Martii Koskenniemi on Human Rights: An Empirical Perspective

Martii Koskenniemi argues that human rights law is indeterminate, and that arguments based on human rights unavoidably reflect the policy preferences of the speaker. I connect this argument to empirical evidence of the failure of international human rights treaties to improve human rights in countries that have ratified them. I argue that many features of the human rights regime that are celebrated by lawyers—the large number of treaties, the vast number of rights, the large amount of institutionalization, and the involvement of NGOs—actually reflect the failure of the regime. Governments tolerate these developments because they add to the indeterminacy of the legal regime, freeing them to act in the public interest when they are motivated to do so. International law is a vast field governing countless relationships between states, yet a very small part of it receives most of the attention—human rights. This may seem puzzling. The treaties that created the human rights regime are no different from the treaties that created the law of the sea and international trade law. Yet clearly people think about human rights law differently from the rest of international law. Lawyers who discuss the law of the sea or international trade law are likely, sooner or later, to ask whether the rules in those areas are consistent with human rights norms, while human rights lawyers can discuss human rights law without thinking about the law of the sea or the WTO. Many people insist that states are bound to respect human rights even if they have not ratified the relevant treaties, or have ratified them subject to reservations—while countries that do not belong to the WTO are not bound by its rules. Some people believe that human rights law binds states even when states explicitly repudiate it; human rights law is said to have a “constitutional” dimension. An enormous infrastructure has grown up around human rights. Countless NGOs monitor compliance with human rights in various countries. Governments routinely criticize each other for violating human rights. An endless array of commissions, councils, committees, courts, and offices attempt to administer the human rights treaties. While other treaty regimes also are governed by international organizations (the WTO, the Law of the Sea Authority), no other area of law has thrown up quite so many institutions, with complex, overlapping jurisdictions. It is also hard to think of another area of international law where there is so much activity: so many proposals for additional treaties, for expanding the scope of existing treaties, for strengthening and constructing new institutions. And yet the accomplishments of international human rights law seem rather slim. Countries rarely try to enforce the treaties against each other—at least, in a systematic way. They do not “retaliate” against each other for violating the treaties the way they often retaliate against countries that violate trade law. Countries do threaten human-rights violators with sanctions from 1 Kirkland & Ellis Distinguished Service Professor, University of Chicago Law School. Thanks to Adam Chilton for