Chapter 2: Economic, Social and Cultural Rights
3. ESCR and Transitional Justice
3.4. ESCR in the context of development and transitional justice nexus
Addressing socioeconomic problems in transitional justice is closely linked to development. This section will conceptualise the relationship between transitional justice and development and explore the ways to connect these two fields. Post-conflict and post-authoritarian societies are often rife with socioeconomic problems including “poverty, damaged infrastructure, and low levels of governance and social capital.”538 Likewise, a majority of developing countries have
experienced conflict.539 Although transitional justice and development are separate fields, they
often operate in the same societies and settings540 and share the same goal: “improving human
536 Tomasevski, K. (1993) Development aid and human rights revisited, London: Pinter, p.86.; Karimova, T.
(2016) Human rights and development in international law, New York, NY: Routledge, p.83.
537 De Greiff, Articulating the Links, p.40; Waldorf, Anticipating the Past, p.179.; Szoke-Burke, Not Only
Context, p.475.; Sharp, Interrogating the Peripheries, p.173.; Mani, Editorial Dilemmas of Expanding Transitional Justice, p.256.; OHCHR, Transitional Justice and ESCR, p.53.
538 Szoke-Burke, Not Only Context, p.474.; De Greiff, Articulating the Links, pp.29-30.; Roht-Arriaza,
Reparations in the aftermath of repression, p.129.
539 Todaro, M. P. and Smith, S. C. (2015) Economic Development (12th edition), Harlow, England: Pearson,
pp.64-65.; International Center for Transitional Justice Research Unit (2009) ICTJ Briefing: Transitional Justice and Development, New York: International Center for Transitional Justice, p.1.
540 De Greiff, P. (2014) ‘Transitional Justice and Development’ in Currie-Alder, B., Kanbur, R., Malone, M.
and Medhora, R. (eds) International development: Ideas, experience, and prospects (First ed.), New York: Oxford University Press, p.412.; Lenzen, M. (2009) ‘Roads Less Travelled? Conceptual Pathways (and Stumbling Blocks) for Development and Transitional Justice’ in De Greiff, P. and Duthie, R. (eds) Transitional Justice and Development: Making Connections, New York: Social Science Research Council,
lives and societies.”541 While development focuses on the future to achieve it, transitional justice
concentrates mostly on the past to redress wrongdoings, even though it should also focus on the future to build a peaceful and stable society.542 Development and transitional justice have a
potential to be mutually supportive to transform societies during transition.543 Therefore, the
relationship between development and transitional justice needs to be analysed. This will contribute to understanding how socioeconomic issues can be dealt with in Turkey’s context, and how transitional justice and development can cooperate with each other to tackle these problems. Before examining this relationship, looking at the linkages between development and human rights would be useful.
3.4.a. Human rights and development
Development is a broad field and conceptualising it is beyond the scope of this chapter. Yet, even briefly, it needs to be explained here. There are various definitions of development in the field: while some mainly focus on economic dimensions of development, others cover broader concepts to define it.544 A clear-cut definition is proposed by Kingsbury: “the study of
development is concerned with how ‘developing countries’ can improve their living standards and eliminate absolute poverty.”545 As the definition suggests, achieving development in
developing countries546 is about enhancing people’s lives. There have been numerous theories
pp.78-79.; Colvin, C. (2008) Purity and Planning: Shared Logics of Transitional Justice and Development, International Journal of Transitional Justice, Vol.2, No.3, p.415.; ICTJ Briefing: Transitional Justice and Development, p.1.
541 Lenzen, Roads Less Travelled, p.77.; Duthie, R. (2008) Toward a Development-sensitive Approach to
Transitional Justice, International Journal of Transitional Justice, Vol.2, No.3, pp.295-296.; ICTJ Briefing: Transitional Justice and Development, p.1.; Vinck, P. and Pham, P. (2008) Ownership and Participation in Transitional Justice Mechanisms: A Sustainable Human Development Perspective from Eastern DRC, International Journal of Transitional Justice, Vol.2, No.3, pp.398-399.
542 Balasco, The Transitions of Transitional Justice, p.210.; Buckley-Zistel, Connecting Transitional Justice
and Development, p.4.; Szoke-Burke, Not Only Context, p.468.; Colvin, Purity and Planning, pp.417-418.
543 Duthie, Introduction, p.22.; Colvin, Purity and Planning, pp.412-425.; Waldorf, Anticipating the Past,
pp.179-180.; Balasco, L. (2017) Reparative development: Re-conceptualising reparations in transitional justice processes, Conflict, Security & Development, Vol.17, No:1, pp.1-20.; ICTJ Briefing: Transitional Justice and Development, p.1.
