Human welfare, not human rights

Columbia Law Review

Volumn 108, Issue 7, 2008, Pages 1758-1801

  Posner, Eric A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 57549091159     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (196)

1. E.g., Bureau of Democracy, Human Rights, & Labor, U.S. Dep't of State, 2006 Country Reports on Human Rights Practices (2007).
2. E.g., Amnesty International Report 2007: The State of the World's Human Rights (2007); Freedom House, The Worst of the Worst: The World's Most Repressive Societies (2007);
3. Human Rights Watch, World Report 2008 (2008)
4. [hereinafter Human Rights Watch, World Report].
5. In narrow circumstances foreign sovereign immunity is not granted to designated state sponsors of terrorism for acts that violate certain human rights. See National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083(a), 2008 U.S.S.C.A.N. (122 Stat.) 3338 (to be codified at 28 U.S.C. § 1605A) (waiving sovereign immunity for state sponsors of terrorism for actions arising out of "an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act"). In addition, the State Department issues annual reports that identify human rights abusers, and from time to time the United States imposes sanctions on human rights abusers such as Apartheid-era South Africa.
6. See Gary Clyde Hufbauer, Jeffrey J. Schott & Kimberly Ann Elliott, Economic Sanctions Reconsidered: History and Current Policy 236 (2d ed. 1990).
7. Henry J. Steiner et al., International Human Rights in Context: Law, Politics, Morals 936-37 (3d ed. 2008). The European Union also considers human rights among its criteria for admission.
8. See Peter Singer, One World 102-03 (2004) (discussing European Union's use of "lure of entry" to encourage support for human rights).
9. See Joel E. Oestreich, Power and Principle: Human Rights Programming in International Organizations 2-3 (2007) ("[A] wide range of IGOs [intergovernmental organizations] have been incorporating human rights standards into their operations . . . .").
10. See Emilie M. Hafner-Burton, Kiyoteru Tsutsui & John W. Meyer, International Human Rights Law and the Politics of Legitimation: Repressive States and Human Rights Treaties, 23 Infi Soc. 115, 118 tbl.1 (2008) (listing major human rights treaties with numbers of states that are parties).
11. See, e.g., International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature May 2, 1991, 30 I.L.M. 1517;
12. Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S 3;
13. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85
14. [hereinafter Convention Against Torture];
15. Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, 1249 U.N.T.S 13;
16. International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR];
17. International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16 1966, 993 U.N.T.S 3 [hereinafter ICESCR];
18. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Dec. 21, 1965, S. Exec. Doc. C, 95-2 (1978), 660 U.N.T.S. 195.
19. See, e.g., Jack Donnelly, The Relative Universality of Human Rights, 29 Hum. Rts. Q. 281, 292-93 (2007) [hereinafter Donnelly, Relative Universality] (arguing that transhistorical foundation for human rights is "implausible and politically unappealing");
20. Amartya Sen, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff. 315, 317 (2004) [hereinafter Sen, Elements] (noting widespread skepticism about foundations of human rights);
21. Joseph Raz, Human Rights Without Foundations 2-8 (Univ. of Oxford Faculty of Law Legal Studies Research Paper Series, Paper No. 14/2007, 2007), available at http://ssrn.com/abstract=999874 (on file with the Columbia Law Review) (arguing that traditional philosophical approaches to human rights are "so remote from the practice of human rights as to be irrelevant to it").
22. Compare Theodoor C. van Boven, Distinguishing Criteria of Human Rights, in 1 The International Dimensions of Human Rights 43, 43-48 (Karel Vasak & Philip Alston eds., 1982) (arguing that there is a hierarchy of human rights), with Theodor Meron, On a Hierarchy of International Human Rights, 80 Am. J. Infi L. 1, 21-22 (1986) (disputing this claim).
23. See, e.g., Martha C. Nussbaum, Frontiers of Justice 290 (2006) [hereinafter Nussbaum, Frontiers] (noting "unsatisfactory features" of human rights discourse but arguing human rights provide unique "idea of an urgent claim based upon justice");
24. Thomas W. Pogge, Realizing Rawls 272 (1989) (arguing "global institutional ideal" must be "consistent with the basic rights of all human beings");
25. John Rawls, The Law of Peoples 80 (1999) (noting moral force of human rights is globally binding);
26. Sen, Elements, supra note 8, at 320-28 (characterizing human rights as "ethical claims that demand acceptance").
27. To be sure, well-being is also a highly contested concept. See Matthew D. Adler & Eric A. Posner, New Foundations of Cost-Benefit Analysis 52-61 (2006)
28. [hereinafter Adler & Posner, New Foundations] (comparing utilitarian, egalitarian, rights-based, and "weak welfarism" approaches and contending that welfare has at least some moral weight in each view);
29. infra Part II.B.2.
