UPDATED DECEMBER 28, 2014 7:39 PM
Have Human Rights Treaties Failed?
INTRODUCTION
André da Loba
Since the Universal Declaration of Human Rights was adopted by the U.N. in 1948, numerous formal treaties have been negotiated between nations that recognize hundreds of human rights – including political rights and civil rights, the rights to work and have access to health care and education. But some critics say that these treaties are too idealistic, and not easily enforced.
Do international human rights treaties work to protect vulnerable populations, or should they be abandoned in favor of other measures?
DEBATERS
- Kenneth Roth, a former federal prosecutor, is the executive director of Human Rights Watch.
- Eric Posner, a professor at the University of Chicago Law School, is the author of "The Twilight of Human Rights Law."
Human Rights Law Is Too Ambitious and Ambiguous
While the vast majority of countries have ratified nearly all the major human rights treaties, rights violations remain common. Political repression exists around the world, and not just in China and Russia. In many developing countries, the criminal justice system works poorly, and the police frequently resort to extrajudicial methods like using torture to extract confessions. Age-old blights like child labor, the subjugation of women,religious persecution and even slavery are amazingly common. Even in the United States, torture has been used against suspected terrorists, police brutality flourishes and convicted criminals often receive extraordinarily harsh punishments.
More focused and pragmatic interventions, including relying heavily on foreign aid for economic development, rather than coercion or shaming, is the better way to go.
Many people argue that the solution to these problems is to strengthen human rights law. They argue that we need more treaties, with stricter obligations and better-funded, more powerful international institutions. But my view is the opposite. Human rights law is too ambitious — even utopian — and too ambiguous: it overwhelms states with obligations they can’t possibly keep and provides no method for evaluating whether governments act reasonably or not. The law doesn’t do much; we should face that fact and move on. This doesn’t mean that we shouldn’t care when governments abuse their citizens. But more focused and pragmatic interventions, including relying heavily on foreign aid for economic development, rather than coercion or shaming, is the better way to go.
Abandoning Human Rights Laws Would Be Wrong
Abandoning human rights law because human rights violations persist would be like repealing the criminal code because people continue to commit crimes. The result might satisfy the hypocrisy police but would hardly improve public safety.
That governments violate human rights is hardly surprising. People in power are often tempted to discriminate against a disfavored minority, order torture in the name of fighting terrorism or silence a pesky critic if they can get away with it.
Human rights treaties help to explain why these abuses are wrong. They may not always provide definitive answers — any text requires interpretation — but they codify a widely endorsed set of principles from which the conversation can begin.
That governments violate human rights is hardly surprising; human rights treaties help to explain why these abuses are wrong.
Would we really be better off, as Eric implies, if each discussion of governmental behavior started from scratch — if, rather than debating what constituted a violation of, say, the right to a fair trial, we had to begin by discussing whether people should be given fair trials?
Eric is taking on a straw man by claiming that the human rights movement’s answer to violations is “more treaties.” Yes, over the years new treaties have been adopted to flesh out rights for certain categories of people — be they women or people with disabilities — or to fill in ambiguities in the law, such as explaining that the prohibition of indiscriminate warfare bars antipersonnel landmines and cluster munitions. But the human rights movement spends the vast majority of its energy trying to enforce existing rights rather than seeking to create new ones.
Eric sees treaties as “utopian” statements of overly ambitious goals that cannot possibly be met, but that’s not what government officials say. They don’t plead, “I signed up for the impossible so don’t hold me to it,” but rather, “I didn’t shoot those protesters,” or “I’m not imprisoning her for criticizing me.” They typically accept that the right involved is legitimate and contend that they comply. When they don’t, human rights investigations contrast their claim with the hard facts on the ground.
Arguing that we should rely instead on foreign aid for economic development must be music to autocrats' ears. Sympathizers of the Chinese government have argued for decades that economic development will inevitably bring respect for rights. Instead, we have unaccountable government and pervasive corruption.
