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On Second (and Third) Thoughts: Raising, Revising and Reviving the Concept of Progressive Realisation Over Time
- Edited by Philip Czech, Universität Salzburg, Lisa Heschl, Karl-Franzens-Universität Graz, Austria, Karin Lukas, Central European University, Budapest, Manfred Nowak, Universität für angewandte Kunst Wien, Gerd Oberleitner, Karl-Franzens-Universität Graz, Austria
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- Book:
- European Yearbook on Human Rights 2023
- Published by:
- Intersentia
- Published online:
- 04 April 2024
- Print publication:
- 30 November 2023, pp 535-568
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Summary
ABSTRACT
Rights are not fixed entities – their goals, constituencies, rules and understanding shift over time. Few human rights principles evince this reality better than ‘progressive realisation’, an implicit theory of change contained in Article 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This contribution demonstrates that this theory of change has been formulated and rethought, and must be rethought again, as different understandings of development and the state condition which aspects of Article 2(1) have been emphasised across three distinct phases over the last 70 years. The first phase, ‘raising’, runs from the draft ing and adaptation of the ICESCR in the 1950s and 1960s, through entry into force in 1976. It was here that progressive realisation was elaborated as a general concept. In this period, progressive realisation was a concession to the practical difficulties underdeveloped states would face in giving effect to the Covenant. However, to a significantly underappreciated extent, it also reflected a teleological statism, in which development and state functionality appeared as goals towards which all countries would inevitably move. Rapid development was the demand and expectation of postcolonial societies, underpinning the dominant view of progressive realisation. In the late 1970s and 1980s this technicist optimism that a state's modernisation could be predicted and shaped was eroded. This led to a second phase, ‘revising’, which emerged from a generalised disillusionment with developing world states’ commitment or ability to realise economic, social and cultural rights (ESCR). It coincided with the doctrinal evolution of socio-economic rights, at a time when neo-liberal theories of development were predominant, and when debates on socio-economic rights were consumed by a battle over their status: the immediately realisable (and hence justiciable) nature of civil and political rights were contrasted with the ‘deferred’ (and supposedly more vague and less justiciable) nature of socio-economic rights. Progressive realisation was disparaged and marginalised as a potential ‘escape hatch’ for recalcitrant states, which needed to be shut as tightly as possible. A third phase, ‘reviving’, requires us today to revisit the concept of progressive realisation, to take account both of novel, post-Washington Consensus theories of inclusive development, and the growing acceptance that the justiciability of rights has distinct practical limits.
Surrogacy and Resistance: Evolving Patterns in Unofficial Truth Commissions and Truth Projects
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- By Pádraig McAuliffe, graduate of University College Cork (BCL and PhD). After a brief period in the Legal Division of the Irish Department of Foreign Affairs, he became a lecturer at the University of Dundee in 2009.
- Edited by Jeremy Sarkin
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- Book:
- The Global Impact and Legacy of Truth Commissions
- Published by:
- Intersentia
- Published online:
- 26 June 2019
- Print publication:
- 01 May 2019, pp 269-292
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Summary
INTRODUCTION
One of the most notable trends in contemporary transitional justice is the near-ubiquity of unofficial truth projects (UTPs) in post-conflict and post-authoritarian states. These are complex and idiosyncratic processes that serve multiple social purposes. The nature of these projects depends on the motivations for pursuing ‘truth’ and the political realities that contextualise them. Some of these UTPs mimic official truth commissions in terms of organisational practice (investigators, hearings, national reports) and state-wide coverage, like Guatemala's Recovery of Historical Memory project (Recuperación de la Memoria Historia, REMHI). Others, by contrast, are micro-scale and sui generis, like the memorial in a family compound honouring family members killed in anti-communist massacres in mid-1960s Indonesia. Some projects are primarily conscious attempts to recover historical memory (e.g. the Kosovar Memory Book and Bosnian Book of the Dead), while for others historical recovery is a by-product of other reconciliatory activities that nevertheless coalesce into memory production (e.g. the Sarajevo Women's Court). Some projects are extremely technical (the classic example being the Documentation Center of Cambodia's (DC-CAM) panoply of archival expertise, digitisation, outreach programmes and publications), while others are essentially low-tech and haphazard (clandestine monuments in Rwanda and Burundi, for example). Sometimes victims are the primary motive actors, as in the archiving and oral history projects of Argentina's Memoria Abierta, whereas in other cases it has been their descendants (Spain's ‘grandchildren generation’ have taken the lead in recovering Spain's historical memory through exhumations). Some employ traditional or indigenous methods (e.g. Guatemala n braid-weaving to commemorate abuses and atrocities), while others embrace Facebook, Twitter and YouTube.
