Human Rights and Human Welfare: Looking for a "Dark Side" to International Human Rights Law


Strezhnev A, Simmons BA. Human Rights and Human Welfare: Looking for a "Dark Side" to International Human Rights Law. In: The Future of Human Rights. Cambridge: Cambridge University Press ; 2016. pp. 60-87.


International human rights law has attracted a barrage of criticism over the past decade or more. One critique views international human rights law as useless and argues that it has not managed to improve enjoyment of the rights it has set out to protect. Another critique goes further: it blames the legalization of international human rights norms for a series of negative outcomes, from the neglect of development to a crisis in the realization of social rights. Some even suggest that international legal obligations are to blame for the channeling of repressive tactics from areas that are clearly foreclosed by law to gray areas where rules are less clear.

These are important claims, because if true, they suggest that even if human rights treaties have improved some rights, the consequences might, on balance, be deleterious. If that is the case, we should rethink the strategy of legalizing human rights principles in formal agreements. But if these claims are wrong, they could undermine a global effort to improve the well-being of millions of people worldwide. Among liberal rights supporters, these claims, if correct, may reduce support for an international legal approach to human rights. Moreover, a vague belief that human rights norms have caused harm around the world adds fuel to an even more fundamental challenge: the “end times” of human rights that all governments should respect, and a concession to various religious entities, from the most humanitarian to the most brutal, to claim an unchecked moral authority to define and enforce, in any way they see fit, their own views of human rights and human wrongs.1 We leave it to another paper to document the disastrous consequences for human well- being if either state or religious authority (or their combination) create alternatives to international human rights law that non-believers and non- nationals have no right to question.

We argue that claims that international human rights law has had negative effects simply cannot be substantiated with evidence. We agree such law has not had positive effects everywhere, though the evidence of positive effects on average is quite strong. But claims of harm as a result of human rights law are utterly apocryphal. Even if, as the critics of international human rights law graciously admit, the glass is only “half-full,”2 harms claims rest on weak logic and no evidence.

In this chapter, we provide an empirical review that might plausibly speak to these claims. This is no easy task, because to answer fully and properly would require a series of counterfactuals about the world with- out international human rights law. Nor are the claims of the critics always articulated in ways that are amenable to empirical investigation. We think that an attempt to confront harms claims should address the following: Has the attention to human rights – especially those defined in the major treaties that seem to be favored by the Western World – diverted attention from more important matters, such as economic development or social justice? Have rights obligations in certain areas simply driven repression further underground, where it is harder to observe? We find there is practically no evidence that would justify answering these questions affirmatively. These issues are important because inter- national human rights law is undergoing a profound challenge. Stephen Hopgood, for example, claims that the international legal system is cracking under pressure by sovereign governments who claim it does not bind, and by resurgent religious organizations that claim it has lost – or never had – the moral authority to describe a set of universal rights in the first place.3 The very legitimacy of the system seems to be under siege.

This chapter proceeds as follows. The first section outlines some of the claims in the literature about the deleterious consequences assumed to be associated with the postwar “obsession” with international human rights. We describe three claims about the net consequences of such attention. First, some commentators have suggested that when governments com- ply with one obligation (e.g., the rights contained in the ICCPR), they strategically and intentionally violate other rights (e.g., engage in disappearances of political opponents). Second, some commentators claim that attention to human rights has crowded out attention to economic well-being through economic development. Third, some claim that individual civil and political rights have crowded out attention to social rights, such as a right to be educated, a right to health, and a host of labor rights. All of these claims go beyond the observation that human rights are often involved in political and policy trade-offs and thus are rarely perfectly realized. Rather, these critiques suggest that the legal regime has done net harm. Such musings have never been seriously tested with data and sound methods.

The second section of this chapter searches high and low for empirical evidence of a dark side – i.e., of net harms of international human rights law. This is a real challenge, not least because many such claims are not articulated precisely enough to be tested with evidence. Nonetheless, we have attempted here to collect evidence relevant to the thrust of the above critiques. The third section presents some simple findings. We find no credible evidence that attention to and compliance with international human rights law is causally connected with any of the negative consequences advanced by its critics. This null finding has huge implications for policy going forward. It suggests that while human rights are obviously never easy to realize in full, international human rights law is not responsible for the series of bad outcomes critics have claimed. In conjunction with other research pointing to systematic improvements in the rights international law has sought to protect,4 we argue that many detractors have been far off base. Governments may claim they cannot possibly achieve economic development or social rights and live up to their human rights obligations at the same time, and a few may strategically alter their repressive behavior to keep within the letter of the law, but, on average, there is no evidence that human rights law has forced, or even encouraged, such consequences.