Second, Posner asserts that the 1990s represented the high-water mark of the idea of human rights. Since 9/11, however, the tide has ebbed for a number of reasons including:The truth is that human rights law has failed to accomplish its objectives. There is little evidence that human rights treaties, on the whole, have improved the wellbeing of people. The reason is that human rights were never as universal as people hoped, and the belief that they could be forced upon countries as a matter of international law was shot through with misguided assumptions from the very beginning.
America’s recourse to torture was a significant challenge to the international human rights regime. The United States was a traditional leader in human rights and one of the few countries that has used its power to advance human rights in other nations. Moreover, the prohibition on torture is at the core of the human rights regime; if that right is less than absolute, then surely the other rights are as well.
Posner goes on to note several additional reasons why the idea of human rights is waning included some about which I expressed concern in my article. His conclusion is insightful: "It is time to start over with an approach to promoting wellbeing in foreign countries that is empirical rather than ideological." In other words, the proponents of human rights should stop talking about rights in the abstract. They should stop worrying about formal inclusion of various and sundry rights in national constitution. Instead, they should simply work toward improving the plight of the oppressed through verifiable means.
I find much to applaud in Posner's critique and much to support in his alternative to the traditional model of human rights activism. I cannot, however, join in his abdication of rooting any sort of ameliorative efforts in the reality of a distinctive human nature.
Without more, Posner's well-intended efforts to reorient human right will simply increase the efficiency of a different set of priorities. In Posner's utilitarian world, the trains will run on time but who knows where they are going?