The ubiquity of UTPs can be explained by a confluence of ‘a globalized discourse of memory as redemptive on both personal and national levels’, the inevitability of grassroots attempts to remake national or local social worlds, and the resources and globalised expertise available to domestic civil society actors concerned with documenting or remembering the past. However, it is notable that few have tried to understand what they signify in terms of the legacy of truth commissions.
The roots of transitional accountability: interrogating the ‘justice cascade’
- Padraig McAuliffe
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- Journal:
- International Journal of Law in Context / Volume 9 / Issue 1 / March 2013
- Published online by Cambridge University Press:
- 19 February 2013, pp. 106-123
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This article argues that what is seen as a justice cascade may in fact amount to merely an advocacy cascade, which has facilitated justice policies that democratising states would inevitably have pursued (and helped neutralise opposition), but which in causal terms has been far less influential on justice policy than is commonly assumed. Because transitional justice is generally presented in very idealistic terms, scholars in the field have begun to acknowledge that its virtuous effects are more easily presumed than proven (Van der Merwe, 2009, p. 121). Amongst advocates and activists in particular, one sees in the literature an emotional commitment to transitional justice that generally foregoes doubts about its overall efficacy even where isolated shortcomings are accepted. Policy has hitherto proceeded less from analysis to conclusions than from commitments to action. Some argue that ‘the commitment to advocacy has come at the expense of progress in empirical research’ (Vinjamuri and Snyder, 2004, p. 345) – the benefits of certain mechanisms are assumed instead of treated as empirical propositions to be proven rigorously. Because so many of the early debates about transitional justice took the form of partisan advocacy in the dichotomised days of the ‘justice versus peace’ and ‘truth versus justice’, prospective hypotheses about likely outcomes dominated the literature at the expense of retrospective assessments of what generally had or had not worked. For at least a decade, scholars have noted the paucity of studies systematically examining the correlation between transitional justice and social reconstruction. Subsequently, the literature has variously been criticised for its dependency on anecdote and hypothesis (Crocker, 2002, p. 541), analogy (Brahm, 2008, p. 3) and wishful thinking (Olsen, Payne and Reiter, 2010, pp. 25–26). Until recently, scholarship had primarily been based on single or dual mechanism case-studies and comparative qualitative case-studies of a limited number of states, which gave disproportionate emphasis to certain transitions or transition types conducive to study. This in turn made generally applicable policy conclusions difficult to elaborate. It has been argued that human rights research in general, and transitional justice research in particular, are enterprises directed at manufacturing legitimacy for their fields of practice (Gready, 2009, p. 159). Such endeavours must, however, retain at least a threshold plausibility. As a fear developed among practitioners and theorists about the damage to the credibility of transitional justice from wild, unsubstantiated claims, there has emerged in recent years a commendable attempt to clarify the causal relationships (if any) between individual mechanisms and general ends. By employing social science methodologies and hard data, a tentative literature has emerged on how to assess the impact of transitional justice (Thoms, Ron and Paris, 2010). The expectation is that this scholarship can chip away at falsity and overly ambitious claims. This article examines the extent to which two recent works do this. After surveying what is novel about their distinctive methodologies, Part II examines the primary difference between the works, namely the extent to which the work of transnational human rights activists has impacted on the decision of democratising states to pursue criminal accountability for crimes of the past. Part III explores alternative explanations for why states are seemingly more willing to undertake trials and the extent to which the works in question control for these variables. Part IV considers the extent to which the normative change both books note has impacted on the security dilemmas inherent in transitional accountability. The article concludes that transitional justice research has some distance yet to travel in disentangling correlation from cause.