There is no single way to build rights-respecting societies. But if I were condemned to live under an abusive government, I’d prefer one that paid lip service to rights treaties it had signed — and thus could be shamed for falling short — to one that was bound only by its ambitions.
There is no single way to build rights-respecting societies. But if I were condemned to live under an abusive government, I’d prefer one that paid lip service to rights treaties it had signed — and thus could be shamed for falling short — to one that was bound only by its ambitions.
Human Rights Treaties Are Expensive to Follow
I confess I do sympathize with the Chinese government though I do not think China needs development aid. As a result of the economic reforms pursued by the Chinese government since 1981, more than 600 million people have been raised from terrible poverty to a decent middle-income existence. This was one of the greatest humanitarian achievements of all time. The Chinese government also denied political rights to its citizens, and did not hide the reason. It feared political unrest — of the sort that killed and impoverished hundreds of millions of Chinese in civil war and social turmoil through most of the 20th century, and made China vulnerable to exploitation and military invasion from foreign countries.
This is not to say that the China model is right for us or for any other country. But it is too easy for people in the West to argue that China should have reformed the economy and introduced democracy, religious freedom, free speech, fair trials and all the rest. Just how much do we understand political and social conditions in China? While it is possible, even likely, that Chinese government officials suppress political freedoms to protect their power, we in the West just don’t know whether the introduction of political freedoms — and if so, which ones, and how much, and over what period of time — would benefit the Chinese or hurt them.
This is not to say that the China model is right for us or for any other country. But it is too easy for people in the West to argue that China should have reformed the economy and introduced democracy, religious freedom, free speech, fair trials and all the rest. Just how much do we understand political and social conditions in China? While it is possible, even likely, that Chinese government officials suppress political freedoms to protect their power, we in the West just don’t know whether the introduction of political freedoms — and if so, which ones, and how much, and over what period of time — would benefit the Chinese or hurt them.
In most developing countries, bureaucracies and courts are corrupt, slow and ineffectual. Cleaning them up comes at a cost that most countries can’t afford.
What is true for China is also true for countless other countries, especially the poorest ones, which also can’t afford most of the rights in the human rights treaties. Americans seem to think that rights are cheap, just a matter of the government doing the right thing. This is wrong. The right to a fair trial, for example, requires that a complex institutional infrastructure be in place — staffed by honest, well-paid, well-trained lawyers, judges, police officers, administrators and prison guards, who possess a sophisticated understanding of the law, moral norms and social conditions. In most developing countries, bureaucracies and courts are corrupt, slow and ineffectual. Cleaning them up means raising salaries, training people and enforcing anti-corruption laws — all at great cost that most countries can’t afford.
The human rights treaties do not recognize that rights are expensive, both financially and politically; that different types of rights are easier to respect in different types of countries; and, therefore, that the right course of action that each government should follow differs radically. While many human rights scholars argue that for this reason we should only demand that governments respect certain “basic” rights that all can afford, it turns out that those basic rights are impossible to identify, which is why the human rights treaties guarantee hundreds of rights rather than just a few.
The release of the Senate committee report on C.I.A. torture should remind us how difficult it is, even for a rich country with strong liberal traditions, to respect rights. Torture violates the law in this country, and yet it happened anyway, at a massive scale. Foreign countries will reasonably ask: If Americans both hate torture and can’t stop government officials from using it, how can we?
The human rights treaties do not recognize that rights are expensive, both financially and politically; that different types of rights are easier to respect in different types of countries; and, therefore, that the right course of action that each government should follow differs radically. While many human rights scholars argue that for this reason we should only demand that governments respect certain “basic” rights that all can afford, it turns out that those basic rights are impossible to identify, which is why the human rights treaties guarantee hundreds of rights rather than just a few.
The release of the Senate committee report on C.I.A. torture should remind us how difficult it is, even for a rich country with strong liberal traditions, to respect rights. Torture violates the law in this country, and yet it happened anyway, at a massive scale. Foreign countries will reasonably ask: If Americans both hate torture and can’t stop government officials from using it, how can we?
