Continuing our exchange, Henry Farrell says that the answer is likely yes, noting that “there is good evidence that the HRC’s predecessor, the even more widely excoriated UN Commission on Human Rights did have a measurable, and arguably positive, effect in punishing notorious human rights violators, despite its many flaws.” He cites two empirical papers by Jim Lebovic and Erik Voeten. The first found that the Commission targeted and punished (that is, publicly “shamed”) countries with worse human rights records (except those with significant geopolitical power such as China, Pakistan, and Saudi Arabia). The second found that the World Bank and other multilateral aid institutions gave less aid to countries that were condemned by the Commission than to those that were not.
However, Henry reads too much into the papers. The papers do not show that the Commission caused any countries to improve their human rights practices. The first paper shows that a lot of talk took place but not that the talk led countries to treat their citizens more humanely. The second paper finds no evidence that the World Bank lent less to countries with (objectively) worse human rights records than to countries with better human rights records. (Even if it did, other empirical research shows that even significant sanctions, far worse than the refusal to extend loans or aid, rarely cause states to change their behavior.) It is possible that countries dislike public criticism enough to change their behavior, but the first paper shows that cozying up with a great power is just as good a strategy for avoiding criticism from the Commission as improving one’s human rights record. The results of the second paper—as well as results elsewhere in the literature on the (weak) relationship between international law and human rights practices—suggest that states targeted by the Commission either did that or shrugged off international criticism.
Why did states set up the UCHR and tolerate it as long as they did? States decided after World War II that human rights violations are a matter of international concern. This judgment reflected both altruistic concerns about fellow humans living in foreign countries and a conviction born out of the Nazi experience that states that violate the rights of their own citizens pose a threat to international peace. Human rights improvement is a classic public good, and the free rider problem has interfered with efforts to pressure states to respect the human rights of their populations. When some states isolate a human rights abuser, other states have an incentive to do business with it. Sudan and China are just the latest example.
States also disagreed about what human rights means, and still do. They punted to weak multilateral institutions like the UNCHR, perhaps hoping that they could work out a consensus and put pressure on the worst abusers. As Lebovic and Voeten show, this effort failed during the polarized years of the cold war, but had more success once the cold war ended, and (thanks to the collapse of communist ideology) consensus on human rights issues made some progress.
Still, the UNCHR was ultimately a failure. That is why states disbanded it and replaced it with the Council. It may well be the case that it targeted abusers more than non-abusers, as Lebovic and Voeten document, and perhaps even put more pressure on abusers than non-abusers. But this was not good enough. Imagine a criminal justice system that is more likely to punish actual criminals than non-criminals, but still punishes some (relative) innocents and lets most criminals get away. Such a system will enjoy little support; even if the sanctions actually sting, they would still not necessarily improve behavior (because the states that improve their human rights records at great cost to themselves must contend with the possibility that they will continue to be criticized).
An even more alarming possibility is that the Commission was disbanded not because it failed but because it succeeded too well. Tired of being criticized by their peers, members of the Council have instituted a number of review mechanisms (universal periodic review that prohibits fact-finding and group judgments, “thematic” review that emphasizes general problems rather than particular governments) that ensure that particular states will rarely be explicitly criticized by the Council as a body, which is what has happened. These activities clog the agenda, leaving no time to discuss Sudan, Egypt, or North Korea. The free rider problem and continuing significant disagreement about which rights are human rights and what can justify violating them have doomed the enterprise.
I like the Lebovic/Voeten papers; this is how international law scholarship should be done. I don’t see why Henry thinks they cast doubt on the methodological approach of rational choice (or what the authors and other political scientists prefer to call liberal institutionalism), which I defend in my book.