544 Potter, R. (2008) Geographies of development: An introduction to development studies (3rd edition),
Harlow: Pearson-Prentice Hall, p.5.; Todaro and Smith, Economic Development, p.16.; Peet, R. and Hartwick, E. R. (2009) Theories of development: Contentions, arguments, alternatives (2nd edition), New York; London: Guilford, pp.1-2.; Dang, G. and Sui Pheng, L. (2015) Infrastructure investments in developing economies: The case of Vietnam, Singapore: Springer, p.12.; Allen, T. and Thomas, A. (2000) Poverty and development into the 21st century (Rev. ed.), Oxford: Open University in association with Oxford University Press, p.31.; Sen, A. (1999) Development as freedom, New York: Knopf, p.3.; Rist, G. (2014) The history of development: From Western origins to global faith (Fourth edition), London: Zed, pp.8-9.
545 Kingsbury, D. (2004) ‘Introduction’ in Kingsbury, D., Remenyi, J., McKay, J. and Hunt, J. (authors) Key
issues in development, Basingstoke; New York: Palgrave Macmillan, p.1.
546 The terminology in development is a complex one. The less developed countries were identified as
“Third World” during the Cold War whereas capitalist countries constituted the first world and the socialist countries were considered as the second world. After the end of the Cold War, several different
and understandings since the emergence of the modern concept of development.547 Although
earlier conceptions mostly focused on economic growth, new understandings of development concern broader issues, such as poverty, inequalities and environment, instead of generating economic growth only.548 Broader aims and new understandings of development are formulated
in both theory and practice because it has been understood that identifying development as a solely economic phenomenon is incomplete (focusing exclusively on economic growth did not necessarily enhance well-being of most people).549 Amartya Sen’s work made a huge
contribution to this new concept. His approach shifted the objective and focus of development from economic growth to well-being.550 In his seminal book Development as Freedom he defined
development as “a process of expanding the real freedoms that people enjoy.”551 He considers
economic growth and income as means for development, not ends in themselves. Achieving development is beyond producing economic growth and increasing incomes; individuals also need “political liberties, social powers, and the enabling conditions of good health, basic education, and the encouragement and cultivation of initiatives.”552 Therefore, the relationship
between human rights and human development is important. Moreover, the linkages between law and development at the institutional level is also being argued both in practice and
terminologies have been used to define economically developed and less developed countries such as: “South vs North”, “Global South vs Global North” and “Developed vs Less Developed (or Developing)” (Potter, Geographies of development, pp.23-32.; Allen and Thomas, Poverty and development, p.6.; Cypher, J. M. (2014) The Process of Economic Development (fourth edition), Abingdon, Oxon; New York: Routledge, pp.28-29 (n.6).)
547 Potter, Geographies of development, p.6.; Beaudet, P., Haslam, P. A. and Schafer, J. (2012) Introduction
to international development: Approaches, Actors, and Issues (Second edition), Don Mills Ontario Canada: Oxford University Press, pp.45-65.; Rist, History of development, pp.70-74.
548 Potter, Geographies of development, pp.114-115.; Todaro and Smith, Economic Development, p.119.;
Thorbecke, E. (2007) ‘The Evolution of the Development Doctrine, 1950–2005’ in Mavrotas, G. and Shorrocks, A. (eds) Advancing Development: Core Themes in Global Economics, New York: Palgrave Macmillan, pp.10-11.; Allen and Thomas, Poverty and development, p.10.; Cypher, The Process of Economic Development, p.36.
549 Todaro and Smith, Economic Development, pp.384-388.; Thorbecke, The Evolution of the Development
Doctrine, pp.13-14.; Peet and Hartwick, Theories of development, pp.3-13.; Dang and Pheng, Infrastructure investments, p.13.; Sen, Development as Freedom, pp.4-14.; Ozcan, B. and Bjornskov, C. (2011) Social trust and human development (Report), The Journal of Socio-Economics, Vol.40, No.6, p.753.; Suri, T., Boozer, M., Ranis, G. and Stewart, F. (2011) Paths to Success: The Relationship Between Human Development and Economic Growth, World Development, Vol.39, No.4, p.510.
