Eric Posner in WSJ on future of the international human rights movement

Eric Posner, law professor at the University of Chicago, has an important essay in today's Wall Street Journal, Weekend Journal, Saturday-Sunday, April 21, 2007, "What the Cold War Taught Us," behind the subscriber wall, here. UPDATE - open link here at the WSJ. It is not likely to make him any more popular - any less unpopular? - with the human rights movement, among the activists or in academia.

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My own view of the human rights movement is simultaneously sympathetic but skeptical - my skepticism is that of an idealist, however, not Eric's fundamentally realist position. (I discuss this in an academic review of Jack Goldsmith and Eric Posner, The Limits of International Law, here, at SSRN.)

The substance of international human rights depends, and has always depended, upon the support of democratic sovereign states acting in favor of their values, not upon international law regimes. The greatest risk to the substance of international human rights lies in weakening democratic sovereignty in favor of a liberal internationalism that says, over and over and over and over again, all the right things about human rights but then suffers entirely predictable defections in its defective collective action scheme when push comes to shove - over and over and over and over again.

The international human rights movement, however, has an atavistic attachment to the "international" for its own sake, because its ideology and politics and class biases lead it to confuse the "international" with the "universal." (I discuss this idea in an article with David Rieff expressing skepticism about global civil society, at SSRN, here.) It therefore leans procedurally toward ineffectual liberal internationalism, whereas the substantive victories of international human rights - in history as well as today - largely lie in the realm of democratic sovereigns enforcing values that are found among their electorates, or at least their governing elites, from the anti-slavery movements to today's anti-human trafficking campaigns.

I would add, however, that the choice between universal human rights values and democracy (which, as Eric points out, carries with it the possibility that voters will choose all sorts of illiberal things) has long since been made by the human rights movement. It has always had a distinct hostility toward popular democracy. This is partly because of the problem Eric raises - that democratic majorities frequently want illiberal things. But it is also because democracy and democratic sovereignty challenge the hegemony of human rights elites and their writ to determine the content and canon of what Eric aptly calls the "expanding franchise" of "international human rights."

One of the ironies of the Iraq war and the collapse of the American neoconservative democracy project is that the elite form of human rights universalism appears at least for the moment, in a certain way, to be the last man standing, considered as the idealist universalist position for liberals. By that I mean that the democracy project has been dealt a possibly fatal ideological blow by the problems of the Iraq war - even it were somehow still to be won, as I hope remains the case, it is nonetheless long since past the point of doing so on the basis of the universal appeal of democracy-post-tyrant. (I discuss this and most of the points below at greater length in a new essay titled, Goodbye to All That: A Requiem for Neoconservatism, at SSRN, here.) If that turns out to be the case, then the universalist alternative, the liberal Enlightenment alternative writ large for the planet, would no longer be liberal democracy as universal ideal. But Eric is in any case right to note that this democracy ideal exists in no small tension with elitist globalist conceptions of human rights as given by, most notably, Human Rights Watch (which, it must be said, operates within the human rights movement as something of a combination of the Vatican and MI6).

Rather, as a worldwide project, democracy appears to be for many people, many places, today an illiberal project, mostly an illiberal Islamist one, but also illiberal in other ways, other places, such as Chavez's Venezuela or Putin's Russia. The extreme remains the Algerian Islamist slogan of "one person, one vote - one time," but the underlying sentiment is echoed in slightly less stringent, but no less illiberal, terms many other places around the globe. It is not necessarily to undermine liberal democracy where it has long existed - still, the global, universal project of liberal democracy has been severely undermined by Iraq. It is scarcely surprising that the international human rights community would see itself, if not precisely the winner, then at least the last man standing in the competition to be the source and arbiter of universal values. Ostensibly its argument is against illiberal populism expressed as democracy; in fact its aim is far more sweeping, against democratic sovereignty as such.