UN PEACE-BUILDING, TRANSITIONAL JUSTICE AND THE RULE OF LAW IN EAST TIMOR: THE LIMITS OF INSTITUTIONAL RESPONSES TO POLITICAL QUESTIONS
- Pádraig McAuliffe
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- Journal:
- Netherlands International Law Review / Volume 58 / Issue 1 / May 2011
- Published online by Cambridge University Press:
- 27 April 2011, pp. 103-135
- Print publication:
- May 2011
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A series of UN peace-building missions have taken the leading role in reconstructing the rule of law in East Timor, most notably through the hybridised Special Panels trials from 2000 to 2005 and ongoing hybridised participation in prosecution and judging in the years since then. While UN peace-building doctrine place great faith in transfusions of international expertise in the institutions of justice to secure their autonomy, the experience in East Timor has been one of consistent governmental interference to restrain politically sensitive prosecutions and systematic pardon of those convicted of committing crimes of political violence. Beginning with the thwarted prosecution of Indonesian generals accused of crimes against humanity before the Special Panels, and moving on to consider episodes of prosecutorial interference and systematic pardon in trials dealing with crimes committed during serious civil unrest in 2006 and attempted assassinations of the President and Prime Minister in 2008, this article examines the UN's ongoing failure to secure the autonomy of the judicial institutions it is mandated to assist. It cites a preoccupation on the part of the UN with the institutional aspects of the rule of law which has been emphasised at the expense of the more contentious cultural and behavioural aspects of the rule of law at a political level which are essential if the institutions of justice are to operate independently.
Transitional Justice and the Rule of Law: The Perfect Couple or Awkward Bedfellows?
- Padraig McAuliffe
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- Journal:
- Hague Journal on the Rule of Law / Volume 2 / Issue 2 / September 2010
- Published online by Cambridge University Press:
- 17 December 2010, pp. 127-154
- Print publication:
- September 2010
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The dominant scholarly assumptions are that transitional justice is a pre-condition for establishing a rule of law-based society after conflict or repression, and that transitional justice and the rule of law are mutually-reinforcing phenomena. Though the imperfect conditions of transition invariably give rise to difficult dilemmas over justice with imperfect solutions, literature in the field has downplayed or ignored the long-term impact on the administration of justice in the transitional state of the tendency of transitional responses to past human rights abuses to readily depart from the core values we associate with the rule of law. As noted in Teitel's study of the rule of law's relationship to transitional justice, this tendency is manifest where criminal accountability is suspended so as not to imperil the transition or where due process is circumvented in the idealistic and over-zealous pursuit of idealized transitional dividends through trial, truth commission and reparation. As transitional justice scholarship moves from moral-philosophical and jurisprudential preoccupations to greater empirical and interdisciplinary analysis, the sweeping normative assumptions of the past are increasingly being questioned. The article argues that though such acts or omissions may be excused by the exigencies of transition and contribute to the development of the conditions where the rule of law can prosper, liberalizing societies are better served by understanding these deviations from what we understand as full legality as deviations and not as manifestations of a fluid and contingent transitional rule of law.
TRANSITIONAL JUSTICE IN TRANSIT: WHY TRANSFERRING A SPECIAL COURT FOR SIERRA LEONE TRIAL TO THE HAGUE DEFEATS THE PURPOSES OF HYBRID TRIBUNALS
- Pádraig McAuliffe
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- Journal:
- Netherlands International Law Review / Volume 55 / Issue 3 / December 2008
- Published online by Cambridge University Press:
- 23 December 2008, pp. 365-393
- Print publication:
- December 2008
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This article examines the centrality of domestic location in transitional justice, using the example of the removal of the Charles Taylor trial from the Special Court for Sierra Leone's base in Freetown to The Hague to illustrate what is lost when trials are removed from the survivor population. While transitional criminal trials are usually justified on the basis of their ability to herald the return of the rule of law, the emergence of hybrid courts and the principle of complementarity demonstrate a growing realisation that purely international paradigms of transitional justice do little to normalise court processes that are at the core of the rule of law. This article argues that the transfer defeats the distinctive rule of law reconstruction potential of hybrid courts which emphasizes the integration of local staff and voices into the transitional justice process to make it more relevant to the survivor community and to inculcate international norms and practice. It does so for two reasons. Firstly, the transfer of the trial from the local population impairs the suggested ability of hybrid courts to legitimize the idea of resolving disputes through the domestic courts. Secondly, the removal risks undoing positive advances made in earlier SCSL trials by compounding the local perception that these advances are the product of international dominance of the court, and in the process undermines local confidence that these advances are sustainable or applicable domestically. Though the Taylor removal was arguably unavoidable, cataloguing what has been lost will be of relevance in future when decisions about the location of a trial are made under the ICC's complementarity regime.