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Book review: The Twilight of Human Rights Law by Eric A. Posner

 

Eric Posner in his book, The Twilight of Human Rights Law, seeks to explain why human rights law has failed. Eric Posner, a law professor at the University of Chicago, is skeptical of international law and applies a rationalist- realist approach to the questions of compliance (Antonov, 2016). He sets two objectives to be achieved by the discussion in his book. First, he sought to provide the reader with a general introduction to human rights law. Second, he sought to demonstrate that human rights law has failed to accomplish its intentions and that the treaties on human rights do not increase the respect for the rights they contain.

Posner claims that human rights treaties carry a heavy burden that is rarely met in most occasions especially given the significance that was attached to them since the twentieth century. He brings out distinctly the main challenges facing the human rights law. He points out the wide gap between the proclamations made by people and the practices in the human rights law and identifies the various difficulties that arise from the multiplicity of rights (Hannum, 2015). These are the main challenges that face human rights and need to be addressed immediately if the efforts to reduce the gap and enforce compliance are to bear fruits.

The first three chapters of The Twilight of Human Rights Law give a general outline of the international human rights law. Chapter one gives the history that begins with the pre-War intellectual rights-based foundations before it focuses on the post- War accounts of the United Nations system, the Cold War, and multiplicity of treaties on human rights. Chapter two discusses the existing formal human rights structures while describing prominent treaty regimes, mechanisms put in place by United Nations and the European regional system. In chapter three, Posner tackles the reason why states ratify the human rights treaties. He groups the states of the world into three: liberal-democratic, authoritarian and transitional. He states that there are different reasons why states enter into a treaty. Many states are mainly interest- driven and are motivated by the belief that a prominent treaty regime is too weak and therefore cannot influence the behavior of the acceding state.

The substantive arguments of The Twilight of Human Rights Law influence Posner choice of introductory content to a great extent as reflected in the omission of alternative rights-based discourses that could lead to contradiction and less skepticism on the reasons as to why states would ratify human right treaties. He emphasizes the different interests that various states hold and how they appear to be in contravention of the commitments of formal rights and the extent to which multiplicity of the rights has led to great challenges in compliance. The extent to which these observations have succeeded in verifying Posner’s claim that human rights law has failed to achieve its objective is uncertain.

Posner further expounds that the failure of human rights law is mainly based on rule naiveté:  which postulates that the good in every state can be formulated into a set of rule which can be enforced uniformly. The ensuing failure of the human rights law to meet its objectives can be grouped into three categories: continuing violations despite the ratification of treaties, ambiguity and vagueness of the treaty, and conflicting values.

Posner guides his reader to evidence that illustrates an increase in the use of torture by the states that ratified the United Nation’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Sethi, 2015). He asserts that such evidence should be able to change the perception of people who assume that the proliferation of human rights has led to an improvement of people’s by better enforcement of those rights.  His depictions of the wide gap between rhetoric and practice are also easily notable.

This book also provides an account of how various challenges continue to hinder the progress of the rights activists nationally and internationally. His conclusion that the human rights law has failed seems to have been arrived at hastily. The empirical support of his claims is not very strong as to challenge other studies that are contrary to his claims. He relies on a wide range of literature to support his claims on adherence and compliance to treaties. These assertions lack that persuasiveness that is depicted in the materials that demonstrate compliance with the international law.

The Twilight of Human Rights Law generally is not an essay on international legal theory. It is a critical commentary on the practice of human rights law and the limits Posner believes inherent to it. It ignites a great interest in the heart of a practitioner who wants to question the author’s view that the human rights law has been a failure and that ratification of treaties does not lead to an improvement in compliance and enforcement of those rights. In his endorsement of the book, Jack Goldsmith notes that Posner’s work will infuriate the human rights community. The key stakeholders in the human rights community are aware of the hypocrisy, the many existing wide gaps between compliance and the rhetoric, and the continuing violations despite the many treaties in existence. The main question raised by the book is whether efforts of the stakeholders are, as suggested by Posner, flawed and incomplete conclusion of the human rights project or merely a stage within it.

References

Antonov, M. (2016). The Twilight of Human Rights Law, written by Eric A. Posner. Review of Central and East European Law, 41(1), pp.49-53.

Hannum, H. (2015). The Twilight of Human Rights Law by Eric A. Posner. Human Rights Quarterly, 37(4), pp.1105-1109.

Sethi, S. (2015). United Nations’ Endeavors to Protect and Enhance Human Rights Around the World. A Reflective Essay and Review of Eric A. Posner, The Twilight of Human Rights Law. Journal of Business Ethics, 131(2), pp.505-507.

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