PhD Candidate at Cornell University

Visiting Fellow at GLODEM, Koc University

December 2014

Eric Posner just delivered ‘the case against human rights’.[1] Posner diagnoses the empirical inefficiency of the international human rights regime and recalls the ideational continuities between the colonial ‘civilizing mission’ and contemporary human rights instruments. Relying on recent critiques of development economics, Posner calls for an empirical, rather than an ideological approach to improving human lives in far away places.[2] Posner’s critique joins an exceptionally diverse range of criticisms of human rights.[3]  Critical approaches to human rights, and to international law more broadly, contribute to invigorating the debate on global (in)justice. And yet, critics of human rights ought to grapple with counterarguments stemming from one crucial distinction: the difference between the values that animate human rights and the political authorities that command the power to enforce them.

If we distinguish more clearly between the normative content of human rights[4] and the actors that mobilize them for their political activities, we gain a clearer sense of how we should approach ‘the case against human rights’. To illustrate, Posner laments the vague terms in which human rights have been phrased. Such definitional indeterminacy, Posner suggests, renders human rights vulnerable to being invoked as the justificatory foil for aggressive and imperial foreign policies. However, if we criticize the reliance on human rights to justify the foreign policies by the likes of George W. Bush and Vladimir Putin, we are already aware of the fact that the actors claiming to realize human rights by violent means do so illegitimately. True, the language of human rights does lend itself to that. However, the virtue of the very same language is that a variety of non-state actors such as social movements engaged in struggles for justice mobilize it to articulate their claims against policies of systematic violence.[5] In short, human rights travel. They travel to places and to people who find them useful to mobilize against violent state authorities. If we distinguish between the content of human rights and the actors invoking them to frame their political goals, which can develop a clearer compass for understanding the political value of human rights. If we consider human rights more as a set of arguments while activating our ability to distinguish between good and bad arguments, then we may gain a more nuanced picture of what is at stake when we criticize human rights.

A similar point may be raised about international criminal law. We will most likely agree that the types of violence internationally criminalized under crimes against humanity are truly heinous. [6] However, we may disagree about two things. First, we may criticize the omissions and exclusions that enable the definition of crimes against humanity as we know it.[7] Second, we may criticize the relations of political power that undergird the institutional actors charged with the enforcement of international criminal law.[8] The first point calls for reforming international criminal law by means of an internal critique. The second questions the relationship between uneven political power and the making of international institutions charged with enforcing international law. Neither point, however, lends itself to making ‘the case against international criminal law’. Whether we make cases for or against human rights, therefore, will depend largely on where, or to whom, we look for their potential to bolster legitimate claims for social justice.