But the arguments against illiberal democracy are one thing; the more sweeping indictment of democratic sovereignty quite another, and this far more sweeping indictment requires a much more convincing argument. And that is to leave aside the endlessly irritating elitism and condescension of the human rights movement toward that which, as remarked above, actually provides the enforcement of human rights such as it is - democratic sovereign states. It alternates between the stentorian tones of God Addressing Eternity and the frantic, hysterical appeals for money (although, of course, most movements of moral reform do something similar).

But there is an even more fundamental and certainly more recent problem - more fundamental, even, than the ill-conceived attack on democratic sovereignty. It is a problem derived from the profoundly mistaken conclusions that the human rights movement drew from 9-11. The human rights movement itself seems gradually to being moving away from human rights as a liberal ideal. It is shifting instead, seemingly, toward the radically different ideal and sensibility of human rights as a discourse for the claims of multiculturalism or, more precisely, the "one-way" multiculturalism that characterizes the West's dealings with Muslims today - the discourse of rights in a fashion that provides endless special privileges and rights to Muslims in Western countries upon demand, as it were, but with no liberal, neutral, secular, rule of law content, and no reciprocal acceptance of the duties of a liberal, neutral, secular or even pluralistic state. This is a very, very bad idea.

Consider, for example, how HRW characterizes pretty much any clash between Muslims in Western countries and the state or others in the society. Even when it involves violence against, for example, gay men walking hand in hand in Amsterdam, beat up by Muslim youth in what, on any neutral reading of the law, is a hate crime (this incident from a couple of years back), HRW feels multiculturally obliged to begin with a stern lecture on how such incidents can only be understood against the backdrop of discrimination against Muslims in Europe. This same pattern is repeated in its dealing with the Muhammad cartoons - and so much so with, so far as I can tell, any similar issue that it appears to be a template drafted for all occasions. The result, however, is an illiberal, one-way multicultural ratchet that effectively lets Muslims off the hook for illiberal behavior. The opening context for all such behavior, including serious violence, is always the multiculturalist setting - excuse, really - of discrimination, putting the burden for such violence back onto larger society, and always beginning with what amounts to an apology and not a condemnation.

In that sense, the discourse of human rights seems to be shifting from being a liberal discourse - with all the contradictions that implies - to being a multicultural, essentially illiberal one. It spills beyond the human rights canon, in fact, so that what is today still called, somewhat misleadingly, liberal internationalism, might better be called "multicultural internationalism." This is a profoundly disturbing trend, because while it appropriates the language of rights, it does so in a profoundly illiberal manner. This is one of the dangerous consequences of allowing the supposedly universalist language of human rights to be defined fundamentally by global elites. It is, indeed, not simply that the doctrines of multiculturalism are wrong - they are - but that by being expressed in the language of rights, by appropriating the historical language of bourgeois liberal rights to historically and conceptually quite unrelated ends, they crowd out and undermine the ability to use rights discourse in a liberal way. (I discuss this problem, with respect to a conception closely related to and intertwined with illiberal multiculturalism, the discourse of therapy, in a long review essay back in 1995, "A New Class of Lawyers: The Therapeutic as Rights Talk," at SSRN, here.)

The end of the adventure is not precisely the end of rights talk - far from it - but the end of the ability to use rights talk in its historical function as the language of liberalism - the language of liberty, freedom, pluralism, tolerance, etc. The human rights movement, in its shift to multiculturalism, heedlessly - heroically, of course, in its mind - saws off the liberal branch upon which it and we are seated, hollows out a discourse that was centuries in developing as a language of human liberation and freedom and, with the insouciance of those who mistakenly believe that a language they are privileged to use is a language they own, injects it with content alien to it, and tells the rest of the world that it now means this. It doesn't.

(But this critique is very different from Eric's. Note also, however, Eric's strong conclusion, which shifts to an argument about the preservation of larger universal values through an unapologetic realism - this is the lesson he draws out of the Cold War.)

Here's a taste of the article:

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The international human rights regime has fallen on hard times. Kenneth Roth, executive director of Human Rights Watch, wrote recently that "since the U.S. can't provide credible leadership on human rights, European countries must pick up the slack." But the Europeans, Mr. Roth notes, are no more enthusiastic about pressuring foreign countries than is the U.S.

