Posner writes:
"Academic research suggests that international human rights treaties have had little or no impact on the actual practices of states. The Genocide Convention has not prevented genocides; the Torture Convention has not stopped torture. The same can be said for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and a host of treaties meant to advance the rights of women and children. States that already respect human rights join human rights treaties because doing so is costless for them. States that do not respect human rights simply ignore their treaty obligations."
What is Posner's argument here? That laws that aren't followed 100 percent of the time should be disposed of? That genocide and torture shouldn't be illegal? If that is, in fact, what Posner is saying, his complaint isn't with international law, but law in general. After all, murder is illegal in every society, yet murders are still committed everywhere.
Posner goes on to explain:
"The evidence shows that human rights are best in those states that are wealthiest, leading many scholars to speculate that the best way to promote human rights is to promote growth."
Wealthier states are, on average, more likely to respect human rights, but Posner is assuming that economic growth causes states to respect human rights. There is a huge body of literature, including, most famously, Amartya Sen's Development as Freedom, that concludes the exact opposite, that respect for human rights -especially freedom of expression- enables disaster-prevention, poverty reduction, and economic growth.
Then, there are the glaring examples of developed and wealthy countries showing little respect for the rights of people residing within their borders. Russia, Saudi Arabia, the United Arab Emirates, and Singapore might all be developed, but they're hardly paragons of good human rights policy. Economies can boom and skylines soar on the labor of exploited, brutalized underclasses, and in spite of authoritarian denials of civil and political rights.
However, countries like Singapore, representing the so-called "authoritarian development" model, and rentier states like Saudi Arabia -regimes that survive on income from natural resources- are exceptions globally. Most undemocratic countries are dismally poor.
As law, human rights have instrumental value to people campaigning for equality, exposing cruelty, and taking cases against their abusive and feckless governments to national and international courts.
Whether it entails locating mass graves or litigating on behalf of slum residents, human rights work outside the democratic world often places advocates and their loved ones in mortal danger. International human rights law isn't always honored, and it certainly cannot bring the dead back to life, but without the law itself on their side, threatened human rights defenders in places like Zimbabwe, Afghanistan, and Russia would be even worse off than they are now.
If nothing else, human rights law gives some wronged parties recourse and a focus for the future. It has allowed Chechen village mothers whose sons were forcibly disappeared to take the Russian state to the European Court of Human Rights and, in doing so, say to the world, "Our government must account for its actions, and acknowledge our suffering." That alone is a powerful -and empowering-thing.
About which Eric Posner has nothing to say.
I wouldn't expect an arch-realist to address norms, but not addressing the instrumental value of human rights law is sheer intellectual laziness.
If Posner is correct about anything, it's that the world we live in is too often still one in which a person's birthplace, rather than humanity, dictates the rights she or he may enjoy. But that's not an argument for less international law, that's an argument for more and better human rights advocacy.
Side note: Posner's worldview is, ironically, best represented by this Amnesty International ad -minus the last line, of course.
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