Reconceptualising socio-economic rights in the transitional justice discipline.

AuthorBoyle, Katie

ARTICLE INFO

Issue: 2016 (2).

This article was published on: 16 Jan, 2017.

Keywords: Socio-economic rights; transitional justice; reparations; remedies; deliberative democracy; prioritisation; judicial incrementalism; constitutionalisation; comparative constitutionalism

ABSTRACT

This article questions whether sufficient attention is given to addressing violations of socio-economic rights in the transitional justice context. Economic and Social rights (ESR) are rights associated with areas such as health, education, employment and housing. They are binding international legal standards and their protection extends to some of the most vulnerable groups in society. Transitional justice is the discipline examining the mechanisms through which the wrongs of a prior regime can be addressed when a state moves from illiberal regime to liberal democracy. The discourse has focussed increasing attention on socio-economic dimensions of transitional justice without fully grasping the nature or status of socio-economic rights law. This article uses a legal perspective in order to ask whether theories of prioritisation, judicial incrementalism and deliberative democracy will assist in ensuring pre-transition structural inequalities are addressed as part of the transitional justice paradigm and in accordance with international law requirements. It is argued that the emerging approach of addressing socio-economic rights violations through means of reparation may fail to address the structural inequalities associated with the prior regime. This article proposes that new and alternative structures must be imagined if the transitional justice discipline is to adequately address socio-economic violations in an emerging democracy with a view to establishing long term peace.

INTRODUCTION

Following on from the Second World War nations throughout the world sought to declare a commitment to dignity and human rights. This culminated in the Universal Declaration of Human Rights in 1948 followed by two subsequent Covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). (1) These treaties are known collectively as the International Bill of Rights. The international human rights structure comprises of civil, political, economic, social and cultural rights as established in the International Bill of Rights. Civil and political rights include rights such as the right to a fair trial or the right to vote. Economic, social and cultural rights include rights such as the right to education, the right to fair employment conditions, the right to adequate housing and the right to adequate healthcare. It was intended that the each of the rights (civil, political, economic, social and cultural) would be implemented concurrently and according to the principle of indivisibility. (2) Subsequent international treaties at both the international and regional level have confirmed the legally binding status of these rights and their indivisible nature.

The principle of indivisibility is an important aspect of the purpose and function of human rights and means that the fulfilment and enjoyment of one right is dependent on the protection and fulfilment of another (Whelan 2010). That is to say for example that the right to life is dependent on the right to adequate health care, the right to an adequate standard of living and the right to adequate housing. Likewise, full enjoyment of the right to vote and the right to political participation is dependent on exercise of the right to education and the right freedom of expression, the right to protest or the right to collectively bargain. The full enjoyment of civil and political (CP) rights is therefore dependent on the protection and fulfilment of ESC rights--the preparatory work to the international treaties reveals that protecting civil and political rights and not economic social and cultural rights was considered an "anachronism in the twentieth century to provide for the protection of one without the other." (3)

Economic, social and cultural (ESC) rights have been the focus of concerned scholars who note it is 'difficult to raise the question [of economic, social and cultural rights] outside the accepted transitional justice (TJ) discourse' (Miller 2008). Schmid and Nolan (2015) have argued that, although there has been an increasing emphasis on addressing economic and social dimensions of transitional justice in the discourse, these discussions suffer from 'terminological and conceptual confusion'. This article seeks to clarify some of these ambiguities. In an analysis of the TJ literature Muvingi (2009) identifies that the most widely accepted conception of universal justice is grounded in international human rights, and many transitional justice scholars have, unsurprisingly, emphasized the primacy of human rights standards. However, as the discipline emerged and almost without exception, legal understandings of binding international human rights law in the TJ context referenced civil and political rights, which is in large part a reflection of the bias in the human rights field. Schmid and Nolan (2014) notably conclude that the claims made by transitional justice scholars with regard to ESR frequently appear to be founded on misconceptions about the substantive content and the existing scholarship relating to ESC rights. The international human rights legal regime solidifies the universality of equality in all rights (civil, political, economic, social and cultural). From its inception the Universal Declaration of Human Rights 1948 was founded on the belief that all human rights were indivisible and inalienable. Historically, a dichotomy emerged between civil and political rights, on the one hand, and economic, social and cultural rights, on the other. The protection and enforcement of ESC rights was regarded as an area of political choice as opposed to mandatory obligation--this was based on an erroneous interpretation of the legally binding nature of socio-economic rights--otherwise referred to as a 'legal fiction' (Tinta 2007). Miller (2008) concedes that the absence of ESC rights standards in TJ societies is perhaps a non-deliberate oversight in the ever expanding field of transitional justice out of step with the international legal regime. The legal literature, practice and discourse now unequivocally recognises the indivisibility of cultural, civil, economic, political and social rights and the TJ discourse requires to re-examine the socio-economic dimensions of transition in light of these developments.

In her genealogy of transitional justice, Ruti Teitel describes the TJ field as, 'the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes' (Teitel 2003, p.69). This definition of the transitional process is typical of the scholarly perspective which has predominantly focused on retributional justice (for crimes) and dealing with the past. Economics play almost no role in Teitel's genealogy and there is no redistributive justice element included in her findings. In Jon Elster's (2004) extensive discussion on the history of transitional justice he delves into the economic question in so far as the crucial monetary requirement to fund the transitional justice mechanisms. This is a valid point, but nonetheless, there is again no discussion of redistributive justice. Redistribution of wealth is therefore not considered a mandatory factor in achieving justice as part of the transition from war to peace in the transitional justice society. On the other hand, financial issues are not completely absent from the academic and political discussions. Rather than discuss redistribution, which is considered a political aspiration, the discourse focuses on the concept of compensation for victims, otherwise known as 'reparations' (Shelton 1992). In the context of the correlation between poverty and conflict and the corollary impact on the most vulnerable and marginalised, securing ESC rights are of paramount importance to securing a stable democracy post-conflict 'as to the link between democracy and socio-economic rights, it is argued that the prospects of democracy are poor if the population is impoverished and illiterate, thus unable to make use of its participatory rights' (Koch & Vedsted-Hansen 2006, p.62). They argue that in this respect the substantive protection of ESC rights is as important as CP rights in a functioning democracy and therefore ought to feature in the transitional justice process. Reparations alone risk acting as a 'band-aid' to a much deeper and wider deficit in the transitional context when structural inequalities remain unaddressed.

Reparations have played an extremely prominent role within the discourse and feature as the emerging approach whereby some form of monetary compensation is offered as practical measure to address prior violations of an illegal regime (Hughes et al 2008). For instance, in tort law, reparations seek to instil resitutio in integrum (to restore to the original position) for the victim of a wrong, and, where that is not possible, a fiscal sum compensates instead. Reparation is a way of seeking to re-establish civic trust, acknowledge wrongdoing and provide a sense of satisfaction for the victim. Several difficulties arise from this scenario, primarily, the status of victimhood is often highly contested, reparations can thus become a source of further conflict. Second...

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