550 Dang and Pheng, Infrastructure investments, p.13.; Peet and Hartwick, Theories of development, p.3.;
Potter, Geographies of development, p.13.; Todaro and Smith, Economic Development, pp.18-20.; Thorbecke, The Evolution of the Development Doctrine, p.17.; Dang and Pheng, Infrastructure investments, p.13.
551 Sen, Development as Freedom, p.3. 552 Sen, Development as Freedom, pp.3-5.
academia.553 Yet, comprehensively exploring these complex arguments is beyond the scope of
this chapter.
Development and human rights used to be considered as two separate fields, although their emanation coincided with each other after the World War II.554 Development has transformed
from a growth-oriented paradigm to human development, and a convergence between human rights and development has become crucial as they have a potential to strengthen each other.555
The importance of linking human rights and development has been emphasised for a long period of time, yet, this emphasis had not turned into practice until the mid-1990s.556 In 1968, the first
World Conference on Human Rights declared: “the achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development”.557 Similarly, the United Nations
Development Programme (UNDP) published a human development report in 2000 which
553 See: Trubek, D. M. and Galanter, M. (1974) Scholars in Self-Estrangement: Some Reflections on the
Crisis in Law and Development Studies in the United States, Wisconsin Law Review, No:4, pp.1062-1102.; Lee, Y. (2015) Call for a New Analytical Model for Law and Development, Law and Development Review, Vol.8, No.1, pp.1-67.; Mota Prado, M., Coutinho, D. and Schapiro, M. (2016) Law and Development: An Evolving Research Agenda, Law and Development Review, Vol.9, No.2, pp.223-231.; Davis, K. E. and Trebilcock, M. J. (2008) The Relationship between Law and Development: Optimists versus Skeptics, American Journal of Comparative Law, Vol.56, No.4, pp.895-946.
554 Buchanan, R. and Zumbansen, P. (2014) ‘Introduction: Approximating Law and Development, Human
Rights and Transitional Justice’ in Buchanan, R. and Zumbansen, P. (eds) Law in transition: Human rights, development and transitional justice, Oxford, United Kingdom; Portland, Oregon: Hart Publishing, p.15.; Andreassen, B. A. and Marks, S. P. (2006) ‘Introduction’ in Andreassen, B. A. and Marks, S. P. (eds) Development as a human right: Legal, political, and economic dimensions, Boston, Cambridge: Harvard School of Public Health, François-Xavier Bagnoud Center for Health and Human Rights; Distributed by Harvard University Press, p.vi.; Robinson, M. (2005) ‘What Rights Can Add to Good Development Practice’ in Alston, P. and Robinson, M. (eds) Human rights and development: towards mutual reinforcement, Oxford: Oxford University Press, p.27.; Shivji, I. (1999) Constructing a New Rights Regime: Promises, Problems and Prospects, Social & Legal Studies, Vol.8, No.2, p.259.; Marks, S. P. (2005) ‘The Human Rights Framework for Development: Seven Approaches’ in Sengupta, A., Negi, A. and Basu, M. (eds) Reflections on the right to development, New Delhi; London: Sage Publications, p.23.; The United Nations Development Programme – UNDP (2000) Human Development Report 2000: Human Rights and Human Development, New York; Oxford: Oxford University Press, p.2.
555 Andreassen and Marks, Introduction, p.vi.; UNDP Human Development Report 2000, p.2.; Centre for
Development and Human Rights (2003) The right to development: A primer; with an introduction by Stephen P. Marks, New Delhi; Thousand Oaks, California: Sage Publication, p.43.
556 Alston, P. and Robinson, M. (2005) ‘The Challenges of Ensuring the Mutuality of Human Rights and
Development Endeavours’ in Alston, P. and Robinson, M. (eds) Human rights and development: towards mutual reinforcement, Oxford: Oxford University Press, pp.1-7.; Robinson, What Rights Can Add to Good Development, pp.32-36.; Alston, P. (2005) Ships Passing in the Night: The Current State of the Human Rights and Development Debate seen through the Lens of the Millennium Development Goals, Human Rights Quarterly, Vol.27, No.3, p.798.; Hansen, J. K. and Sano, H. (2006) ‘The Implications and Value Added of a Rights-Based Approach’ in Andreassen, B. A. and Marks, S. P. (eds) Development as a human right: Legal, political, and economic dimensions, Boston: Cambridge: Harvard School of Public Health, François- Xavier Bagnoud Center for Health and Human Rights; Distributed by Harvard University Press, p.38.