30. See, e.g., Adler & Posner, New Foundations, supra note 11, at 5 (noting general agreement with Pareto principle-that government projects are desirable if they make individuals better off while making no one worse off).
31. William Easterly, The White Man's Burden 4 (2006) (noting Western countries have spent $2.3 trillion on foreign aid over last five decades).
32. Compare Jeffrey Sachs, The End of Poverty: Economic Possibilities for Our Time 242-43 (2006) (advocating massive investment by developed nations in projects that will help poor nations), with Easterly, supra note 13, at 37-51, 367-83 (arguing that top-down schemes like Sachs's do not work and advocating more experimental and incremental approaches). Both scholars agree that that the goal of foreign aid should be to promote growth and help the poor in developing countries.
33. See Info. Office of the State Council of China, Progress in China's Human Rights Cause in 2003, at ch. I (2004), available at http://www.china.org.cn/e- white/20040330/index.htm (on file with the Columbia Law Review) (reporting on "The People's Rights to Subsistence and Development");
34. cf. Geoffrey York, Citing "Right To Development," China Rejects Emission Cap, Globe & Mail (Toronto), June 5, 2007, at Al (reporting China's refusal to reduce emissions based on claim that "right to development" trumped other concerns). The UN General Assembly declared the existence of a right to development in 1986. Declaration on the Right to Development, GA. Res. 41/128, art. 1(1), U.N. GAOR, 41st Sess., 97th plen. mtg., U.N. Doc. A/41/53 (Dec. 4, 1986).
35. See Raz, supra note 8, at 14 (contending that human rights "set limits to the sovereignty of states").
36. See Todd Landman, Protecting Human Rights: A Comparative Study 159-70 (2005) (finding limited impact, mainly mediated by other factors);
37. Emilie M. Hafner-Burton & Kiyoteru Tsutsui, Human Rights in a Globalizing World: The Paradox of Empty Promises, 110 Am. J. Soc. 1373, 1395-1402 (2005) (concluding ratification of human rights treaties does little to reduce violation of person's right to security);
38. Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935, 1998 (2002) (finding no positive statistically significant relationship between Torture Convention ratification and human rights compliance);
39. Linda Camp Keith, The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?, 36 J. Peace Res. 95, 112 (1999) (finding ratification of ICCPR did not "effect observable change in actual human rights behavior");
40. Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights?, 49 J. Conflict Resol. 925, 950-51 (2005) (finding that ratification of human rights treaties improves state's respect for human rights if it has well-developed democratic system of governance and strong civil society);
41. Beth Simmons, Complying with the Law: The Case of International Human Rights Treaties 289-90 (2006) (unpublished manuscript, on file with the Columbia Law Review) (finding some but limited impact of ratification of Convention Against Torture);
42. see also Emilie M. Hafner-Burton & Kiyoteru Tsutsui, Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most, 44 J. Peace Res. 407, 420-23 (2007) (finding abusive governments that enter human rights treaties do not improve human rights practices);
43. Emilie M. Hafner-Burton, Right or Robust?: The Sensitive Nature of Repression to Globalization, 42 J. Peace Res. 679, 680-85 (2005) (reviewing literature on relationship between globalization and human rights practices);
44. Emilie M. Hafner-Burton & James Ron, Can the Human Rights Movement Achieve Its Goals? 12-17 (Dec. 6, 2007) (unpublished manuscript, on file with the Columbia Law Review), available at http://www.princeton.edu/~ehafner/ pdfs/achieve-goals.pdf (reviewing state of empirical research regarding impact of human rights treaties on human rights violations).
45. See sources cited supra note 7.
46. See Hafner-Burton, Tsutsui & Meyer, supra note 6, at 118 tbl.1. The International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families is a notable exception, with only 20 states party. Id.
47. Convention on the Rights of Persons with Disabilities, opened for signature March 30, 2007, 46 I.L.M. 443.
48. See Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol 11, opened for signature May 11, 1994, Europ. T.S. No. 155
49. [hereinafter ECHR]. The structure of the ECHR judicial system is set forth at id. arts. 19-51.
