New Year’s Question: Is Human Rights Law Useful?

The New York Times is closing out 2014 by asking whether human rights law is a failure, a critical question that human rights advocates would do well to ask themselves more often (or perhaps ask themselves too often, depending on which one you are talking to). It’s also a critical question for refugee policy, which is often torn between rights-based and looser humanitarian approaches.

The ensuing debate between the University of Chicago Law School’s Eric Posner and Human Rights Watch’s Kenneth Roth is interesting, but quickly becomes unnecessarily constricted. Posner says human rights treaties ask too much from developing countries. Human rights law is honored in the breach, at best. Roth replies, in essence, that at least we know there’s a breach. Human rights law fills a vacuum by setting standards.Posner and Roth start to repeat themselves, which should have clued the editors in to the need to bring in additional voices.

Two disturbing things happen in this narrow debate. First, human rights advocates should be alarmed that Roth, one of their standard bearers, had rather thin ammunition with which to respond to the charge that human rights law doesn’t accomplish much. Often when governments do the right things, there are domestic political explanations that make it hard to give clear credit to international human rights law. The mere fact that a government mentions a human rights treaty does not mean that the treaty caused it to act.

Second, Posner admits an alarming sympathy with the Chinese government’s repression of political dissent. We ought to recognize that democracy has an imposing ideological rival, namely, stability. Posner speaks for the governments of China, Russia, Egypt and many other countries by arguing that more freedom will breed chaos. Since the end of the Cold War, Americans in particular have been lulled into believing that there are no more great global debates. Not so. And it is not at all clear who will win the war of persuasion in the debate between democracy and stability.

It’s unfortunate that the editors had a narrow vision of what human rights is before choosing debating partners. The debate in The New York Times is about only two things, really: standard-setting (through treaties) and naming and shaming of violators. This is what the human rights movement became known for after World War II through the 1970s, an era that gave birth to most of our important human rights treaties and to groups like Amnesty International and Human Rights Watch.

Posner identifies a key weakness of this early approach, which is that it considers it success to merely announce a right or publicize a rights violation. Remedying actual rights violations remains a more distant goal. The human rights movement needs more focus on building an infrastructure of implementation, which is not always as conducive to publicity or fundraising. The good news is that many less prominent human rights activists have focused much more on implementation, one person at a time. Efforts to develop legal aid in the geopolitical south – a movement in which refugee rights organizations have been at the vanguard – are an important part of this response.

Equally important is the effort to expand the influence of human rights beyond lawyers. That’s why it is so important that humanitarian agencies like UNHCR continue to work on integrating rights-based approaches into their traditional aid and development work. The international community has done more to develop an infrastructure to deliver emergency humanitarian aid than it has to, say, respond to systemic torture or genocide. But these aid organizations can become more integrated into the human rights movement (and they can understand their own work in more human rights terms). But we cannot expect every group doing human rights work to put out a constant stream of press releases and condemnatory reports in manner of HRW.

A limited vision of what human rights work means will limit the movement’s ability to grow and correct for its inherent weaknesses. But the good news is that many groups at the frontlines moved beyond these limits a long time ago.