557 The Proclamation of Teheran, Final Act of the International Conference on Human Rights, UN doc.
remarked the importance of adopting a human rights approach to development, emphasising that human development and human rights have “a common vision and a common purpose— to secure the freedom, well-being and dignity of all people everywhere.”558 Furthermore, the
Declaration on the Right to Development was adopted by the UN General Assembly in 1986.559
This declaration was based on a view that individuals and collectives have a right to development, and underdevelopment is a violation of human rights.560 Yet, the very existence
of the right, its conceptualisation and justiciability have been debated both in theory and practice since then.561 It must be noted that the right to development is different from rights-
based approaches to development although they both suggest distinct ways to link human rights and development.562 A rights-based approach was defined as:
a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress.563
So, while the right to development links human development and human rights by considering development as a human right, a rights-based approach does so by advocating for adoption of
558 UNDP Human Development Report 2000, pp.1-24.
559 The United Nations General Assembly (1986) Declaration on the Right to Development, A/RES/41/128.
Available at: http://www.un.org/documents/ga/res/41/a41r128.htm (access date: 30.07.2018).
560 Onazi, O. (2013) Human rights from community: A rights-based approach to development, Edinburgh:
Edinburgh University Press, p.26.; Marks, S. P. (2004) ‘The Right to Development in Context’ in Centre for Development and Human Rights (2004) The right to development: A primer; with an introduction by Stephen P. Marks, New Delhi; Thousand Oaks, Calif.: Sage Publications, p.29.; Marks, The Human Rights Framework for Development, pp.35-36.
561 Vandenbogaerde, A. (2013) The Right to Development in International Human Rights Law: A Call for its
Dissolution, Netherlands Quarterly of Human Rights, Vol.31, No.2, p.188.; Vandenhole, W. (2003) The human right to development as a paradox, Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America, Vol.36, No.3, pp.377-404.; Donnelly, J. (1985) In search of the unicorn: The jurisprudence and politics of the right to development. (Symposium: Development as an Emerging Human Right, California Western School of Law, San Diego, February 22-23, 1985), California Western International Law Journal, Vol.15, No.3, pp.473-509.; Villaroman, N. G. (2010) The right to development: Exploring the legal basis of a supernorm, Florida Journal of International Law, Vol.22, No.2, pp.299-332.; Sen, A. (2006) ‘Human Rights and Development’ in Andreassen, B. A. and Marks, S. P. (eds) Development as a human right: Legal, political, and economic dimensions, Boston, Cambridge: Harvard School of Public Health, François-Xavier Bagnoud Center for Health and Human Rights; Distributed by Harvard University Press, pp.1-5.; Andreassen and Marks, Introduction, p.vii.; Marks, The Human Rights Framework for Development, pp.36-37.; Onazi, Human rights from community, pp.27-28.; Centre for Development and Human Rights (2004) The right to development: A primer; with an introduction by Stephen P. Marks, New Delhi; Thousand Oaks, Calif.: Sage Publications, pp.60-61.
562 See Marks, The Human Rights Framework for Development, pp.23-50 for other approaches to link
development and human rights.
563 The Office of the United Nations High Commissioner for Human Rights- OHCHR (2006) Frequently Asked
Questions on a Human Rights-Based Approach to Development Cooperation, New York and Geneva: United Nations, p.15.
human rights principles and norms when designing development programs and plans.564
Therefore, various international, national and grassroots development actors (such as the United Nations Children's Fund (UNICEF), World Bank, UNDP, Organization for Economic Cooperation and Development (OECD), Oxfam, The Swedish International Development Cooperation Agency (SIDA), CARE and the Department for International Development (DFID)) integrated human rights into their development agendas.565
Exploring the linkages between human rights and development deserves a more extended analysis than can be done here. Whether and how they affect and complement each other has been debated both in theory and practice.566 Crudely put, human rights principles and norms
such as equity, non-discrimination, empowerment, accountability and transparency could be useful for development research and practice.567 On the other hand, development may reinforce
human rights as it has a long tradition of analysing and investigating development progress and projects. These methods could be useful for human rights analysis and policy choices.568
Moreover, human development can reinforce human rights by analysing the conditions and improving the society in which these rights are going to be realised.569 This would also help in
designing a realistic and attainable transitional justice process because unkept promises often lead to disappointments in transitional societies.
As mentioned above, economic, political and social freedoms are closely linked to each other.570
It is asserted that there is a correlation between development and human rights protection.571
564 Marks, The Human Rights Framework for Development, pp.27-37.; OHCHR, FAQ on a Human Rights-
Based Approach to Development Cooperation.