No, They Are a Tool for Holding Governments to Account
Of course the institutions needed to protect rights require resources. But why does that mean we should abandon human rights treaties? Should people in poor countries have no rights? Should they stop pushing for investment in the necessary institutions even as their abusive leaders devote resources to self-preservation and personal enrichment?
And yes, rich countries, too, violate rights, as the C.I.A.’s torture illustrates. But that doesn't mean we should jettison all rights treaties; instead, we should redouble efforts to enforce them.
Eric blames “political rights” for the millions of Chinese who lost their lives to “political unrest” in the 20th century. But in fact millions lost their lives because of a lack of political rights, when the unaccountable Chinese Communist Party, which is still in power today, launched the Great Leap Forward and the Cultural Revolution. As in so many countries, the political unrest and violence came from government power unrestrained by rights.
And yes, rich countries, too, violate rights, as the C.I.A.’s torture illustrates. But that doesn't mean we should jettison all rights treaties; instead, we should redouble efforts to enforce them.
Eric blames “political rights” for the millions of Chinese who lost their lives to “political unrest” in the 20th century. But in fact millions lost their lives because of a lack of political rights, when the unaccountable Chinese Communist Party, which is still in power today, launched the Great Leap Forward and the Cultural Revolution. As in so many countries, the political unrest and violence came from government power unrestrained by rights.
China has signed many rights treaties and put human rights protections in its constitution, not because it is fond of these limits on its power, but because it needs to pretend to respect rights for legitimacy among its people.
Even now, the lack of government accountability in China means that, despite economic advances, the Chinese people still must endure land seizures, insufferable pollution, massive corruption and arrest if they complain. That’s the problem with governments that don’t respect rights. Some unaccountable leaders may rule with enlightenment, but many rule to keep power and pad their wallets, with whatever brutality it takes.
Eric portrays human rights mainly as a cudgel for Westerners to second-guess other governments, as if oppressed people have no role. I see rights foremost as a tool for people worldwide to hold their own governments to account. That’s how Cao Shunli saw it — the activist who recently died in detention after China arrested her for trying to participate in the U.N. Human Rights Council’s review of China’s rights record. Or Liu Xiaobo, the Nobel Laureate serving an 11-year term in a Chinese prison for seeking greater democracy.
Even the Chinese government doesn’t buy Eric’s rejection of rights standards. It has signed many rights treaties and put human rights protections in its constitution — not because it is fond of these limits on its power, but because after the horrors it inflicted, it needs to pretend to respect rights for legitimacy among its people. Eric sees this hypocrisy as reason to rip up rights treaties, but increasing numbers of people in China see it as an opportunity to press their government to move from lip-service to reality.
The Chinese government is not immune to that pressure. In the last couple of years, it has curbed the death penalty, abolished re-education through labor, liberalized the one-child policy and started efforts to limit the use of torture for confessions. China still has a long way to go, but if the Chinese government isn’t trying to shed its rights commitments, why should we?
Eric portrays human rights mainly as a cudgel for Westerners to second-guess other governments, as if oppressed people have no role. I see rights foremost as a tool for people worldwide to hold their own governments to account. That’s how Cao Shunli saw it — the activist who recently died in detention after China arrested her for trying to participate in the U.N. Human Rights Council’s review of China’s rights record. Or Liu Xiaobo, the Nobel Laureate serving an 11-year term in a Chinese prison for seeking greater democracy.
Even the Chinese government doesn’t buy Eric’s rejection of rights standards. It has signed many rights treaties and put human rights protections in its constitution — not because it is fond of these limits on its power, but because after the horrors it inflicted, it needs to pretend to respect rights for legitimacy among its people. Eric sees this hypocrisy as reason to rip up rights treaties, but increasing numbers of people in China see it as an opportunity to press their government to move from lip-service to reality.