50. African Charter on Human and Peoples' Rights, adopted June 27, 1981, 1520 U.N.T.S. 217;
51. American Convention on Human Rights, opened for signature Nov. 22, 1969, 1144 U.N.T.S. 123.
52. ICCPR, supra note 7;
53. ICESCR, supra note 7;
54. ECHR, supra note 21;
55. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
56. See Nussbaum, Frontiers, supra note 10, at 286-88 (contrasting negative and affirmative conceptions of rights).
57. See Imre Szabo, Historical Foundations of Human Rights and Subsequent Developments, in 1 The International Dimensions of Human Rights, supra note 9, at 11, 13-20 (contrasting Lockean natural law tradition of inalienable rights with later socialist development of "economic, social and cultural rights").
58. Some of the provisions of the Universal Declaration have entered customary international law, at least according to U.S. courts. See, e.g., Flores v. S. Peru Copper Corp., 414 F.3d 233, 261 (2d Cir. 2003) (finding right to be free from torture to be customary international law).
59. Micheline R. Ishay, The History of Human Rights 221-29 (2004) (identifying Cold War rivalry as stimulus for adoption of two human rights treaties by General Assembly).
60. One hundred and sixty-two states have ratified the ICCPR. Office of the United Nations High Comm'r for Human Rights, Status of Ratification: International Covenant on Civil and Political Rights, at http://www2.ohchr.org/ english/bodies/ratification/4.htm (last visited Oct 18, 2008) (on file with the Columbia Law Review).
61. One hundred and fiftynine states have ratified the ICESCR. United Nations High Comm'r for Human Rights, Status of Ratification: International Covenant on Economic, Social and Cultural Rights, at http://www2.ohchr.org/english/bodies/ ratification/3.htm (last visited Oct. 18, 2008) (on file with the Columbia Law Review). There are 192 member states in the UN. United Nations, List of Member States, at http://www.un.org/members/list.shtinl (last visited Oct. 18, 2008)
62. (on file with the Columbia Law Review).
63. See Mark W. Janis, The Efficacy of Strasbourg Law, 15 Conn. J. Infi L. 39, 39-46 (2000) (summarizing studies of ECHR compliance and concluding "[f]or an international legal system, Strasbourg law is, from what we can tell, remarkably efficacious").
64. The major exceptions are India and South Africa. See Steiner et al., supra note 4, at 321-47 (discussing India's merging of fundamental rights with directive principles or positive rights and South Africa's elevation of social or positive rights to constitutional status).
65. See Kenneth Roth, Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 Hum. Rts. Q. 63, 65 (2004) (discussing whether human rights organizations have legitimacy to address positive rights).
66. For further discussion, see infra Part I.B.
67. See Alan Gewirth, Human Rights: Essays on Justification and Applications 27 (1982) (suggesting human rights have "intrinsic and instrumental value in relation to dignity"). For a survey of moral theories of human rights,
68. see generally Allen Buchanan & David Golove, Philosophy of International Law, in Oxford Handbook of Jurisprudence and Philosophy of Law 808 (Jules Coleman & Scott Shapiro eds., 2002).
69. E.g., Charles R. Beitz, Political Theory and International Relations 130 (1979);
70. Pogge, supra note 10, at 53.
71. See, e.g., Singer, supra note 4, at 98-99 (comparing claims of human right to democracy with welfarist defense of democratic government).
72. See Sen, Elements, supra note 8, at 343 (discussing Universal Declaration as most important international recognition of human rights).
73. See, e.g., Nussbaum, Frontiers, supra note 10, at 286-88 (comparing provisions of United States Constitution with provisions of Indian Constitution).
74. In subsequent work, Sen distances himself from (what I call) welfarism, and seems to argue that his support for human rights is based on concern for "freedom" rather than "utility." See Sen, Elements, supra note 8, at 328.
75. See Nussbaum, Frontiers, supra note 10, at 284-91 (explaining how capabilities approach is "closely allied" to human rights approach);
76. Amartya Sen, Development as Freedom 147-48 (1999) [hereinafter Sen, Development] (arguing economic development and promotion of human rights are inextricably intertwined).
77. Sen, Development, supra note 39, at 85.
78. Sen reasonably argues that the existence of disputes about human rights "is no embarrassment to a theory of human rights." Sen, Elements, supra note 8, at 323.
79. However, it is an embarrassment to a treaty regime that has remained vague because these disputes have not been resolved.
80. Nussbaum, Frontiers, supra note 10, at 284.
81. Id. at 291.
82. See supra notes 29-32 and accompanying text.
83. See Nussbaum, Frontiers, supra note 10, at 291.
84. See infra note 61 and accompanying text.
85. See Charles R. Beitz, Human Rights as a Common Concern, 95 Am. Pol. Sci. Rev. 269, 279-81 (2001) (discussing political role of human rights);
86. Donnelly, Relative Universality, supra note 8, at 292-93 (arguing human rights represent overlapping consensus of different political visions of what is essential to protecting a "life of dignity");
87. Charles R. Beitz, What Human Rights Mean, Daedalus, Winter 2003, at 36, 44-46 (conceiving human rights as "basic requirements of global justice").
