View/Download Paper: Painter, “Thinking Past Rights”
Winner, Audre Rapoport Prize for Scholarship on Gender and Human Rights (2011)
This paper is forthcoming in the Windsor Yearbook of Access to Justice (Volume 2, 2011)
ABSTRACT:
The notion of reparations encompasses debates about the relationship between individual and society, the nature of political community, the meaning of justice, and the impact of rights in social change. In international law, the dominant approach to reparations is based on individual rights. This normative framework is out of step with the understanding of reparations that circulates among many women activists. This paper develops a theoretical approach to justice and reparations that helps to explain the gap between the international normative framework and activist discourses. Based on distributive, communitarian, and critical theories of justice, I argue that reparations can be thought of as rights, symbols, or processes. Approaching reparations as either rights or symbols is rife with problems when approached from an activist and feminist theoretical standpoint. As decisions about reparations programs are and should be determined by the political, social, economic, and cultural context, a blueprint for ‘a feminist reparations program’ is impractical and ill-advised. However, the strongest feminist approach to reparations would depart from an understanding of reparations as a process.
Keywords: reparations; feminist theory; international law; critiques of human rights; women’s rights activists
RESUMEN:
El concepto de reparaciones incluye debates sobre las relaciones entre individuos y sociedad, la comunidad política, el sentido de justicia y el impacto de los derechos en cambio social. En ley internacional, el enfoque dominante a las reparaciones está basado en los derechos individuos. Esta marca normativa es diferente que las interpretaciones de reparaciones que hacen circular con las activistas. Esto ensayo desarrolla una marca teorética para la justicia y las reparaciones que ayuda explicar la laguna entre la marca normativa internacional y los discursos activistas. Basada en una teoría de justicia distributiva, comunitaria y critica, yo sostengo que se puede entender las reparaciones como derechos, símbolos o procesos. Si se entiende reparaciones como derechos o símbolos, hay muchos problemas desde la punta de vista feminista. Porque decisiones sobre los programas de reparación están y deben estar decididos por el contexto político, social, económico y cultural, un anteproyecto de ‘un programa feminista de reparación’ no es viable. Sin embargo, la propuesta feminista más fuerte para las reparaciones se debería apartar del entendimiento de reparación como un proceso.
Palabras claves: reparaciones; la teoría feminista; derecho internacional; críticas a los derechos humanos; derechos de las mujeres activistas
Author’s Contact Information:
Genevieve Renard Painter, genevieve.painter at berkeley.edu
In this thoughtful essay, Painter contends that the two most common approaches to reparations—rights-based and symbolic-based approaches—are problematic from the feminist perspective she draws on. She proposes a reconceptualization of reparations, which would see them as a process—an approach that emphasizes the role of reparations in “the complex transition out of a period of human rights violations” and in promoting post-conflict reconciliation and socioeconomic development. This approach, Painter argues, more appropriately corresponds to feminist concerns regarding post-conflict societal and political transformation and “women’s needs for material compensation… rehabilitation, recognition, and respect” than either rights-based or symbolic-based approaches to reparations.
However, in spite of the potential advantages of the process-based approach to reparations from the feminist approach, for me a few questions remain. For example, the process-oriented approach to reparations she describes appears to be rather fluid and conceptually flexible; Painter notes: “there is no blueprint for approaching reparations as a process, as it requires negotiation in the specific post-conflict context in which reparations decisions are being made.” While, as she suggests, this high degree of flexibility may provide advantages for adapting the approach to a variety of different post-conflict contexts, I am concerned that it may be overly vague and provide opportunities for theoretical commitments to reparations programs without the provision of much in the way of material benefit to victims.
Comparatively, a rights-based approach, with more definitive and standardized notions of the compensation due to victims of conflict—which have been codified by human rights law and international criminal law—may allow reparations structures to more effectively assist victims of conflict. With a rights-based approach, victims—regardless of the nature of the conflict—are due tangible restorative benefits, restitution of property or citizenship rights, for example. While this approach can never truly erase the horrors of human rights violations, it provides a clear notion of the restitution owed to victims, which is not open to interpretation and debate depending on nature of the individual post-conflict scenario. While redistribution of material benefits may be an imperfect means of attempting to achieve justice for victims of conflict, its results may be more concrete and consistent, as opposed to the framework provided by the reparations-as-process approach.
In addition, I wonder whether this process-based approach might over-burden reparations as an instrumentality for achieving post-conflict reconciliation. Painter suggests that her approach encourages “an understanding of ‘post-conflict’ as an opportunity for transformation.” The aftermath of conflict should, ideally, present a period of reflection and provide opportunities for sociopolitical progress and transformation. However, reparations are but one instrument, among many, which may be relied upon to bring about such transformations. We should question whether reparation structures, as opposed to other tools of post-conflict reconciliation, are the most appropriate means of achieving such transformation. Peace process negotiations, conflict-ending treaty development, and the improvement and implementation of post-conflict governance structures, for example, may be more appropriate and effective means of social and political transformation. As such, it is important not to consider reparations in a vacuum, but rather, to view these structures as one of many post-conflict processes that may function as tools for achieving reconciliation and effective sociopolitical and economic transition. Particularly in cases where the aftermath of conflict involves reconciling deep-seated sociopolitical hostilities or entrenched sectarian divides, casting reparations structures as a tool for achieving reconciliation or sociopolitical transformation without considering other tools for achieving post-conflict reconciliation may produce ineffective results.