Reparations and Economic, Social, and Cultural Rights

54 Pages Posted: 17 Nov 2012 Last revised: 5 Aug 2013

See all articles by Naomi Roht-Arriaza

Naomi Roht-Arriaza

University of California Hastings College of the Law

Date Written: January 11, 2013

Abstract

In its first decade or two, transitional justice focused largely on violations of basic physical integrity rights. Early reparations programs responded to this narrow band of violations. In 2012, more and more voices are calling on policymakers to pay attention to a much broader band of rights violations under the banner of transitional justice. In part this is due to the continuing fragility of post-conflict/post-dictatorship countries where economic and social marginalization drives continuing violence and dampens enthusiasm for democratic reform. The critique of transitional justice as too “top-down,” too elite-driven and too responsive to donor rather than local priorities merged with a sense that the emphasis on civil and political rights in transitional justice reflects the privilege those rights receive in Western rights discourse. But broadening the transitional justice agenda to consider economic violence has special challenges for the theory and practice of reparations. On the one hand, if ESC rights are to be the subject of the investigations, reports, and recommendations of truth commissions and prosecutors are to bring criminal charges for at least those ESC rights violations that also violate humanitarian law then following through with some kind of reparations would seem necessary to give concrete expression to truth-telling and acknowledgement of wrongs, especially those judged severe enough to be punished. Moving beyond seeing ESC rights as simply background conditions, to grappling with what “guarantees of non-repetition” for such violations might entail will require detailed attention to redress and reparation. On the other, reparations are necessarily limited, targeted, and incomplete, and expanding their scope too far, especially in resource-limited environments, can make them both unworkable and potentially meaningless. The chapter proceeds as follows: a brief description of types of reparations and their potential contributions to protecting and ensuring ESC rights, followed by a look at how existing administrative reparations programs have dealt with rights like education, health and housing in the context of “integral reparations” for other kinds of violations. Then the chapter turns to efforts to deal directly with violations of ESC rights, especially arising from forced displacement and dispossession of land and property. Finally, it considers how reparations programs could be more effectively used to deal with violations of socio-economic rights, especially where these stem from systematic discrimination and exclusion.

Keywords: transitional justice, economic, social and cultural rights, reparations, post-conflict reparations

Suggested Citation

Roht-Arriaza, Naomi, Reparations and Economic, Social, and Cultural Rights (January 11, 2013). UC Hastings Research Paper No. 53. Available at SSRN: https://ssrn.com/abstract=2177024 or http://dx.doi.org/10.2139/ssrn.2177024

Naomi Roht-Arriaza (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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