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So if Americans, Europeans, and the U.N. will not lead on human rights, who will? Nobody, and maybe that is not such a bad thing.

Human rights were supposed to be special. Unlike most international law, which governs the relations of states with each other, international human rights law regulates the internal workings of states -- the relationship between a government and its citizens. This gives human rights law a rigidity that is absent from most international law.

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The theory is that human rights are universal, and so states have no excuse for committing human rights abuses. The practice, however, has been different. States must worry about their security even when an existential threat is not imminent. If they do not, they lose the support of their citizens or subjects, and thus they risk their own political stability. And states must cater to local religious and cultural values at odds with Western human rights. Accordingly, most states have paid no more than lip service to their human rights commitments. During the Cold War, the U.S. used human rights as a cudgel against the Soviet Union and its satellites, but gave a free pass to friendly dictators.

The end of the Cold War was supposed to change all this. Under American leadership, countries would finally live up to their human rights commitments and international human rights would continue to advance. Several forces have conspired to ruin this pretty picture.

First, genuine disagreement exists about the proper moral ordering of society. Where once it could be thought that totalitarian regimes suppressed people's natural instinct in favor of human rights, it has become clear as electoral democracies have replaced authoritarian regimes, that this is simply not true. People also care about tribal, ethnic, and religious ties; they care about order and security. An Islamic democracy will not necessarily endorse religious pluralism or women's rights; a country with a long history of tribal dispute resolution practices will reject Western-style law enforcement.

The tension between promoting democracy and promoting human rights, when newly enfranchised peoples turn out not to subscribe to the ideals of the Enlightenment, is the dirty secret of the human rights movement. As the expanding franchise continues to expose the fissure between the two ideals, human rights advocates are finally going to have to choose between them.

Second, the idea that the U.S., with or without European support, could impose its conception of human rights on other countries has taken a beating in recent years, and this beating will only become worse over the next few decades. As regional powers like China, Russia, India, South Africa and Brazil continue to rise and assert themselves, whatever leverage the West has had for pressuring human rights violators will continue to decline. The new powers will offer alternative cultural, religious, or ideological standards that are more attractive than Western human rights to subsets of nations, and they will offer trade and securities ties if the West tries to withdraw them. Already we observe China snapping up oil leases in Sudan and Russia exploiting its economic ties with Iran.

Third, the ideology of human rights advancement relies on a false picture of human motivation and global politics. Human rights advocates seem to think that closing Guantanamo Bay would improve the behavior of governments in other countries. But foreign governments have no reason to think that they should do whatever the U.S. does. Indeed, if the U.S. closed Guantanamo Bay, and some of the freed detainees returned to Afghanistan (as some reportedly have) and killed American troops, the lesson learned by the world is not one that would advance the cause of human rights.

Today, the future of the international human rights legal regime is bleak. And yet if what matters is not conformity with the rules of the human rights treaties, but the well-being of the world's population, things have never been better. Mortality rates are down, per capita income is up, literacy has spread, democracy is flourishing. Economic growth in China and India, which together account for a third of the world's population, largely accounts for improvement in overall well-being, but there is also good news in Latin America, South Africa, Eastern Europe and Southeast Asia.

How can this be? As technology and trade have advanced and spread, so has wealth and education, and with wealth and education has come political reform, and the expansion of civil and political rights. This is part of a long-term trend that goes back centuries.

There is no guarantee that it will continue, but one central fact needs to be recognized: The role of legalized international human rights in this process has been minimal or nil. Much more important in the 20th century were the determined efforts of liberal democracies to oppose powerful, dangerous, expansionist states that rejected markets and democracy, and imposed their views on small countries. These efforts required pragmatic accommodation of unsavory allies, and even compromising of Western values, for the sake of the greater goal of keeping dangerous forces in check. For the conflict with radical Islam, this history holds important lessons.