88. See Ishay, supra note 27, at 218-24 (discussing historical origins of Universal Declaration).
89. See id. at 223 (discussing breakdown of consensus that had led to Universal Declaration and subsequent decision to develop two separate human rights treaties, ICCPR and ICESCR).
90. See id. at 221 ("The Soviet representatives, unsurprisingly, gave priority to social and economic rights and equivalent civic duties, while American representatives favored political and civil rights.").
91. Cf. Jack Donnelly, Universal Human Rights in Theory and Practice 135-38 (2003) (identifying "a largely Westernized elite" as driving force behind proliferation of anti-caste efforts in India).
92. See Andrew Moravscik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 Int'l Org. 217, 228 (2000) (arguing newly established democracies seek to bind themselves to human rights treaties as a way to lock in democratic rule).
93. See, e.g., Emilie M. Hafner-Burton, Trading Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 Int'l Org. 593, 603 (2005)
94. [hereinafter Hafner-Burton, Trade] (noting lack of formal enforcement mechanisms in most human rights treaties);
95. Hathaway, supra note 17, at 2006-07 (noting minimal monitoring and enforcement of human rights treaties).
96. See Vienna Convention on Diplomatic Relations art. 22, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (oudining special protections to be afforded foreign "missions").
97. The interest could be genuinely altruistic, or it could derive from a concern that human rights abusing states eventually pose a threat to their neighbors and other foreign states, which was the lesson of the Nazi experience.
98. See, e.g., Ishay, supra note 27 at 225-29 (describing Cold War superpowers' priorities as supporting their client states irrespective of their human rights practices).
99. See, e.g., Abdullahi Ahmed An-Na'im, Human Rights in the Muslim World, 3 Harv. Hum. Rts. J. 13, 17-25 (1990) (describing tension between Shari'a and human rights);
100. Randall Peerenboom, Beyond Universalism and Relativism: The Evolving Debates About "Values in Asia," 14 Ind. Int'l & Comp. L. Rev. 1, 20-26 (2003) (discussing Asian values debate). The proponents of Asian values claimed that Asians valued social harmony more than Western freedoms; some Islamic scholars reject Western values that are inconsistent with Islam.
101. See An-Na'im, supra note 57, at 16 (noting tensions between human rights regime and traditional Islamic approaches to gender and religion); Peerenboom, supra note 57, at 26-27 (discussing tendency of Asian governments to defend human rights abuses based on need to deal with instability within their countries).
102. See Guy Haarscher, Can Human Rights Be "Contextualized"?, in Human Rights with Modesty: The Problem of Universalism 103, 106-08 (András Sajó ed., 2004) (classifying "Asian values" as a frontal attack that "run[s] counter to the official ideology of the international community, that is, human rights").
103. See Sen, Development, supra note 39, at 231-40 (seeking support for human rights in classical Asian writings);
104. cf. Donnelly, Relative Universality, supra note 8, at 284-86 (discussing and criticizing attempts to locate recognition of human rights in traditional non-Western cultures).
105. ICESCR, supra note 7, art. 2(1).
106. United Nations Econ. & Soc. Council [ECOSOC], Comm. on Econ., Soc., & Cultural Rights, Report on the Fifth Session, General Comment No. 3, at 83, U.N. Doc. E./ 1991/23 (Dec. 14, 1990) (acknowledging "constraints due to the limits of available resources").
107. See, e.g., Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in Developing Countries, in Human Rights and Development: Towards Mutual Reinforcement 65, 66-67 (Philip Alston & Mary Robinson eds., 2005) (discussing disagreement over success of Brazil's rights-based approach to health care budgeting).
108. ICCPR, supra note 7, art. 19(3) (b).
109. Id. art. 4(1).
110. The ban on torture reads in its entirety: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation." Id. art. 7. The ICCPR's derogation provision prohibits derogations from Article 7. Id. art. 4(2).
