failing to prevent human rights abuses.
When reconciling my previous background in social work with the human rights law framework, the relationship between human rights law and economic development is something that I grapple deeply with and can begin to resolve Posner’s thinking. In 2014, a Stanford University-led study[3] of military police officers in Brazil found that a significant majority of had experience high levels of violence throughout their childhood including homicide and assault, many had also witnessed the murder of a family member. In Robert Muggah’s article “How did Rio’s police become known as the most violent in the world?” (2016)[4] he shares that there has been 46% decrease in incidents of torture in the city of Rio from 2003 to 2015. Essentially, the central factor for the reduction of extrajudicial activities and police brutality across Rio has been rewarding those not engaging with unjust behaviours or abuses of human rights. Whilst there has been an increase of police-killings since 2015, this should not be misinterpreted as human rights laws being ineffective as argued by Posner. This increase, rather, demonstrates that upbringing holds more significance that enshrining human rights laws and treaties without also educating general populations of the principal importance of maintaining them.
It is here that I am conflicted with Posner’s claims towards the minutiae of context when analysing human rights abuses. Unlike Posner, however, we cannot oversimplify and reduce the cause of extrajudicial killings or police brutality to one factor. There are multiple intersecting factors that have driven the recent spike in police violence. Political crises, economic crises as well as significant reductions in human security funding have all contributed to the recent spike in police violence in Rio. In 2016, Brazil’s human security budget was cut by more than 30%[5]. Another factor that Posner neglects to include in his discussion of Brazil is how the military police had significant power over the Brazilian State before its establishment as a democracy in 1985. During this dictatorship era, military police were deployed and assigned to clandestine operations, targeted killings, disappearances, and torture[6]. I would counter Posner’s claims against the UNHR in this capacity by arguing that by accepting the ‘failures’ and forsaking human rights law as a response to enduring human rights violations would be the equivalent of condemning the criminal code due to increasing rates of crime and violence committed. The result of either of these scenarios would simply lead to the downfall of human security whilst also satisfying governmental injustice and hypocrisy. The threat to human rights law today is that with the growing political and economic crises even the incremental progression of protecting human rights could be lost without the continued enforcement of human rights treaties.
The central problem with human rights law is that it is hopelessly ambiguous
It would be negligent not to further explore Posner’s core concept, that human rights law is hopelessly ambiguous. Posner claims that the ambiguity of human rights law will inevitably lead to deliberate misinterpretation of multilateral treaties as well as global governmental injustice. Posner consistently labels the Universal Declaration of Human Rights as “poorly defined obligations” not only in this article, but across his collective work. He also claims that that due to limited resources within states, any party to human rights law treaties will inevitably have to make certain trade-offs in sustaining certain human rights over others. Countering this, he goes on to state that economists and development strategists have seemingly been able to successfully combat this challenge. It could be argued that Posner’s aversion to the role of human rights law is misguided and denies the core reason for having human rights documented in the first place. Lynn Hunt, author of “Inventing Human Rights: A History” (2008)[7] shares a compelling argument for the role of the UNHR, she shares that; “The Declarations – in 1776, 1789, and 1948 – provided a touch stone for those rights of humanity, drawing on the sense of what ‘is no longer acceptable’ and in turn helping to make violations all that more inadmissible”. Posner, in this regard, has misguided expectations of the role of human rights law and bases his arguments on the fulfilment of these expectations, neglecting to understand the scope or purpose of said laws and treaties. This is often referred to as a “Kettle Logic” fallacy, which Posner commits himself to – typically presenting multiple arguments to defend his statements but lacking compelling thorough thought or consistency throughout. In this article, Posner also neglects to provide any form of remedy or alternative solution for the ‘failures’ of international human rights law, nor does he present a fair explanation as to why human rights law has evolved to where it stands today. His assumption is that the progression of the promotion, protection and attainment of human rights is a direct result of the advancement of economies rather than the rule of law.
Reconciling Human Rights Law with Economic Advancement
State obligations in the protection and respect of human rights are integral tools that demand the appropriate attention to human rights that states may already be devoted to. Posner is adamant that human rights are dependent on economic advancement and that the advancement of certain rights boils down to its financial obligations or costs. I counter his statements by arguing that if there is a blueprint for strengthening domestic demands for human-rights targeted resources, international human rights law treaties play an important role in its case.
Reflecting on the basis of how enforcement of human rights is funded, I arrive at an opposed conclusion than Posner. Whilst Posner insists that the investment of states into their “rights sector” is a sunken cost, I propose that there are continuous positive externalities from this investment. In the case of Brazil, if they were to choose to invest state funds into constructing and implementing a fair trial system under the International Covenant on Civil and Political Rights (ICCPR), it would also support the protection of rights under Convention on the Elimination of All Forms of Racism (CERD) and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Moreover, I would also propose that many of the costs that come with developing systems that respect and protect human rights are not exclusively unit-based or rights-based as Posner suggests. Whilst there are many problematic factors to Posner’s arguments against human rights law, limiting rights to a sunken cost of states rather than its positive advancements leads to misguided conclusions as demonstrated by Posner.
Conclusion
I put to the reader that Eric Posner’s article “The Case Against Human Rights” lacks fair judgement, evidence, and reason throughout making his argument uncompelling. Moreover, his misguided conceptualisation of the scope and purpose for human rights law is misguided and harmful to the progression of human rights globally. Posner has done a great injustice to human rights by oversimplifying the cases of violations whilst also misinterpreting the significance of formally defining human rights. Thus, in my “Case for Human Rights” I have shared my critiques on Posner’s arguments towards; international human rights law as a top-down approach; the minutiae of social context and economic advancement; the central problem with human rights law being that it is hopelessly ambiguous; and reconciling human rights law with economic advancement. Whilst I must agree that there is some weight in Posner’s presence and contribution to the discourse of human rights, there is far more significant weight for the role of international human rights law in the promotion and protection of human rights and global justice.
Footnotes
[1] Posner, E. (December 4th, 2014). “The Case Against Human Rights”. The Guardian. https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights
[2] Rosenberg, G. N. (1993). The Hollow Hope: Can Courts Bring About Social Change?. The University of Chicago Press.
[3] Magaloni, B. et al. (2014). “Understanding Police Use of Force in Rio De Janeiro.” FSI. cddrl.fsi.stanford.edu/crimelab/research/understanding -police-use-force-rio-de-janeiro.
[4] Muggah, R. (August 3rd, 2016). “How Did Rio’s Police Become Known as the Most Violent in the World?”. The Guardian. theguardian.com/global-development- professionals-network/2016/aug/03/rio-police-violent- killing-olympics-torture.
[5] Ibid.
[6] Ibid.
[7] Hunt, L. (2008). Inventing Human Rights: a History. W.W. Norton.