Reconceptualising socio-economic rights in the transitional justice discipline

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.