111. This is a truism in the aid literature. See, e.g., Simeon Djankov, Jose G. Montalvo & Marta Reynal-Querol, Aid with Multiple Personalities, 27 J. Comp. Econ. (forthcoming 2009), available at http://www.doingbusiness.org/ documents/Aid-with-Multiple-Personalities-JCE.pdf (on file with the Columbia Law Review) (providing empirical evidence for reduction in aid efficiency caused by donor fragmentation);
112. Arnab Acharya, Ana Fuzzo de Lima & Mick Moore, Aid Proliferation: How Responsible Are the Donors? (Inst. of Dev. Studies, Working Paper No. 214, 2004), available at www.ids.ac.uk/ids/bookshop/wp/wp214.pdf (on file with the Columbia Law Review) (pointing out costs to donee countries from dealing with multiple donors);
113. Stephen Knack & Aminur Rahman, Donor Fragmentation and Bureaucratic Quality in Aid Recipients (World Bank Policy Research, Working Paper No. 3186, 2004), available at http://www-wds.worldbank.org/external/default/ WDSContentServer/IW3P/IB/2004/02/04/000012009-20040204091915/Rendered/PDF/ WPS3186.pdf (on file with the Columbia Law Review) (providing empirical evidence for erosion of administrative capacity caused by many small donors).
114. On welfarism and international law, see generally Eric A. Posner, International Law: A Welfarist Approach, 73 U. Chi. L. Rev. 487 (2006).
115. Human Rights Watch, World Report, supra note 2, at 260.
116. See Martin Ravallion & Shaohua Chen, China's (Uneven) Progress Against Poverty 2 (World Bank Policy Research, Working Paper No. 3408, 2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=625285 (on file with the Columbia Law Review) ("In the 20 year period after 1981, the proportion of the population [in China] living below our new poverty lines fell from 53% to 8%.").
117. Nora V. Demleitner, The Death Penalty in the United States: Following the European Lead?, 81 Or. L. Rev. 131, 139 (2002).
118. See, e.g., Human Rights Watch, The Death Penalty in the United States of America, at http://www.hrw.org/campaigns/deadipenalty/ (last visited Sept. 2, 2008) (on file with the Columbia Law Review) (arguing that death penalty is irreconcilable with principles of human rights).
119. Death Penalty Info. Ctr., Executions Per Year (2007), at http://www.deadipenaltyinfo.org/article.php?scid=8&did=146 (last visited Sept. 2, 2008) (on file with the Columbia Law Review) [hereinafter Death Penalty].
120. The evidence of deterrence is weak. See John Donohue & Justin Wolfers, Uses and Abuses of Empirical Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 841 (2005) (showing death penalty's minimal deterrent effect on murder rate).
121. Estimates vary widely; the one authoritative study estimates 70,000 deaths over an eight month period in 2004. See Media Briefing, David Nabarro, World Health Org., Mortality Projections for Darfur (Oct. 15, 2004), available at http://www.who.int/mediacentre/news/briefings/2004/mb5/en/ (on file with the Columbia Law Review);
122. see also John Hagan & Alberto Palloni, Death in Darfur, 313 Science 1578, 1579 (2006) (estimating between 170,000 and 255,000 deaths occurred in Darfur over thirty-one months of conflict up until August 2006).
123. See Death Penalty, supra note 73.
124. But see Roper v. Simmons, 543 U.S. 551, 575-77 (2005) (relying in part on human rights treaties to find juvenile death penalty unconstitutional). Roper indicates that international pressure may have some effect on the use of capital punishment in the United States, but that effect has been felt only at the margins. Indeed, Texas has ignored the International Court of Justice's latest effort to compel it to obey international law.
125. See James C. McKinley, Jr., Texas Turns Aside Pressure on Execution of 5 Mexicans, N.Y. Times, July 18, 2008, at A13.
126. However, developing states have argued that compliance with human rights treaties should be judged in light of "capacities," an argument reflected in, for example, the General Assembly resolution that created the Human Rights Council. See G.A. Res. 60/251, ¶ 5(e), U.N. Doc. A/RES/60/251 (Apr. 3, 2006).
127. For empirical evidence, see Hafner-Burton, Trade, supra note 53, at 606 (showing members of preferential trade agreements that require compliance with human rights norms are expelled if they violate those norms).
128. See, e.g., Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements 12 (1995) ("It is, of course, by no means unheard of that states, like other legal actors, take advantage of the indeterminacy of legal language to justify indulging their preferred course of action.").
129. Id. at 174-96 (discussing history of verification processes in treaties).
130. Derek Parfit was the first to suggest this tripartite understanding. Derek Parfit, Reasons and Persons 493-502 (1984).
131. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 11 (J.H. Burns & H.L.A. Hart eds., Athlone Press 1970) (1789) ("Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.").
132. See, e.g., Daniel Kahneman, Objective Happiness, in Well-Being: The Foundations of Hedonic Psychology 3, 22 (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 2003) ("Real-time measures of experience can be obtained, stored without error, and aggregated to yield a measure of objective well-being that is anchored in the reality of present experience ....").
