From Rights to Reality (October 2011)

From Rights to Reality: Beth Simmons’s Mobilizing for Human Rights and its Intersection with International Law

October 14, 2011

On October 14, 2011 the finale of the daylong 17th annual Herbert Rubin and Justice Rose Luttan Rubin International Law Symposium, “From Rights to Reality: Beth Simmons’s Mobilizing for Human Rights and its Intersection with International Law,” was a dialogue between Simmons, Clarence Dillon Professor of International Affairs at Harvard University, and Eric Posner, Kirkland & Ellis Professor of Law at the University of Chicago Law School and a visiting professor at NYU Law in Fall 2008.

The exchange, moderated by José Alvarez, Herbert and Rose Rubin Professor of International Law, concerned Simmons’s book Mobilizing for Human Rights: International Law in Domestic Politics. Recalling how she came to the topic, Simmons said, “My undergraduate students got me interested in this question of whether treaties matter for human rights and for international law generally…. Two decades ago we just didn’t have good answers to that kind of a question. There was no good empirical work that really addressed the extent to which international law and treaties could matter and could affect outcomes and consequences that we’re interested in.”

Simmons asserted that there are a number of reasons states of all stripes join international human rights treaties. Regressive regimes sign on to treaties to reduce criticism of their practices, she said. And, she added, there’s also peer pressure: states in the same region emulate one another in the ratification process. While international enforcement rarely occurs, she said, treaties aren’t useless because domestic actors with strong personal stakes demand state compliance.

“It puts a new agenda on the table domestically,” said Simmons. “It introduces an issue that many states would not have been bringing up at that point in time…. It increases the strength of domestic demands and potentially increases the case that can be made because they are available for litigation. They may not be the ideal instrument for litigation, but they add to the kind of ammunition that can be brought in a court case.” Transitional countries in between autocracy and democracy, she said, tend to see the greatest effect from treaties, since there is improvement to be made along with a degree of openness to change. The book touches on civil and political rights, women’s rights, torture, and children’s rights.

While treaties aren’t a “magic bullet,” she said, “international law should be a tool that we can use to influence rights, given that we can’t stop war in any automatic kind of way, and we’ve found no way yet to solve these other mega projects…. They’re not a substitute for peacemaking, for democratization support, or for developmental programs.”

Joking that he was there in his “customary role as Darth Vader,” Posner began with praise for Simmons’s book. “When I started writing about international law, one of my complaints was that people hadn’t thought about international law in a sufficiently empirically rigorous way, so I can’t show ingratitude now and complain that Beth has done just this and come to results that maybe I don’t like, maybe I do like.”

Posner raised questions about aspects of the book, saying he wasn’t entirely convinced by Simmons’s accounts of why states enter human rights treaties, what benefits they derive, common-law considerations, and what compliance with a treaty actually means.

He also raised a counterexample regarding China, which he said had lifted 200 million citizens out of poverty in the past three decades while not complying with human rights treaties; the government said it was concerned about poverty rather than human rights.

“Should we criticize China for not complying with human rights treaties?” said Posner. “One could say this is the greatest humanitarian accomplishment of any state in quite a long time, and they did it by violating human rights treaties. You might say they could have complied with human rights treaties and raised all these people out of poverty, but we don’t know what the counterfactual is.”

While Simmons did not have time to respond to each criticism, she tackled the issue of why a state enters a human rights treaty: “To not understand the degree of momentum post-World War II for trying to address human rights issue is to not understand the pressure was to do something and not just sit there…. I actually don’t think there are strong external benefits to participating in a human rights regime…. I do agree there’s a little bit of mystery, shall we say, for why this regime has such a momentum, but I think to put it in a historical context does quite a bit to resolve that.”

Among those participating in the symposium’s other panels were Philip Alston, John Norton Pomeroy Professor of Law; Robert Howse, Lloyd C. Nelson Professor of International Law; and Catharine MacKinnon, prominent feminist and University of Michigan Law School professor. The symposium was organized by Anne and Joel Ehrenkranz Professor of Law Ryan Goodman, the NYU Journal of International Law and Politics, the Center for Human Rights and Global Justice, the International Law Society, and Law Students for Human Rights.

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