Human Rights, the Laws of War, and Reciprocity

Eric A. Posner

doi:10.1515/1938-2545.1071

Article

Human Rights, the Laws of War, and Reciprocity

Eric A. Posner

Published/Copyright: January 17, 2013

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From the journal The Law & Ethics of Human Rights Volume 6 Issue 2

Abstract

Human rights law does not appear to enjoy as high a level of compliance as the laws of war, yet is institutionalized to a greater degree. This Article argues that the reason for this difference is related to the strategic structure of international law. The laws of war are governed by a regime of reciprocity, which can produce selfenforcing patterns of behavior, whereas the human rights regime attempts to produce public goods and is thus subject to collective action problems. The more elaborate human rights institutions are designed to overcome these problems but fall prey to second-order collective action problems. The simple laws of war institutions have been successful because they can exploit the logic of reciprocity. The Article also suggests that limits on military reprisals are in tension with self-enforcement of the laws of war. The U.S. conflict with Al Qaeda is discussed.

Keywords: Rights and reciprocity; human rights; laws of war; collective action problems; international law

University of Chicago Law School. Prepared for Conference on “Rights and Reciprocity,” Ramat Gan, January 2011. Thanks to Eyal Benvenisti, Gabby Blum, Ryan Goodman, Aziz Huq, Bob Keohane, Ola Mestad, Ariel Porat, Peter Rosendorff, three anonymous reviewers, and participants at an international law workshop at NYU Law School and at the Ramat Gan Conference. James Kraehenbuehl provided helpful research assistance. Thanks to the Russell Baker Scholars Fund for financial support.

Published Online: 2013-01-17

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https://doi.org/10.1515/1938-2545.1071

Keywords for this article

Rights and reciprocity; human rights; laws of war; collective action problems; international law