The case against human rights

December 2014

This was the title of a piece in the Journal section of the Guardian newspaper on 4 December by Eric Posner who is a professor at the University of Chicago Law School.  This is a thoughtful piece, not written by some demagogue, but by someone with a background in the subject and who has made significant contributions to the debate on the issue of human rights.  The points he makes are cogent and need addressing seriously.  The arguments he puts forward seem to come from his book The Twilight of International Human Rights Law (Oxford University Press, 2014).

His article starts with a review of the history of the subject, especially since 1948, with the adoption of the Universal Declaration of Human Rights by the UN which he correctly points out is not a treaty in the usual sense.  He might have added the European Convention of Human Rights came into being at about the same time and for broadly the same reasons.

The essential problem from the beginning he says was the different outlook by the key players when writing the UNDHR.  America had in mind their constitution which was largely based on ‘political’ rights which have developed under their constitution.  Even so, they did not want racial equality to be included: the effects we see today with the recent shooting in the USA of two black people by police and the lack of a legal follow through.  The then Soviet Union wanted more social rights and the need to provide jobs – hence a right to work.  The colonial powers – chiefly Britain and France – did not want the emancipation of their colonies to be included within it.  Hence the result was a partial framework not a coherent, legally binding treaty.

His argument is based on the following main points:

• Human rights campaigning has failed to achieve its fundamental objectives.  Despite countries signing up to various agreements, torture is still widely practised, almost routinely, around the world; women’s rights are widely neglected especially in the middle east, and children are still working in mines and sweatshops
• The notion of human rights is hopelessly ambiguous with over 400 listed, which can provide no guidance to governments on how to incorporate them.  For example, eliminating torture would require major changes to the police forces and reform of corrupt judiciaries.  It is still practised he argues, because the police have no other way in the light of crime and corrupt courts.  Governments would prefer to build schools and hospitals rather than spend on the police and reforming the court system
• Things like free speech have little practical value where religious issues prevail.  Many western countries limit it, for example for defamation or obscenity
• But his main argument centres around the ‘top down’ nature of human rights.  It is reminiscent of old colonial ways where primitive cultures had reforms foisted upon them by white occupiers who thought themselves superior.
• Another factor is the post 9/11 use of torture by the United States.  This seriously undermined their moral standing and since they were the country most active in pursuing human rights, this was a serious blow to the cause.

This is only a flavour of his arguments but the essential point remains that six human rights treaties have been signed by over 150 countries around the world yet torture is still widespread, free speech is absent from many parts of the world (for example Russia where many journalists have been murdered), and democracy is a tenuous concept in countries like China – witness the recent events in Hong Kong where the communists only want their people to be on the ballot list.  Western countries are guilty of hubris and ‘forcing other countries to adopt western institutions, modes of governance, dispute resolutions systems and rights.’

It is indeed a gloomy picture.  His proposal is for human rights practitioners to follow the example of development economists who he says are changing from their top-down, coercive approaches and adopting more pragmatic ones better aligned to the countries own ways of doing things.  These arguments appear weak however since the west still imposes western style conditions on its funding and support for developing countries.  They are required to open up their markets and to privatise their industries, usually to their financial detriment.  Elsewhere from the Guardian article he has argued for open borders as far as migration is concerned – not something likely to make him popular for a European audience or even some US states.

So we must look at the failings he spells out and examine how true they are.

Firstly, the ambiguity he speaks of seems a weak reason why some rights are so cavalierly ignored.  One is tempted to ask ‘what is there not to understand?’ about such issues as torture or lack of due legal process.  These are not sophisticated or complex issues that countries are wrestling with.  Inflicting violence on individuals, in all its various forms, is abhorrent and since nearly all the countries of the world have signed up not to use it, it is odd to argue that there is some conceptual blockage to its continued use.

On the subject of torture, the suggestion that it is used by police forces because they are frustrated by the judicial process is also shaky.  Torture is never effective since people say anything to get it to stop.  It brutalises both the torturer and the tortured.  People are unlikely to wish to engage with police forces if they fear what might happen to them.

The ‘top down’ argument and that western governments seek to impose their morals on the west has merit.  On the other hand, this thinking has evolved from over a thousand years of strife, wars, revolutions and upheaval and, however imperfectly, has resulted in prosperity for these countries.  As a way of doing things they seem worth sharing with less well developed countries.  Doing it sensitively is of course desirable.

He discusses how China is admired today and the fact that they have opted for economic development in return for a lack of political freedom.  There is a kind of Faustian pact: we will provide the shopping malls if you allow us to carry on as a one-party state.  But for how long will this last?  Events in Hong Kong seem to demonstrate that for some Chinese, the ‘human right’ of being able to chose one’s leaders is quite strong.  It is that which worries the leaders in Beijing.  It is not that there is a lack of understanding of the human rights issues involved, it is a straightforward desire to hold on to power.  It is not a struggle to understand the concepts or the treaties.

Finally, professor Posner seems to overlook the influence of social media and travel.  Individuals are now able to exchange information in all sorts of forms at the press of a button.  Even in China, which works hard to shut out the web, information gets through and of course millions of Chinese travel the world.  So the diffusion of these ideas and aspirations are not just through treaties and international agreements.  There is pressure from the ground up for better standards.  People are aware of poor treatment and corruption and recognise it to be wrong, not necessarily because of a clause in a UN treaty but because they know it to be so.  This ‘bottom-up’ pressure is a significant force and the article does not give it sufficient credence.

On the one hand it is possible to be pessimistic about the lack of progress over the last six or seven decades, but there have been improvements.  Imperfect though it has proved to be, the Arab Spring for example, sent a shockwave through a range of undemocratic nations in north Africa and a key issue was human rights.  At base it is an issue about power and who has it.  However imperfectly, human rights express that power and give more of it to ordinary people.  It is that aspect which those who hold power do not like, not some puzzlement over the precise meaning of the UN Declaration or European Convention of Human Rights.