THE TWILIGHT OF HUMAN RIGHTS LAW”
By : Eric A. Posner
Eric A Posner is a prominent jurist & American law professor at the “University of Chicago Law School”. He Teach classes in bankruptcy, secured transactions & contracts. Mr. Posner’s Primary research interests include contract law, bankruptcy law & other relationships between law & social norms. He has written articles in all of these areas. He is the author & co- other of many books on international law, constitutional law & cost benefit analysis. His books include Law & Social Norms (Harvard University Press,2000), The Limits of International Law(Oxford University Press,2005),Terror in Balance(Oxford University Press, 2007), Perlis of Global Legalism(University of Chicago Press 2009), Law & Happiness(University of Chicago Press,2010), Climate Change Justice (Princeton University Press,2010), The Executive Unbound(Oxford University Press, 2011), Contract Law & Theory (Aspen,2011), Economic Foundations of International Law (Harvard,2013), The Twilight of Human Right Law (Oxford University Press, 2014). From 1998-2011, Posner was an editor of “The Journal of Legal Studies”. As of 2014, he was the most cited legal scholar in United States. He has written opinion pieces for New York Times, Wall Street Journal (WSJ), New Republic & other media on legal issues. He is a fellow of the American Academy of Arts & Sciences & a member of American Law institute.
“The Twilight of Human Right Law” by Eric Posner consists of seven chapters. This book is mostly a common-sense approach to the human rights legislation, a review of institutions, brief history, some empirical data concerning its effects & some suggestions for the future. Countries solemnly intone their commitment to human rights, & they ratify endless international treaties & conventions designed to signal that commitment. At the same time, there has been no marked decrease in human rights violations. The focus of this book 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 well- being of people, or even resulted in respect for the rights in those treaties. The major goal of the book is to explain why?
The writer addressed a number of possible or partial explanations, including some that are familiar– such as the relative weakness of the humanitarian impulses that lay behind human rights law and the ambiguity of various strategies and instrumental bases for human rights. Posner is drawing some gloomy conclusion about international human right law in general.
In the “The Twilight of Human Right Law”, Eric Posner set himself two tasks. He sets two objectives to be achieved by the discussion in his book. First, he sought to provide the reader with a general introduction to human rights law. Second, he sought to demonstrate that human rights law has failed to accomplish its intentions and that the treaties on human rights do little or nothing worldwide to advance people’s well-being.
The first two chapters of The Twilight of Huan Rights Law give a general introduction of human rights law.
The first chapter focuses on the origin and University declaration of human right law. According to author, the idea of human right can be found in one form or another throughout recorded history but modern human rights thinking nonetheless did not develop until the enlightenment in the eighteen century. Enlightenment thinker believe that just as people had rights against other people’s interference with their property and lives, they also had right against governments interference with their property and lives was a short step towards the idea of legal human rights. However, the modern notion of human rights emerged with adoption of the UNIVERSAL DECLARATION OF HUMAN RIGHTS by United Nations General Assembly. The weakness in human rights law were there from start. The Universal Declaration of Human Rights- a vague and aspirational document incorporated itself in a series of formal treaties. These treaties about a dozen in total guaranteed rights such as, right to freedom of expression & religious worship, rights to work, pensions, not to be tortured and not to be discriminated against on the basis of race or ethnicity. These treaties were defined in such a way that they could be interpreted in multiple ways.
Chapter 2, discusses the existing formal human rights structures while describing prominent treaty regimes and examines their effectiveness in ensuring state’s compliance with treaty obligations. It analyzes nine treaties that are generally regarded as “core” human rights treaties and ten human rights committees, each associated with one of nine human rights treaties. It also highlighted the weakness of UN Human Right Committees, which lack the power to sanction or issue legally binding judgements.
Chapter 3,4 & 5 ask what is the best theoretical explanation for why states enter human rights treaties & comply with them (if they do) & examines the evidence.
In chapter 3, Posner tackles the reason why states ratify the human rights treaties. He groups the states of the world into three: liberal-democratic, authoritarian and transitional. He states that there are several reasons why states enter into a treaty. Liberal democracies with the goal of improving respect for human rights treaties, Authoritarian states enter into these treaties in response to external pressure and Transitional state is a state that is undergoing a changeover from an authoritarian system to democracy and entered mainly based on internal considerations and lock them in liberal reforms.