133. For a discussion, see James Griffin, Well-Being: Its Meaning, Measurement, and Moral Importance 10-16 (1986) (contrasting "actual- desire" account of utility with "informed-desire" account).
134. See Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 78-80 (2000) [hereinafter Nussbaum, Capabilities] (listing ten "central human functional capabilities");
135. see also Sen, Development, supra note 39, at 74-81 (arguing welfare should be evaluated by "the substantive freedoms-the capabilities-to choose a life one has reason to value").
136. For a discussion of the various camps, see Adler & Posner, New Foundations, supra note 11, at 28-39.
137. See Stephen Holmes & Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes 17-24 (1999) (pointing out that all rights, negative and positive, depend on government action for their vindication);
138. Cass R. Sunstein, Designing Democracy: What Constitutions Do 222-24 (2001) (arguing that distinction between negative and positive rights cannot be sustained).
139. See Alan Heston, Robert Summers & Bettina Aten, Ctr. for Int'l Comparisons of Prod., Income & Prices at the Univ. of Pa., Penn World Table Version 6.2 (2006), at http://pwt.econ.upenn.edu/php-site/pwt-index.php (on file with the Columbia Law Review). Data are provided as of 2003, using purchasing power parity converted units.
140. For a discussion of the Gini Coefficient and its use to measure inequality, see World Bank, Measuring Inequality, at http://go.worldbank.org/ 3SLYUTVY00 (last visited Sept. 30, 2008) (on file with the Columbia Law Review).
141. See David G. Blanchflower & Andrew J. Oswald, Well-Being over Time in Britain and the USA, 88 J. Pub. Econ. 1359, 1361 (2004) (citing psychology literature on reliability and validity of self-reported happiness statistics).
142. See the essays in Well-Being: The Foundations of Human Psychology, supra note 84.
143. Note that most of the countries in Table 2, above, are omitted because of the absence of data, not because they are necessarily happy places; we do not know how they would rank if surveys had been conducted in those countries.
144. Ruut Veenhoven, World Database of Happiness, Distributional Findings in Nations, at http://wwwl.eur.nl/fsw/happiness/hap-nat/nat-fp.htm (last updated Jan. 1, 2008) (on file with the Columbia Law Review). The survey question was: All things considered, how satisfied are you with your life as a whole now? 1-dissatisfied and 10-satisfied. Id.
145. For a discussion, see Matthew D. Adler & Eric A. Posner, Happiness Research and Cost-Benefit Analysis, 37 J. Legal Stud, (forthcoming 2008) (manuscript at 2-10, on file with the Columbia Law Review) (summarizing different views and advocating "weak welfarism" approach in which "overall well-being is one of a possible plurality of fundamental moral considerations").
146. See Bruno S. Frey & Alois Stutzer, Happiness and Economics 24-44 (2002) (discussing methods for measuring well-being).
147. Nussbaum, Capabilities, supra note 86, at 78-80.
148. For example, the WHO has developed a quality of life assessment instrument to be used in surveys evaluating the level of objective social goods in a country. World Health Organization Quality of Life (WHOQOL)-BREF (2004), available at http://www.who.int/substance-abuse/research-tools/en/english- whoqoLpdf (on file with the Columbia Law Review);
149. see Matthew D. Adler, Welfare Polls: A Synthesis, 81 N.Y.U. L. Rev. 1875, 1961-63 (2006) (discussing WHO approach).
150. What follows is an extremely rough sketch. For much more sophisticated work in this vein, see Sabina Alkire, Valuing Freedoms: Sen's Capability Approach and Poverty Reduction (2002). There is now a large literature on social indicators with its own journal entitled Social Indicators Research. For a recent critical survey,
151. see Amal Kanti Ray, Measurement of Social Development: An International Comparison, 86 Soc. Indicators Res. 1 (2008).
152. United Nations Dev. Programme, Human Development Report 2006 (2006). All data are from 2004 except health expenditure per capita and GDP, which are from 2003. GDP data are taken from Heston et al., supra note 89. Cells are blank where data were not collected by the cited sources.
153. By including per capita GDP, the HDI combines the subjective (desire-based) and objective approaches to well-being.
154. See T.N. Srinivasan, Human Development: A New Paradigm or Reinvention of the Wheel?, 84 Am. Econ. Rev. (Papers & Proc.) 238, 239-40 (1994) (criticizing conceptual foundations of HDI). For Sen's response, see Sen, Elements, supra note 8, at 79-81.
