- The Twilight of Human Rights Law by Eric A. Posner
Professor Eric A. Posner is a prolific writer and the Kirkland & Ellis Distinguished Service Professor of Law at the University of Chicago. From his CV, it appears that he has spent essentially his entire career in academia. This provocative book is thus primarily a philosophical, quasi-social science critique of international human rights law based on theory, not practice or experience.
This very brief biographical summary is necessary because The Twilight of Human Rights Law is based on fundamental misunderstandings of the human rights project, which began in the 1940s, gained political traction in the 1970s, and today influences the rhetoric of practically every government in the world. These misunderstandings are both conceptual and analytical, and they undermine the attention that should be given to a number of difficult questions that Posner raises.
The conceptual misunderstanding emerges from the first sentence of Chapter 1: “The animating idea behind human rights is the moral obligation not to harm strangers, and possibly the moral obligation to help them if they are in need.”1 This view of human rights as a legal-moral obligation on outsiders to impose their will or sense of justice on “strangers” leads fairly easily to Posner’s ultimate conclusion that “human rights law has failed to accomplish its objectives,” as discussed more fully below.2
The analytical misunderstanding is shared by many of the new “quantifiers” of human rights compliance, whether they are critical or supportive of human rights in general. It is the assumption that attempting to measure the impact of human rights treaties is a useful means of measuring the impact of human rights. A corollary is that the weakness of legally binding or other enforcement mechanisms is a measure of their failure.
In reality, those who draft international human rights texts and who work to implement human rights norms have much more modest goals. Human rights law was not created to justify outside intervention (whether by force or otherwise); it was “animated” by the simple proposition that every human being has rights simply by being human, and that these rights belong to each person equally. While concepts of justice, fairness, and equality have appeared within societies since the beginning of time, the revolution wrought by international human rights was to expand these notions to include those who had been excluded from protection in any given society due to race, caste, gender, religion, or similar characteristics.
A second important feature of international human rights law is its origin in the mid-twentieth century, a time when the state was becoming more powerful and increasingly ubiquitous. Human rights focuses on the relationship between the government and the individual (and occasionally groups), both to protect the individual from the power of the state and to identify the positive responsibility of the state to concern itself with the socioeconomic welfare of its population.
The changes in government behavior envisaged by human rights are potentially [End Page 1105] extensive and long-term. Thus, Posner’s focus on the recent (twenty years or so) impact of human rights treaties largely misses the point. The goal has always been to persuade governments to change laws and policies through domestic processes, not to impose human rights law primarily through courts, economic sanctions, or military campaigns led by “foreigners.”
Posner first offers a superficial overview of human rights history and institutions. The latter discussion is marred by a number of minor errors or overstatements that reflect Posner’s lack of familiarity with the way in which human rights institutions actually work. For example, the book frequently refers to the UN “Council on Human Rights” rather than the Human Rights Council. The description of the work of the UN human rights treaty bodies with respect to individual complaints refers to their attempts to “mediate”3 solutions or to enter into a “dialogue”4 with the country concerned. There is no mention of the committees’ often blunt criticism of specific human rights situations in a country or their published “views...