565 Robinson, What Rights Can Add to Good Development, pp.29-30.; Organisation for Economic Co-
operation and Development – OECD (2006) The Development Dimension: Integrating Human Rights into Development: Donor Approaches, Experiences and Challenges, Paris: OECD Publishing, p.3.; Gready, P. and Ensor, J. (2005) ‘Introduction’ in Gready, P. and Ensor, J. (eds) Reinventing development?: Translating rights-based approaches from theory into practice, London: Zed, p.1.
566 See McInerney-Lankford, S. and Sano, H. (2010) Human Rights Indicators in Development an
Introduction, Washington: The International Bank for Reconstruction and Development/The World Bank.; Alston, P. and Robinson, M. (2005) Human rights and development: towards mutual reinforcement, Oxford: Oxford University Press.; Forsythe, D. (1989) Human rights and development: International views, Basingstoke: Macmillan.; OECD, The Development Dimension: Integrating Human Rights into Development.
567 The United Nations Economic and Social Council (2001) Fourth report of the independent expert on the
right to development, Mr. Arjun Sengupta, submitted in accordance with Commission resolution 2001/9, Document No: E/CN.4/2002/WG.18/2, par.26-32.; Robinson, What Rights Can Add to Good Development, pp.38-41.; Hansen and Sano, The Implications and Value, pp.40-42.; UNDP Human Development Report 2000, pp.21-22.; McInerney-Lankford and Sano, Human Rights Indicators in Development, pp.7-9.
568 UNDP Human Development Report 2000, pp.23-24.
569 Lenzen, Roads Less Travelled, pp.80-81.; UNDP Human Development Report 2000, pp.23-24. 570 Sen, Development as Freedom, pp.10-11.
571 De Greiff, Transitional Justice and Development, p.418.; The World Bank (2011) World Development
A low level of income is often associated with low levels of protection of CPR, and vice versa.572
Similarly, individuals with greater capabilities (in terms of education, wealth, etc.) are more likely to protect their human rights which is often not the case for people in poverty.573 In fact, this
correlation is also evident at the institutional level because human rights have become an indicator of development.574 Human rights will not be fully ensured in a society which is rife with
socioeconomic inequalities and poverty; conversely, human development is not likely to be successful in a country where there is no accountability, transparency and rule of law.575
3.4.b. Transitional justice and development
Although transitional justice and development used to be disconnected, there is a growing attention towards the linkages between them recently.576 Before exploring whether and how
transitional justice and development should be linked, it must be noted that broader understandings of the two fields are going to be taken into consideration in this study. Since ESCR are closely related to development goals, broader understandings of transitional justice which seek to address ESCR abuses are more relevant to development.577 Likewise, broader
understandings of development are relevant to transitional justice rather than the conventional one which mainly focuses on economic growth. While transitional justice has common concerns with the former, it does not directly concern generating economic growth.578 Economic growth
is important for transitional states, but it is not directly related to transitional justice’s goals.
572 Alston and Robinson, The Challenges of Ensuring the Mutuality, pp.5-14.; UNDP Human Development
Report 2000, p.20.; ICTJ Briefing: Transitional Justice and Development, p.1.
573 Robinson, What Rights Can Add to Good Development, p.36.; The World Bank (2001) Annual Report
2001, No:25225 Volume 1, Washington, DC: World Bank, p.59.
574 McInerney-Lankford and Sano, Human Rights Indicators in Development, pp.51-82.
575 Buchanan and Zumbansen, Introduction: Approximating Law and Development, p.13.; Sen,
Development as Freedom, pp.15-16.; Rittich, K. (2004) The future of law and development: Second generation reforms and the incorporation of the social (Globalization, Law & Development Conference), Michigan Journal of International Law, Vol.26, No.1, pp.199-243.; Mani, Editorial Dilemmas of Expanding Transitional Justice, pp.260-261.
576 Mani, Editorial Dilemmas of Expanding Transitional Justice, pp.253-265.; De Greiff, Articulating the
Links, pp.28-75.; Colvin, Purity and Planning, pp.412-425.; De Greiff, P. and Duthie, R. (2009) Transitional Justice and Development: Making Connections, New York: Social Science Research Council.; Duthie, R. (2014) ‘Transitional Justice, Development, and Economic Violence’ in Sharp, D. (ed) Justice and Economic Violence in Transition, New York: Springer, pp.165-201.; Buckley-Zistel, Connecting Transitional Justice and Development, pp.1-13.; Colvin, Purity and Planning, p.412.