Reparations Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Reparations are a long-standing legal, moral, and cultural concept that has, in recent years, attracted considerable attention from human rights advocates, political leaders, survivors of atrocities, and researchers.

Defining Reparations

Scholarship on reparations, or redress, has struggled to address widespread confusion and disagreement over the meaning of key terms of debate. Given the notoriety of the punitive extraction of monetary reparations from Germany under the Treaty of Versailles, the term reparations often is equated with forced financial compensation. However, under international law, as reflected in the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, reparations is an umbrella term covering five different types of redress: restitution, compensation, satisfaction, rehabilitation, and guarantees of nonrepetition of the offense. Restitution has traditionally been viewed as the preferred form of redress where attempts are made to restore the conditions that existed prior to a violation, such as by returning lost land or artifacts. Compensation entails monetary payment for material or moral injuries, and satisfaction attempts to redress moral injuries through a range of potential mechanisms, including truth commissions, public commemorations, and apologies. While rehabilitation involves delivering assistance, such as medical and social services, as a form of redress, guarantees of nonrepetition may entail institutional and legal reforms designed to prevent future violations.

In contrast to this legalistic approach, some scholars underscore the deep roots the idea of reparations has in different cultural traditions and ethical and religious frameworks. Some contend that the legal tools of remedy are “all different levels of acknowledgement . . . by perpetrators for the need to amend past injustices,” and define reparations as the “entire spectrum of attempts to rectify historical injustices.”’ (Barkan 2001, XVIII, XIX).

Legal Foundations

It is a basic maxim of law that harms should be redressed, and every legal system requires that this obligation be met in some form. The right to a remedy may be considered a secondary right that follows from a breach of primary rights, such as the right not to be tortured. The 1928 Permanent Court of International Justice Chorzów Factory decision established the basic remedial norms for violations of international law. The ruling stated that “reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed” (PCIJ 1928; Shelton 2002, 835).

International law has historically focused on reparations as a tool to remedy wrongs between states, a perspective reflected in the International Law Commission Articles on State Responsibility. Yet, depending on the actors involved and the relevant legal and political frameworks, reparations claims may be made by and against a range of actors, including individuals, ethnic or community groups, states, corporations, and international organizations.

Most contemporary reparations campaigns attempt to secure reparations for individuals, often in large groups, from states that have violated human rights. The individual’s right to redress under international law evolved out of the post–World War II (1939–1945) human rights regime and is reflected in agreements like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. However, respect for the individual’s right to redress has been limited by a lack of effective and accessible enforcement mechanisms at the international level and often at the domestic level.

The Modern Reparations Movement

Despite the absence in many cases of effective and accessible judicial mechanisms, various survivor groups have, in recent decades, met with notable success in generating public support for their reparations campaigns and creating pressure for politically mediated solutions to their claims. The negotiation of a compensation agreement in 1952 through which West Germany provided redress to both the state of Israel and individual Holocaust survivors often is identified as the first major example of a modern reparations process. However, the emergent reparations movement mostly stagnated until the 1990s when Holocaust survivors filed class action suits in U.S. courts against three leading Swiss banks for their complicity in the Holocaust. Although ultimately resolved out of court, this campaign prompted renewed interest in the rectification of historical injustices and propelled various complex reparation claims onto national and international political agendas, including the cases of Korean women sexually enslaved by the Japanese Imperial Army in World War II, Japanese Americans interned during World War II, and the abuse of indigenous peoples in Australia, Canada, New Zealand, and the United States. Long-standing debates on reparations for slavery were reignited in the United States, while South Africa struggled to come to terms with and redress the legacies of apartheid.

The past two decades also witnessed the development of new types of institutions intended to redress historical injustices, including truth and reconciliation commissions, internationally supported compensation commissions, and property restitution commissions designed to facilitate the return of real property to displaced persons. This period also saw the development of more community-oriented, collective approaches to redress. While reparations advocates and scholars initially focused predominantly on cases involving affluent Western democracies, the reparations movement has broadened to include a stronger focus on cases in the global South, solidifying the connection between reparations politics and transitional justice.

Theoretical Debates

Among other issues, theoretical debates on reparations have focused on the contention that “struggles over recognition are displacing struggles over redistribution” (James 2004, 884). Related scholarship probes the possibility that the reparations movement represents what Torpey (2006) calls a “juridification of politics” and an inevitably backward-looking perspective that detracts liberal attention from the pursuit of a more just society for the future.

Bibliography:

Barkan, Elazar. The Guilt of Nations: Restitution and Negotiating Historical Injustices. Washington, D.C.: Johns Hopkins University Press, 2001.
Bradley, Megan. “Redress and Refugees: Reflections on Some Recent Literature.” Journal of Refugee Studies 20, no. 4 (2007).
Crawford, James. The International Law Commission Articles on State Responsibility: Introduction,Text, and Commentaries. Cambridge: Cambridge University Press, 2002.
De Greiff, Pablo. “Repairing the Past: Compensation for Victims of Human Rights Violations.” In The Handbook of Reparations, edited by Pablo de Greiff, 1–18. Oxford: Oxford University Press, 2006.
Fraser, Nancy. “From Redistribution to Recognition? Dilemmas of Justice in a ‘Post-socialist’ Age.” New Left Review 212 (July/August 1995): 68–93.
James, Matt. “Recognition, Redistribution and Redress: The Case of the Chinese Head Tax.” Canadian Journal of Political Science 37: 4 (2004): 883–902.
Permanent Court of International Justice (PCIJ). “Case Concerning the Factory at Chorzów.” Judgment No. 13, 47.The Hague: Permanent Court of International Justice, 1928.
Roht-Arriaza, Naomi. “Reparations in the Aftermath of Repression and Mass Violence.” In My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, edited by Eric Stover and Harvey Weinstein, 121–140. Cambridge: Cambridge University Press, 2004.
Shelton, Dinah. Remedies in International Human Rights Law. Oxford: Oxford University Press, 2000.
“Righting Wrongs: Reparations in the Articles on State Responsibility.” American Journal of International Law 96, no. 4 (2002); 833–844.
Torpey, John. Making Whole What Has Been Smashed: On Reparations Politics. Cambridge, Mass.: Harvard University Press, 2006.
Zegveld, Liesbeth. “Remedies for Victims of Violations of International Humanitarian Law.” International Review of the Red Cross 85, no. 851 (2003): 497–528.

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