The Chinese government is not immune to that pressure. In the last couple of years, it has curbed the death penalty, abolished re-education through labor, liberalized the one-child policy and started efforts to limit the use of torture for confessions. China still has a long way to go, but if the Chinese government isn’t trying to shed its rights commitments, why should we?
Change Has Come About Without Human Rights Treaties
Let’s take a look at some actual treaties. The Convention against Torture bans torture and requires countries to prosecute torturers. The United States is hardly alone in violating these requirements. Governments in some 150 countries (out of about 193 U.N. members) use torture, not much different from when the treaty went into force in 1987.
The International Covenant on Civil and Political Rights guarantees the rights to political participation and right to be free from arbitrary law enforcement practices, among others. The treaty has been in effect since 1976, and 168 countries are parties. Yet, according to Freedom House, only 88 countries are “free,” after eight straight years of decline. Russia, Turkey and Indonesia have become less free in recent years. Nine of the ten most authoritarian countries, including North Korea and Uzbekistan, have ratified the treaty.
The Convention on the Elimination of All Forms of Discrimination Against Women has been ratified by 188 countries (though not by the United States). Yet in virtually all countries of the world outside the West, laws and customs subordinate women. Notable parties of the treaty include Saudi Arabia (where women are prohibited from driving) and Egypt (where 97% of married women were found to have undergone genital cutting in 2000).
The International Covenant on Economic, Social and Cultural Rights -- which guarantees rights to work with fair pay, education, welfare and health care -- has been ratified by 162 countries. Nobody really knows what it means to guarantee these rights. Spain’s unemployment rate is 24 percent, in part, because laws that ensure employees are well-paid and receive job security also deter employers from hiring them. Is Spain violating people’s right to work or protecting it?
People don’t need, and never have needed, the human rights treaties to criticize official abuse and incompetence.
I don’t want to paint an excessively bleak picture. Many more countries are democracies than 40 years ago, thanks to the collapse of communism. Women have made enormous gains, and global poverty has declined significantly. But there is no evidence that the treaties have played a causal role in these developments.
The treaties themselves, understood in an impartial sense, are too vague to provide guidance to countries because they demand more than most countries can deliver. Consider, for example, the guest worker programs in the Gulf countries like Qatar and the United Arab Emirates. Human Rights Watch, Ken's organization, has heatedlycriticized these programs because they deny guest workers some basic rights and many workers live in deplorable conditions. But the guest worker programs are incredibly beneficial because they enable desperately poor people from other countries to earn five or more times what they could make back home, much of which they send back to their families as remittances. The Gulf countries probably do more than any other country (on a per capita basis) to reduce global inequality.
The Gulf countries operate these guest worker systems only because they want cheap labor. Human Rights Watch's proposed reforms would raise the cost of labor, and so reduce the number of workers who benefit from the system. Would people really be better off as a result?
Human Rights Treaties Have Made a Difference
The F.B.I. reported about 14,000 homicides and almost 80,000 rapes in the United States in 2013, yet no one suggests repealing the criminal prohibition of murder and rape. But because human rights violations persist in many countries, Eric would repeal human rights treaties. I still don’t see his logic.
He claims that treaties are too vague and demanding to change governments’ behavior, but I regularly find the opposite. The use of antipersonnel landmines and cluster munitions plummeted after treaties were adopted banning these indiscriminate weapons. Chile and Argentina cited human rights treaties to strike down military self-amnesties for mass atrocities and then convicted hundreds of people. Brazil followed treaty requirements to enhance punishment for domestic violence and permit regular prison visits against torture.
Kenya cited the women’s rights treaty to grant women equal access to inheritances. Europe’s human rights treaty led Britain to end corporal punishment in schools, Ireland to decriminalize homosexual acts, and France to grant detained people access to lawyers. A new labor treaty spurred an increased minimum wage, social security protections, and days off for domestic workers in parts of Asia and Africa. The South African Constitutional Court ruled that the right to health requires that people with HIV be granted access to anti-retroviral drugs, saving hundreds of thousands of lives. I could go on and on.