155. See Casey B. Mulligan, Ricard Gil & Xavier Sala-i-Martin, Do Democracies Have Different Public Policies than Nondemocracies?, 18 J. Econ. Persp. 51, 52 (2004) (citing arguments that democracies make public policy decisions that are more favorable to the poor).
156. See id. at 58-59 (discussing empirical evidence that effect of democracy on public spending is statistically insignificant).
157. See Monty G. Marshall & Keith Jaggers, Polity IV Project: Political Regime Characteristics and Transitions, 1800-2007, at http://www.systemicpeace. org/polity/polity4.htm (last updated Sept. 11, 2008) (on file with the Columbia Law Review).
158. There has long been discussion of the possibility that democracies should band together and promote the values of liberal democracy, leading by example rather than using carrots and sticks against nondemocracies. See, e.g., Anne-Marie Slaughter, The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations, 4 Transnat'l L. & Contemp. Probs. 377, 416-17 (1994).
159. Transparency Int'l, 2007 Transparency International Corruption Perceptions Index (2007), available at http://www.transparency.org/content/ download/24104/3602 17 (on file with the Columbia Law Review).
160. Id.
161. See International Handbook on the Economics of Corruption, at xvi (Susan Rose-Ackerman ed., 2007) ("It is a mistake ... to assert that the main cure for corruption is economic growth. That claim reflects an overly simple view of the roots both of economic growth and of corruption.").
162. For an alternative approach, see Ray, supra note 99, at 44-45 (proposing "social development index" that includes additional factors and uses alternative weightings).
163. However, Bhutan is a famously happy place. See, e.g., Andrew C. Revkin, A New Measure of Well-Being from a Happy Little Kingdom, N.Y. Times, Oct. 4, 2005, at F1 (discussing Bhutan's decision to focus on "gross national happiness" rather than GDP).
164. See supra text accompanying note 88.
165. See Claire Apodaca, Global Economic Patterns and Personal Integrity Rights After the Cold War, 45 Int'l Stud. Q. 587, 600 (2001) (finding economic growth has positive impact on states' human rights records);
166. Steven C. Poe & C. Neal Tate, Repression of Human Rights to Personal Integrity in the 1980s: A Global Analysis, 88 Am. Pol. Sci. Rev. 853, 866-67 (1994) (finding economic standing and democracy to be associated with statistically significant effect on respect for human rights);
167. Steven C. Poe, C. Neal Tate & Linda Camp Keith, Repression of the Human Right to Personal Integrity Revisited: A Global Cross-National Study Covering the Years 1976-1993, 43 Int'l Stud. Q. 291, 305 (1999)
168. [hereinafter Poe et al., Personal Integrity] (same). Others have made the point that policies that increase the wealth of other nations will likely improve human rights in those nations as well.
169. See, e.g., Fernando R. Tesón, Trade and Global Justice 14-15 (Fla. State Univ. Coll. of Law Pub. Law & Legal Theory Working Paper No. 143, 2005), available at http://ssrn.com/abstract=663651 (on file with the Columbia Law Review) (arguing free trade policies improve human rights).
170. Freedom House, Freedom in the World 2007 Subscores (2007), at http://www.freedomhouse.org/template.cfm?page=372&year=2007 (on file with the Columbia Law Review);
171. Mark Gibney et al., Political Terror Scale, at http://www. politicalterrorscale.org/ptsdata-online.php (last updated May 12, 2008) (on file with the Columbia Law Review). GDP data are taken from Heston, Summers & Aten, supra note 89.
172. Cf. Poe et al., Personal Integrity, supra note 113, at 310 (finding correlation of democracy and economic development, among other factors, with respect for human rights).
173. See id. at 310-11 (calling for more research to flesh out understanding of causation).
174. This conclusion is, in fact, old-fashioned conventional wisdom that was influentially criticized by Sen, Development, supra note 39, at 33-34, and others. This wisdom deserves a second look.
175. The idea appears to have originated with Sen, Development, supra note 39, at 36-37, and it has since been endorsed by many scholars and international institutions, see, e.g., United Nations, The Human Rights Based Approach to Development Cooperation: Towards a Common Understanding Among UN Agencies, in Report of the Second Interagency Workshop on Implementing a Human Rights Based Approach in the Context of UN Reform (2003), available at http://www.hreoc.gov.au/socialjustice/conference/engaging-communities/ un-common-understanding-rba.pdf (on file with the Columbia Law Review) (stating human rights standards should govern all development programs);
176. United Nations Dev. Programme, Human Development Report 2000: Human Rights and Human Development 119 (2000), available at http://hdr.undp.org/en/ media/HDR-2000-EN.pdf (on file with the Columbia Law Review) (advocating a "rights ethos for aid");
177. Peter Uvin, Human Rights and Development 122-65 (2004) (proposing "rights-based approach to development").
178. See supra note 5 and accompanying text.
179. See U.S. Gov't. Accountability Office, Millennium Challenge Corporation: Progress Made on Key Challenges in First Year of Operations, GAO-05-625T, at 7 (2005)
180. [hereinafter GAO, Millennium Challenge];
181. see also African Growth and Opportunity Act, 19 U.S.C. §§ 3701-3747 (2000) (outlining U.S. foreign aid policy for sub-Saharan Africa).
