Forging adequate and effective reparation for violations of economic, social and cultural rights

Abstract

This thesis addresses reparation as a contested issue within the still on-going debate over justiciability of economic, social and cultural rights. The reflections assess the impact of more restrictive approaches regarding how economic, social and cultural rights should be litigated at national and international levels, on the prospects of achieving reparation. Such reflections will lead to the core discussion: the role that is to be performed by an international human rights supervisory body, as the most contested issue impairing developments regarding reparation. It is contested because it is widely believed that a supervisory body will adopt a “court-like behaviour”. It is argued that courts still lack the capacity and legitimacy to adjudicate disputes regarding economic, social and cultural rights, when at stake are large resource allocation changes. Such arguments were brought into the human rights arena and are strongly impairing the adoption of an individual complaints mechanism at the universal level, for violations of economic, social and cultural righs. However, valuable references from national experiences in South Africa and India show that other approaches are possible. Reference to the inherent mandates of supervisory bodies within the context of human rights treaties shows that more and more mechanisms are adopted and adapted to ensure that reparation is adequate and effective. This thesis establishes that it would be possible for a supervisory body to use human rights principled reflections to make decisions and award reparations that do address resource allocation regarding economic, social and cultural rights, in a way leading to provide victims with adequate and effective reparation.