Economic and social rights and truth commissions

Abstract

This article asks whether economic and social rights (ESR) violations should be included in the thematic mandate of truth commissions (TC), and if so, how. Specifically, it analyses whether to investigate large-scale ESR violations would conform to the powers and functions that traditionally TC have had. This paper argues that TC can investigate large-scale ESR violations without involving themselves in policy determinations. To support this, it first stresses the content of TC’s power to investigate these violations. Second, it demonstrates that determining the content of the large majority of State duties arising from ESR is relatively easy as they are of immediate effect. Lastly, it emphasizes the finding of recent research on ESR adjudication that domestic and international courts and bodies have developed a variety of well-articulated legal techniques to adjudicate ESR violations. Based on a discussion of the various types of State duties arising from ESR, relevant experiences from judicial review on ESR and the Kenyan and East Timorese TC’s investigations of large-scale ESR violations, this study also sheds light on how TC whose mandate include large-scale ESR violations can investigate these abuses. This work also identifies capacity and other practical challenges arising from this type of investigation and proposes measures to address them.