Twilight of Human Rights Law

Edited: 10 April 20

We have chosen to review the book Twilight of Human Rights Law by Prof. Eric Posner (OUP) as it appeared in an article by Britain’s new Attorney General, Suella Braverman.  She refers to one of his arguments in a newspaper article.  In addition, the many attacks on human rights and the desire to abolish the Human Rights Act is part of current government policy.

The first part of the book is a tour d’horizon of the many failings in human rights around the world.  He instances massive violations in places like Rwanda, the appalling treatment of the Rohingya in Myanmar, the terrible events in Chechnya and many other places around the world.  He rightly points out that although countries have signed up to treaties to abolish the use of torture, it is still widely practised.  He points to bad police practice in countries like India, Brazil and Indonesia.  Slavery is still the curse it ever was but organised in a different way.

International treaties have had little effect he says in improving behaviour.  In a small number of cases it has he concedes.  He discusses the imperialist criticism of western states seeking to impose their moral compass on other countries based on attitudes dating back to colonial days.  He instances the use of torture by the Americans at Guantanomo Bay following 9/11.  This was supported by a majority of Americans and thus challenges their claims of moral leadership.

The argument seized on by the Attorney General is that of a trade-off as far as the use of torture is concerned.  The argument here is that many countries have limited resources.  They have a choice between spending money on improving the police and stopping torture or, investing in health care or education.  Since better health care and eduction is likely to be of greater benefit to more people, it is a preferred option.

THE book is flawed in many important respects.  Although the arguments he provides and examples of failure and continuing violations and bad behaviour by many states around the world are true enough, it is not true to say that there have been no improvements in the human rights everywhere.  One of the problems is that transgressions are news: steady improvements aren’t.  So we read or see TV programmes about violations or genocide for example, but not small improvements in say, Russia.

The argument about torture assumes that there is an economic equivalence between improving police behaviour and education spend.  The two are likely to be vastly different.  Improving police behaviour and that of the judiciary would cost millions, education costs significantly more than that.  Moreover, education is a continuing cost, sorting out the police is more likely to be a one-off cost.  Getting rid of torture is likely to have benefits to society.  The police are trusted then they will get more support from the public.  He gives no credence to the fact that torture is ineffective.  People will say anything to get it to stop.

Another unconsidered factor is the very cost of running a police state.  To run a state like China where human rights are flouted on a massive scale, is immensely costly.  The Chinese monitor movements of its people, they have a vast system of tracking the worldwide web to ensure its citizens do not read what the state doesn’t want them to, and they employ a huge army of police and informers.  They have invested heavily in cameras and systems to watch its people’s movements.  It is not true to assume therefore that improving human rights is somehow automatically more costly than the politics of repression.

As AC Grayling puts it in his book Ideas that Matter (Weidenfeld & Nicholson, 2009);

The ideas embodied in all these human rights instruments have a powerful influence on thinking and behaviour, even if violation of them continues: hope has to lie in the future as these ideas become more widespread and more influential still.  (p179)

Although Posner gives a good summary of human rights, especially since the war, he does not discuss the longer history since Magna Carta. There has been a trend over centuries of citizens gradually acquiring more rights.  The European Court has, slowly but surely, done a lot to raise standards as has the International Criminal Court.  Nor does he credit the fact that the presence of treaties is an important support for people pressing for better rights in those countries where they are poor.  The many human rights organisations are able to pursue their arguments and press for changes precisely because there is a corpus of treaties and law to base their actions on.  The point overlooked by the professor is that the treaties enable action within the country itself.

He also makes great play of the numbers of treaties and long list of rights, which he says, renders them less effective.  He lists them all in an appendix but upon examination, many are restating the same points.  He seems to overlook the vast number of laws which govern most states.  These are constantly added to as new problems emerge or old problems need solutions, the Children Act for example.  The number of laws do not make improving society less effective – quite the opposite it could be argued.

Perhaps because Prof. Posner is a lawyer but he sees progress purely through the lens of law and treaties.  He does not take into account that laws are just one part of the equation.  A considerable amount is done by persuasion, human rights activists, diplomats and others (including Amnesty members) beyond pure legal action.

Overall, despite the long list of problems and failures, he does not convince that it is twilight for human rights.