182. Cf. Albert H. Choi & Eric A. Posner, A Critique of the Odious Debt Doctrine, 70 Law & Contemp. Probs., Autumn 2007, at 1, 33 (discussing implications of absolving governments of debt incurred by prior authoritarian regimes).
183. See Richard Garfield, Morbidity and Mortality Among Iraqi Children from 1990 Through 1998: Assessing the Impact of the Gulf War and Economic Sanctions 1-2 (1999), available at http://www.nd.edu/~krocinst/ocpapers/op-li-3.pdf (on file with the Columbia Law Review) (discussing trends in child mortality in Iraq after first Gulf War);
184. Mohamed M. Ali & Iqbal H. Shah, Sanctions and Childhood Mortality in Iraq, 9218 Lancet 1851, 1851 (2000) (same).
185. Interestingly, the World Bank has been criticized for providing so much aid to middle income countries. Steven R. Weisman, Zoellick Defends Aid for Nations in 'Middle,' N.Y. Times, Oct. 11, 2007, at A16. The World Bank's response - that middle income countries use aid wisely and poor countries squander it-is reasonable but for obvious reasons not politically saleable. Similarly, the U.S. Millennium .Challenge Corporation awards grants to countries that score above the median on a variety of objective indicators of political rights, educational investment, and economic freedom-with the unavoidable result that the very worst states are denied aid. See GAO, Millennium Challenge, supra note 120, at 7.
186. There is also a basic tension between the method of economic analysis and rights-based approaches. See Gauri, supra note 63, at 78-82 (describing differences between economic and rights-based approaches).
187. For a largely critical discussion of foreign aid programs, see generally Easterly, supra note 13.
188. See, e.g., United Nations Millennium Declaration, GA. Res. 55/2, 1 30, U.N. Doc. A/RES/55/2 (Sept. 18, 2000) (resolving to strengthen cooperation and coordination between member states in area of foreign aid).
189. See Simeon Djankov, Jose G. Montalvo & Marta Reynal-Querol, The Curse of Aid 5, 18 (Mar. 2006) (unpublished manuscript, on file with the Columbia Law Review), available at http://ssrn.com/abstract=893558 [hereinafter Djankov et al., Curse] (finding economic aid can weaken democratic institutions in developing countries).
190. For pessimistic empirical assessments of the relationship between aid and economic growth, see Robert J. Barro & Jong-Wha Lee, IMF Programs: Who Is Chosen and What Are the Effects?, 52 J. Monetary Econ. 1245, 1267 (2005) (finding high IMF loan participation reduces economic growth);
191. Simeon Djankov, Jose G. Montalvo & Marta Reynal-Querol, Does Foreign Aid Help?, 26 Cato J. 1, 24 (2006) (finding foreign aid negatively impacts growth of democratic governments);
192. William Easterly, Ross Levine & David Roodman, Comment, Aid, Policies, and Growth, 94 Am. Econ. Rev. 774, 779-80 (2004) (arguing evidence does not suggest foreign aid is ultimately beneficial to developing countries).
193. Recent book-length treatments include Paul Collier, The Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It 99-123 (2007) (noting some benefits of aid but arguing that "[a]id alone is really unlikely ... to address the problems of the bottom billion and it has become so highly politicized that its design is often pretty dysfunctional");
194. Easterly, supra note 13, at 44-51 (analyzing impact of foreign aid on developing countries); Roger Riddell, Does Foreign Aid Really Work? 163-353 (2007) (providing comprehensive account of efficacy of foreign aid). These accounts vary in their assessment of aid, but all of them are skeptical of claims that aid significandy increases long-term economic growth rates.
195. There is some anecdotal evidence of virtually all aid being taken by corrupt officials, but this seems to be an exception. A more serious problem is that aid can exacerbate civil conflicts. Djankov et al., Curse, supra note 127, at 5.
196. For doubts, see David Kennedy, The Dark Sides of Virtue 3-35 (2002) (analyzing negative impacts of humanitarian efforts).