Chapter 4 is a critical analysis of the compliances of human rights treaties by states and their behavior before and after ratifying human rights treaties it shows increased uses of torture by states that have ratified the UN’s Convention against Torture (CAT) & other cruel, inhuman or degrading treatment or punishment. He asserts that ‘such evidence should give pause to people who have assumed that the spread of human rights law has improved people’s well-being by leading to real protection of their rights”. Most of the data presents an overall picture that human right treaties do not systematically improve right- based outcomes.
Chapter 5 guides the reader toward reasons- why states comply (or not comply) with human rights treaties? It emphasizes the different interests that various states hold and different reasons why states comply with treaty. Many states ratified treaties for public relations purposes and are motivated by the belief that prominent treaty regime is too weak & therefore cannot influence the behavior of the acceding state. Whereas the reasons for not compliance are firstly, “the central problem with human right law is that it is helplessly ambiguous”, which means that the problem is not so much that states violate treaty terms but that the treaties do not create any meaningful obligations. This is so because the treaties are vague; the conflict with each other. Secondly human rights institutions lack binding power & cannot compel nations to comply with human rights treaties. Poser argued that the Human Rights law has failed to improve respect at human right because the law is weak, treaties are vague & inconsistent and the institutions are balkanized, starved of resources & unequipped with resources.
Chapter 6 criticize the claim that “if governments respected human rights, they would not go to war”. According to Posner, there is a complex and ambiguous relationship between respect for human rights and unwillingness to fight. Human Rights treaties do not forbid countries to go to war thus the respect for human rights does not reduce the risk of unjust wars. It is the form of the government that determines whether state would go for war or not. The likelihood of war is more in an authoritarian government as compared to democratic government. History shows that a war took place between a democracy & non-democracy. Whereas there is a little evidence of war between two democracies. The author is of the view that humanitarian interventions by democracies against non-democracies are justified, because in some cases authoritarian polices seemed linked to aggression. Therefore, humanitarian interventions military interventions to stop atrocities in other countries were just for maintaining stability in the region, for self-defense and human rights. As in case of US interventions in Afghanistan, Iraq and Libya. However, the argument that human rights law reduces war is an argument about the long run.
Chapter 7 addresses the three frequently heard proposals for improving human rights law & explain why they lead to dead end. “Give priority to a narrow set of rights”- this approach is a dead end because the relevant rights enforcers cannot agree that a specific subset of right (political freedom and protection from criminal law enforcement) are fundamental while other are not. “Use a margin of appreciation” this solution will also go nowhere. The margin of appreciations approach is plausible only if it can be implemented by a centralized body & because no such international institution exists, this is another end. “Institutionalize”, many human rights advocates understand that human rights treaties enforcement requires the involvement of independent international institution. This proposal is also dead end. International organization depend for their finances, Power & existence on the support & tolerance of the states, & states do not want to improve enforcement of human rights by giving international organizations more power. However, Posner suggests there is hope in a “fresh start” & proposes to replace ideology with empiricism when it comes to human rights.
In “The Twilight of Human Right Law” the eminent legal scholar Eric A. Posner has argued that purposefully unenforceable human rights treaties are at the heart of the world’s failure to address human rights volitions. Countries fundamentally disagree about what the public good requires and how governments should allocate limited resource in order to advance it.
His major arguments are that human rights law cannot make progress because it is anchored in the belief that “there is a single set of rules governing human behavior that can be enforced impartially”. He calls this rule as rule naiveté-the belief that agreeing to human rights means compliance will follow. The author believes that “Human rights law is experiencing a twilight existence that may linger for quite a while”. According to him the human rights law will not end with bang. State are not going to withdraw from human rights treaties. Instead, the idea of a rigid legal frame work will gradually dissolve into a soup of competing and unresolvable claims about which interests deserve human rights protections, which interest do not, & how much weight should be placed on each.
He therefore concludes that, Human Rights lawyer should learn the lesson of development economics, make small & concrete steps towards Realistic goals-goals that should be examined for every country in part, with its peculiar circumstances & conditions. Empirical research should, too, have a bigger part in this process. Abstract formulations of vague & aspirational rights may seem nice for many people, but their effect is largely null & to export changes in the welfare of the people on this basis is utopic.
For more Reviews: Nationalism