‘Do No Harm’?: Exploring the Scope of Economic and Social Rights in Transitional Justice

Abstract

Increasing numbers of academics and practitioners are employing the language of economic and social rights (ESR) when conceptualising the aims, scope and implementation mechanisms of transitional justice. Their contributions have contributed to an evolving debate on the boundaries of transitional justice. However, when employing rights language, the current debate on the economic and social dimensions of transitional justice frequently suffers from terminological and conceptual confusion; problematically, it is not unusual for the claims made by transitional justice commentators with regard to ESR frequently to be founded on apparent misconceptions about both the legal framework and existing scholarship relating to ESR. Addressing these misconceptions in terms of four key dichotomies and suggesting the way forward, the authors of this article prepare the ground for a more effective debate on the desirability and feasibility of incorporating ESR in transitional justice processes. In doing so, they assert that such a debate must be based on an accurate understanding of ESR and the obligations they impose. They conclude by demonstrating how the inclusion of ESR considerations in transitional justice does not necessitate the rethinking of transitional justice as a whole.

Keywords: transitional justice, economic, social and cultural rights, transformative justice