He claims that treaties are too vague and demanding to change governments’ behavior, but I regularly find the opposite. The use of antipersonnel landmines and cluster munitions plummeted after treaties were adopted banning these indiscriminate weapons. Chile and Argentina cited human rights treaties to strike down military self-amnesties for mass atrocities and then convicted hundreds of people. Brazil followed treaty requirements to enhance punishment for domestic violence and permit regular prison visits against torture.
Kenya cited the women’s rights treaty to grant women equal access to inheritances. Europe’s human rights treaty led Britain to end corporal punishment in schools, Ireland to decriminalize homosexual acts, and France to grant detained people access to lawyers. A new labor treaty spurred an increased minimum wage, social security protections, and days off for domestic workers in parts of Asia and Africa. The South African Constitutional Court ruled that the right to health requires that people with HIV be granted access to anti-retroviral drugs, saving hundreds of thousands of lives. I could go on and on.
Treaties are effective even when courts are too weak to enforce them because they codify a public’s views about how its government should behave.
Treaties are effective even when courts are too weak to enforce them because they codify a public’s views about how its government should behave. Local rights groups, working with their international partners like Human Rights Watch, are able to generate pressure to respect these treaties by contrasting a government’s treaty commitments with any practices that fall short. The shame generated can be a powerful inducement to change.
Eric cites the C.I.A.’s use of torture to suggest that the treaty banning it is worthless. But the C.I.A. claims (falsely) that it didn’t torture, not that torturing people is O.K. Moreover, if not for the treaty, President Obama would be able to say he had done his duty by stopping the Bush administration’s torture. Instead, he must fight pressure to abide by the treaty’s requirement to prosecute the torturers. Senegal recently felt compelled to comply with that duty by initiating prosecution of Hissène Habré, the former Chadian dictator, whom it had long harbored in exile.
And the United States does change its conduct to respect treaty obligations. For example, the Pentagon stopped deploying 17-year-olds because of the treaty banning child soldiers. The Supreme Court cited the relevant treaty when it stopped the death penalty for youth offenders.
Eric argues that economic rights can be counterproductive if workers lose their jobs because enforcing labor rights might increase costs. That’s hardly a risk in the Persian Gulf countries he mentions, which depend on migrant labor to run their economies and use regressive laws mainly to control their migrant workers. By his logic, we should accept the cheaper cost of slaves or bonded laborers to maximize employment, or the deaths of workers forced to labor in dangerous conditions because safe conditions would be too costly. Rather than acquiesce in such a race to the bottom, human rights groups in these countries prefer broad enforcement of the basic labor rights that treaties uphold.
Eric cites the C.I.A.’s use of torture to suggest that the treaty banning it is worthless. But the C.I.A. claims (falsely) that it didn’t torture, not that torturing people is O.K. Moreover, if not for the treaty, President Obama would be able to say he had done his duty by stopping the Bush administration’s torture. Instead, he must fight pressure to abide by the treaty’s requirement to prosecute the torturers. Senegal recently felt compelled to comply with that duty by initiating prosecution of Hissène Habré, the former Chadian dictator, whom it had long harbored in exile.
And the United States does change its conduct to respect treaty obligations. For example, the Pentagon stopped deploying 17-year-olds because of the treaty banning child soldiers. The Supreme Court cited the relevant treaty when it stopped the death penalty for youth offenders.
Eric argues that economic rights can be counterproductive if workers lose their jobs because enforcing labor rights might increase costs. That’s hardly a risk in the Persian Gulf countries he mentions, which depend on migrant labor to run their economies and use regressive laws mainly to control their migrant workers. By his logic, we should accept the cheaper cost of slaves or bonded laborers to maximize employment, or the deaths of workers forced to labor in dangerous conditions because safe conditions would be too costly. Rather than acquiesce in such a race to the bottom, human rights groups in these countries prefer broad enforcement of the basic labor rights that treaties uphold.
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