Eric Posner, “Why Do States comply (or Not Comply) with Human Rights Treaties?”

Eric Posner offers a remarkable economic analysis of International Law in this fifth chapter of his book “The Twilight of Human Rights Law”. There are many factors that influence the praxis of International Human Rights Law and the signing and complying with human rights treaties by countries.

International incentives to comply
Ordinarily, countries comply with their obligations under International Law pursuing the Good Faith Principle that guides international relations. That is, desiring to uphold harmony in the international society, in which there is no superior and utmost instance of sanction, states comply with their treaty obligations so other treaty parties have no excuse to violate their own. This logic, however, does not apply to human rights treaties, for states, facing noncompliance of other signatories to human rights treaties, can’t retaliate by violating their own human rights obligations. “In the absence of a world government, states can cooperate only in descentralized fashion”. But even when all states care about human rights violations in a certain state, they face a collective action problem. Even though every state may intend to cease the human rights violations, each state also has a strong incentive to “free ride”, hoping that other states will be the ones to bear the political (and, along them, the economic) costs of sanctioning the human rights offending country.

Moreover, economic sanctions and military actions are not generally employed against human rights violators, except if these states also pose a threat to other countries. Human rights, thus, appear not to be a per se objective, but a mechanism of political influence states can use one against the other.

NGOs are commonly held in great esteem by commentators as a major force of pressure for compelling the complying with human rights treaties, as these organizations do not face strategic constraints inherent to states, nor the pressure of voters and interest groups that elected officials in democracies are exposed to. However, their effectiveness is clearly limited, since, lacking the power to exert coercion, NGOs depend on their ability to persuade people or institutions who can take factual measures against the human rights violating agent identified.

The pathology of human rights treaties: ambiguity and inconsistency
Human rights treaties are vague, conflict one with another, conflict with other rules of international law, and therefore are unable to create any meaningful obligations. A state intending to comply in good faith with the treaties would be left with its own judgement alone as to how advance the public good.

The vagueness of human rights treaties derives from internal inconsistencies in such documents. Treaties create varied rights, but provide no guidance whatsoever as to how resources should be allocated among policies dedicated to the concretization of any such rights. States are compelled to satisfy a multitude of human rights by the treaties, but it is practically impossible to fulfill perfectly every obligation due to the limited nature of resources – which consist on funds, political will and institutional capacity –, so states must make tradeoffs to satisfy these rights. The human rights treaties, however, offer no orientation on how such tradeoffs should be made.

Furthermore, it is posed that the decisions on the allocation of resources for the administration of the public good belong to the political realm, generally intangible to the judiciary. In cases in which courts take a more active role in such spheres, results have been largely disappointing. Take Brazil, for instance, where judicial enforcement of the right to health provoked only a wave of motions by relatively wealthy people claiming from the judiciary health-care and meds negated by the Administration on cost-effectiveness bases, as the treatments and high-cost medicines were of astounding prices. It was not the case that judicial recognition of the right made possible greater access to health care by the poor – the poor do not have the resources to file lawsuits anyway. Funny thing is: in Brazil, the middle class in usually labeled as the most critical of human rights, and in such cases human rights were invoked by members of this social stratum  to claim a certain personal advantage.

In Posner’s own words:

“Human rights treaties can be no more than vague encouragement for governments to govern well – but it is hard to believe that governments already inclined to govern well or governments not so inclined would change their behavior as a consequence of such encouragement. Because the treaties send conflicting signals and do not explain how one is to make tradeoffs, they could not provide guidance even to a government that was motivated to take them seriously.”

The hyperthophy of human rights
Unlike stated by some scholars, to whom the multiplication of human rights reflects the triumph of human rights and the erosion of sovereignty, Eric Posner believes it is quite the opposite. What he calls “hypertrophy of human rights” – the proliferation of human rights treaties, of interpretations of such treaties to enlarge the list of already established human rights and of claims of existence of yet more human rights in customary international law – is actually a plague. The more human rights there are, he claims, “the more that the human rights system collapses into an undifferentiated welfarism in which all interests must be taken seriously for the sake of public good”.

 

Pedro Rogério Borges

See the commentated author’s page: https://www.law.uchicago.edu/faculty/posner-e

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