Torres Penagos, Felix Eduardo
(2021)
Economic and social rights, state responsibility and reparations: setting priorities in (post)conflict settings.
PhD thesis, University of Nottingham.
Abstract
Societies recovering from armed conflict and other episodes of widespread violence face major socio-economic challenges. They must deal with the material deprivation and exclusion that often affect large numbers of people directly as a result of violence. State authorities must also address the plight of other disadvantaged people, not directly affected by violence, whose economic and social rights (ESR) have not been fully guaranteed. All this frequently occurs in contexts of scarce resources, where deprivation, status-based discrimination and socio-economic inequalities are acute. This thesis examines two normative frameworks to address the ESR of people affected by widespread violence and explores what each of them has to say about the plight of other disadvantaged people. This issue includes discussing the establishment of priorities between victims and non-victims in ensuring ESR considering cross-cutting patterns of poverty, social inequalities and discrimination.
According to the first framework, which will be dubbed here the ‘offending state-victimised individual paradigm’, the state is a threat to the individual. In shaping the scope of state responsibility, this approach emphasises a retrospective evaluation of the state authorities’ conduct regarding the occurrence of violations in terms of duties to respect and protect rights. This paradigm privileges the situation of those who found their lives disrupted by violence, namely victims, who are deemed to be entitled to special access to socio-economic goods and other monetary resources that are usually used to cope with daily life, as a means of redress. The second approach is forward-looking and understands the state as an active guarantor of rights in contexts of poverty and exclusion. In the aftermath of widespread violence, positive duties to fulfil ESR are foregrounded and existing socio-economic shortcomings are addressed on their own merits. Reparations play a secondary role in the context of this approach and are considered as a means to ensure ESR.
This study is carried out from the perspective of the Inter-American Court of Human Rights, the African human rights system and the Committee on Economic, Social, and Cultural Rights (ESCR Committee). The first part of the study examines the framework that portrays the state as a threat to the individual, drawing on the case-law of regional human rights bodies. The second part uses the work of the ESCR Committee to explore the alternative that understands the state as an active guarantor of rights. The possibilities and limitations of each approach will be examined by focusing on the moral views that underpin them, deontological ethics and consequentialist morality. If, as argued in this study, the second normative framework is preferable in (post)conflict settings, acute distributive challenges arise in terms of the weight that should be accorded to victimisation, material deprivation, discrimination and socio-economic inequalities when guaranteeing ESR. To address these issues, a framework is developed to balance competing claims and establish priorities, using the ESCR Committee’s work as a bridge to introduce distributive justice theories in (post)conflict settings. These theories are egalitarianism, the doctrines of sufficiency and the priority view.
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