For example, Article 19 of the International Covenant on Civil and Political Rights says that the right to freedom of expression is “subject to certain restrictions [as] are necessary [f]or the protection of national security or of public order … or of public health or morals.”
But countries interpret these restrictions for public order and morals in greatly different ways.
In the United States, we hardly ban any offensive speech or images. But child pornography is forbidden, as is offensive language on public broadcasts. In Europe, many countries ban various forms of hate speech, including Holocaust denial, but not images of Mohammad. In many Islamic countries, a wider range of images and text deemed offensive or blasphemous are banned.
Who’s to stay which country correctly balances the public’s interest in verbal and artistic expression and the need to respect others and their beliefs?
The debate about freedom of expression reflects larger debates about the role of human rights law in the affairs of countries. Treaties like the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture (all of which nearly every country has ratified) govern a vast range of government behavior—not just speech and religion, but also the treatment of criminal suspects, the rights of workers, health care, and pensions.
Does widespread ratification of these treaties mean that the commitment to human rights is fundamental, and that violations are anomalies?
Most governments did not take these treaties seriously when they ratified them. Moreover, human rights treaties are often so vague as to be almost meaningless, and unenforceable even when a meaning can be discerned. Article 19 of the ICCPR is just one of many examples where countries are permitted to balance an interest protected by a right with the interest in order and morality.
The treaties also contain numerous rights unfamiliar to Americans—social and economic rights that guarantee a minimum income, health care, education, and pensions. Developing countries have interpreted these rights to give them a “right to development,” and their citizens a “right to security”—which mean that governments can sacrifice political rights when those rights interfere with efforts to reduce poverty, fight crime, and battle insurgencies. In some cases, governments go too far, but in others, they make reasonable tradeoffs between freedom and security that westerners do not face, in light of moral traditions westerners do not understand.
The vagueness of the treaties is no accident. It derives from fundamental disagreement about what they are supposed to accomplish—about what is the human good, and what is the role of the government in advancing it. During the Cold War, two diametrically opposed ideological visions—liberal democracy and communism—flourished.
When the communist governments collapsed in the late 1980s and early 1990s, the western vision seemed to be vindicated. Two things happened. First, many governments tried to model themselves on western norms, based on the evident superiority of the western system for creating order and prosperity. Second, nearly all governments realized that they needed the goodwill of the United States and Europe. They needed trade, foreign aid, technical assistance, diplomatic support, military help—and to get these things, they told the West what it wanted to hear.
The human rights agenda went into overdrive. Countries scrambled to ratify existing human rights treaties and introduce new ones; tripped over each other to be first to add human rights to their constitutions; and threw together western-style political and judicial institutions in societies with radically different traditional sources of order. These efforts yielded few improvements in people’s lives, but the important thing was that they flattered the West. Like the tyrant who believes the blandishments of his courtiers, Westerners came to believe their own picture of the world—not only that it was right, but that everyone agreed it was right.
But an ideology can ignore the facts for only so long. One might dismiss human rights violations that occur in civil wars like Syria’s as aberrational, but the steady drumbeat of reports about everyday violations—like last year’s report that 30 million people toil in slavery—have taken their toll on human rights optimism. Social science research has found only weak, mixed evidence of improvement in the rights practices of countries that have ratified the human rights treaties.
Even western countries often fail to live up to the values they espouse. The United States has used torture, targeted killing, and mass surveillance to defend itself from these new threats. Wars in Afghanistan, Iraq, and Libya, fought in part under the banner of human rights, brought anarchy rather than improvement in people’s lives. Many Europeans have turned against their Muslim immigrant populations, some of whom cheer on Islamist radicals in their homelands. You can expect French security forces to strengthen reliance on profiling and administrative detention after the most recent terrorist attacks.
Most important, as U.S. and European power has waned, non-western governments no longer need to bow and scrape for their scraps of aid. They increasingly argue that traditional morality, ethnic solidarity, and religion are the real springs of moral action to which western conceptions of human rights must yield. Many now look to the “China model”—economic growth accompanied by, and advanced through, political repression.
The human rights treaties cannot stop these tidal currents. The various institutions created to enforce them—like the UN Human Rights Council—are paralyzed by disagreement and starved of funds. Russian and Chinese leaders have deftly exploited ethnic and nationalist sentiments in their populations. Leaders of most non-western countries know that while significant minorities crave liberal freedoms, the western lifestyle—secular, consumerist, individualist—is repulsive to most of their people, who no longer believe (if they ever believed) that western human rights are compatible with the practices they cherish.
What is there to do about this? We can start by recognizing three facts: that the goals of the international human rights movement are not universally accepted; that the full panoply of western-style rights is not appropriate for all countries; and that efforts to implement them in foreign countries through law and coercion are not effective ways of improving people’s lives. Human rights law is a dead letter.
But, while we should feel appropriately chastened by the failure of human rights, we need not be helpless in the face of the world’s misery. The way forward is to ratchet down utopian ambitions—but still to recognize that rich countries in the West should help people in foreign countries when they want and need our help. The model should not be human rights but foreign aid.
Foreign aid means giving money, technical assistance, and other goods to poor countries where doing so helps the people who live there. Foreign aid is not a panacea. Indeed, foreign aid for a long time suffered from the totalizing, top-down, hubristic approach that underlies human rights law. Vast sums of money were wasted trying to plant western economies in arid soil.
But in recent years, development economists have turned their attention to narrowly focused projects, based on meticulously conducted on-the-ground experiments and empirical data. A vaccination program doesn’t deliver political freedom or western standards of living, but it can do some good, and that ought to be enough, even if the beneficiaries subordinate women and persecute gays and lesbians. Resources now devoted to the futile enforcement of human rights law should be redirected to such humble projects, with the understanding that they may benefit people whose values we abhor. Let utopian ambitions give way to chastened optimism.
The contradiction in human rights law was that it asserted that rights were universal but it was enforced by western power. With the prop of western power kicked away, the human rights agenda needs to be rethought and given a new justification, changed, or abandoned. Non-western views need to be accommodated in the interest of global peace. Human rights law, a kind of collective self-denial that the world has changed since the 1990s, stands in the way.